Locals Fishing Hole, Gate off my property?

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Latest post Thu, May 14 2015 7:33 AM by Drew. 22 replies.
  • Fri, Apr 10 2015 6:13 AM

    • dalepa
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    Locals Fishing Hole, Gate off my property?

    I recently purchased waterfront property point that is adjacent to the county park.   Over the years people have been driving on the property to access my point to mainly go fishing, kayaking, etc...   See my avatar for the property layout...  So basically my land has been used over the years as a local fishing spot and still attracts 20+ people a week with some people even camping and partying all night on the point.

    This is a rual community with no land use restrictions.

    Im considering putting up a gate.

     

    I was wonder if I don't put up a gate or private property signs, am I liable for anything that happens on my property?

     

    I actually want to put up a gate or some other way to stop all the traffic, but at the same time I don't want to upset the locals.

     

    So im looking for good reasons to put up a gate, and it would be an easer decision if I could say "my lawyer told me too"

     

  • Fri, Apr 10 2015 6:41 AM In reply to

    • Drew
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    Re: Locals Fishing Hole, Gate off my property?

    Ouch...you very well could be liable,for,any injuries suffered by folks at the fishing hole ..

    You need to take steps to,preserve control of your property lest you lose right to limit access...10 years can get you into hot water as to a prescriptive easement for the general public to go thru.

    Smart folks often close off a path for say 24 hours every X years ( depending on state) just to prevent the time clock from running to Y years , and to restart the clock at zero. 

    Use by permission avoids a clock issue in most cases 

    No trespassing signs make sense ...but you need to prevent the 10 year door in any event . 

    Given there might be some local backlash you might be smart to sequence your steps with local counsel so as to break any continunitty low key first. 

    Some regard the access to fishing hole as a God given right.....use some legal smarts to close it down or require permission .

     



  • Fri, Apr 10 2015 6:59 AM In reply to

    • Drew
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    Re: Locals Fishing Hole, Gate off my property?

    It's a technical long shot ....but read the warranty in your deed ..with counsel ....you sort of want the seller on your side IF things turn nasty....Example ..if he says/ he allowed broad use by permission that is a killer to a prescriptive easement view ..if he says they did it wo his permission, he tried to stop it but never did, OUCH if it's been going on for 10+ years  The reason his /her fanny  might be in fire might be what the deed says is to be delivered...and of prior owner allowed an undisclosed easement to exist he or she might be in fire to cure it ..depending on the warranty of title .   At least in some states.......the history of Texas suggests your land laws could vary a lot from those comming out of English land law. 

    Prior Use by permission or interrupted use is probably in your favor as to your options 

    Get some legal input before,take the lid off this one....



  • Fri, Apr 10 2015 7:50 AM In reply to

    • DPH
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    Re: Locals Fishing Hole, Gate off my property?

    dalepa:
    I actually want to put up a gate or some other way to stop all the traffic, but at the same time I don't want to upset the locals.

    You know already that this is going to upset the locals.  Make an appointment with a local RE attorney to discuss the best options available to you.  Somewhere in that conversation you need to find out if there would be any good reason to approach county government regarding access through the park to the fishing hole.  Is the waterfront access on park property or not?

    dalepa:
    So im looking for good reasons to put up a gate, and it would be an easer decision if I could say "my lawyer told me too"

    You property so you don't really need any reason beyond the fact that you don't want people on your property.

    dalepa:
    Im considering putting up a gate.

    Is the property already fenced to the waterline on all sides?  Partial fence?  No fence?  Do people walk in?  Drive in?  Boat in?

     

     

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • Fri, Apr 10 2015 9:49 AM In reply to

    Re: Locals Fishing Hole, Gate off my property?

    dalepa:
    I was wonder if I don't put up a gate or private property signs, am I liable for anything that happens on my property?

    It's possible, but the victim of an accident on your property would have to prove it was something wrong with your property that caused his or her injury.  Still, the risk of a lawsuit is an issue even if the plaintiff ends up losing.

    dalepa:
    I actually want to put up a gate or some other way to stop all the traffic, but at the same time I don't want to upset the locals.

