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“The 2Point Way” – Utility Easements & “Piggybacking”

Easement disputes are common nationwide, as is evident from the plethora of relevant cases found in modern court records. While locating the limits of the servitude is often the primary issue for surveyors, recent disagreements often focus on the activities of the dominant and servient owners within the easement corridor. Additional frictions may result from third-party construction of additional structures or unauthorized activities within the limits of an existing easement.

A common variant of the latter problem occurs when a party with legitimate—but limited—rights to an existing easement attempts to “piggyback” additional services or structures within a corridor originally created specifically for railroads, electric power or other utilities. The corporations may attempt to sell rights to other companies for additional structures, or attempt to lease space on existing poles and towers. This can be problematic because the owner of the fee often retains all rights to the land that were not granted for the original easement.

Regardless of the specifics of the dispute, court analysis often begins with the question of whether the dominant user has exclusive rights. If not, the court must determine what activities are allowed or prohibited for each party under the original terms of the easement.

Defining an exclusive easement is less intuitive than it seems at first glance. Different state courts—or the same court in different circumstances—may provide contradictory parameters. The most common definition refers to the “exclusive use” of the easement. Under this definition, a road easement that provides access over the servient estate to other lands may not be used by the servient owners to access the remainder of their own land.

In cases involving railroad easements, the exclusive nature of the right may preclude servient owners from making any use of part or all of the easement area. In rulings applying this standard, the ultimate effect of the easement resembles a fee simple determinable estate because the record owners are barred from using their own land.

The Original Controlling Document

As is the case with other writings before the courts, the uses allowed for the dominant and servient owners often are controlled by the express language of the controlling documents. The Wisconsin decision Hearst Corporation v. Weigel Broadcasting: 559 N.W.2d 923 (1996) emphasizes this principle. In construing the intent of the parties where the document is unambiguous, no interpretation is required and the court will enforce the plain meaning of the document. Ambiguous writings will be interpreted according to established rules of construction, regardless of mis-interpretation by either party.

For non-exclusive easements, the servient owner generally may use the easement area for any purpose that does not interfere with the dominant easement rights. The court notes that the servient owner has an obligation to protect the easement holders’ rights.

One critical question for the Wisconsin court was whether the easement was exclusive—and, if so, to what degree. This decision describes the rights of a servient owner in the case of non-exclusive easements, and also identifies three possible variants of exclusive easements: If the easement is not exclusive, the landowner may grant additional easements, provided any additional easements do not unreasonably interfere with the original easement holder’s use of the easement. …

Exclusive easements create three possible interests: an easement giving the easement holder the right to prevent anyone from using the easement area for the easement’s purposes; an easement giving the easement holder the right to prevent anyone but the landowner from using the easement area for the easement’s purposes; or, if the easement creates a substantial burden on the land, such as a right of way, a fee simple estate in the easement holder. …

The exclusive easement held by Hearst Corporation on county land included the rights to build satellite antennae, associated buildings and all necessary appurtenances. They also were allowed to clear vegetation. The court concluded that this easement precluded the county from granting any rights to other parties in the easement area.

Finally, Hearst observes that easement agreements generally will describe a primary purpose, but also may allow by implication “supplemental or secondary” rights reasonably necessary to achieve the primary goal. Secondary rights are limited and do not include uses that are completely unnecessary for the achievement of the primary purpose of the easement. In addition, secondary rights may be non-exclusive (as in this dispute) even though the primary easement is exclusive.

Citing cases from Idaho, California and Montana, the unpublished opinion Gabriel v. Mascarinas: 2001 Wash. App. illustrates the legal minefield that the courts must navigate when dealing with exclusive easements: It is generally agreed that an exclusive easement is an “unusual interest in land” amounting almost to “a conveyance of the fee.” … Some courts have refused to recognize such easements, … but most have held that “parties may agree to create an exclusive easement.”… However, because an exclusive easement “strips the servient estate owner of the right to use his land,” exclusive easements are not generally favored by courts. …Washington is among the jurisdictions recognizing exclusive easements.

