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"The 2Point Way" - Surveying and Interpreting Utility Easement Descriptions

Easements created for gas or power lines—or other utilities—are increasingly common sources of conflict. As formerly rural/farmland properties become subject to suburban or commercial development, original intent often must be interpreted in light of subsequent development that brings more people in close proximity with potentially dangerous utility structures. Additional complications arise when current safety standards and inspection regimens are at odds with current land use.

Land use professionals cannot afford the luxury of assuming that property rights along a given easement corridor are consistent. The specific language of each original easement deed must be considered carefully. ‘Boilerplate’ language may create more consistency in some instances, but specifics of each document may still vary.

Even in situations where descriptions covering several tracts were obtained concurrently by the same utility, variations between the descriptions may result in differing property rights on the affected parcels. Paulding County v. Ohio Power: 1989 WL 43026 considers three easements over contiguous tracts, all obtained in 1936 for power, telegraph and telephone lines. The court concluded that two of the three easements were described in a fixed location, while the third merely described the subject tract without limiting its location on the servient parcel.

Fundamental Principles

The North Carolina decision Weyerhaeuser v. Carolina Power & Light: 127 S.E.2d 539 (1962) includes a concise summary of relevant principles for interpreting language associated with utility easements:

  • “The controlling purpose of the court in construing a contract is to ascertain the intention of the parties as of the time the contract was made, and to do this consideration must be given to the purpose to be accomplished, the subject-matter of the contract, and the situation of the parties.

  • The intention of the parties is to be gathered from the entire instrument and not from detached portions.

  • An excerpt from a contract must be interpreted in context with the rest of the agreement.

  • When the language of a contract is clear and unambiguous, effect must be given to its terms, and the court, under the guise of constructions, cannot reject what the parties inserted or insert what the parties elected to omit.

  • It is the province of the courts to construe and not to make contracts for the parties.

  • The terms of an unambiguous contract are to be taken and understood in their plain, ordinary and popular sense.

  • A court cannot grant relief from a contract merely because it is a hard one.”

These are broad-based principles applied to any writings brought before the court. Of particular relevance to this case is the prohibition against adding terms to the contract that were never contemplated by the original parties. Consideration of terms of the contract in context was also critical to the outcome. In this instance, Weyerhaeuser argued—unsuccessfully—that a single contract should be considered as two separate agreements, as further explained below.

Primary vs. Secondary Rights

It is not unusual for easements to include a primary corridor of specified width, while also describing supplemental rights for areas outside the primary area. One of the most common examples is found in servitudes for power lines that clearly state the width of the corridor, but also allow the removal of ‘danger trees’ posing an eminent threat to the overhead lines or towers.

The Weyerhaeuser decision describes a power line corridor running through a large timber tract. The original easement deed described “…a right-of-way and easement, one hundred (100) feet in width, upon, over and across…” the servient tract. Within that area, the company had the right to build and maintain an electric transmission line and to keep the corridor clear of structures, brush and trees.

A separate clause in the same description allows the company “…to cut away and keep clear of said line and wires all trees or other obstructions that might in any way endanger the proper operation of the same, including all trees off the right-of-way which in falling might endanger the line.” Weyerhaeuser claimed that this supplemental clause was not included in the original consideration of the deed and that they were entitled to compensation for any ‘danger trees’ cut outside the primary corridor. Judge Moore disagreed, basing his conclusion on fundamental rules governing easements: The language of the easement deed settles the contention. In this instance, the defendant is granted the right “to cut and keep clear of said line” the danger trees. The expression “keep clear,” when taken in its natural and ordinary sense, imports a continuing future right.

Two Related Cases, Different Outcomes

Arguments often arise over the removal of trees in utility corridors. This problem has been amplified by the tendency to allow existing utility line corridors to ‘double’ as roads in proposed subdivisions laid out at a later date. In the case of power lines, tree branches can pose an obvious threat to overhead lines. Buried gas lines are susceptible to damage from tree roots, but the danger is less obvious. Different outcomes in seemingly similar cases actually may be legitimate because of minor situational variants.

Two New Jersey decisions highlight how case specifics can alter outcomes in disputes that appear similar at first glance. In Twp. of Piscataway v. Duke Energy: 488 F.3d 203 (2007), the power company was primarily concerned with its right to inspect the pipeline corridor, although they also cited emergency access and possible root damage to pipes as additional justifications for removing the trees. In this instance, relevant easement descriptions allowed for cultivation over the pipes. Terms of the original agreement allowed maintenance but made no specific mention of any right to remove trees in the easement.

Duke claimed that FERC regulations requiring inspection gave them the authority to remove the trees in order to make aerial inspection easier and more efficient. The court observed that the inspections could have been reasonably accomplished by observers on the ground. While Duke experts stated that ground inspection was ‘cost-prohibitive,’ judge Fuentes noted that Duke failed to prove that aerial inspection was necessary to the safe operation of the gas line.

Ultimately, Duke failed to prove to the court that the trees in question actually threatened the pipe or made inspections impossible and remanded the case for further proceedings.

By contrast, the dispute described in Twp. of E. Brunswick v. Transcon. Gas Pipeline Corp.: 2008 N.J. Super. Unpub. was based on different language in the easement deed, creating broader rights for the power company within the corridor. Transco produced ‘incontrovertible proof’ of actual damage to the pipes, based both on damage to other portions of the same line, and on ‘smart pig’ investigation of the pipe in the disputed area.

This court concluded that the gas company is not required to wait for actual damage to occur and highlights specific differences between this and the previous case: “The easement also clearly gives Transco the right to remove trees if they interfere with Transco's immediate access to the right of way. The easement specifically states that the grantor “will not … use the said permanent right of way or any part thereof in such a way as to interfere with Grantee’s immediate and unimpeded access to said permanent right of way.” Thus, the easement here stands in stark contrast to that in Twp. of Piscataway v. Duke Energy, 488 F.3d 203 (3d Cir. 2007)”

Questions over utility corridors involve aspects both of location and of use. Surveyors routinely locate easements as per relevant deeds and maps, but may also be asked to participate in other aspects of any disagreement. While determination of appropriate activities within the servitude is a matter for the courts, surveyors may locate physical evidence that indicates uses — legitimate or not—within the easement.

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