There is no prescriptive rights. There is an easement that can by physically located on the ground. The monuments (power lines) control over the numbers.
I can make a determination of my opinion and, if necessary, attempt to persuade the trier of fact to my way of thinking.
> Just some thoughts here. I am not an expert in how to correct this sort of problem.
No problem - I appreciate the comments on how surveyors approach this kind of thing, and the perception of those who don't work for transmission line agencies or companies.
A couple of other issues to note:
The line is owned and operated by the US government. Does this matter?
Transmission line easement widths are calculated in relationship to the voltage, span length and structure type (H-frame, single pole, etc.) in order to encompass the potential of wind blowing the lines. This is actually to protect the public, to prevent construction or tree growth. So, at least to us, the easement vs. construction centerline is important.
Thanks again for your input.
my previous employer had a huge Desert Park with an SDG&E power line (69KV) through it. Only some of the power line had a written easement (100' wide) from the Federal Power Administration (public domain). They had a few scraps of easement over small former private parcels with no width given. A lot of it crossed former railroad checkerboard sections with no easement at all. That is how we were able to stop them from building a 500kv transmission line through our Park (plus 100' wide isn't enough for that).
This isn't really a question, is it?
The answer is, you show where the center of the easement "SHOULD" be and where it actually is, the differences between the two, and what has been cleared that is OUTSIDE the easement.
The easement has junior/senior rights just like everything else. Give it the call, and show the differences.
Anything else assumes facts not in evidence.
So I'll just spit ball some thoughts.
Yes, power company has the right to put the lines anywhere within the easement and fully use the width of that easement for all of the rights is provides. Land owner still has rights to the land encumbered but cannot infringe upon the rights given away in the easement. IE. Right to the show area of fee ownership, and possibly differing rights or permissions granted by the power company over the land they have easements on. Right to graze animals right to fence over it as long as access rights are not infringed upon if so granted.
Yes, if the easement calls to the constructed location or even eludes that the intent was to be along the as-built location then generally I would show the easement centered on the structures. I would make sure that was the intent though by retracing a whole hell of a lot of easement docs for the line and get the opinions of the power company and local county surveyors. For example. BPA holds their structures for centerline and if someone goes and builds a building or something that infringes on their rights of the easement.... they will cut your building in half.
Right Dave, the intentions of the party's are clear in the Documents, a little problem with one not doing his due diligence by locating the center of the easement as described and then placing the line there does not change the described easement location nor does it transfer any rights unless the owner and the holder of the easement go through legal steps to do so or a court makes that determination because of litigation. No surveyor has the authority to shift the easement location. He can help the owners obtain a good description for doing so but it is the owners and easement holders responsibility to take legal action to move anything. If the line is outside of the described easement the surveyor can nothing in that case either, the responsibility falls back to the same parties. Does not sound like any real harm is being caused by the locations of the line or the easement, it sounds one like a misunderstanding of location and that has now been determined.
jud
> So I'll just spit ball some thoughts.
>
> Yes, power company has the right to put the lines anywhere within the easement and fully use the width of that easement for all of the rights is provides. Land owner still has rights to the land encumbered but cannot infringe upon the rights given away in the easement. IE. Right to the show area of fee ownership, and possibly differing rights or permissions granted by the power company over the land they have easements on. Right to graze animals right to fence over it as long as access rights are not infringed upon if so granted.
> Yes, if the easement calls to the constructed location or even eludes that the intent was to be along the as-built location then generally I would show the easement centered on the structures. I would make sure that was the intent though by retracing a whole hell of a lot of easement docs for the line and get the opinions of the power company and local county surveyors. For example. BPA holds their structures for centerline and if someone goes and builds a building or something that infringes on their rights of the easement.... they will cut your building in half.
NOW we're getting somewhere. I don't think our agency would go THAT far for PR reasons, but we also have "the big hammer" like our sister agency BPA.
> This isn't really a question, is it?
Believe it or not, yes. We have surveyors "telling us" were our easements are all the time.
> The easement has junior/senior rights just like everything else. Give it the call, and show the differences.
>
> Anything else assumes facts not in evidence.
Great points, Kris, thank you.
> There is no prescriptive rights. There is an easement that can by physically located on the ground. The monuments (power lines) control over the numbers.
>
> I can make a determination of my opinion and, if necessary, attempt to persuade the trier of fact to my way of thinking.
