I'm inclined to say no. If the easement lacks a description sufficient to allow it to be located on the ground and isn't specifically described as a blanket easement, in my mind it would be invalid. I ran across such an easement that made reference to an Exhibit A which was just a photocopy of a single sheet of some construction drawings, without any ties or other minimal information that would allow someone without inside knowledge to say where it was on the ground.
Now I'm being asked to show where it is. :'(
Yeeaaaa. I'm sorry, I can't do that until someone corrects the record with a valid description.
Around here the answer would be yes. While nowadays we eloquently describe easements with bearings and distances similar to conveyances that hasn't always been the case. Basically the courts have ruled that a poor description doesn't nullify the fact that rights were granted for a specific purpose.
Generally in most cases the easement actually exists where the appurtenance is located or surface use is apparent.
The answer is yes in Texas as well.
To me, it sort of doesn't matter if a court might consider it valid or not. You are expert at locating a land description on the ground. My answer would be to tell them that I can't locate it based on the information they gave me (if that's the case) and offer them whatever you could provide (such as the parent tract that the easement is supposed to be encumbering, and/or the approximate location if that can be determined). You might repeat what Paden said, but that they need a title expert or some legal advice to determine if it is a valid easement.
If the easement is for subsurface lines, have the client hire a reputable SUE contractor. If it's a surface easement, there should be evidence of use or the client can tell you where he wants it to be defined. Otherwise it is indeed a blanket easement.
Thank you Compadre Paden. The surveyor in me wants everything tied down to the hundredth and all ambiguities dispelled with, but as you remind me, intent is king.
Is this for utility, ingress/egress, or street and highway? These usually are in perpetuity type easements.
Sometimes it's best to contact the holder of the easement to get the background behind it. If they are still around. If the holder is not in existence or was not transferred to new entity then it is a moot issue. Easement may have expired.
If it can't be located how could it possibly exist?
It's a fiber optic cable and vault providing service to several businesses and the local municipality on several parcels. The generic nature of the description, other than 'being 10' in width', could be interpreted to be centered on the fiber, but could also be interpreted to describe any and every buried phone cable on the parcel. My trepidation lies in assuming anything and then associating my name with said assumption. The easement is not being challenged, which is a good thing. I'm just being asked to show on a design survey where said easement is on the ground. I'll show the located fiber and note the fiber was placed in association with referenced easement 'instrument #blah-blah' and let it go at that.
Nice having someone to bounce this kind of thing off of.
My conundrum in a nutshell.
I concur 100% with not assuming anything...
Not having a legal description and simply having an approximate sketch of position on the plat seems to be standard operating procedure for many easements in the platting authority I do most of my work.
If it's for a fiber-optic cable, maybe you cold give your client several options. One is that if they want an accurate location, they would need to uncover the cable and you could locate it. If they don't want to do that, they could provide surface flags and you can locate the flags, but that your locations aren't any more precise than the flags on the ground.
I would think the intent, if it is an easement with the fiber-optic company would be 10' centered on the fiber-line. But I would say that the only way they can have a precise location, is to rewrite the easement deed with precise numbers on it.
I recently had an "opposite" problem where I had an accurate location on where an easement is, but the deed didn't state the purpose of the easement.
A few years back I did a boundary survey where the landowner also wanted the existing sewer easement extended into additional lots that he wanted to develop. After making two separate trips to the courthouse I was convinced the easement did not exist. The landowner then produced an old 1980's letter from the local attorney with a copy of the easement along with a statement from the attorney that he would file the necessary paperwork. He never did. So, I rewrote the easement by the attorney that never got filed in a metes and bounds description. I added a statement that the landowner had produced the easement that was never filed and that my easement with the new description superseded the unfiled document. This may not be the right way to do things, but I did it and everyone was happy. The landowner recalled that he had paid the attorney quite a bit to write that original easement that he never filed.
Sure sounds like the right way to me, Mr. Penry. You left a nice set of footsteps.
I'm with Paden on this one. The mere lack of ability to locate the easement on the ground does not mean there is no easement, it just means you cannot locate it.
We run into these all the time. Usually it's an electrical easement from the 50s that is for 'poles, guy wires and overhangs as staked on the ground' There is no way in hell I am going to certify that the poles in 2014 are in the same location as the 1950 staking. In instances such as this I simple make appropriate notes on our topographic survey base map regarding our findings and move on. Haven't had an issues with it, ever.
unrecorded easements
One of my clients is a rural electric coop. The organization came to life with the government grants after WWII and has remained well established. Trouble is a lot of their RW record keeping is from that era. Unrecorded easements are not only common; I'd go so far as to call them exclusive. The subscriber merely signed a "blanket" easement allowing the REC to place facility plant on their property....back in 1951.
Nowadays what we prefer to do (if new RW is needed in conjunction with an old line) is describe the new and then "refine & confine" the old RW description, noting such on the easement exhibit. Everything gets recorded. While I will probably never see all their old unrecorded easements converted to described and recorded documents, it's a good thing to try.
Maybe someday they will have everything brought to date...until then, we just pick it up as we see it. I like to call it job security.
:good: :clap:
It's very helpful to me to see how others handle this.
I believe it comes down to whether or not I can locate it. Whether it is valid or not, would be up to a court to decide were the issue to be challenged.
We run into a lot like this and even 20 or so years older from the 30's. However our problem is that the easement was for a service entrance that is no longer in place and you have no idea where it was. The original may have been on a larger farm that has since been divided so you have no idea whether it applies to the parcel you are surveying. Most surveyors, attorneys & title insurance companies take the position that if it ain't there it's lost. However (#2), if you know who the successor company to the original easement holder is you can frequently get a release.
