If a driveway has been in use for 80 years, can a new landowner prohibit landlocked families from using it?

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If a driveway has been in use for 80 years, can a new landowner prohibit landlocked families from using it?

This land that the driveway is on was originally owned by family. The family member that owned it has passed away and by the Will it was passed onto another family member. Now this new owner wants everyone that uses the driveway to stop. This will cause the 3 families now using itno option to get out onto the main road. Can someone just close down an existing 80+ year old driveway ?

Asked on July 21, 2011 West Virginia

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

The new owner will not be able to close down the driveway for the following reasons:  First, since your property and that of your neighbors is landlocked, you and your neighbors have an easement by necessity to enter and exit your/their property to get to the road.

Second, since the driveway has been used for 80 years, ownership of the driveway by adverse possession has been established.  Adverse possession requires continuous, hostile, open, notorious and actual use of in this case the driveway for the statutory period.  Adverse possession allows for tacking, which means more than one user adding the number of years they have used the driveway.  Continuous means continuous use.  Hostile means using the driveway in derogation of the true owner's rights.  Open and notorious means the owner had notice of the use of the driveway.  Actual means actual use of the driveway.  Adverse possession requires use of the driveway for the statutory period.  Since the driveway has been used by non-owners for 80 years, that would more than satisfy the required statutory period.   

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

The new landowner can close down access of the roadway to the peopke who have been using it for years with the result that he or she will end up being in a lawsuit.

From what you have described, there is an implied or a prescriptive easement which has been established by the property owners and the prior owners through the use of the roadway for 80 years or so for access to their property.

The families who use the road to get to their homes should band together against the new landowner by consulting with an attorney who does real estate law. Perhaps there is also a recorded easement in favor of the lands owned by the three other families that could be found at the county recorder's office to futher help their cause.


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