Actually a Texas based question in general and could and probably affect nation wide.
When a utility company places a new service along and across county roads, is it necessary to obtain an easement from the land owner that the road is on and the service is being located?
The local area water company is operating on the thought that they can get a blanket easement from the county commissioner's court and not from every land owner.
I see granting an easement as a power that nobody has except the land owner or perhaps a district court judge in a condemnation suit.
Either way, consideration is met between land owner and service company to place their line. An easement declaring terms and responsibilities of the service company for maintaining and repairs and damages caused by, etc and so on.... will be made and signed and put of record.
I guess the biggest question I have is, are the roads owned in fee or just a road by prescription that the county has added to it's road maintenance? If it's the former, then the utility company is okay, if it's the latter, then I think you're right.
Still, I think the easement from the county is necessary as well as they would be using their right-of-way, regardless of the status of the road, but may need other easements as well.
Even if they chose the condemnation route, fair market value must be paid for the use and enjoyment of the easement. This is what I can't understand about all of these cities requiring people to dedicate extra land for a building permit because the road presently doesn't meet the "master plan" for the city. Hence the court case I posted the other day saying specifically that municipalities and counties couldn't require it without just compensation. Stupid planners.
In Maine they don't have to get an easement in your scenario to the best of my knowledge. I would be willing to bet there was a law court case on the subject, but I don't know that for a fact. On a modern day private easement everything must be spelled out.
Kris (edited)
this road like most in NE Texas is where the road has always been. This and the surrounding counties own 1% or less of the land their roads are on.
The road is a public road that is maintained by the county.
When the new gas pipelines come thru they get R/W from property line to property line including what is within the roads.
The R/Ws that I have surveyed for the electric company, they obtain easement from property line to property line of the properties they pass thru including the land within the roads.
When subdivision are developed, R/W are established and described and granted by the developers for utilities.
The county commissioners claim they have power granted by legislative act that gives them the right to allow the services to go along their roadways.
I claim they have the right to govern what happens within their roadways but it does not include the granting of easement to a third party without the landowners permission.
EDIT
Bottom line: The county does not own the land the roads are.
The roads are for public transportation purpose only and the old services in the ground are by long standing blanket easements. The newly developed water companies are placing new pipelines without easements. They are doing so under construction agreements with the county as to terms of contract on how they place the line and the conditions of the roadway when they are finished.
Their are no easements being given for where these new water lines are being installed.
I agree with Kris, here. It depends upon how the right of way was created. If by prescriptive use, then the owner would grant the new easement. If the road was acquired through grant, purchase, or dedication, then the owner would have given up the easement rights and the county could then enter a franchise agreement with the utility company to "share" the existing right of way. The county typically wouldn't have the ability to "grant" an easement over their easement. If the county owns it in fee, they could technically grant an easement, but around here, it's more common for them to use a franchise agreement or some permitting process.
JBS
Case in N. CA about 10 years ago involved 3M corp wanted to lay fiber optics all over the place. One locale involved placement in County R/W which was only held by the appearance of prescpription.
Landowner's went to court, said that the R/W was for roadway only as nothing had ever been deeded to county and it was only held by appearance of prescription.
Court(s) ruled in favor of 3M. Said the R/W could be used for utility placement without landowner's consent, at least that within the "roadway prism". Courts said the R/W was established as the road prism including roadside ditches, and any utility could place their facilities in it with the county's permission (via encroachment permit).
Would have to dig this up to see what level of courts it went to. Was a pretty big deal at the time.
In Oregon, water, gas, electric and communication lines can be in a road right of way outside of a city:
Oregon Revised Statutes (ORS) Chapter 758 — Utility Rights of Way and Territory Allocation; Cogeneration
758.010 Authority to construct lines and facilities; requirements and conditions. (1) Except within cities, any person or corporation has a right and privilege to construct, maintain and operate its water, gas, electric or communication service lines, fixtures and other facilities along the public roads in this state, as defined in ORS 368.001 or across rivers or over any lands belonging to the state, free of charge, and over lands of private individuals, as provided in ORS 772.210. Such lines, fixtures and facilities shall not be constructed so as to obstruct any public road or navigable stream.
The ORS 368.001 definition cited above is (5) "Public road" means a road over which the public has a right of use that is a matter of public record.
