I have a 3 acre tract of land owned by XYZ pipeline company with a pipeline running thru it. They want to sell approximately 2 acres and create a 40' wide easemet where the pipeline runs thru the property. There is no existing easment because XYZ company owned the property when the pipeline was installed.
I am writing the legal of the 2 acres based upon my survey and want include the 40' wide easment from point A to point B.
I began the easment description with
"XYZ pipeline Co. reserves the following 40' wide easement"
Is this the best way to begin the easement description?
> I have a 3 acre tract of land owned by XYZ pipeline company with a pipeline running thru it. They want to sell approximately 2 acres and create a 40' wide easemet where the pipeline runs thru the property. There is no existing easment because XYZ company owned the property when the pipeline was installed.
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> I am writing the legal of the 2 acres based upon my survey and want include the 40' wide easment from point A to point B.
>
> I began the easment description with
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> "XYZ pipeline Co. reserves the following 40' wide easement"
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> Is this the best way to begin the easement description?
I have seen, "Reserving unto ourselves an easement for blah blah purposes, 40 feet in width...etc".
or "XYZ reserves unto ourselves the following easement for pipeline purposes and other uses incidental thereto, being 40 feet in width, described as follows..."
I always recommend spelling out "feet" rather than use the ' symbol in a description.
Start from a well described lot corner ("the 1" pipe, being the northwest corner of the property of ___ as shown on a plat by ___ dated ____")
Call for the property line bearing and distance to the point where the easement meets the property line (POB)
Go around the easement with brngs/dist (calling for the lot line with a tie to a corner where the easement leaves the property) and returning to the POB.
Monument the easement in the field.
Done.
Alternately:
"an easement as shown on the attached plat"
Monument the easement in the field.
JB I have written the main body of the easement what I am asking is advise on the beginning
Sorry, I read your post too quickly.
Would probably write the tract Description and add. Subject to a 40 foot wide pipeline easement is favor of ---- and described a follows. Don't like to write into a grantors document a reservation, someday that pipe will be history and I consider a reservation a poor choice of words to burden a description with.
jud
After the end of the description, I would write the following:
Subject to the following easement:
A 40 foot wide easement for a (type: gas, oil, ?) pipeline, the centerline of which is more particularly bounded and described as follows:
I would not mention the name of the pipeline company in the description, as companies are sold, names change, etc.
I would write the description, but I NEVER write the cover document with the grantor, grantee, consideration, etc. That's a job for the attorneys, and in my state is actually considered the practice of law.
I would use "excepting and reserving a 40 foot wide easement for a natural gas pipeline bounded and described as follows;"
Wattles (Writing Legal Descriptions section 3.10) makes a distinction between "excepting" and "Reserving". I have to read it several times every time I look it up. I believe the xyz pipline would be selling the land but "reserving" the right.
> I would write the description, but I NEVER write the cover document with the grantor, grantee, consideration, etc. That's a job for the attorneys, and in my state is actually considered the practice of law.
I agree Jim. Unless the "utility company" provided a template style frontend that they use I would never be involved in preparing the frontend of an easement. That's a job for ann attorney.
Reason I prefer, "Subject to". Reversonary rights would never be compromised that way.
jud
A few years ago, the company that owns the natural gas pipeline that crosses our family farm wanted to add a second pipeline in the existing easement. I had always assumed that the marker posts marked the location of the pipeline AND the center of the easement as well.
But what we learned in the process is that the gas pipeline folks had offset the pipeline in the 50 foot-wide easement so that it was 10 of 15 feet off one side of the easement so that they could put another pipeline later without having to acquire more permanent right of way. So all they needed was a temporary construction easement from the land owners to install the second pipeline.
Of course there is no way to know if that is the situation you have but it is certainly something that you'll want to ask about. It is asking for trouble to assume that the gas line marker posts also mark the center line of the easement. FWIW
:good:
I changed the description from reserves to "subject to" then back to "reserves". It appears to me if you reserve something you are creating it the instant you sign/record the document. "Subject to" to me, seems it has been created in the past and you are putting someone on notice.
