Easement Inside An Existing ROW

The 100' Easement Is To The City

The City would have to grant the ROW to a third party, not the original 100' easement creator.

If the City widens the road for a city project utilities are required to move at their expense.

If the road is widened for a developer project, the developer pays.

If EPA does not want to argue who pays in the future then they should build in the outer limits of the 100' ROW or acquire an easement outside of the ROW.

That's how it works around here.

Paul in PA

no real answer from here, but a couple questions:

I have no problem with a redundant easement but who would be the grantor?
Is that "right of way" a fee strip or is it a right to pass kinda like and easement?
Can the City abandon that "right of way?
If so, are there revisionary rights of the adjoining properties?

the term "right of way" gets used lots of ways, often confused.
where are you? perhaps some sort of State law controls this situation.

Just because there is a City right of way doesn't mean the power company has the right to install lines. It can, but doesn't necessarily give them the right. They are correct in trying to secure an easement. The power co. may want to get the 'future' movement of lines and appurtenances clearly spelled in the easement to avoid confusion if/when that happens.

I'm not positive I understand the situation, but I will offer this. Easements might existing inside of an existing road right-of-way. Sometimes road rights of way are owned in fee simple, and sometimes they are easement rights of way.

Many municipalities will not grant an easement inside their right-of-way limits and often allow them to install a utility by permit only; for the very reason you are discussing. If they ever want to change the design of the roadway, they can have the utility company move their utilities at their own expense. Utility companies will probably want an easement, for the reason you mention (they would get paid to relocate the utility.

"Sometimes road rights of way are owned in fee simple..."

Nope - never. A "Right-of-way" is an easement. It is the right to pass over the lands of another.

I would agree somewhat (but not with "nope - never"). Often times right-of-way corridor properties are purchased as fee-simple full-fee ownership and the land is taken off of the original owner's taxed property and his assessed property area changes. The fee documents don't (or should not) say "for right-of-way purposes" which would or could, indeeed, infer an easement, and in that respect I agree with you. But we need to recognize that many of these roadways are acquired with eminent domain power and are acquired in full and end up being in a right-of-way corridor.

The issue is the improper use of the term "right-of-way." A right-of-way is an easement, but many use it to refer to a dedicated roadway or street which has been dedicated to the public. There is no right-of-way over such a strip, as it has been dedicated to the public. They don't need an easement or right-of-way to cross over it - they own it.

Jules,

here in Houston, it probably would not happen if the City has an easement for access and all appurtenances. If the local power company wants to put in power, they install their lines within the existing R-O-W. If the City widens the R-O-W, the power company pays all costs for the relocation of its utilities. If the City does something within 3 years (maybe 5), then the City pays. If the power company doesn't like it, the City then tells them, "Get you own easement, but it won't be on top of ours."

Jim, we took this on a tangent, and for that I apologize to the intent of this thread. I concede that the real meaning of "right of way" is a right over another's land (or a right to go first at an intersection). The subject or noun is the "right" and the "way" is an adjective. I have a similar distaste to the misuse of the plural of right of way (which is properly rights of way)

In defense of my earlier statements, Black's Law and common useage has been around for a long time and recognizes the misuse of the three-word phrase being the fee-simple corridors for transportation. I can see that your distaste of the common misuse of the phrase is great, and I respect that. I have a similar distaste of the misuse of the term 'legal description' applying to any and all metes-and-bounds descriptions.

To many questions to give you an answer for that one, just how was the road created, who were the grantors and the grantees? Is the road a dedicated road, an easement, was it acquired as fee-which is different than a dedicated road-anyway lots of questions, but usually any utility in a roadway is going to have to pay to move their own service if the road is widened.

Rule of thumb, probably not always true.

If I were the city there's no way I would allow such a thing to happen. I'd tell them to go pound sand, why should the city want to pay to move utilities that are using their road and aren't city services. Terrible thing to start doing!!!!

And why is this in GIS?:-/

Tom - We are on exactly the same wavelength on both matters!

Just musing;
If a power line exists first with say a 50 foot easement and then a public Right-of-Way is created say 100' encompassing the 50 foot easement, does the 50 foot easement cease to exist?

I say no and have argued the issue with others.

Jim, I have surveyed in several states and it is the same way that it is in the area I currently am in, -by a far margin, I would guess 99%,- our Right of Ways are fee simple, the state road or ROW is owned by the state, the borough roads or ROW is owned by the borough and the city streets or ROW are owned by the city. This is the way it has been since the land was originally patent. Everyone that deals with these areas refers to them as such. Look at definition in Black’s

In Oklahoma..

we treat easements with "Junior & Senior Rights" just as fee property is treated.

If the State purchases property, in fee simple, for "Right of Way" and a portion of that is occupied by an existing easement; the existing easement has "Senior" rights in that area.

Simply put; rights that are dominant over a servient property continue to exist even after a conveyance. Unless, of course, the creating document limits those rights.

Case in point:

Power company has a 100' cross-country easement. Highway department buys land crossing said easement for a public highway. Any "relocation" or adjustment of the utility is paid for by the State. The existing utility still retains it's original rights.

Don't know what state your working in, but there may be useful info here that will get you pointed in the right direction to understanding the installation of utilities within road right of ways

Statutes Pertaining to Utilities Rights-Of-Ways

Bear,

If a State, County or City own a strip of land that is used for roadway or street purposes, there is no need for a "Right-of-Way". The public owns these, and they simply cannot legally have an easement over property they own. I understand that many use the term to refer to land itself, however, that is improper and causes a great deal of confusion. "Right-of-Way" as defined in Black's is a verb, meaning the right to pass over another's lands. The ONLY time it is a noun is with regards to the bed of a railroad, not streets and highways. It is improperly intermixed with the word "easement" by many who simply don't know any better. Donald Wilson touched on this during a seminar I attended years ago... Does a gas company really want a "right-of-way" for their pipeline? Or do they want an "easement", which would actually allow them to install a pipeline underground, instead of just a right to pass across the land?

"... does the 50 foot easement cease to exist?"

Only if the new Grantor and Grantee are both identical to the originals...

Jim,
You're technically correct. I'll add this bit - roadway plans all across the state of Arizona call out "r/w" widths for the corridor, or each side from perhaps the Section line or a construction centerline. These "r/w" widths are often not clearly defined on plans as to ownership, whether it be in fee simple or easement - we have to do the research to determine who owns the underlying fee.
Back to the original post - from my experience here in Arizona, yes, there can be an easement within a fee simple r/w. How this is done is most likely determined by the holder of the title of said fee simple r/w, and complicated by the local governing agencies.

"These "r/w" widths are often not clearly defined on plans as to ownership, whether it be in fee simple or easement - we have to do the research to determine who owns the underlying fee."

I am doing that on a project at this very moment... [sarcasm]really fun stuff[/sarcasm]!