Exclusive Easements Not Favored

As noted above, exclusive easements are not favored by courts in most jurisdictions. Latham v. Gardner: 105 Idaho 854 (1983) is a leading case on exclusive easements and was quoted in Hearst. This decision reinforces the rights of the original grantor and describes the rationale behind the presumption against exclusive easements: That part of an estate not granted is reserved in the grantor. ‘It is not necessary that the right of the owner of the servient tenement to occupy and use his land be expressly reserved to him; it is reserved, unless expressly conveyed.’ This statement is in some ways analogous to those principles basic to junior/senior rights in grants of fee simple title.

Unless specific language or surrounding circumstances clearly indicate intent for an exclusive easement, courts generally presume non-exclusive use was the intent of the parties. In the recent decision Watson v. Caldwell Hotel LLC:91 N.E.3d 179 (2017), the Ohio court provides a good definition of ‘non-exclusive’ as applied to easements: an easement holder with a nonexclusive easement cannot exclude the servient landowner or those authorized by the landowner from the easement. The legal meaning of the word non-exclusive when applied to an easement allows the servient landowner to continue to fully utilize their property, while making reasonable accommodations for the easement holder.

Where the terms of the controlling document are ambiguous, the surrounding circumstances may be considered to determine whether the easement was intended to be exclusive, as noted in the Florida decision Gelfand v. Mortgage Investors of Washington: 453 So. 2d 897 (1984) Fla. This case summarizes familiar principles for determining the nature and scope of an easement. No intent to create an exclusive easement is presumed—it must be proved by clear indications of intent. Where doubt exists, a non-exclusive easement is the result. Finally, if the scope of the easement is ambiguous, all surrounding circumstances may be considered to clarify the original intent.

Apportioning Exclusive Easements

Utility easements for major transmission lines generally are classified as easements in gross in part because they lack a recognizable dominant estate. Easements in gross may be further subdivided into exclusive and non-exclusive sub-categories based on the stated intent of the original parties to the easement agreement. This dichotomy is crucial to questions relating to apportionment or overburden when the original easement user contracts with third parties to add additional utilities that may not be within the scope of the rights originally created.

The Alabama decision Jackson v. City of Auburn: 971 So. 2d 696 (2006) considers apportioning easements and chronicles the tight-rope that courts must walk when considering the legitimacy of additional utilities within an existing easement in gross. The long-running feud over a utility easement created by prescription erupted again after a new city ordinance purported to authorize the installation of fiber-optic cables attached to existing power poles.

The term “apportionability” in reference to easements refers to the easement owner’s right to divide the easement “to produce independent uses or operations.” In general, an easement in gross is not apportionable unless it is also exclusive. Nor can the utility company legitimately permit third parties to share the easement if the additional use exceeds the use contemplated by the original agreement. Judge Crawley concludes that legitimate rights created by exclusive easements in gross can be apportioned to third parties. However, this conclusion does not cover any attempts to apportion rights that were never severed from the servient estate.

In Heydon v. Mediaone: 739 N.W.2d 373 (2007), the Michigan court also concludes that an easement in gross may be apportioned in limited circumstances where the controlling document permits, or where the easement is exclusive: Courts have generally concluded [however] that an easement in gross is capable of division when the instrument of creation so indicates or when the existence of an ‘exclusive’ easement gives rise to an inference that the servitude is apportionable.” In this context, “exclusive” means that the “easement holder has the sole right to engage in the type of use authorized by the servitude.” In other words, the grantor does not retain common rights with the easement holder to engage in the same activity for which the easement is granted. The servient owner cannot sell a second utility easement within the existing exclusive utility easement.

Arguments over additional utilities are further complicated by the 1996 amendments to the Pole Attachment Act. This law requires utility companies to allow attachment of other telecommunications equipment to existing poles and lines, but does not address private disputes regarding overburden of private land.

All parties involved should tread carefully when existing utilities or activities within an easement appear contrary to the terms of the original easement agreement. Gray areas abound due in part to the vague language found in many easement agreements.

Surveyors should consider these issues when locating utilities and pay close attention to the terms of the original agreement. Structures or activities indicating uses that are not described in the easement agreement should be located or otherwise documented. Without complete and reliable information, neither landowners nor utility companies will be able to adequately protect their interests.

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