While most of us are not attorneys I have noticed we all seem to frequently lend our opinions concerning survey legal issues.?ÿ I have a project that slowly approaching a litigious impasse and wondered what other surveyors thought; here goes.
In 1964?ÿ?ÿan easement for a transmission line was granted to Power Company "A" adjacent to a section line.?ÿ The easement is outside of and additional to the statutory public R/W.?ÿ "A" constructed the 250 kV line and maintained use continuously since that date.?ÿ
This line is within the service area of Power Company "B".?ÿ In 1972?ÿ "B" attached a 14.5 kV distribution line through an agreement with "A" to serve subscribers within their area.?ÿ This is commonly called an "under-build" or "under-carry" around here.?ÿ The 1972 agreement between the two providers mainly concerns maintenance, accounting, clearance?ÿand the technical aspect of carrying separate circuits on a point-use pole.?ÿ "B" has maintained the under-carry continuously since that time.
At least two property owners are now wanting "B" to either remove their facilities or (more likely) purchase rights since the original grant was only to "A".?ÿ
"B's" attorney is somewhat inexperienced in certain cases and draws from conversations he and I have regularly.?ÿ We decided the issue probably centers around whether or not?ÿ?ÿa term in the original grant allowing "A" to convey rights to "heirs and assigns" actually includes allowing joint-use rights.?ÿ By?ÿcommon definition?ÿI believe "heirs and assigns" is generally used when the entire rights are transferred.?ÿ
Our attorney did find several cases where a pipeline company "rented" their buried facility and allowed others to transfer oil and gas through their facility.?ÿ The courts have upheld their right to do so.
So my question would be:?ÿ Does the dominant estate (owner of easement rights) have the right to "assign" multiple use of a granted easement?
If the creating document allows the additional use they may be OK. If not then use was expanded beyond the rights granted. The second test is the definition of 'assigns' or language allowing use by other carriers. If it fails on either point A and B need to get out the checkbook and make nice..
My .02, Tom
How is the original easement document worded?
Yes....There needs to be specific language in the original easement document that grants power company A the rights to allow a different entity the use of that corridor. ?ÿIf there is no such language expressing that right then the only person/persons who have the authority to grant the use of that corridor to another entity (company B) are in fact the property owners of the parcels in question. ?ÿThat is my understanding of the situation.?ÿ
The 1964 easement allows company A to provide...a utility?, through the use of this easement. In 1972, company A is providing that same utility; just through company B. If company B wasn't involved, would there still be a question?
Company B has been providing this utility for 46 years through this easement and NOW the servient land owner wants some kind of compensation?
As others have said; I think the courts have favored the dominate estate in these types of cases. I think your chances of winning in court are good. The question is; is it worth it?
?ÿ
Dougie
I'm not a Lawyer but I play one on RPLS Today dot com.
Have the Lawyer look up practical construction.
The language of the Deed is reasonably susceptible to installing company B's wires, and as Doug points out, no one has complained since 1972. I think any reasonable Judge will punt this right out of the courtroom.
The language of the Deed is reasonably susceptible to installing company B's wires, and as Doug points out, no one has complained since 1972. I think any reasonable Judge will punt this right out of the courtroom.
Lower Court Decision Equation:
0.10 facts + 0.40 attorneys arguments + 0.50 Judge's whims = 1 Decision
I could see this turning on whether the court sees a right acquired for transmission equipment being used for local distribution infastructure as an expansion of the use.?ÿ If I was?ÿhunting for a way?ÿto make the property owners case I'd be looking at the frequency of maintenance/repair for the second line?ÿto see if it has increased the burden on them (especially as B's facilities age)
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Many decades ago a similar problem arose when telegraph lines were run on railroad right-of-way. ?ÿThey quite clearly did not appear to be train-related. ?ÿThey did represent "transportation", though. ?ÿThe telegraph lines remained.