    You could try asking the county park service to fence off the park property, or put up a sign at the property boundary telling people the beach "beyond this sign" is private property and please stay in the park.  Maybe they are willing to do this as a good neighbor kind of thing - it certainly doesn't hurt to ask.

    If that doesn't work, then you'll have to bite the bullet and decide which is more important to you, keeping people off your land or keeping everyone happy with you.  Be aware that if you do not live on the property and only visit it occasionally, some people might continue to use the land even if you fence it, either by going around (wading, boating) or by damaging your fence.

     

  • Mon, Apr 13 2015 3:54 AM In reply to

    • dalepa
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    Re: Locals Fishing Hole, Gate off my property?

     

    I purchased the property 6 months ago, and no prescriptive easement was mention anywhere in the deed papers...  The deed clearly marks in the metes and bounds that I own the property including the 500ft dirt road that was leading to the fishing point and the land up to the waterfront.

    If a prescriptive easement was given by previous owners, would it be recorded anywhere?

     

    I put up a pipe gate across the road last weekend, however I left the gate open, and did not place any signs on the gate.

    Should I place "no trespassing" or "park road ends here " signs on the gate?

    Here's a google map of the property where you can see that the county maintence stops if you view the satellite view

    http://goo.gl/maps/3mfIU

  • Mon, Apr 13 2015 5:45 AM In reply to

    • DPH
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    Re: Locals Fishing Hole, Gate off my property?

    dalepa:
    I own the property including the 500ft dirt road that was leading to the fishing point and the land up to the waterfront.

    Is your property to the "left" of the boat ramp in the picture (looks like a silver pickup is parked there) or someplace else?  If not that spot, where in relation to the boat launch are you located?

     

     

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • Mon, Apr 13 2015 6:00 AM In reply to

    • dalepa
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    Re: Locals Fishing Hole, Gate off my property?

    Yes, left of the boat ramp.  my property starts at the boat ramp and goes left/west to the water. Also from the boat ramp north alone the grass line. Basically the whole west part of point including the south and west shore up to the ramp.

    The unpaved road along the south short is mine up to where the county picks up at the boat ramp.  I put in the pole gate just left past the boat ramp.


  • Mon, Apr 13 2015 7:25 AM In reply to

    • DPH
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    Re: Locals Fishing Hole, Gate off my property?

    That's what I figured.  Personally I would not have any problem gating off access and putting up proper signage.  I would not worry about public opinion.  That said, I would make an appointment with a local RE attorney to discuss the "history" of this location and see if that person could provide any insight as to any challenges if people rsist your efforts to restrict access.  You might find your selfself having to post no tresapassing signs prominently along the shoreline with the hope that people will respect same.

    I have been to Port Lavaca and used to know people that lived there (long gone) and you are right to be concerned about local reaction.  I would seriously doubt that any reaction would rise to the level of a lawsuit, but if the fishing s really good, you just never know.  I would be prepared for people to ignore your gate and signs unless you are willing to enforce it vigorously.

     

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • Mon, Apr 13 2015 7:50 AM In reply to

    • Drew
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    Re: Locals Fishing Hole, Gate off my property?

    Suggestion:

    It is quite unlikely that the conditions for a prescriptive easement would  be written in a deed ......IF the prior owner tolerated W/O permission or clear interruption for more than a decade of public use of this short cut you may have some issues that the conditions are ripe for others who have used that short cut for decades can claim a prescriptive easement.

     I am a fan of a clear physical  interruption of the short cut for say at least few days and a clear photo and written record of same....and a big enough barrier so folds do not bypass it....or you sit there a few days 24/7 to make sure .   Hey., a written permission slip also defeats the time line as to prescriptive easements...just be a little,cute as to how you hand them out ..and keep records.

    With some smarts low key you can probably ward off the ripening of conditions that prefect a prescriptive easement ...after all it costs somebody with a good fact pattern some amount of money to take all the steps to get an award of such an easement ......I'd do it with input from counsel , LOW key, and SOON.

