The power line easement description from 1940 calls for the centerline of the 100’ easement to be 220’ westerly along the road, from a wire fence at the southeasterly property corner.
The problem is that there are two wire fences, around that age, to the east of the existing power line. The fence at the southeasterly corner of the lot, is only 100’ to the east from what appears to be the center of the power line. The other fence looks great for the 220’ from the center of the power line, but is not the lot corner, and never was.
The easement is not defined by the existing power line, and no prescriptive rights can be acquired by statute.
I believe that the original description is faulty and that the call refers to the fence that is not the PL. If the fence at the actual lot corner is used, then the poles and clearing will not be within the described easement.
The power company has not come back with any other supporting documents to assist in this.
Any thoughts on locating the easement using a fence that isn’t the lot corner, as I believe that it is the one called for, but have no way of proving it – other than the fact that it agrees with the as-built location of the power line?
Unless the power company has evidence that the power-line was not intentionally constructed at a location of what was thought to be C/L, I would consider that power line location as the stronger evidence of what was intended as the C/L and accepted for the last 60 years, that's a long time for a fence to remain in place in good condition. In this case, I would not use fences for control without strong evidence that they trumped occupation of the line as it was constructed and been accepted with harmony for the last 60+ years.
jud.
Believe I would document the entire situation on a survey plat. Show the centerline of constructed power line and both fence lines. Show the easement as described and as constructed. Document everything that might be required to explain the situation. Talk with your client first, then your client's attorney. Once you are sure the attorney understands suggest the attorney request clarification from the company.
An alternate path that may be quicker. I have also found utility companies are a bit like railroads in protecting their proprietary information. Have gotten construction plans from the 1920s showing property and section corner ties simply by asking the right person and explaining the situation. During the initial call to the same company I was told they had no survey information. Took calls to surveyors in the home city of the company that knew a surveyor inside the company to get to the right person.
Check The Adjoiner Easement Description Location
It is entirely reasonable to assume the easement lines continue from parcel to parcel.
Paul in PA
Check The Adjoiner Easement Description Location
Think it might be wise to check the adjoiners Paul? Good point.
jud
Check The Adjoiner Easement Description Location
All of the easement descriptions for this power line are similar - tying the centerline down at one end and running a bearing to the other end.
The easements on the adjoiners tend to agree more closely with the existing pole line.
The pole line is not the original - and does not fall in the exact center of the easements on the adjoining parcels. Also, nowhere in the descriptions does it say anything about the easement being based on the "surveyed location", or any such thing.
Check The Adjoiner Easement Description Location
If the adjoiner easement descriptions agree with the poles, 2 out of 3 is the "preponderance of evidence."
Paul in PA
A 100' wide easement implies a significant line - not just a service entrance. Also, you say it crosses multiple properties.
I would agree that the as-built location is the best evidence of the location of the easement - especially if the power line was built shortly after the easement dedications.
I think the only thing I would do is a note saying that the existing descriptions are ambiguous and can not be reconciled with evidence on the ground and that you are assuming the power line is in the correct location.
Check The Adjoiner Easement Description Location
I think that you are making an issue where one does not exist. The pole line has existed as is since the 40's so you have occupation, acceptance and a legal description which at worst has a one bad descriptor, it calls for a fence that matches the field location. It also matches the majority of adjoining deeds. The worst you have is a poorly worded description.
Check The Adjoiner Easement Description Location
It's not a question of creating a prescriptive easement but determining the intent of the parties as to the actual location of the easement. I think a court, if required, would look at this situation as a latent ambiguity in the description, and solve the problem in one of a number of ways.
As a surveyor, however, it's not up to me to give legal opinions about latent ambiguities in grants. I would collect all of the facts expected of a surveyor and present them to the client.
You need testimony from someone or some document or evidence to support the one fence. Without that, there is going to be a purchase I'm thinking. There's a difference between resolving ambiguity based on preponderance of evidence, and merely changing things to match one parties mistake.
"ambiguous"
:good: