Most of my R/W work is fairly predictable.?ÿ I'm going to avoid using the word "boring" because I'm all past that.?ÿ The first 15 years was boring; then I got to where I kind of liked it...
Anyway, where to start...
A piece of rural property has enjoyed some multi-million dollar improvements over the last few years.?ÿ The owner is apparently wishing to mortgage the property and a title company (et al)?ÿrequested a survey to ALTA standards.?ÿ A young surveyor local to the area picked up the work and (from what I could see from his survey) did a bang up job.?ÿ
This wound up on my desk because my client owns the power lines shown on?ÿmy detail below, along with the easement that was dedicated for the power line in 1965.?ÿ The easement?ÿwas described thus:?ÿ "A twenty five feet wide easement centered on a line beginning 1320.0 feet west and 33.0 feet south of the Northeast Corner of Section 9; thence south 670.0 feet; thence east 220.0 feet"?ÿ.?ÿ This easement was interpreted on the survey as being parallel to the N-S 1/16th. line and?ÿthe north section line.?ÿ As you can see, the power line and the easement aren't congruent.?ÿ Apparently?ÿthere was?ÿgreat consternation, wailing and gnashing of teeth from the lender's forces when the young surveyor showed the plotted easement description and the existing power line..and used the word "encroachment"....
I was asked to run out there and see "wtf" was going on since the legal department was getting all sorts of flack from somewhere.?ÿ I went, I saw, I drew it up.?ÿ Now the electric co-op has some pretty good records on things like this.?ÿ I dug up the original work order signed by the property owner (which in 1965 owned the entire NE/4).?ÿ He was still around in 1993 when storm damage required some repair to the aerial line and it was rerouted to follow a field road as shown on my detail, per the owner's wishes.?ÿ The current owner purchased the property about 14 years ago, built a million dollar house and has lived there since then.
All the sudden his attorneys and title company?ÿthreatened?ÿlitigation because the power line "is out of the easement".?ÿ (City slickers are cute when their fur gets bristled.)
I, my?ÿclient's general counsel, the property owner and his legal team?ÿfinally had a sit down.?ÿ I bet we hadn't been there three minutes when one of the other attorneys dropped the term "damages".?ÿ The co-op's counsel fired a well-worded offensive (he's done this before).?ÿ He explained the co-op had original documents, signed by the original owner for all the work done in 1965 and 1993.?ÿ He also explained terms like "prescriptive" and "acknowledgment?ÿof use" as referred to in a contract signed by the present owner in 2004 when he became a subscriber for electrical service.
He continued to explain that the co-op would be more than happy to rearrange the primary to better fit the property owner's needs, but contractually the expense would be borne by the property owner.?ÿ He also asked several times of the nature of the "damages" the property owner incurred by the line being "out of the easement".?ÿ?ÿ It probably didn't take a half hour for the visiting lawyers to change their tune.?ÿ The property owner didn't want the line moved.?ÿ I suggested the co-op abandon the old easement and I whip up a new description that fits?ÿwhat's out there?ÿand we get it recorded so his surveyor could update his survey and everybody could dance off to a closing and be happy.?ÿ Everybody thought that was a good deal.
The young surveyor that did the ALTA also attended the meeting.?ÿ I had spoken with him several times prior about this issue.?ÿ I'm thinking it was one of the first times he had ever seen all the hubbub that can happen when you use the word "encroachment".?ÿ He was as nervous as a long-tailed cat in a room full of rocking chairs.?ÿ After the others had left, he and I and the co-op's general counsel sat and chatted.?ÿ He was concerned about the location of the easement he had shown on his survey.?ÿ I reassured him I probably would have shown it the same way, without the word encroachment..
"What you guys just said is that the?ÿeasement is where the?ÿline is and maybe not where it was described", he queried.?ÿ I told him that was pretty much true in this case.?ÿ He wondered if he should show a "prescriptive" easement on a survey if he ever ran into this again.?ÿ I cautioned him against showing anything except the documents provided and the visible improvements on a property.
General Counsel left him with some poignant words:?ÿ?ÿ "In 1965 a property owner granted rights to the co-op.?ÿ The recorded easement is?ÿirrefutable evidence of that.?ÿ It's unfortunate the description wasn't any clearer or accurate, but it is all we have today.?ÿ An ambiguous description does not negate the conveyed rights, it only brings into question where they may be located.?ÿ A pole line that has been in someone's front yard uncontested for fifty years seems like a logical place to start".
BTW, all of this could have been handled over the phone..... ??ÿ
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The crew building the electric line usually finds a better and cheaper route than the guys in the office and lets the owner know about it saving money and them work. Either way the crew takes the same amount of time to build it.
Encroachment and any other specific probable situations like prescriptive easement and other possible intrusion or protrusion of manmade objects like fences, electric lines and guy wires out of place put $$$$ signs in the eyess of attorneys and raise blood pressure of Title Examiners that have to cover those $$$$.
Much better to apply found or existing location and show the recorded location and other facts and let the?ÿ$$$$ sign people put names and labels to their worries.
