what to do...???

paden cash, post: 365132, member: 20 wrote: I have a little project that is causing me all sorts of heartache. It's a mess. [...] I don't know which way to call this one.

Okay. So the Utility Easement was dedicated by the subdivision plat which shows no monuments aside from those on the boundary of the tract subdivided? And constructing the easement line from the ACTUAL SUBDIVISION PLAT that dedicated the easement, there is no problem with the location of the actual underground utility lines?

But this is in Oklahoma and some later surveyor made a "bad call" and staked a whole bunch of lots about a pace and a half too far West? Is the idea that in Oklahoma that will move the entire subdivision about a pace and a half West?

Seriously, isn't the answer that the easement and the lot boundaries are two separate things?

My thinking, when I first read this, was the same as Kent's, without slamming OK surveyors. But what do I know, I consider a stone wall a satisfactory monument 🙂

The line as constructed, and placed, in the dedicated easement, is in the 'correct' location.

I'd interpret the easement so that the electric line was within the bounds of the easement.

If that electric line was installed shortly after the creation of the plat, it's been there for decades. Good luck getting it moved now.

In the real world a lot of theory goes out the window. It's all about keeping maintenance costs to a minimum.

Several jobs a year come my way like this. Unless you can prove beyond a shadow of a doubt the line is within its proper location, the client usually spends the money to move it. And I've discussed prescriptive rights and easements with legal until I won't bring it up anymore. If Big Business fights little property owner in a legal setting, the utility company is convinced they look bad.

Simple fact is there IS a hint of evidence that the line MIGHT BE CONSTRUED as being out of the easement. It will probably be relocated. My first suggestion (some years ago) was to obtain additional easement. To do that would mean dealing with a dozen property owners. Its cheaper for the company to move it than to fight it. Which puts me in a bad spot....when they ask me to stake the easement line, which set of pins should I use? :bored:

paden cash, post: 365163, member: 20 wrote: Which puts me in a bad spot....when they ask me to stake the easement line, which set of pins should I use?

This is a trick question, right? Aren't there chain link fence posts that will control everything?

Kent McMillan, post: 365164, member: 3 wrote: This is a trick question, right? Aren't there chain link fence posts that will control everything?

It's the difference between a monument and a precise control point.

Dave Karoly, post: 365175, member: 94 wrote: It's the difference between a monument and a precise control point.

Except that if a monument is to control a land boundary, it is by definition a control point. Fence posts are not by their nature monuments any more than a utility pole or a mailbox is.

I had something similar a while back. It was a 1950's era plat that dedicated a 20' wide easement for 'electrical & telephone'. No hard ties. One of the lots was cleanly bisected by the easement, right through the middle of it. It was a small remnant lot in a high price area and not that long ago a realtor picked up the lot for a song and demanded that everyone relocate all of their utilities out of it and vacate any claims to an easement so that she could make a tidy little killing flipping the lot. The power company had recently realigned their pole line out of the easement so they had no longer had any skin in the game and now it all fell on the telephone company. We're talking two fiber optic cables and a half dozen copper in there, some since the 50's. I was able to locate all of them and sure enough they all fit within a 20' strip. The realtor's attorney accused me of 'shoe horning' the easement in to fit the cables. After having a good laugh I told those that be concerned that if that attorney had better evidence of where the easement was than the location of the cables that had been there since the 1950's, I'd sure like to see it. Haven't heard another peep about it since. Pound sand I say, or show me the money!

I'm working on something like this as well. But since they are replacing the line anyway, they are going to put it back into the easement. It seems the easement area had bushes and trees so the water company just decided to move 5 feet to the east so they didn't have to deal with the trees....smart.

If the electric line has been there since the 70s wouldn't the line itself have prescriptive rights by now in its current location?

Also, if I'm reading right and the easement runs along and parallel the rear line, then I would just parallel the rear line as it currently stands which would keep it in the easement.

