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Does a public utility company have the right to occupy this easement?
dave-karoly replied 3 years, 9 months ago 17 Members · 24 Replies
The local phone / cable / internet co. put a cell tower on my customer’s 1/4 acre lot, about 20 feet from the front corner and 4 feet back from the ROW line. They claim a territory wide blanket easement to use 5 feet from a property line and usually aim for the property corners (and often wipe out any markers). Poles may be OK, but a cell tower? There wasn’t one standing on St. John after the last hurricane.
Not directly applicable but many stat s have adopted the following:
The easement acquired by the public in a highway includes every reasonable means for the transmission of intelligence, the conveyance of persons, and the transportation of commodities which the advance of civilization may render suitable for a highway.
McCullough v. Interstate Power & Light Co., 163 Wash. 147, 300 P. 165, 166 (1931)
In Alaska highway rights of way granted to or created by the state allow for utilities, but federal rights of way do not. Local rights of way usually don’t either.
@bajaor Ah CalTrans. They’ve got the most vicious lawyer dept. In the early 21st century when acquiring new R/W by either purchase or condemnation the Deed included the phrase “cede any and all abutter’s rights to the State.” I was at a (CalTrans) training seminar and when this came up I raised my hand and asked:
Me: Is the abutter’s right to lateral support abdicated by that phrase?
Instructor: Oh no, we’ll always provide lateral support. That phrase only precludes right of access and damage claims as long as we stay within our R/W.
Me: Well sir, I can read plain English and that’s not what it says.
Instructor: You’re not a lawyer; include the phrase when you’re doing your R/W engineering job (and STFU).
(A few minutes later concerning the effects of construction which may diminish the value of the remainder).
Me: When reconstructing an interchange without additional R/W can CalTrans construct multiple flyovers which block solar insolation and viewsheds without compensating the adjoinders?
Instructor: Of course, we have absolute control over improvements within our R/W, see above clause; the grantors gave up that right.
Me: There’s lots of litigation concerning blocking of solar insolation/viewsheds by construction/fences/vegetation in California where the Courts have determined that the injured party deserves compensation, sometimes considerable.
Instructor: Not against CalTrans! You’re contemplating lawsuits between private parties. We’ve prevailed against all solar/viewshed challenges because that clause is in the Deed. (and STFU and no more questions from you because you’re delaying the seminar).
So I corked up. I later learned from lawyer friends who represent adjoinders in Caltrans litigation that the phrase can be struck or modified by the Judge to be more precise or fair. Don’t *ever* give up all your abutter’s rights when signing off on a highway Deed.
about 15 years ago a CT employee was out of the office for the day on official business in a Caltrans vehicle. She pulled into a strip mall to get lunch and got involved in a minor fender bender. CT lawyers sued her because they said it was personal, not official business.
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