The surveyor is taught all these legal woes and all the labels and requirements that must exist for any possible actions to prepare them to identify them on the ground and prepare their clients.
Too many times others try to be surveyors, so surveyors should not try and be something they are not.
0.02
We deal with these "out of easement" lines often. Usually goes just how you describe except that its rare that the landowners are?ÿso litigious, after all, they want power going to them just like everyone else. A good example for leaving the word encroachment in the dictionary.
Thanks Paden.?ÿ It is not often we as surveyors get to hear the whole story, beginning to end.?ÿ I appreciate and learn from that.?ÿ Jp
I always preface the words "encroachment" or "prescriptive" with the word "possible".?ÿ I'm not saying there is an encroachment for sure, but that there may be a "possible encroachment" that may need further investigation by a real estate attorney, or title company.?ÿ Haven't had any issues so far with that wording.?ÿ
We deal with these "out of easement" lines often. Usually goes just how you describe except that its rare that the landowners are?ÿso litigious, after all, they want power going to them just like everyone else. A good example for leaving the word encroachment in the dictionary.
I see this kind of thing 3 or 4 times a week.?ÿ?ÿThis was a little odd in the fact you noted these folks went to "litigious" before the light even turned green.?ÿ I really think the property owner was at the mercy of his "legal team".?ÿ They wanted to start slinging poo without ever talking to anybody.?ÿ Basically three attorneys charged their client for 4 hours and probably a lunch.
I fill my time up with rewriting 50 year old easements and it's no big deal.?ÿ?ÿ Probably 50 years from now some surveyor will read my 2018 descriptions and feel they're inferior.?ÿ Get after it, buddy...we all need to bill for something while we're here!?ÿ ??ÿ
I was told years ago by an Attorney to never use encroachment, but to use area in conflict.
I was told years ago by an Attorney to never use encroachment, but to use area in conflict.
I have also been warned not to use the term "encroachment". Can't remember where I heard it first but it goes way back to very old part of my brain. Lately I've used terms like "area of concern" or "item of interest".?ÿ
This is where the ALTA Standards come in handy. The language we need to accurately describe a given situation has already been written. Even when it hasn't we can describe things in simple terms and get the point across, without using terms that cause lawyers to see dollar signs or owners to breathe fire.
Slander of title is no joke as it is easier to prove and collect damages from than professional negligence.?ÿ I show the encroachment or adverse claim and do my best to uncover how long it has been there but I don't offer my opinion of what it is (ie. footpath circa 1980).?ÿ I suspect that even that could land me in trouble if it put the kibosh on a lucrative real estate deal.?ÿ?ÿ
I had to locate a sewerline that ran under a main street store-front a few months ago.?ÿ I made the mistake of mentioning to the engineer who was managing the project that the town likely had an easement by prescription as the manhole in the store had been there over 40 years.?ÿ Without consulting with me, he went straight to the town manager and told him that the town had an easement and that they could do whatever was necessary to replace the sewerline.?ÿ Fortunately, I caught it before anything was said to store owner (a very nice gentleman who helped me find the manhole in his show room) and we eventually paid him a small fee for an easement and everyone was happy.?ÿ
I should have known better than to even mention something as complicated as prescriptive rights to this particular engineer.?ÿ Learning to keep my opinions to myself is an ongoing struggle...
From what I have gleaned in my thirty (out of?ÿfifty)?ÿyears of surveying for public or quasi-public utility concerns is although the term "easement by prescription" is thrown around a lot it may not quite be a correct term.?ÿ In the?ÿexample I?ÿgave above we used the term prescriptive even in our meeting, but in a purer legal sense (if such thing exists) the conditions might?ÿbetter indicate an easement by implication:
An easement that is not created by express statements between the parties; but as a result of surrounding circumstances that dictate that an easement must have been intended by?ÿboth parties.
To a surveyor the difference is probably not detectable, or at least of no concern as we usually show only relevant documents (or testimony) and physical evidence of dominant use?ÿby others.
Whichever term is assigned, the assertion of dominant rights by an occupying utility is rarely challenged in my neck of the woods.?ÿ Unless of course the servient?ÿestate is experiencing a loss of full enjoyment of their fee title.?ÿ?ÿMost utility companies (and most municipalities) are more than happy to "make things right" with a land owner if they can. ?ÿ
I should have known better than to even mention something as complicated as prescriptive rights to this particular engineer.?ÿ Learning to keep my opinions to myself is an ongoing struggle...
That reminds me of a joke my geology professor told me the other week.?ÿ
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There is a big chemical spill in a lake and the company responsable contracts an engineer, a geologist,?ÿ and an envirnmental consaltant to determine the time frame for clean up. The engineer presented their report and they concluded after many calculations that it will take 6.83 years to clean the lake. Next the geologist presented their report and after some surveying and testing concluded that it would take between 5 to 8 years to clean up the lake. Finally the environmental consaltant presented their report.?ÿ They came in, closed the blinds and whispered to the executives "How long do you want it to take?"
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Guess the moral of the story is different fields and training leads to different conclusions. Who knew.