Let's say you have a boundary or a subdivision project with a power line running through the property. The line was constructed in 1950 by the US Bureau of Reclamation and has a record 100 foot width. Your client wants his land subdivided so that the new lot lines are created on the easement centerline.
You get the easement description from the courthouse or title report, and tie the calls to the section corners as measured in your survey. Lo and behold the power line is not centered in the easement as described. Do you:
A. Exclaim "what a crappy description!" and proceed with your new calculated centerline, setting the new corners offset from the power line as constructed.
B. Contact the agency and tell them to correct their description to match field conditions.
C. Recognize that the line as constructed has existed unchallenged for 60 years and set your corners along this line. Note the discrepancy on your plat.
D. Fill in the blank. I'm interested in your thoughts.
I get a lot of A and B cases, I've yet to encounter a C. Case A has caused a lot of difficulties over the years, especially when owners plant trees under our lines and come home one day and they are gone (tree cutting and access are covered in the easement language). Often times the surveyor, developer or realtor actually tells the buyer that it's okay and not to worry about it because "the easement line is where the fence is." (The fence line based on the calculated centerline offset).
Case B we're okay with as long as the developer or whomever calls is willing to pay for the correction based on his findings and we agree with the assessment. They often refuse and plat the easement as calculated.
C Probably happens, we just don't hear about it.
I would place the centerline of the easement where the description says it is. From what you have provided there is nothing in the easement document that states the power lines are centered on the easement. If it says the power lines are centered on the easement then that would hold over the stated POB. At least that is how I see it.
Matt
None of the above. What makes you think that the power line was placed on the recorded center line of the easement. As long constructed somewhere within that recorded documents description it is just fine. Now if it read, 50' one each side of the power line as it exists on such and such a date the location of the line itself would have some control. Just finished a re plat with a 250' wide BPA easement, the existing line is 87.5' SW of the easterly ROW line, placed there intentionally to allow for future lines, good planning and common.
jud
Okay, I forgot to mention the description is a centerline description with construction stationing calling out "proposed centerline of power line", and an exhibit showing the line. 99% of the lines in our 15 state territory are described this way.
The line was not built on this centerline as described.
Is to be? Was it actually constructed there? The recorded deed document has much more authority than any construction plans. The Deed documents is the written evidence of what was agreed upon by the parties. Don't think I would place much value on plans. Now stamped as built s and a correction deed reflecting the actual location would have some authority, does not sound like you have that.
jud
> Lo and behold the power line is not centered in the easement as described.
I guess I have to ask what "as described" means. Everyone is saying that you didn't indicate it was part of the description. If the description is calling to the power line, I would imagine that if you don't have a reason to believe the powerline has moved, that would be the controlling monument. But I suspect I am missing something here.
> Is to be? Was it actually constructed there? The recorded deed document has much more authority than any construction plans. The Deed documents is the written evidence of what was agreed upon by the parties. Don't think I would place much value on plans. Now stamped as built s and a correction deed reflecting the actual location would have some authority, does not sound like you have that.
> jud
Not the plans, the EASEMENT DESCRIPTION says "proposed center of power line", and was not constructed per description, as I have said.
> > Lo and behold the power line is not centered in the easement as described.
>
> I guess I have to ask what "as described" means. Everyone is saying that you didn't indicate it was part of the description. If the description is calling to the power line, I would imagine that if you don't have a reason to believe the powerline has moved, that would be the controlling monument. But I suspect I am missing something here.
It's not built as described in the easement, your dimensions don't put you in the same place as where it actually is. Let's say by 20 feet. You discover this now in your survey, it has never been addressed for 60 years.
What?
In my experience the power line is the centerline of the easement on transmission facilities. Remote ties to section corners yield to the actual physical location of the easement. 50 years ago when the power line was built the ties to the section corner were not measured perfectly but they staked the centerline from which the towers were built.
We are working with you. The power line by your words was not built within the easement as described by the words, "to be" which indicates that the document came first. Hold the written, recorded document unless you wish to have that existing easement legally vacated and a new one legally created using the as built location for control. If the line is within the recorded easement, leave it alone, only the owners of the land along with the holders of the easement have the authority to change it anyway, If they with to go to the expense of doing so, help them do it.
jud
Corey
"Proposed Centerline" indicates that the easement was acquired before the line was built, perhaps before the design was complete. This happens with Highway R/W, we start at 30% of design, reference a centerline as the Construction Centerline and the 90% design moves the centerline but the right of way is already acquired.
I would set the easement by deed and determine if the line is inside the easement.
David
> We are working with you. The power line by your words was not built within the easement as described by the words, "to be" which indicates that the document came first. Hold the written, recorded document unless you wish to have that existing easement legally vacated and a new one legally created using the as built location for control. If the line is within the recorded easement, leave it alone.