And even it if was within the lot, it would clearly seem to me the intent was for the easement to be where it is located since the dimensions to the rear line up correctly and front corners seem to be the ones that were displaced.

I understand the politics of a large, remote entity in a small rural County where everyone knows everyone including the local Judge. We have that too.

This is also just another chapter in my daily log as well...

So the lots are 5' shorter E/W than record calls for on some of the bozo lots, but you found the controlling record exterior corners, and interior pins to support, which makes the whole Sub work and the ESMT Kosher? Sounds like a call to Mr. Bozo is in order, and start the bus while you're at it..

I'd report the facts and let the Utility decide.

Well seems like there wasn't adaquint information from the start, on the other hand it had to be the original Surveyor didn't get qiute in place with His surrounding.

Rich., post: 365181, member: 10450 wrote: If the electric line has been there since the 70s wouldn't the line itself have prescriptive rights by now in its current location?

Prescriptive rights are earned. One thing most surveyors don't consider when we throw the term around is "..prescription is, in essence, a form of adverse possession. It differs in that prescription grants the adverse user an easement or incorporeal rights in the property, not legal title. Prescriptive easements are not favored in law, because they deprive the legal owner of rights without compensation."

Public utility companies (in Oklahoma, anyway) operate under tariffs set out by State Statues. While they basically maintain a monopoly within their service area, they are required by law to provide service to anyone within that service area. If the utility placed facilities outside of an easement to provide service to someone (in or across an area where no easement existed) it could be construed that the utility, being required to service a customer, had no other choice. In those cases prescriptive easements may actually ripen. Where an easement exists and the utility company's facilities are outside of that easement due to nothing other than negligence, prescriptive rights are generally not considered when the facilities could and should have been placed within the confines of the easement.

Remember, prescription is just another form of adverse possession, someone loses.

In a case of a "wandering" buried utility, it may have existed for 50 years. But when the property owner attempts to place a swimming pool and can't because the line is "out of the easement", that property owner is being deprived of full use and enjoyment of his property. AND ample easement had originally been provided and exists as the dominant estate. In these cases the courts generally view it as "the utility is in the wrong place".

Prescriptive easements for public utilities are not that common at all; only a few rare cases. Just because a utility has been there since the '70s gives it no more right to be there than the day it was placed. At least that is what I have seen in my years of experience.

paden cash, post: 365204, member: 20 wrote: Prescriptive rights are earned. One thing most surveyors don't consider when we throw the term around is "..prescription is, in essence, a form of adverse possession. It differs in that prescription grants the adverse user an easement or incorporeal rights in the property, not legal title. Prescriptive easements are not favored in law, because they deprive the legal owner of rights without compensation."

Public utility companies (in Oklahoma, anyway) operate under tariffs set out by State Statues. While they basically maintain a monopoly within their service area, they are required by law to provide service to anyone within that service area. If the utility placed facilities outside of an easement to provide service to someone (in or across an area where no easement existed) it could be construed that the utility, being required to service a customer, had no other choice. In those cases prescriptive easements may actually ripen. Where an easement exists and the utility company's facilities are outside of that easement due to nothing other than negligence, prescriptive rights are generally not considered when the facilities could and should have been placed within the confines of the easement.

Remember, prescription is just another form of adverse possession, someone loses.

In a case of a "wandering" buried utility, it may have existed for 50 years. But when the property owner attempts to place a swimming pool and can't because the line is "out of the easement", that property owner is being deprived of full use and enjoyment of his property. AND ample easement had originally been provided and exists as the dominant estate. In these cases the courts generally view it as "the utility is in the wrong place".

Prescriptive easements for public utilities are not that common at all; only a few rare cases. Just because a utility has been there since the '70s gives it no more right to be there than the day it was placed. At least that is what I have seen in my years of experience.

No, this makes perfect sense. Thank you. I've never actually stepped back to look at it that way. Great answer.