Telephone Line on Property - No Recorded Easement

[rng]

My question involves an easement in the state of: Minnesota

In the fall of 2007 I was installing some drainage tile on farmland I own. We did not contact the state utility finder called gopher 1 because we did not expect to run into any telephone wire that ran up to 50 feet into the property from the edge of the road ditch. We ended up cutting the phone wire in a spot about 40 feet into the property from the edge of the road ditch. A repair person shortly to repair the cable wire. Then in the spring of 2011 I received a bill from a company representing Qwest telephone for over $ 2200 for damages. I looked in my abstact of title and found no easement for Qwest or any other utility company to install utilities on my land. The best I can figure it is that when the road was rebuilt about 35 years ago the phone line was re-routed into the field to get out of the way of road construction and was never re-routed back to the edge of the road ditch where it was before. I remember the repair person saying that the wire should have been moved back a long time ago. In some places it had been moved back. Qwest continues to say I owe the money. My question: Does Qwest have the right to be on my property with their phone line and if not should they pay an easement for this right? Also can I make them move their wire back to the edge of the road ditch? Thanks very much for any advice on this situation.

[jk]

I'm having trouble finding the applicability of the statutes regarding your situation. One point that seems to crop up often is the mention of a permit. Did you obtain a permit for the excavation and installation of the drain tile?

to the question of: do they have a right to be on your property?

No, unless you have either given permission or they have a valid easement. I presume they have an easement associated with road. You would need to investigate as to where that easement lies in regards to where the damage was done.

Yes, you can make them move their lines back within their easement or if you choose, you could sell them easement rights to leave it where it is (typically a bad idea, especially since they already have an easement available to them)

[rng]

We are required to obtain permissin ot install drainage tile from the USDA farm service agency in this area. Whic I did do. No other permits are required. The company that represents Qwest says that says being I violated the locator law in MN I must pay. I am thinking they maybe right but also for this to not happen again they must move the line or pay easement. Should Qwest pay me for an easement for the past 35 years?

[jk]

I saw in the statutes that a hired excavator is required to obtain a permit and they are then given notice of the requirements of contacting gopher.

so, that begs the question: were you doing this yourself, as in, did not hire a contractor to do the digging?

I am still trying to find if the requirements would extend to excavation that is clearly outside of any recorded easements. Not that it is applicable in your state, I know in the two states I deal with excavations, only if dealing within a recorded easement or public property are you required to call the locators. If on private property where there is no reason to believe there might be buried utilities, there is no requirement to have the locator locate anything. In fact, the utility can be held liable for damage or injuries if they are located outside of the easement and there are damages or injuries. Requiring utilities to be located when the excavation is clearly on private property would be a ridiculous requirement.

I'll keep looking but if I do not find anything and you want to contest it, ask them to cite the specific statute that requires you or a hired excavator (whichever it was) call gopher in the situation as it is.

as to charging them for having the lines where they have been for 15 years? If you are willing to leave the lines where they are, while you could not normally charge for the unknown encumbrance, since they are trying to charge you the repair fee for damage outside of the easement, I would surely use that as a bargaining chip to avoid paying the repair fees.

[rng]

The statute quoted to me was MN Stat 216D.04 Excavation;Land Survey. I did have a neighbor do the work as he does drainage for himself and has the equipment and I paid him to do it. Thank very much for your help

[jk]

yep, that's the one I was looking at as well. A section of that statute:

Subd. 1a.Plans for excavation. (a) Any person, prior to soliciting bids or entering into a contract for excavation, shall provide a proposed notice to the notification center to obtain from the affected operators of underground facilities the type, size, and general location of underground facilities. Affected operators shall provide the information within 15 working days. An operator who provides information to a person who is not a unit of government may indicate any portions of the information which are proprietary and may require the person to provide appropriate confidentiality protection. The information obtained from affected operators must be submitted on the final drawing used for the bid or contract and must depict the utility quality level of that information. This information must be updated not more than 90 days before completion of the final drawing used for the bid or contract.
(b) This subdivision does not apply to bids and contracts for:

(1) routine maintenance of underground facilities or installation, maintenance, or repair of service lines;

(2) excavation for operators of underground facilities performed on a unit of work or similar basis; or

(3) excavation for home construction and projects by home owners.

(c) A person required by this section to show existing underground facilities on its drawings shall conduct one or more preliminary design meetings during the design phase to communicate the project design and coordinate utility relocation. Affected facility operators shall attend these meetings or make other arrangements to provide information.

(d) A person required by this section to show existing underground facilities on its drawings shall conduct one or more preconstruction meetings to communicate the project design and coordinate utility relocation. Affected facility operators and contractors shall attend these meetings or make other arrangements to provide information.

(e) This subdivision does not affect the obligation to provide a notice of excavation as required under subdivision 1.

Subdivision 1.Notice required; contents. (a) Except in an emergency, an excavator shall and a land surveyor may contact the notification center and provide notice at least 48 hours, excluding Saturdays, Sundays, and holidays and not more than 14 calendar days before beginning any excavation or boundary survey. An excavation or boundary survey begins, for purposes of this requirement, the first time excavation or a boundary survey occurs in an area that was not previously identified by the excavator or land surveyor in the notice.
(b) The notice may be oral or written, and must contain the following information:

(1) the name of the individual providing the notice;

(2) the precise location of the proposed area of excavation or survey;

(3) the name, address, and telephone number of the individual or individual's company;

(4) the field telephone number, if one is available;

(5) the type and extent of the activity;

(6) whether or not the discharge of explosives is anticipated;

(7) the date and time when the excavation or survey is to commence; and

(8) the estimated duration of the activity.

I don't know if you could get away with the "homeowners" exception. Most farms I know of are incorporated and that alone would likely remove them from the exception. Other than that, even if not incorporated, it may be seen that work on a farm such as you were performing was not what that section was intended to cover.

Beyond that, sub e there clearly states that the requirement to, or exception from the requirement, does not remove the requirements of sub 1.

I suspect you would lose this if you contest it. There was definately a requirement to contact the notification center regardless of whether you were required to actually call for a location of utilities.

Now, you don't sound like the kind of guy that would really do this but the guy doing the excavation is actually liable for the damage. If you pay the damages, it should be good for beer and cookouts for the foreseeable future on the neighbor.

[rng]

OK I thinks that answers all my questions. Thank you very much for your help