> jud
And the 60 year old transmission line, unchallenged by the landowner who signed the easement, counts for nothing as to the location of the agreed upon centerline?
> Corey
>
> "Proposed Centerline" indicates that the easement was acquired before the line was built, perhaps before the design was complete. This happens with Highway R/W, we start at 30% of design, reference a centerline as the Construction Centerline and the 90% design moves the centerline but the right of way is already acquired.
>
> I would set the easement by deed and determine if the line is inside the easement.
>
> David
This is usually the case unless the line was acquired by condemnation.
And what happens when you determine the line is not centered in the easement, or even out of the easement entirely?
Oh, duh.....I wasn't reading that right. I understand now.
It seems to me that the power company can build the power line anywhere inside that easement; as long as it is, I don't know that the location of the power line is absolute indication of where there easement centerline was meant to be described.
I would show the client where the line is, and where the centerline of the easement description is, and ask him if that changes his mind as to what he wants done. But unless I found evidence to the contrary, I would not presume that the actual power line is now the center line of the easement by some sort of prescription or something else (if and since it all falls within the mathematical easement limits).
>
> This is usually the case unless the line was acquired by condemnation.
>
> And what happens when you determine the line is not centered in the easement, or even out of the easement entirely?
If the line is not centered in the easement, I would not worry about that. If the line goes outside of the easement entirely, I would try to figure out a corrective action. The powerline company could try to claim some sort of prescription or something else, but that is a problem unless it goes through the court system and is decided by the courts. It would be much cheaper for all involved to try to come up with some kind of agreement-type document, or some sort of abandoment of the old deed and a new deed. But sometimes that takes some cooperation between parties.
Just some thoughts here. I am not an expert in how to correct this sort of problem.
> I would show the client where the line is, and where the centerline of the easement description is, and ask him if that changes his mind as to what he wants done. But unless I found evidence to the contrary, I would not presume that the actual power line is now the center line of the easement by some sort of prescription or something else (if and since it all falls within the mathematical easement limits).
Thanks Adam, interesting answer. I'm curious as to why you would not consider prescriptive rights.
Wow, this is basic stuff. We are the reality profession, not the way-it-should-be profession.
The transmission line is a pretty big reality. The document states the intention of centering an easement on the power lines. What if the landowner signed this document because only some of the easement is on his property then 60 years later find the remote tie "puts" all of the easement on his property; the landowner would almost surely object given the obvious fact of the power lines. Or the case where it goes through the middle of his property. The same amount of ground is taken up, it is just a question of where. It seems in all of the parties interests to have the where be where the facilities are located. There is no need for correction documents, the intentions of the parties are obviously clear.
Corey,
You can seem my answer below. But simply stated, it is not really the surveyor's call, in my opinion, to declare prescriptive rights. The owner can make that claim, and you could advise that to the client. They may well want some sort of new agreement written up. Even if you "claim" an easement by prescription, the ambiguity can cloud the title unless it goes through a court process or unless there is a new type of written instrument repairing the problem.
Power lines and other such utilities are commonly NOT situated in the center of the easement but are offset to one side to allow a parallel installation to be constructed without requiring an additional easement to be obtained.
A few years ago, the agent for the natural gas pipeline that crossed my dad's farm came by to obtain a temporary construction easement so that they could put in an additional line in the existing easement.
We had never known it but the first line was purposely installed off-center in the easement for that express purpose.
The most liability-prone situation I ever ran into was a transmission line easement encountered while working for my previous employer. I had a copy of the recorded easement that was found during our typical deed research and discovered that the existing power line did not reside within the easement as described in the deed. Had I not done additional research, I would have been tempted to conclude that the line was built in the wrong place. Or even worse, if I had not tried to verify that the existing line was actually in the easement and just assumed it described existing conditions, I would have missed the fact that there was in fact a second easement for a line that has never been built.
I had a high tension line on a lot survey years ago. It did not plot on the easement celterline. I though the easement too small for the line in question and continued my research. The easement noted on the deed was the second acquisition. Once the earlier easement was placed on the tract everything was AOK on my lot.
There was no information that the first line was never built and the ROW sat for many until the need arose for the larger line. As I now think about it the old line may well have existed as the smaller easement was nearer to my rear lot line which abutted an old trolley barn. The deed for the parcel prior to the subdivision called for that line to be 50' off the trolley barn. When I located the stone walls of the still extant building and found them to be at 200.01' I said to myself someone knew what they were doing. I held that line in a heartbeat and redug one of my corners finding a square iron bar 1' down.
Paul in PA