(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)
In an easement case, I was representing a family. They had a family cabin in the mountains since the1900’s, and in the sixties, they had lost a portion of their historic family farm. They lost three-quarters of their property to the bank. Their house was on the quarter piece they had retained. It is a wonderful piece of property, because it is surrounded by a national forest. They were on an island surrounded by national forests, and the three-quarters part of the property was in front, so they retained a quarter on the back of the property. They had lived in harmony with their neighbors for a long time.
There was a forest service road that went to the front of the property, and as soon as they got into the property, there was a road. The road forked to two houses. One was their house. About six years ago, a man had bought the three-quarters property. He lived in sufficient harmony with them until about three years ago when he got married. His new bride decided that she did not like her neighbors driving up and down their road, and in an effort to make his new bride happy, the man put a gate across it, and said stay out. Our clients said, “How do we get to our house?”, and the man said “that’s not my problem”. Therefore, most real estate cases will begin with a complaint being drafted, which, in this case, I drafted the complaint.
In the end, we went to mediation, and we limited the easement a bit, but we pretty much got them exactly what my clients wanted, and we were able to resolve some water rights issues quite favorably for my clients as well. I do not think the other attorney understood water rights law, and the law of appurtenance. Water passes through appurtenance if the deed is silent.
The three-quarters property in this case was entitled to three quarters majority of the water, we were entitled only to a quarter, but through mediation, and because the other attorney did not understand what he was doing, I was able to get them half of the water and the easement. We actually came out a lot better in the mediation than we would have if we had gone to trial.
I had a boundary by acquiescence case, there was a town in Utah in 1980’s which had a big flood. A mud slide came and created a lake, so the entire town was under about one-hundred feet of water. It was the first national disaster where we had a lot of news footage about the area, and I was able to go through some news footage and all kinds of things. It was under water for quite a few months. Anyway, all the geological survey monuments (“monuments”) in the area had been buried by the mud when the lake was created. So all the monuments were off, but in recent years, the county had been doing dredge work, and they found some of the old monuments. They had calculated where the old monuments probably were and they had found most of the monuments.
The calculated monuments were off a few feet while the deeds prior to 1980’s were based on real monuments. None of the boundaries matched, there were overlaps, and some lots did not even exist. The United States Geological Survey has incredible records on monuments. Every monument placed, you can go back, and find the journal in which it was placed, and they will tell you, “…walked 150 feet, were unable to set a monument because of a cliff. Set monument 5 feet to the right by big pine tree.” Sometimes they are vague like where they say the big pine tree was, and you go there and there is not a pine tree for a hundred miles, but it was incredible to get back into some of those old geological journals, and figure out where the monuments were supposed to be set.
In addition, the railroad line had been disbanded, and that changed everything, because many of the calls on the deeds were for the railroad right of way, and the railroad right of way was now gone. The railroad monument was gone, the actual section monuments were gone, buried underwater, or had been recently found, and ripped off. There were all kinds of problems. I felt confident in my position, and I would have been able to win, but my client actually bought the quarter section next to the property we were fighting over. If I had won the lawsuit, it would have moved the property over to his new quarter section. Therefore, he would have the whole lot put onto his quarter section.
We ended up resolving it. The client took half of the lot. They split it right down the middle, and left it where it was, and my client took half of it, so his quarter section remained free. We ended up doing an informal mediation on that one, and did not go to trial. That one would have been fun to go to trial. There were just so many historical documents.
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