Why Private Drives and Trails Can Cause Real Estate Problems

by Isaac Benmergui, Esq on January 30, 2014

Let me rephrase: the private drives and trails we all know and love in neighborhoods aren’t the problem – it’s what we do with them that could potentially be a problem. With neighborhoods, it’s tricky at best – let’s say you have a particular trail going even slightly across someone else’s parcel of land. Is that allowed? Can you use that trail if part of the trail is actually on their land? Issues about boundaries, “permissive use,” and adverse possession become the lasting discussions of legal debate here, and this particular case is no exception.trail

Let’s take the case of Dault vs. Shaw, for example. Edward Shaw owned two lots of land with a trail crossing several other parcels, one parcel belonging to James Dault, a neighbor. Now that’s not so much a problem until Dault decided to build a shed right smack in the middle of that trail, preventing Shaw from using his beloved trail as he was always accustomed to doing.

Do you see the problem here? Did Dault have a right to build that shed on his own property? Did Shaw have a right to keep his trail outside of his own parcel? Discussion and debate ensues. We have the case reaching the lower court, stating that Shaw was allowed a prescriptive easement for the trail, forcing Dault to remove his shed. After appealing to the Supreme Court, though, the justices reversed that decision – for obvious reasons. Why?

Of course! Because there was a private driveway being constructed for Shaw to permissively use, thereby eliminating any need for the trail. Problem solved. Next case!

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