Is the easement for your driveway written or described in a document or deed? If not, how long have you and your predecessors-in-title (previous owners) used the driveway? Has it changed in condition since you first began using it?
If your neighbor is violating an express easement (written in a deed or document), you can take legal action against him to force the removal of the fence.
If the easement is not written, and you and the previous owners have used the driveway for a certain period of time (usually 20 years), then you can make a claim for a prescriptive easement and you can file an action to get a court to declare your rights to the easement.
DISCLAIMER: Brandy A. Peeples is licensed to practice law in the State of Maryland. This answer is being provided for informational purposes only and the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship. For legal advice relating to your specific situation, I strongly urge you to consult with an attorney in your area.
I agree with the previous answer except that the time for adverse possession is ten years in Washington.
Only If and until you and I sign an Agreement for Legal Services, I am not your attorney. These answers are provided for informational and/or novelty purposes
Based upon your question, it appears that you currently have what is referred to as an "express easement" (i.e., there is an access easement that is recorded on title that burdens your neighbor’s property for the benefit of your property). Your rights in this situation may initially depend upon the terms of the express easement itself. A particularly common problem with access easements is that they fail to adequately describe the area burdened by easement. You will need to determine if the express easement provides a precise location and width, preferably in the form of a legal description. If the location of the express easement is adequately described, then it is possible, based upon the limited facts that you have provided, that you may have exceeded the scope of your express easement. This conditional conclusion is premised upon the assumption that when you state that the neighbor obtained a survey, and that some of the asphalt was on his property, that you mean that some of the asphalt was located outside of the area burdened by the easement. However, there are legal doctrines that may apply that might allow you to continue to use the existing pavement, including the doctrine of prescriptive rights, among others.
In Washington State, for example, an individual may obtain an easement by prescription in much the same way that an adverse possessor obtains title to adjoining property. In particular, an easement by prescription can be established over the property of another if the use of the property has been 1) actual over a uniform route, 2) open and notorious, 3) hostile, 4) continuous, and 5) exclusive for a period of 10 years. As a result of the doctrine of "tacking," this 10-year period can include both your use and that of your predecessor in interest. Also, some of these elements may operate very different in practice than their terms imply. For example, the term “hostile” typically means nothing more than possession without the permission of the title owner.
The application of these elements is very fact specific and will depend upon your particular circumstances. For these reasons, I suggest that you speak to an attorney regarding this matter. He or she will want to know more regarding how long the asphalt has been there, your use of that asphalt, and whether permission was obtained from the neighbor to lay the asphalt, among other potentially critical facts. Moreover, in addition to the doctrines of prescriptive rights and/or adverse possession, the attorney may be able to determine if other legal doctrines might apply that could also be the basis for allowing you to continue to use the asphalt. Finally, the attorney could advise you regarding the practical and legal consequences of your actions moving forward, even if you elect not to pursue the matter in court.
This answer is provided for informational purposes only and should not be relied upon or construed as legal advice or legal opinion. The answer is based upon limited facts and general principles of law, both of which are subject to change and, therefore, may materially affect any answer given. You should contact an attorney to obtain advice with respect to your particular issue or problem. This answer does not create an attorney-client relationship, nor does it create any kind of legal relationship, duty, or privilege. This attorney is licensed only in the State of Washington.