Many states allow public or quasi-public utilities to win prescriptive easement for visible utilities. It is not uncommon to see separate statutes or amendments to existing laws that provide specific standards applicable to utilities. However, many states continue to apply common law principles in these disputes. As with rights created for other purposes, the location and scope of the utility line easement will be controlled by the use that is visible and apparent throughout the prescriptive period. For additional discussion of underground utilities and possible prescriptive claims, see Chapter 9.
The New Mexico court applied common law principles in the unusual Cunningham v. Otero County Electric Cooperative: 845 P.2d 833 (1992). The power company installed a line over a vacant lot without any consultation or permission with the landowner. More than 10 years passed before the lot was sold to Cunningham, who already had obtained building permits but then was informed that there might be an issue with his permits due to the line’s existence. This proved to be an understatement; the power line effectively precluded any home construction on the lot.
The detail that makes this case unusual is that the utility poles were not physically on the disputed tract but were located about 2 feet outside his boundary. However, this did not deter OCEC from attempting to claim a 30-foot easement centered on the existing line. Furthermore, no evidence was presented to indicate that construction or maintenance personnel ever entered the Cunningham tract.
The trial court concluded that there was no easement and the utility lines must be removed. On appeal, the New Mexico court reversed in part. The most difficult problem faced by the appellate court is based on one of the fundamental requirements of prescriptive claims—the physical intrusion on the disputed tract.
Judge Minzner observes that, though the poles themselves were not placed on the disputed tract, the wires overhead did in fact hang over the boundary line. This would make the wires a legitimate trespass but would not justify the 30-foot easement that OCEC was claiming for a proposed future expansion of the line. He concludes that there was a: …visible and tangible structure by which possession is withheld, to the extent of the space occupied [by the line]. The court also concedes that, given the existence of the line, a clearance of several feet is a reasonable safety precaution. This case ultimately was remanded to a lower court because OCEC failed to prove the scope of the easement.
Another illuminating case involves a South Carolina landowner dispute with two different utility companies. Simmons v. Berkeley Electric: 419 S.C. 223 (2015) highlights the requirement for open and notorious use to prove a prescriptive right.
Simmons objected both to a water line under the surface of his land and a power line that ran over the property. The two utilities were installed at different times by different parties, and the resulting circumstances required the court to consider each utility claim independently.
The court ultimately ruled in favor of the easement for the visible and apparent power line but against a prescriptive water line right because the underground utilities were not apparent. The only surface indication of the water line on the disputed parcel was a valve that was concealed under shrubbery. Overruling the lower court decision, the judge concluded that: …even if it is widely known that a majority of the neighborhood’s water comes from a water main that does not necessarily mean the location of the water main is widely known.
Prescriptive easements for utilities are particularly susceptible to challenges when the original utility company attempts to grant third party rights within the easement for additional structures or use that did not exist during the prescriptive period. Additional activity within the easement corridor by other utility companies may require a separate agreement with the landowner or proof of common law requirements that would result in a separate prescriptive right.
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