Just had an odd request from a client. They want me to show a 30' easement centered upon overhead utility lines. The client is the utility company and they own the lines.
No problem, right?
Except, they also own the land the lines cross. They are asking that I show that they have an easement across their own land. Plus, there are no recorded documents associated with this supposed easement. Just just believe that every time they put up a line they automatically have an easement.
How do you address this situation?
1. Show the easement as requested?
2. Explain to them that they can't have an easement across property where they own the fee?
3. Agree to show the easement only after they provide documentation that the easement was actually created?
4. Something else?
Larry P
> No problem, right?
Right...basically.
First off, the "easement" they need delineated doesn't necessarily need to be recorded to exist. If nothing else, the document you create will delineate what the fee owner considers the "easement". Then said easement probably exists.
Utility Companies that operate under (usually) State Corporation Commission Tariffs are required by law to provide those utilities to anyone in their specific that wants them. With this responsibility comes a little bit of domain privilege. Generally speaking, unless there are some serious damages that can be proven, a public utility appurtenance exists within an understood or acquiesced easement.
Why do they want an easement when they own the underlying fee? There could be a million reasons. One that comes to mind is the general wording of sub-contractor contracts. They, by contract, are an assign of the utility owner and possess all the rights, within an easement, that the utility owner possesses. Showing the easement will only clarify where those privileges can be exercised.
And as with all larger companies, they may be doing some asset re-arrangement. All of their "property" may be being held or will be held in the future by a different entity in the future. At this time they may want to retain easement rights to avoid any title hiccups in the future.
Plow ahead and send them a bill. Show the easement on your drawing lableled "as requested by titled owner".
They don't need an easement to cross their own land. Now if they are going to sell the land they need to remember to reserve an easement for the lines.
I know a lot of people will disagree with me, but I'd prepare a plat showing a new easement that will be attached to a deed for formal creation.
I believe some easements that are purpose driven go with the land - not the owner so I think you can create a power line easement regardless of who owns the land.
Let's use a private road as an example. An owner has 100 acres of land and creates a subdivision of 5 acre lots and records the plat. Even though the original owner still owns all the land, he can create road easements across himself immediately to serve the lots. Then he can sell any of the lots in any sequence because the road easement exists.
Of course specific state laws will control.
I would explain to the owner that the dominant tenament only exists when the title between the utility and land are separated.
Maybe to put it in simpler terms for them, explain it would be like a man who owns a car, feeling he had to give himself written permission to use his own car. He can write that permission but it is a worthless document which cannot, and would have no reason to, be enforced.
And, if he decided to sell the car to someone else, he would still need to include a reservation clause in the sale agreement if he wanted to continue driving the car after the sale.
As Dave says, state law may put a different spin on it. In California, we have it codified in that an easement is automatically extinguished when the servient and dominant tenaments become one ownership. They actually have to be re-created in the event of a later sale of one or the other. The extinguishment eliminates the dominant tenament and thereafter no longer runs with the land.
> I would explain to the owner that the dominant tenament only exists when the title between the utility and land are separated.
That is a good point, and you are correct. However, one of my power company clients keeps separate corporate ownership entities between their physical plant and real estate. How separate? Depends on the Judge and the circumstances. :snarky:
>2. Explain to them that they can't have an easement across property where they own the fee?
The problem with No. 2 is who are they? Does the utility have multiple upstream and downstream subsidiaries? Is the utility a holding company made up of multiple smaller firms that are still in place for accounting reasons?
If Consolidated Electric has a subsidiarity that owns transmission lines (ConEl Transmission LLC) over the land of a older utility they bought in 1957 (Ma & Pa Power) who has now had it's corporate name change 14 times through a series of mergers and acquisitions am I going to be the one who makes the call as to whether there is unity in title? Nope, I'm going to let the guy in the Gucci loafers billing $750/hour answer that one.
Thats an important point. My experience has been that separate corporate entitities qualify as a separation of ownership even though both entities fall under the same parent firm.
Of course to steal a quote from an old surveyor: "unless the contrary may be shown."
