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Easement Terminations

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(@charlie_wagner)
Posts: 41
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Topic starter
 

Working with easements that are worded something similar to "A 10' wide easement centered on the centerline of the storm sewer between Catch Basin A and Catch Basin B".?ÿ How would you terminate the easement??ÿ Attached is a PDF with the easement terminating at the center of the catch basins in Option A and with the easement extending 5' beyond the catch basins in Option B.?ÿ?ÿ

Option B in my opinion will allow the contractor to excavate around the catch basin where as Option A will not.

Any input will be appreciated.

?ÿ

 
Posted : May 9, 2023 5:03 pm
rover83
(@rover83)
Posts: 2346
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Option B in my opinion will allow the contractor to excavate around the catch basin where as Option A will not.

With Option A, half of the catchbasin is technically out of the easement.

I'd say option B is likely more in keeping with the intent of the easement (and maintains that "ten foot width" in all dimensions), but in any case, I don't think that either option precludes someone from doing required maintenance or upkeep in the immediate vicinity of the catchbasin.

 

That's my shoot-from-the-hip interpretation at the end of the day, it's free and worth every penny. My Donald Wilson textbook on easements is at the office...

 
Posted : May 9, 2023 6:47 pm
(@chris-bouffard)
Posts: 1440
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Option B is the best choice but if option A is a filed easement, only the Grantee can correct it and that would also bring up the issue of whether it is a private or public road.

 

 
Posted : May 9, 2023 8:06 pm
(@scrim)
Posts: 56
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...together with a xxx foot radius easement centered on the catch basin 

 
Posted : May 10, 2023 9:01 am
mkennedy
(@mkennedy)
Posts: 683
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Option B in my opinion will allow the contractor to excavate around the catch basin where as Option A will not.

With Option A, half of the catchbasin is technically out of the easement.

I'd say option B is likely more in keeping with the intent of the easement (and maintains that "ten foot width" in all dimensions), but in any case, I don't think that either option precludes someone from doing required maintenance or upkeep in the immediate vicinity of the catchbasin.

 

That's my shoot-from-the-hip interpretation at the end of the day, it's free and worth every penny. My Donald Wilson textbook on easements is at the office...

Okay, so to be clear I don't know anything and have only very beginning surveying knowledge (and a bit picked up here). Let's say the utility wanting the storm sewer easement already has easements for the two catch basins. Does that change your reply? Are overlapping easements allowed at all?

Or, off on a tangent, if someone grants an easement for one purpose, could they later grant an easement in the same area for a different purpose? I think I remember hearing about a general utility easement so all the utilities would just have to play nicely together?

Thanks!

Melita

 

 
Posted : May 10, 2023 11:08 am

john-putnam
(@john-putnam)
Posts: 2161
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If that is truly the verbiage of the easement, then technically it has a patent ambiguity.  The descriptions places the easement's location but mentions nothing about it beginning or terminus.  If this were for an ALTA, I would definitely make not of this fact.

 
Posted : May 14, 2023 7:09 am
(@jon-payne)
Posts: 1597
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If that is truly the verbiage of the easement, then technically it has a patent ambiguity.  The descriptions places the easement's location but mentions nothing about it beginning or terminus.

Good point, because there is also the option of the easement beginning and ending at the back of the catch basin structure.  Somewhere between the drawn option A and option B.

 
Posted : May 14, 2023 11:54 am
jmcnicholspls
(@jmcnicholspls)
Posts: 68
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@mkennedy To your second question.  It will depend on the language of the easement.  If the easement is granted exclusively then no other easement can be granted.  If the language does not grant an exclusive easement then additional easement(s) can be granted but the additional easement(s) can not frustrate the use of the first easement. The third can not frustrate the first and second and so on. 

Example.  You grant a 20' nonexclusive easement to a company to lay an underground utility.  Can you then grant an access easement along the surface to a second party?  Maybe an electric utility crosses the underground easement with a second easement for transmission lines 100' in the air and no towers are to be set on the 20' underground easement.  Seems reasonable.  Please be aware that I am not an attorney so this is not legal advice and I am positive the word reasonable is unknown to attorneys.  

 
Posted : May 16, 2023 6:42 am
rover83
(@rover83)
Posts: 2346
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If that is truly the verbiage of the easement, then technically it has a patent ambiguity.  The descriptions places the easement's location but mentions nothing about it beginning or terminus.

Good point, because there is also the option of the easement beginning and ending at the back of the catch basin structure.  Somewhere between the drawn option A and option B.

 

Excellent points, and something we encounter all the time.

When I submit my preliminary ALTAs for review, I do not attempt to create (guess at) the extent of the easement, but place a note in the Schedule B Special Exceptions table for that item, as well as place multiple leaders on the face of the survey indicating "see exception note XX".

Not to mention that we don't always know if the located utilities are indeed the ones referenced in the document, or whether they are all under the same ownership and subject to the same easement for the same type of utility on site. We're not digging them up and certifying to ownership, that's for sure.

It's pretty rare that we get asked to try and delineate those easements, but it does happen. We really push back against it, but if we have to I essentially place a buffer around all the facilities/lines and detail exactly how it was done in a separate note.

Document, document, document.

 

 
Posted : May 16, 2023 7:08 am