Company B needs to hire a better Attorney.?ÿ
I doubt the analysis would be found in private easement rules.?ÿ If so, you would have to prove that either distribution lines are normally contemplated to be included in a transmission corridor (so prevalent it's not necessary to actually mention it in the document) and so a right that could be assigned; or you would have to prove that distribution lines are appurtenant to transmission lines (seems unlikely).?ÿ
But most States have statutes addressing distribution line easements. If you searching for cases or statutes try key words easement by tariff.
In the description why is the "Southwest quarter" clarified? by "(SE 1/4)"? Does it mean the SE 1/4 of the SW 1/4? It's not congruent with the remainder of the verbiage in the description.
Am I missing something here?
Since the secondary usage by B seems to be a normal business practice - in other words, allowing B to use the facility is a common, everyday use that A would put their easement to, as C would D, and E would F, etc.?ÿ - I'd expect that the usage would be allowed.?ÿ ?ÿ
Unless something about B's use has recently changed to significantly increase the burden on the servient estates, after 46 years of continuous and open use, the complaint has no merit.
Had the owners of the servient estates complained when or shortly after the agreement between A & B was made, they probably would have had a good case for some marginal additional compensation for the easements.
The case mentioned regarding the pipelines is different, if I understand the facts correctly, in that the transmission of a 3rd party company's product was through an existing line owned by the company holding the easement.?ÿ That would put no discernible additional burden on the underlying fee estates.?ÿ Had the pipeline company holding the easements allowed the 3rd party company to install a second pipeline within the easement, that would have presented additional burden and been more directly comparable to this situation where company B added distribution lines to the poles for A's transmission lines.
Adding a line to an existing pole line may not add much additional burden to the underlying fee estates in terms of area used, but will increase the physical burden on the poles themselves, potentially causing a measurable increase in needed maintenance due to the 2nd line.?ÿ Distribution lines, because of the many distribution connections, voltage reducers, transformers, etc. that are necessary appurtenances to a distribution line, would have undoubtedly added to the maintenance burden.
So had the complaint been timely, probably would have had merit.?ÿ After nearly a half century of being in place, not so much.
Where do I send the pretend bill for my pretend fee for my pretend legal advice.?ÿ I'll put the proceeds toward the fund for my new (pretend) armchair.
In the description why is the "Southwest quarter" clarified? by "(SE 1/4)"? Does it mean the SE 1/4 of the SW 1/4? It's not congruent with the remainder of the verbiage in the description.
Am I missing something here?
Not at all.?ÿ The original grant lies in the SW/4?ÿand the legal description is screwed up.?ÿ SOP here in Okie-Homie...
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...Where do I send the pretend bill for my pretend fee for my pretend legal advice.?ÿ I'll put the proceeds toward the fund for my new (pretend) armchair.
I'll get you a pretend address... ??ÿ
I've seen a case in continuing ed where a railroad only had an easement. Telegraph lines had existed along their tracks.?ÿ The railroad allowed a telcom company to lay fiber inside their easement.?ÿ Owners of the underlying fee fought them and won.?ÿ Similar but different and I don't believe much time elapsed before the fee owners raised their objections to the use.
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...Where do I send the pretend bill for my pretend fee for my pretend legal advice.?ÿ I'll put the proceeds toward the fund for my new (pretend) armchair.
I'll get you a pretend address... ??ÿ
Edvard Munch, Esq.
Rainbow, Butts & Munch, PA
1056 International Drive
Bowlegs, Oklahoma
Many decades ago a similar problem arose when telegraph lines were run on railroad right-of-way. ?ÿThey quite clearly did not appear to be train-related. ?ÿThey did represent "transportation", though. ?ÿThe telegraph lines remained.
In 1949 the U.S. Supreme Court ruled that private communication lines in the R.R. easement?ÿwere illegal, as they were not "railroad" related. If I remember correctly it was the second time they ruled the same way.
"What would you like the answer to be?"
-Waldorf T. Flywheel, Esq.