Ding ding ding ding!
In simple terms:
1. land owner and utility company agreed on the easement location and documented the agreement
2. utility company built a power line
Done deal, end of story.
Perhaps the exact wording of the actual document needs to be inspected a little more closely.
Prescriptive rights could develop, maybe/maybe not, that is a separate issue.
What would condemnation have to do with it?
If either party wants to change the easement or the location of the pole line then they would have to reform the agreement or ask the courts to decide for them.
The law considers that there is only one line. I show the one line where it is and possibly a record and measured on the remote tie. But I don't show two lines because there isn't two lines. There is a conflict between the tie and the towers as monuments. Resolve the conflict the correct way; either it's the distance in the remote tie or it's the towers.
Nothing herein means to imply I don't do due diligence or what is necessary to ascertain the correct answer. It is true that the facility may not be centered in the easement; this can only be determined by examination of all of the evidence.
Where is a question of fact. Where does the evidence (record and physical) lead to? The answer varies.
Thanks, Peter.
> What would condemnation have to do with it?
In that case we usually go ahead and build the line and let the DOJ see the landowner in court a year later. At that point the intent is pretty obvious!;-)
One lesson to possibly be learned, is how to write future easements. There is obviously an ambiguity between some metes-and-bounds and the actual structures. The intent that the powerline is the center of the easement should somehow be shown in the description. The fact that a huge power company and/or government entitiy can bully their will against the landowners, does not fully resolve the ambiguities in the written documents and/or possible clouds on titles. In my opinion, it would be better if a new-written type of document could be created.
Also, in my opinion, the duty of the surveyor working for the large corporations has the same duty as the private surveyor in that it is still not his job to decide prescription (per se). It is his job and his duty from being licensed to practice to protect the property rights of both the client (or the power company) as well as the adjoiners.
But again, just my thoughts.
If this is a new subdivision why not just recenter the easement and vacate any of the original easement now? The power company would sign off on it; or it should. You're doing them a service. Then, at least through the subdivision, the easement will be centered. I deal with this all the time, but it's usually a utility clearly outside of an aquired easement.
We've been had by what I view as a faithful puppet of a Bureaucrat and I want to puke.
jud
Dave Karoly
> The law considers that there is only one line. I show the one line where it is and possibly a record and measured on the remote tie. But I don't show two lines because there isn't two lines. There is a conflict between the tie and the towers as monuments. Resolve the conflict the correct way; either it's the distance in the remote tie or it's the towers.
>
> Nothing herein means to imply I don't do due diligence or what is necessary to ascertain the correct answer. It is true that the facility may not be centered in the easement; this can only be determined by examination of all of the evidence.
>
> Where is a question of fact. Where does the evidence (record and physical) lead to? The answer varies.
Bullcorn. There can be a line as constructed and a title line. Just like in every boundary case there is an occupation and title line.
> If this is a new subdivision why not just recenter the easement and vacate any of the original easement now? The power company would sign off on it; or it should. You're doing them a service. Then, at least through the subdivision, the easement will be centered. I deal with this all the time, but it's usually a utility clearly outside of an aquired easement.
Yes, we are generally agreeable to this scenario.
> We've been had by what I view as a faithful puppet of a Bureaucrat and I want to puke.
> jud
Just trying to spur discussion about an issue I am constantly dealing with, no need to insult. But it's hilarious that you called me a bureaucrat.
Corey-
My approach might be to consider:
1] "Intent" is not a camping term.
2] What is the intent of the easement ?
3] Chatting up the utility to see if there was any reconstruction of a new line after the original line was set.
4] If the utility was/is/will be happy with their width and to use the physical C/L and get on with life with the concordance of the utility in writing
So its is a "Depends" answer, kinda a C&D 'ish' reply ?
Cheers
Derek
Back in the USBR heyday, surveys were very hit and miss for quality. Sometimes they had real surveyors and other times a couple of chain-men and an engineer with a transit. From the old field books I have discovered they would shoot stadia for the distances and not chain the line. Ties to corners were iffy from the established baseline survey. The resulting data was often times not as accurate/precise as today but that's not really the point.
I was hoping to get around to looking at easements the same way you would any other boundary, and what gets considered as evidence of a centerline.
Perhaps I will scan some stuff and post some examples of our easements if anyone is curious. Unfortunately I can't discuss details on the really interesting cases I'm working on right now.
