Exactly Dave!?ÿ Crafting easement language is the job of an Attorney in all areas I work. We do not amend or otherwise edit the easement language at all.?ÿ We will certainly make recommendations to the client and client's attorney when appropriate.
I was reviewing a description for a utility easement from one of the young guys in the office, there was verbiage at the end I had to redline for removal.?ÿ
There was a subject to line at the bottom,,,,,,,,that shouldn't be in our description.?ÿ
I had to re-explain that we write descriptions not deeds.?ÿ
Leave all that to the title people, attorneys, grantor, and grantees.?ÿ
Semantics can have an effect, I try not to say Legal Description, or Deed, I always try to say that we write descriptions.?ÿ
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I see "Exclusive" in easement descriptions meaning the land can be used for no other purpose, such as when a house is built encroaching and the land can't be conveyed due to zoning restrictions. Is that the intention of the sewer easement - too prevent the land owner from driving across it perhaps??ÿ
Let the lawyers screw it up!
I see "Exclusive" in easement descriptions meaning the land can be used for no other purpose, such as when a house is built encroaching and the land can't be conveyed due to zoning restrictions. Is that the intention of the sewer easement - to prevent the land owner from driving across it perhaps??ÿ
Under that wording, wouldn't it be the grantee of the easement who was prevented from driving across for any other purpose than dealing with the sewer?
I see "Exclusive" in easement descriptions meaning the land can be used for no other purpose, such as when a house is built encroaching and the land can't be conveyed due to zoning restrictions. Is that the intention of the sewer easement - too prevent the land owner from driving across it perhaps??ÿ
Let the lawyers screw it up!
Around here the use of the term exclusivity in regards to easements is probably synonymous with the term private.?ÿ?ÿAccording to plenty of court rulings over the years the dominant estate (grantee of an easement) cannot exclude the servient estate from use of their land.?ÿ One ruling (and I apologize for not being able to cite) explained that exclusivity to the extent the grantee of the easement attempts to exclude the fee owner from occupation or use is not?ÿwithin the rights granted with an easement.?ÿ Exclusive use to that extent is reserved for the fee estate.?ÿ
I've seen (and been party to) a few court cases where the owners of cross-country transmission lines get twisted when the owner builds a barn on the easement or underneath their line.?ÿ Unless the original easement grant specifies limits of surface construction or clearance the easement grantee is out of luck.?ÿ Lots of easements written in the 1940's never addressed any such thing.?ÿ Nowadays it's SOP for the dominant estate to attempt to "upgrade" the easement with a little thicker wording.?ÿ $ome property owners go for it, some don't.
In these woods down here pipeline companies are the world's worst acting like they have "exclusive" rights to their easements.?ÿ I was part of a project that required an aerial electrical primary to cross a heavily coveted wildlife sanctuary.?ÿ Due to the nature of the sanctuary dedication a new easement was not possible.?ÿ There was however an existing occupied 100' wide pipeline easement that cross the property.?ÿ ?ÿWith much legal wrangling the power company obtained from the land owner a 30' strip along and within the 100' pipeline easement.?ÿ This satisfied all the federal requirements because that 100' wide strip had been an easement prior to the creation of the sanctuary...but the pipeline company's attorneys squealed like pigs.?ÿ Simply put the court didn't see anything wrong with the land owners dedicating an easement within the original 100' pipeline easement because they owned the land.?ÿ The original easement grant had no stipulation that the pipeline company was the only entity that could occupy the entire easement.?ÿ
This is where most cases wind up:?ÿ arguing the safety factor.?ÿ While another buried utility probably (again depends on the original easement wording) can't technically be excluded from crossing say a buried pipeline and easement; their lawyers will scream and yell and fill up the court room with all their experts that want to tell you why it can't be done.?ÿ Let's just say it gets expensive to cross an existing pipeline with another buried utility.
Cross country private utility easements use to be one page.?ÿ Now they're more like 15 or 16 pages.?ÿ I guess lawyering is good business.
The ones I wrote (years ago) and were approved by the client's attorney said:
"Said easement is for the purpose of construction and maintenance of a sanitary sewer line.?ÿ The easement is centered on the line hereinafter installed."
Andy
- WORDS & PHRASES ?? USE OF ??AND/OR? DISAPPROVED. ?? The use of ??and/or? is at best equivocal, obscure, and meaningless, at worst slovenly, improper, and a linguist abomination.
Kennedy v. Papp
Found this gem within:
"and they were assured by a realtor and their predecessor in title that the easement was not a driveway"
Here is a DDSM Workbook for your enjoyment.
Excellent, thank you very much for putting that together. Suggest starting a new thread so more will be able to use you efforts.