My latest is "XYZ Pipeline Company or assigns reserves the following described easement:"
Jerry I located the pipeline and it is shown on my plat. I discussed with my client what controls the width of the easement and it is property lines not the pipeline.
We should not have the problem you described.
When I write an easement description, I go by what is there and what is not there.
When something is in place, I mention in the description where it is and what it is and who it belongs to.
When there is nothing in place, at the top of the page I will center a heading, "30FT WIDE ACCESS EASEMENT".
In the preamble, I say nothing about access and simply say "All that certain 30 foot wide easement covering XY acres....."
I do this way because I am not creating the document, only the description.
The document maker has room to imply the intent and conditions of the agreement and I am not extending my liability any farther than necessary.
I also like to metes and bounds the perimeter of the easement rather than describe a centerline and give a width.
😉
There is no easement in existence now. One can reserve various items from the bundle of rights associated with real estate when transferring the remainder of the rights to another party. One cannot issue an easement to themselves.
As for what the surveyor should show on the plat, I prefer to show the 'proposed easement' or some similar wording and provide the wording for the description needed. The surveyor cannot create an easement; that is the duty of the property owner. The surveyor can only provide a description for what they have been told is the intended action.
"Reserving to the grantor the following described gas pipeline easement"
I'm just quoting Wattles, I am not an expert. But what he says makes sense to me.
"'Reserving', in contrast, does not mean cutting off, but it means taking and keeping a certain right from a part of the whole area which has been given in the deed. Or, as the courts have said in some cases, you give the fee away and then you take back a certain right."
In this case, one is not issuing an easement to themselves, but they are reserving an easement at the end of the deed. It becomes an easement at the transaction of the deed not to themselves before the deed is transacted. (put another way) When they were fee owners, they had that right of access by virtue of ownership of the parcel, upon the transaction they are reserving the right of access while transferring the rest of the ownership and rights.
That's how I see it anyway.
Lets see what a court said in a very recent decision (your state may be different):
Machado v Ryan,
IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 37888
2012 Opinion No. 102
Filed: June 29, 2012
“Express easements may be created by either reservation or exception. Akers I, 142 Idaho at 301, 127 P.3d at 204 (citing 7 Thompson on Real Property, Thomas Edition § 60.03(a)(2)(i) (David A. Thomas ed., 1994)). “An express easement by reservation reserves to the grantor some new right in the property being conveyed; an express easement by exception operates by withholding title to a portion of the conveyed property.” Id. Because an express easement is an interest in real property, it “may only be created by a written instrument.” Tower Asset Sub Inc. v. Lawrence, 143 Idaho 710, 714, 152 P.3d 581, 585 (2007) (citing Shultz v. Atkins, 97 Idaho 770, 773, 554 P.2d 948, 951 (1976)). At a minimum, a valid express easement must identify the land subject to the easement and express the intent of the parties. Hodgins v. Sales, 139 Idaho 225, 233, 76 P.3d 969, 977 (2003) (citing Nw. Pipeline Corp. v. Forrest Weaver Farm, Inc., 103 Idaho 180, 181, 646 P.2d 422, 423 (1982)). Thus, while specific words are not required to create an express easement, the writing must make clear the parties’ “intention to establish a servitude.” Coward, 150 Idaho at 287, 246 P.3d at 396 (quoting Capstar Radio Operating Co. v. Lawrence, 143 Idaho 704, 707, 152 P.3d 575, 578 (2007) (Capstar I)).”
“While the deed does state that the conveyance is “subject to” an easement, we have held that this kind of language is “not evidence of a grantor’s intent to reserve or except an easement,” but merely “an attempt to create an exception to the grantor’s warranties of title and quiet enjoyment and thereby limit the grantor’s potential liability.” Akers I, 142 Idaho at 301, 127 P.3d at 204; Birdwood Subdiv. Homeowners’ Ass’n, Inc. v. Bulotti Const., Inc., 145 Idaho 17, 21, 175 P.3d 179, 183 (2007). Thus, language in a deed providing that the conveyance is “subject to” easements of record does not in itself reserve an easement.”