    Personally I'd get it closed off first then talk with others , if at all. 

    I have hunting lands and waterfront lands..if you don't pay attention you stand to lose controll.

    If kids use your path and something goes wrong you know darn well folks will chase your pocket .perhaps under some attractive nuisance theory .



  • Mon, Apr 13 2015 10:30 AM In reply to

    Re: Locals Fishing Hole, Gate off my property?

    dalepa:
    If a prescriptive easement was given by previous owners, would it be recorded anywhere?

    No, a prescriptive easement is similar to adverse possession, only instead of the non-owner user gaining full ownership of property through long-term use, they gain an easement for continued use (I believe they can make it official by filing a quiet-title legal action).

    You have two choices if you want to make sure nobody can win a prescriptive easement:  (1) clearly giving permission for the use of your land while reserving the right to withdraw your permission in future, or (2) successfully keeping people out.  Fencing off the property, posting signs, etc. will do no good if people keep using your property anyway.

    Whichever you choose, it may be too late if you don't do it within 10 years of when this public use of your property began.

    When you bought this property, did you buy title insurance and was it a "Standard" ALTA title policy (bad) or a "Homeowner's" or "Extended" policy (good)?  Did you get a copy of the title report while you were in contract, and is this public use of the property listed in the exclusions?

    If and when anyone files in court to have a prescriptive easement recognized, that will be a reason to put in a claim against your title insurance if it's covered;  otherwise you'll have to hire a lawyer to fight it.  Hopefully nobody will know to do this, or care enough.

  • Tue, Apr 14 2015 7:16 AM In reply to

    • Drew
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    Re: Locals Fishing Hole, Gate off my property?

    There are quirks to various state laws and case law...apparently in TX a public prescriptive easement does not arise if the use is (1) solely for pleasure or recreation purposes or (2) shared with the actual owner who uses it also .

    But you'd be smarter to do own legal homework and use TX resources to be sure you are " safe" 

    TX has some acts and issues as to public beach access ..which might muddy some views  of the issues .



  • Fri, May 1 2015 3:19 PM In reply to

    • dalepa
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    Re: Locals Fishing Hole, Gate off my property?

    I decided to put a barrior gate across the dirt road blocking access to the "fishing hole" a few weeks ago, and left if open.     This weekend i decided to lock the gate for at least the weekend and prompted yet another visit from the county commissioner which "he says" the county has a prescriptive easement since they grate the dirt road every now and then. He even got a little heated in your tone saying he was just going to go cut my lock off the gate..

    So the battle begins...

    So do I need a lawyer to straightnet this out?  Im not even sure on where to start looking for a property lawyer.  Suggestions?

     

    Can a county hold a prescriptive agreement, or just individuals?

     

     

    Should I open the gate, or keep it closed until the matter is resolved?

     

     

     

     

     

     

  • Fri, May 1 2015 4:26 PM In reply to

    Re: Locals Fishing Hole, Gate off my property?

    dalepa:
    Can a county hold a prescriptive agreement, or just individuals?

    It's a prescriptive easement and yes it can according to the TX AG.  See https://www.texasattorneygeneral.gov/opinions/opinions/49cornyn/op/2002/htm/jc0503.htm  I'd suggest you leave that gate open until you've run this thoroughly past an attorney.   You should weigh the overall costs before making a decision...

  • Fri, May 1 2015 6:44 PM In reply to

    Re: Locals Fishing Hole, Gate off my property?

    dalepa:
    and prompted yet another visit from the county commissioner which "he says" the county has a prescriptive easement

    Did I miss something, or is this the first mention you have made of any visits from a county commissioner?  Never mind, I don't need to know.

    dalepa:
    So do I need a lawyer to straightnet this out?

    I would say yes, unless you can get your title insurance company to do that for you, or you decide not to fight the county on this.

    dalepa:
    Should I open the gate, or keep it closed until the matter is resolved?

    I suggest asking your lawyer this question.  Until you have a lawyer (whether hired by you or provided by your title insurer), I recommend leaving it open unless you want your lock to be cut and your county commissioner to be angry with you.

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