I have to retrace a gas line easement with an exhibit and description that show the easement in one place, but the actual pipe has been installed about 30 feet outside the described area. The document contains verbiage stating "the easement is to be 20 feet wide and centered on the pipeline after it is installed." The pipeline was installed months after the document was executed. Obviously the pipe location implies an agreement between the pipe owner and landowner at the time of construction, but does that change the intent of the document at the time it was executed? What controls here? Do I locate the easement based on the description or the pipe location?
"the easement is to be 20 feet wide and centered on the pipeline after it is installed." The pipeline as-built location controls.
Think of the pipeline as a monument which is called for in the deed. It controls over the bearings and distances.
There can be time limited agreements prepared much like the situation you describe. Be sure that there wasn't a one year limit to get the pipe surveyed after installation.
State statue can also come into play. My utility clients would want the easement corrected to reflect a merger with the pipeline and the location description. It's tightened up considerably over the past decade.
In fact we are now doing an upgrade for an underground electric line. We will be extinguishing old easements and writing new easements to lay the centerline onto the existing line.
However, if none of that is in play, you now have an opportunity to file a new survey reflecting the correct location of the pipe which is the monument if there were no qualifications to the original easement grant. But, be very careful and read all the documentation.
Never for gas lines but I prepared hundreds of both written deeds and sketches for sanitary sewer easements that said almost exactly that. I've had them reviewed by many attorneys and they all agreed that they were totally acceptable. A 24 inch ring and cover make a pretty good monument to follow. And yes, I know, offset manholes exist but are still pretty easy to follow.
Andy
If the as-built location controls, is there any limit to how much the location can deviate from the recorded description? I feel like at some point this becomes a tale of 2 different intents, one solidified in writing and one installed in the ground, but the original intent can't be modified by a future action. Why bother recording a description at all if it will have no impact on the easement's location?
Why bother recording a description at all if it will have no impact on the easement's location?
Deeds have two purposes, 1) to transfer title and , 2) to establish boundaries. This deed accomplishes item 1 and the manner of establishing item 2.
@vectormechanic Let's question it the other way, if the asbuilt location didn't control, what was the intent of putting that verbiage in the document to begin with? It seems obvious they knew the pipe wasn't going to be laid where the exhibit showed it. Since they knew this, they deliberately said the easement would be centered on the actual location of the pipe.
We just had a similar issue for a utility company. Easement was not where the utility was and it just happened that it was physically inside an ingress egress easement as well big no no. I showed the monument the physical location and we showed the discrepancy of how it was written. Because also it fell i. The ingress egress. We showed that as well. The utility company had 2 choices. 1 move there stuff or pay to have the land owners ingress egress issue resolved. I need to follow up and see what outcome happened. The. lS i was working under went on vacation so I never asked what was decided. He is a good one. Truly a gifted teacher. I have worked on only a couple projects under him and he is patient with my thirst for knowledge and handles me and keeps me grounded well. I can get into the weeds. The haunting of my geodetic side sometimes gets all worked up. Lol he is like hey its a darn tree don’t sweat the tenth lol.
If the property to be encumbered had any value at all what landowner would agree and grant such an easement? Big difference of an 20' wide easement coincident with a property line compared to it being built in the center of a 100' wide piece of property and still considered "in the easement". I would advise against a property owner agreeing to easement with "or as-built location" clause.My 2 cents, Jp
... is there any limit to how much the location can deviate from the recorded description?
The question & answer would hinge on whether the located pipeline is the same one referenced in the deed. If the pipeline was a mile away, that might call that into question. But if there was testimony, or other evidence, that affirmed that it was, the distance wouldn't matter.
Why not show both? It may not matter in the future, until someone makes an issue out of it....
@vectormechanic recording the original easement with notice that the as-built pipeline would control was likely a financial reason to assure that there was purchase fee paid so that, regardless of location, the easement was locked in regardless of it's location and the final location being on the centerline of the as-built pipeline. This guarantees that the grantor or assigns can't back out.
@gordon-svedberg showing both would create confusion. The intent was clear, center the easement on the as-built pipeline.
... showing both would create confusion ...
I heard a story at the convention some years ago - ALTA on an industrial site, one of the deeded bearings transcribed a "E" for what should have been been a "W". When the W was substituted, the description closed and matched occupation well. So fine, just a scriveners error, right?
Trouble was, the surveyor showed the "W" line, but also showed the line with the "E" bearing, dotted. Labelled it as being the result of a transcription error. It passed into the building.
Somebody at the lender saw the dotted line going into the building, but not the note, and pulled the chicken switch. Funding was withdrawn. The deal fell through. Surveyor was sued by the seller, successfully. Put the surveyor out of business.
