The best way build and understanding of something is to work with it for a long while. Being involved in an access dispute for the last three years has been an eye opener.
That doesn’t make me an attorney, but here’s the way it looks to my unprofessional eye.
Until the gate on one of our access routes was locked, we believed we had a right of access. However, there’s a big difference between believing in access rights and documenting them.
When we realized that the owner of the property under our access road disputed our rights, we learned that their reasoning was that they had given us permission to pass and by doing so they had eliminated any rights we had to an easement by use.
Our response to their claim was that previous owners of our property (in easement terms called the dominant tenement), had established access rights five years before the current owners of the property providing the access had purchased the property (in easement terms called the servient tenement) beneath our right-of-way easement. Therefore the current owners could not have given us permission until well after our easement was established. As with most disputes, we will negotiate an agreement somewhere in the middle ground, but we will have documented access rights.
The lesson is that you may not want permission to use a road. Permission can get you in trouble, because it is revocable. And, if somebody uses a road across your property, one of the simplest solutions may be to give them qualified permission. If they accept your offer of permission, they have severely damaged any case they may have for a legal right.
Access is one of the most critical issues related to ranch ownership and the laws are complex. Get sound advise from a good attorney.