By stating "public roads" per ORS 368 they are including not only roads established by county courts but also those dedicated on plats or dedicated by deed and accepted by the county.
Links:
ORS 758
I have never seen an easement for utilities on a town or county road.
Utilities are usually held to be an allowed use of the public R.O.W.
The agreements you see have to do with the utility not interfering with existing uses.
This is held a reasonably contemplated expansion much the same as allowing cars to use it rather than the horse and buggy, or allowing paving and ditches, etc..
A Texas-based Answer
> Actually a Texas based question in general and could and probably affect nation wide.
>
> When a utility company places a new service along and across county roads, is it necessary to obtain an easement from the land owner that the road is on and the service is being located?
The Texas Utilities Code specifically provides, among other things, as follows:
§ 181.005. AUTHORITY TO LAY AND MAINTAIN LINES.
A gas corporation has the right to lay and maintain lines over and across a public road, a railroad, railroad right-of-way, an interurban railroad, a street railroad, a canal or stream, or a municipal street or alley.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 181.042. AUTHORITY TO CONSTRUCT, MAINTAIN, AND OPERATE
LINES. An electric utility has the right to construct, maintain, and operate lines over, under, across, on, or along a state highway, a county road, a municipal street or alley, or other public property in a municipality.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 181.082. AUTHORITY TO INSTALL FACILITY IN RELATION TO
PUBLIC PROPERTY. A telephone or telegraph corporation may install
a facility of the corporation along, on, or across a public road, a
public street, or public water in a manner that does not
inconvenience the public in the use of the road, street, or water.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 181.102. AUTHORITY TO INSTALL AND MAINTAIN
EQUIPMENT. (a) In an unincorporated area, a person in the business
of providing community antenna or cable television service to the
public may install and maintain equipment through, under, along,
across, or over a utility easement, a public road, an alley, or a
body of public water in accordance with this subchapter.
(b) The installation and maintenance of the equipment must
be done in a way that does not unduly inconvenience the public using
the affected property.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
As to water lines, the Texas Water Code contains this provision:
49.220. RIGHT TO USE EXISTING RIGHTS-OF-WAY.
All districts or water supply corporations are given rights-of-way within, along, under, and across all public, state, county, city, town, or village roads, highways, and rights-of-way and other public rights-of-way without the requirement for surety bond or security; provided, however, that the entity having jurisdiction over such roads, highways, and rights-of-way may require indemnification. A district or water supply corporation shall not proceed with any action to change, alter, or damage a portion of the state highway system without having first obtained the written consent of the Texas Department of Transportation, and the placement of any facility of a district or water supply corporation within state highway right-of-way shall be subject to department regulation.
Added by Acts 1995, 74th Leg., ch. 715, § 2, eff. Sept. 1, 1995.
A Texas-based Answer
In other words, it doesn't matter whether the road is a public easement only or whether the underlying land is owned by the public in fee simple. Either way, it is a public road within the meaning of the above statutes.
One Practical Consideration
>
> The local area water company is operating on the thought that they can get a blanket easement from the county commissioner's court and not from every land owner.
One reason why many water supply companies locate their lines in easements that they acquire outside of public roads rather than in the right-of-way of the road is that if the road is widened or substantially altered, in the case where the line is not within the right-of-way the entity seeking to extend the road onto the area outside the former right-of-way was, and over the line, would be responsible for the costs of relocating the line. Inside the public right-of-way, not necessarily.
> The ORS 368.001 definition cited above is (5) "Public road" means a road over which the public has a right of use that is a matter of public record.
>
> By stating "public roads" per ORS 368 they are including not only roads established by county courts but also those dedicated on plats or dedicated by deed and accepted by the county.
>
The key phrase in the ORS is "a matter of public record." That would exclude prescriptive rights acquired through use by the public which are not a matter of public record. There is no written record for prescriptive rights of way.
JBS
A Texas-based Answer
I imagine most states have codified it by now. NY has similar statutes.
If there's an issue it's usually with the distribution facilities. Line leaves the right of way to service a parcel, but crosses another parcel on the way. Easement is (or was at the time) required but they don't file them. So attorneys and landowners are battling it out because it's not in the abstract.
One Practical Consideration> What y'all need is....
A Texas-based Answer
You beat me to it, but this is how I understand it as well.
