I received a cryptic email earlier in the week and just now had a chance to investigate. Here's the "low-down":
I previously prepared an easement for the local power company across an individual's property. The easement was described as being "six feet both sides of the following described centerline"..These are on an 8.5x11 standard form and filed with the county.
While I prepare these easements with a great deal of care (we locate either land corners or property corners to verify the boundary location of the servient estate), we do not delve into boundary work by any means. The easement in question travels in a close proximity to an "inside" boundary corner common to the servient estate and an adjoiner. Mathematically, by my calcs, the closest the easement centerline is to this corner is 6.4', keeping the closest point the easement is to the adjoining property approximately four tenths.
This email is from a title examiner that is hinting "their survey" (apparently of the adjacent property) indicates the easement encroaches on the adjoining property. It goes on to state "If a corrected easement is required, we will be contacting you for an expedition of the filed correction."
There is no doubt in my mind that a boundary survey of either the servient estate or the adjoining property could place that corner in a slightly different location that my calcs, but I feel I have taken my proper professional care in the easement's preparation. I could really care less if the easement 'encroaches' on the adjoining property by a few hundredths.
My question in all this is "does an easement (or any portion thereof) actually exist if the grantor does not possess "grantor's" rights? The power company's general counsel doesn't seem to think so, and neither do I. But it is an interesting subject to discuss...
You can not grant and/or give permission to what you do not own.
Of course not - you can't grant that which you do not own.
Most strip descriptions (centerline with sidelines) end with the note that sidelines will be shortened or lengthened to end at the boundary
I agree with Warren, I work for a publicly owned utility company, survey in and write power line legal descriptions all the time, we always end the descriptions with, the side lines of the above described centerline to lengthen or shorten with respect to the property lines.
paden cash, post: 331897, member: 20 wrote: My question in all this is "does an easement (or any portion thereof) actually exist if the grantor does not possess "grantor's" rights? The power company's general counsel doesn't seem to think so, and neither do I. But it is an interesting subject to discuss...
No as others have noted. Say the easement got Installed a Foot closer to the adjoiner and for some reason the language on the easement travels along the installed location. At no point would that easement written by you over the subject parcel allow the adjoiners piece to lose rights. If the Pipeline itself was installed on the adjoiner, your easement still would not take away rights of the adjoiner. In this example though the power company would need to be fixing it with the adjoiner and depending on time past since installation, they potentially could have gained rights from the adjoiners non-actions.
The lesson to learn might be to make calls that assure that it does not go outside of the servient tract. But even if you didn't, the grant form owner A to easement user B can not include across property that is not controlled by owner A like those other guys have indicated.