I'd make a pass at 2) - explain the limitations of an easement to themselves, in writing - and if they still want it go with it, 1) - write the easement without worries. They may have their reasons which they may not care to explain to me. No need for me to be obstinate about it.
> I'd make a pass at 2) - explain the limitations of an easement to themselves, in writing - and if they still want it go with it, 1) - write the easement without worries. They may have their reasons which they may not care to explain to me. No need for me to be obstinate about it.
Just to be devil's advocate,
Would you file a survey showing a fee boundary that does not legally exist?
Why is mapping an easement that does not exist that much different?
Could either one be demonstration of incompetance if submitted to your board for review?
Not that odd
Show the easement on the plan. Like most of our work, the plan is not set into motion until a deed is conveyed. What would stop you from creating two plans showing two different easements? Nothing. The applicable plan will be the one the deed comes from.
You can put a note on the plan if it makes you feel better:
Easement to be reserved upon conveyance of property. Until that time, the easement is to be a self imposed area of restriction meeting the same rules applied to power line easements.
You can reference the easement that this easement will connect to for the restrictions applied or whatever the company currently uses for new easements.
I would show the easement as proposed until they provide documentation.
:good:
I have done this for a couple of our pipeline clients. And yes a lot of the time it is for refinancing/insurance purposes. It is good your client wants to document this. Many times it is not and becomes a real big issue ($$$) when the sell off the asset.
Several of you do not understand the "Merger of Title" doctrine...
Several of you do not understand that drawing lines on a map and labeling it as an easement does not create an easement...
You don't realize that things are done differently in different parts of the country. Not all states are the same.
> Would you file a survey showing a fee boundary that does not legally exist?
The Oregon Property Line Adjustment process requires the surveyor to monument and file a Record of Survey showing a Proposed new boundary line - before the legals are recorded. So, yes, I've done that many times. There have been several instances where the PLA Record of Survey was recorded but the deeds never were. So the line shown on the recorded map has no meaning as a boundary. It happens.
> Why is mapping an easement that does not exist that much different?
Suppose the utility is planning to sell their fee interest -perhaps to persons unknown at this time -and retain an easement. They just want to be ready when the time comes. Why shouldn't I be able to prepare and record a map of such for them? It would be well to label the proposed easement as just that, Proposed. Or words to the same effect. Like, perhaps, Future Easement. There is always plenty of space to put notes on your maps that explain the special circumstances.
Suppose the utility in this case takes my map and legal and files a easement deed in Book X, Page Y. No easement is created. Later (say 5 years from today), they sell the fee with deed language that retains the easement per Book X, Page Y. Presto, an easement is created. Nothing wrong with that.
> Could either one be demonstration of incompetence if submitted to your board for review?
I think not. The thing I would worry about is "informed consent". The client must be informed about what he is consenting to in order to be able to give that consent. It is a professional obligation to make sure the client understands the implications of his actions. If I just write him a useless legal and cash the check without explanation, that would be unethical. But if the client has an understanding of what they are doing and still wants it done - and it is not illegal or otherwise a menace to the public- it is not my place to judge how the client does business.
That's all fine and well to show and label a "proposed" easement or "proposed" boundary line.
However that was not what Larry is asking. He is clearly asking about a situation where the utility is asking him to show an easement as already in existance. He stated: "They are asking that I show that they have an easement across their own land". Operative word "have".
I think its all fine and well for him to go back and offer to map the thing as proposed or maybe better as something to be created/reserved if title is conveyed of the utility or the land which it crosses. But that's not the question.
> However that was not what Larry is asking. He is clearly asking about a situation where the utility is asking him to show an easement as already in existence. He stated: "They are asking that I show that they have an easement across their own land". Operative word "have".
I would not show - without qualification - an easement as existing that does not exist. And I agree that it doesn't now exist. So if I have misunderstood the circumstances, I apologize.
Dave...
Which of those two items don't apply where you are?
(I do understand that anything under the jurisdiction of the Ninth Circuit Court operates under the Napoleonic Code, but I though most of the rest of us followed English Common Law...)
