QLD Easement - Keeping Horses Off the Creek Banks?

[Jazzy77]

The neighbour concerned lives 2 properties down from ours, (we are on acreage) and he cuts through his next door neighbours who are located between the both of us (he has their consent to cut through their property).

The easement is a right of way access for our block and the property that is located behind us.

My neighbour claims that he contacted the DPI and that he by them, that I was not allowed to stop him using my land and my creek bank access so he can move his "cattle" across my creek. And that because it was an easement he basically had free reign.

I don't really believe him though however, I think his primary reason is so his daughter and her friend can cross there, and the father can cross on occasions.

The trouble is horse hooves on wet creek banks often cause erosion (especially during the wet) and they won't be the ones having to try and repair the damage.

 

[Rod]

I'd be telling him he is responsible for all damage done to your property.

A right of way doesn't allow someone to damage property with impunity and not be responsible for the damage they cause. Best put it in writing and send to him, and take date/time stamped photos now before damage (or more damage) is done in case you need evidence later.

 

[Jazzy77]

The main damage that is being done is to the creek banks. You always get when you confront them, "well you don't own the creek or the creek banks...." The creek itself yes, nobody own the creek banks are private property after the high watermark.

With a right of way easement can this person claim that he has rights to be there as he has permission from the other owner of the easement? (he doesn't to my knowledge, and i am assuming that it will come up...) The easement burdens my land and he no longer has my permission to use my land. I have fenced the area and his wife was verbally told that she was trespassing when she came to "inspect" the fence.

Police were also notified.

 

[Tripe]

Can you clarify the easement a little more?

Maybe a drawing?

from my understanding, the first neighbor has the easement over your land and the second neighbour has no easement ? But is using this easement?


If this is the case, the second neighbor cannot use the easement, the easement is only for the enjoyment of the first property.

 

[Rod]

Hmm, I'm not as confident as Tripe about use of the easement if the benefitted land owner has given permission to the other owner. No different to a battleaxe scenario where visitors use the right of way easement to visit the benefited owner.

Suspect being a farming/acreage scenario,rights will depend on the terms of the easement. Is there anything written about the terms attached to the easement?

Re: Erosion. If the banks collapse because of their damage, they become liable.

 

[Jazzy77]

The easement is a right of way easement only and is only for the benefit of myself and the other neighbour behind me, (not the one with the horses).

I did contact DRNM and they basically stated that only myself and the neighbour behind me has any rights to use the easement,

It is a battle axe type situation with the easement, the neighbour with the horses lives about 360mtrs up the road from my property.

Our properties are zoned as rural residential, not rural so therefore he would only be allowed to have a certain amount of cattle anyway, and i have never seen any that have been driven down that way.

My driveway/creek bank has basically become the local crossing spot for the Pony club! there is (was) at least 10 different horses going through there.

Is there any clauses where people can not transverse livestock across creek banks within so many meters of a structure? I know with fossicking you are not allowed to dig within 10 mtrs of any structure? as we have a bridge within 5 mtrs of where they are taking their horses.

 

[Clancy]

Some of these laws involving livestock go back hundreds of years, they generally lean towards protecting/allowing access rather than denying it... But regardless of that, this why easements in general are a serious thing to take into consideration when you buy a property in the first place.

 

[Tripe]

The horse owning neighbour has zero right to use your private land, when travelling from his property to the creek, even if the first neighbour gives him permission. He is Trespassing

A right of carriage easement only benefits your first neighbours land and by nature the owners of the first neighbours land. As the second neighbour does not have any ownership in the first neighbours land he cant benefit form the easement to access the creek.

The first neighbour has the right to use your land (easement) for the purpose of either exiting their property or entering their property.


The best way to think about this is to start at the creek, if the 2nd neighbour is at the creek with his horses, he does not own the easement, the first neighbour does, the easement can only be used to access the first neighbours property only. The second property can not be accessed using the easement.

An Easement can not be used for the purpose of accessing land, other than the benefitting land, the second property can not be accessed

There is well known case law that you should Google, Westfields right of carriage easments.

 

[Rob Legat - SBPL]

Try contacting the Department of Agriculture and Fisheries. There are laws about moving cattle across land and they may be able to in the right direction.

 

[Jazzy77]

Thanks for the information you guys.

The only reason why we put up with it in the first place was because he used threats and intimidation ( he has a very short fuse and he has already raised fists to me once, and that was the first time i met him!) anyway it was supposedly only going to be him going through there once a month if we were lucky.

He also stated that he would plant plants down there to help tackle erosion and he would maintain it...... well he put some plants in, most got washed away in the first flood and since then, nothing. But since the beginning there are more and more horses that are going thru there ( i counted at least 6 different times over the school holidays (and we also went away for a while so there was probably more.) We also have a bridge to consider which is only 5 mtrs away from the track they are using.

*edit* Oh, and the moving cattle issue would be just a ruse and in the now nearly 12 months, not one single cow has been moved off from his property and down via the creek,it is only his excuse so he can use the area for "pleasure rides"