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Private road and right of way? West Virginia

On Lawyer & Legal » Real Estate & Property Law

3,003 words with 1 Comments; publish: Thu, 20 Sep 2007 16:16:00 GMT; (80078.13, « »)

I have questions regarding a private road with right of way to 2 other properties.

Here is the history:

Properties A, B, and C were originally all one property. Around 1965, prop B was split off and willed to current prop B owner. You can see there is a road (labeled road) running through property A. This entire road is on prop A. Nowhere in any deed as far back as can be found in records at the courthouse, even back to the original handwritten deed, is a right of way given to prop owner B. They do have access through another road but have always used this road. Looking at the land survey done back in 1965, the road is labeled "Private Road" and is on prop A. My boyfriend bought the property (combined A & C) about 15 years ago. Still, no right of way to prop owner B on his deed or permission for anyone to use the private road. Last year, he sold 10 acres (prop C) with a right of way via the private road. Now, he has no problem with anyone using that road. He pays for the upkeep, i.e. grading, gravel, brush trimmed, etc. This is not a subdivision by the way and there is no homeowners association or anything like that. No one pays dues to anyone.

Here are my questions:

1. Who has the legal right to name the private road?

2. Is it considered a private road given the information above?

3. Can prop owner A be sued for damage to the road? I do not mean in the

context of huge potholes and someone's vehicle is being damaged.

The road is perfect and well kept at prop owner A expense.

4. Can prop owner B or C make changes to the road without prop owner A

permission? i.e. cut down trees, bring a double wide down that road, dig

trenches or culverts to divert water onto prop A.

If anyone could help answer any of these questions, that would be great or give me some case law or where I can find the laws that will help me answer these questions.

Thank you so much in advance.


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    • Okay, I have done a little more homework and lots of reading of what case law I could find. It seems that the situation here is that prop A owner is the servient estate and prop C has deeded right of way and prop B has a prescripted right of way since prop B has been using the road over ten years and prop A was aware of this when he bought the property which is not a problem. I could not find any case law in the West WV Supreme Court files with this particular situation in which someone has tried to sue the servient estate for improving their own road. The only reference I have been able to find so far is actually from a North Carolina case which states "The general rule in North Carolina is that the owner of a servient estate has no duty to maintain or repair an easement for the benefit of the dominant tenant in the absence of an agreement requiring it." This is exactly what I am trying to find for West Virginia so if anyone can help, it would be much appreciated.
      #1; Thu, 20 Sep 2007 20:32:00 GMT