Legal Question in Real Estate Law in Montana

Re: easements

Some things need to be sorted out before I can give a complete answer. The previous owner can reserve an easement when they sell, but they have to be living on one of the tracts at the time. Easements "run with the land," which means that they are attached to the land, not the owner. So, if the previous owner lived on one of the tracts and then sold the land to your current neighbors, it is still in effect.

If the easement does not give access to lot C, then lot C does not have a right to use it. The only way that lot C could gain the right to use it is through prescriptive easement. This means that they must use the easement for 5 consecutive years without your permission. If you put up a fence and lock them out, they are out of luck.

The use of the easement depends on two things: the easement language and historical use. The easement is only supposed to be used according to the terms laid out in the documents itself. If it has been historically used in a different manner, then this establishes the use. When I mean historical, there has to be a history of use. It appears that this road has not been in use for very long.

You are correct in stating that an easement is the right to use the land. Your gates may interfere with the use as contemplated, but the people are still allowed to use it. In these situations, there are no hard and fast rules. You could argue that the use is still allowed while your neighbors could argue that their use, as contemplated, has been restricted. That's a question for the judge or jury to decide.

The other issue is your duty to fence in your cattle or fence out other livestock. This would have a big effect on the analysis of whether it is o.k. to place fences up.

In either event, your neighbors' destruction of your property is not lawful. The proper procedure is to petition the court to define the easement. I would report the vandalism.