Water and Sewer Line on Our Property

[tbaker]

My question involves an easement in the state of: New York

Hello. My wife and I just purchased a piece of property across the street from us (3 parcels we plan to combine), and we want to build a garage/apartment on it. Through our property runs a water and sewer line that feeds the house on the backside of our property - the house (not shown) it feeds would be at the top of the image.

Image description: The straight up-and-down blue line on the left is where the current water line that feeds the house is. The green line to the far right is where their current sewer line is. The blue line marked "Proposed Water Line Move", is where we'd like the line moved so that we can build. The red outline is where we can potentially build provided the water line wasn't there.

Even though moving the water line would still be on our property after moving it, it wouldn't be in our way if it ran where the sewer line does now. There is NO specific easement listed in the deeds for either property - the house it feeds or our property we want to build upon. We would, if necessary pay to move and reconnect the water line, but is it our responsibility? Do they have some sort of prescriptive or necessity easement?

The water line connects to the city system, and there isn't a city system on their street for them to connect to. These lines have run through the property for many, many years. Do we have the right to move it? Can we bill them?

Thanks.

[jk]

You would need to do considerable research to determine how the lines ended up where they are. I suspect that a single parcel, which the house was part of, was split to create the 4 individual parcels involved but that is only a guess.

What I am suggesting is that the utility lines were put in with permission from somebody. As such, there was no easement required and basically, any subsequent purchaser of the property would simply have to accept the encroachment. If that is the situation, if you want the lines moved, the cost would be yours.

So, given the possible costs involved, you might consider hiring an attorney that can do a title search and investigate how the lines ended up where they are. If there is no inherent right to be where they are, you could conceivably demand the owner pay for the relocation but in all honesty, I suspect there is a valid justification for lines being where they are which would mean you pay to move them if you want them moved.

[tbaker]

I do believe at one time the same person owned both properties, or was given permission by the property owner at the time to put the lines there. I looked through the abstract and there is nothing specific mentioning the lines. So, if permission was given, then they have a sort of easement? We figured this anyway and plan to move the line ourselves at our expense...

[jk]

So, if permission was given, then they have a sort of easement?

technically since there is no written easement, it is simply an encroachment but given your description of the situation, it is, or was, an authorized encroachment with no express easement granted. Given the situation, I highly doubt you would be able to demand the user of the utility pay to have them moved.

[LandSurveyor]

I highly doubt you would be able to demand the user of the utility pay to have them moved.

I agree, but that's putting it mildly.

We figured this anyway and plan to move the line ourselves at our expense...

I hope that they let you move it.

[tbaker]

Thanks for the replies. LandSurveyor, you say "I hope that they let you move it". Given the circumstances - the fact that NOT moving the water line would prevent us from improving the property, I can't see why any reasonable person would deny it, and if they did, under what logical reason would they say no? Further, given the fact that there is no actual easement, and it might be hard to prove they had 'legal' permission to do so at the time, I'm guessing that if it went that far a court would likely grant permission since the assumed use of the 'easement' would not change... they would still have water - it would just be a change of direction.

I am generally a person who says live and let live. And, given the fact the city is considering running new lines on their street, and I could possibly force them to move it AND the sewer at their expense, I still wouldn't do that as long as it were not obstructing our plans, as it could cause them some financial hardship... Point is, we're pretty easy to get along with, however, if someone were to attempt to deny us the right to move it for no good reason, I'm also one who would take that personal and willing to go all-in for the battle. Now, I'm putting the cart before the horse here, and I see no logical reason why they'd say "Nope, you can't touch it". I hadn't really considered that possibility though, so I'm glad you brought it up. Thanks.

Oh, and I also failed to mention that we were thinking of recording an actual easement for them if/when we move the water line to where their sewer line is now. That way too, their would be no surprises or legal questions for future owners of the properties - I like to keep things tidy...

[LandSurveyor]

given the fact that there is no actual easement

We've already established that there are easement rights.

I can't see why any reasonable person would deny it, and if they did, under what logical reason would they say no?

If you have read a few of the posts in this part of the forum, you would have found that people don't need a logical reason to say "no".

Evidently you have purchased property as an investment and you had clear plans to improve and develop it. I can tell you that due diligence requires legal advice in any real estate transaction such as yours. Had you taken that course, you would have had more realistic expectations if you had kept things more tidy.

