Easement Question

Excellent topic for discussion.  Is there definitely a pipeline continuing beyond your client's property?  If so, how well can that information assist you in determining what you need to know.

@holy-cow

The pipeline ROW extends beyond the client’s property, but ROW is less defined for a ways due to land use. 

So, do I understand there is no pipeline, just the RW ? 

@gary_g 

There is a pipeline, I found it washed out in a creek bed off of my clients property. 

The ROW remains undetermined until the pipeline is located. Once the pipeline is located, the ROW becomes defined. You might show where the vegetation has been altered but I believe if that differs from 16.5' from the actual pipeline, the pipeline location will determine the ROW not the vegetation. I would put a statement on the plat saying in my opinion the ROW is not on the client's property but my opinion could change once the center line of the pipeline is revealed. The ROW cannot be shown until the pipeline is located. 

It is in your client's and the bank's interest to have the pipeline located. Until then the location of the ROW cannot be shown.

The r/w is definitely defined in width. 

Is the location defined solely as a post construction location? So that wherever the pipeline is built that's where the r/w is, or is it tied down to a boundary by metes and bounds?  I see this with old electric line r/w documents; over Smiths land to the northwest 1,000 feet. locate the poles and that's it. 

If the r/w was not on the property your surveying, but as you say, close, then I might show it and label. And, if show it I would show exactly what you had o define its location. Fencing, hedge rows, markers, location of the pipe, etc.  

If this is an iron pipeline, some metal detectors should be able to locate it.  If I was there, I could witch it for you.  That works if done by one with experience.

I understand the limits of the ROW, but pipeline is too deep to detect with metal detector. It is quite deep.  The other caveat,  I guess I failed to mention, is that the lender is needing this yesterday. and not willing to wait/pay for for GPR.

I am asking what type of disclaimer would you place on the plat stating the pipeline is in a relative location but unsure of its exact location due to being undetectable given the constraints.

How deep do you think it might be? Unless it is very deep I would think a magnetic locator might find it. You would need to operate the locator such that you could hear small changes in tone, not just set it to idle and hope it would scream. Walk perpendicular across the expected line at several places to see if that marks a straight line.

If you went HC's route, I would insist on at least one pothole to verify before putting it on the drawing.

To figure out where it is would, you will need to hire a locator, we use a couple of them, they will either find it or let you know they can't, but they should be able to find a metal pipeline. They cost a few dollars, but I wouldn't say where it is until it's located. Possibly it can be discovered by disturbance, sometimes these pipelines leave a good trail, other times not so much. 

Clearly, it's not a blanket. If the attorneys/lenders/title people don't want to pay or take the time to do it, let them craft up a note for the pipeline in the title report. 

It sounds like the pipe may not exist. If so, and the bankrupt pipeline company has no successor in interest, then the easement might be vacated. Which would make location of the easement irrelevant. 

If not you have to go with the best available evidence of its location, which is the written description.  The remnant of the cleared path constitutes parole evidence of the easement location. 

Don't think in terms of a disclaimer. Note that you identified the use of GPR or a vacuum truck as the most accurate method to locate the easement but this option was declined by client/lender. Create an insert where you can show and detail the physical pipeline within the washout that you found. Show the distances from the center of the found pipeline to each side of the cleared vegetation. Locate the old clearing as best you can in the areas close enough to matter to your subject parcel. Use the found pipeline's placement within the found clearing as a proxy to approximate the pipeline's location in the area capable of impacting the subject parcel. Document the results and answer the question regarding whether or not it affects your parcel.

As long as you describe what you did and didn't do, you're generally good. 

Posted by: @murphy

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Don't think in terms of a disclaimer .....

This is key. You cannot disclaim away your professional obligations. What you can do is describe the obstacles that you faced in making your determination.

I had a water line like this once where I rented an electric tracer. Hooked it on to the one end I could find off site then traced it for something like 800' through my clients property. Cost was $100 or so for a days rental. Worked well

Things to consider.

Begin at the beginning.

1. When the original easement was created, were your clients track and the adjoining track owned by the same person? If not and your clients predecessor in title had no part in the original easement it's hard to see how he would be subject to the easement in any way.

2. In some states, for an interest in real property to be conveyed, it must be identified as a particular tract. The original easement document does not seem to comply and might better be considered a contract for a later to be defined easement. If a later document of the interested parties defined a particular location for the easement, then that would be the record location.

3. If no record location for an easement exists, then a prescriptive easement should be considered. The width mentioned in the original easement, the location of an existing pipe, and the location of a clearing limit all might be evidence for a prescriptive easement and its location.

For myself, I satisfied state requirements with the plat. My opinion of ownership and certainty (or uncertainty) thereof was divulged to my client in a Surveyor's Report. The report was an opinion not a guarantee. Never did I let my client, an attorney, abstractor, or title insurer put words in my mouth.

By this point the author of the OP has surely done something.  We don't know what this was.  This is still a valid situation to discuss for the edification of all users reading this thread.

The critical issue is to NOT allow the client, lender, title company, etc. force you into a situation where there is no end to your liability over your lifetime.  They need something done last week that cannot be done today.  The client wants to be able to move forward on whatever is happening.  The lender wants to seal the deal and take no responsibility.  The title company and, possibly a real estate firm, want their money and no liability.  You want the job done, the client happy, have positive relations with the others involved and no long term liability.

The real problem is that to be definite as to the location of the center of the pipeline, you must take the time and resources that the others don't want to encounter.  Simultaneously, you are providing the adjoiner with what you deem to be the true location on their property, in full or in part.  Therefore, you are indebting yourself to an unknown future owner of the adjoining tract.  Basically, anyone who might rely on your work product and made public, such as on a recorded survey.

Posted by: @jm2506

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Once upon a time a pipeline easement was acquired stating that the post construction easement would be 33’ wide, being 16.5’ on both sides of the pipeline centerline upon completion of construction within my client’s particular quarter-quarter.  The company went bankrupt shortly after and what appears to be the ROW is starting to be overtook with vegetation.  There are no pipeline markers, just the semi-cleared ROW.

I am surveying half of the original quarter-quarter and I don’t believe the row touches my client’s portion, but it is close.

I am assuming there is only one pipeline route. 

The client’s lender is asking for:

A) a statement whether this is a blanket easement or defined easement. (I say defined easement as I can at least approximate the location of the ROW.)

B) show the pipeline/row on property or place statement stating pipeline is not on property.

In order to cover myself, what say you as for statements/drawing a fuzzy ROW on the plat?

Thanks in advance.

This seems pretty straightforward to me.  You need to have whatever utility confirm or deny a pipeline is actually there and then have them mark the location if it is.  That should make the rest of your job pretty easy.

He was being pressured to forego that excellent practice and assume long term liability for stating an assumption as fact to make others happy.

@holy-cow In that case it's not really an easement question, it's more of a customer service question. 😏