I'm guessing that if it went that far a court would likely grant permission since the assumed use of the 'easement' would not change... they would still have water - it would just be a change of direction.

Not necessarily a good guess. Don't really know how or where you came up with that. Civil court cases can be easily put off, sometimes for years. It would be better for you and your project to go see your neighbor, hat in hand so to speak, and try to work out something neighbor-to-neighbor without any of the potential threats by taking it "personally" as you mention.

And you can draw on the fifteen thousand dollars or so you have budgeted for your court case if a few dollars are necessary. That might be a far better outcome for you and the neighbor.

[tbaker]

Well LandSurveyor, you say "We've already established that there are easement rights". I'm not sure how you've done that since you have far less information than I have, and my own real-life surveyor hasn't even established that yet. Maybe you're a lawyer then?

I've done some research, and it appears that just because their line runs through MY property, that doesn't give them an automatic 'legal' easement - it still has to be established (proven) in court, and that burden would be on them - I'm not the one claiming anything IS or ISN'T - so there is nothing for me to prove... I'm going to build a garage, and I'm going to move a water line, OR build over top of it. Now, if they think they have an easement and for whatever illogical reason they don't want to cooperate, THEY can initiate an expensive legal battle to try and prevent it... Hello? think about it - why would I pay big money to initiate a court battle to prove they don't have an easement and/or I can't move their water line? I never claimed they did...

I plan to go to them and discuss the water line, AFTER I consult with my attorney, and I'm sure their won't be a problem given the circumstances. As I mentioned, I'm pretty easy to get along with and I have faith most other people are too, so I'm sure it will work out fine.

I don't know you, but your opinion seems extreme and dramatic. You essentially say, "You can't move it unless they give you permission", and, "It will cost you $15,000 and maybe many years in court to find out". Well I'm not naive enough to think I couldn't run in to some obstacles with this issue, but you're the only one I've 'talked' to who seems to have such a sure stance about this. I've talked to my own real-life surveyor, I've talked to the city engineers, the city code inspector, and several people at the city water department and not one of them has even hinted that, "They have an easement and you can't move that without their permission". I personally am not that worried about it. I'm sure it will work out fine. I KNOW it will get moved OR built over.

Now I plan to talk with my attorney next week and get his advice. I'll give you an update if you're interested, otherwise, thanks for the opinion.

[jk]

landsurveyor is a surveyor and is quite knowledgeable of the laws associated with real property. I do not know how LS came to the conclusion he has but I will suggest he does have a logical reason for it.

as to the expensive court issue:

if you ignore easement rights they do have, if they actually have any, not only will they seek to have their lawyers fees paid (and likely be given those fees), if you cause them any damages, you would be liable for them as well. That means, you would still pay for the moving of the lines on top of paying for their legal costs.

LS is correct that sometimes people just say no for no reason. Maybe the folks aren't happy because you bought the land or aren't happy with how you intend on utilizing the land. Who knows? Only they know.

[tbaker]

if you ignore easement rights they do have, if they actually have any

Thanks, and yes, I am aware of that. That's the point - easement rights HAVE NOT been legally 'established' yet (except by LandSurveyor). Now, given the fact that I see no reason for them having a problem with the water line move, if they do, THEY can initiate the court battle and take their chance that they will win AND get their legal costs paid for - that seems like a lot of trouble for someone who is going to be offered a NEW water line, AND a LEGAL easement... Should it come to that however, I'm willing to take my chances that THEY might have to pay for the lines to be moved and pay MY court costs. I'll decide AFTER I talk with my attorney of course.

Now worst case, I can still build my garage - I just have to turn it facing the other way... So either way, it's not the end of the world and I doubt it will come to some major supreme court case... Thanks for the input though.

LS is correct that sometimes people just say no for no reason. Maybe the folks aren't happy because you bought the land or aren't happy with how you intend on utilizing the land.

Being a Senior Member on an "ExpertLaw" forum, I'm sure you're aware that attempting to prevent someone from improving their own property by way of using an 'easement' right, given that the 'easement' could be changed easily and you would not only be 'made whole' again, but probably enriched as well (with a REAL easement, and new water line) just because you're mad because they bought the property or aren't happy how they're going to use it, is not likely a valid legal defense....