Utility Easement

[rswingley]

My question involves real estate located in the State of: Indiana

I am a registered land surveyor and I am representing a local utility in a facilities relocation plan in conjunction with a road way expansion project. In this process, the utility company will be reimbursed to relocate utilities within an existing easement (please ignore the easement by prescription aspect). I have found an easement in my research that is very ambiguous as to the location of the easement and the intentions of the parties. The document reads as follows:

“KNOW ALL MEN BY THESE PRESENTS, That we _________and_______, husband and wife, of the aforesaid county and state, grantors, in the consideration of its services to rural residents of said county in construction and maintaining an electric transmission or distribution line or system, and for other valuable consideration, the receipt of which is acknowledged, do hereby grant unto ________, grantee, its successors and assigns, the following easements upon our lands hereinafter mentioned, to wit:”

(This area was left blank in the document)



“Each aforesaid easement includes the right at any time to enter upon the grantors’ land, with the necessary tools and equipment, to do the acts mentioned.

The grantors own the land on which the aforesaid easements are granted and they have full right to grant such easement free of all encumbrances except taxes or assessments not yet due and except as hereinafter stated.
Said land is situated in the aforesaid county and state, in the XX quarter of the XX quarter of Section XX, in township XX, XX, of range XX.”

(Next Page)
“ANCHORS
To place, maintain, repair, or renew two anchors and attendant guy wires and other appurtences, at approximately the following places:
one aprox. 5 feet north of County right of way line and east side of property line fence
one aprox. 27 feet north from last pole set and on east side of property line fence

Poles
To place, maintain, repair, or renew two poles with their incident supports and other appurtences, at approximately the following places:
One pole aprox. 33 fett north of county highway property line and on east side of property line fence.
One pole aprox. 525 feet north of county property line fence and on east side of property line fence.”

(Next Page)

“Grantors reserve to themselves full use and enjoyment of said land insofar as it shall not interfere with the easement hereby granted.”

Signatures and dates

My question is does the lack of a description in the allotted area (blank area)constitute a blanket easement? Also there is no mention of a width in the part about the poles and anchors, so does that also support a blanket easement?

Does this statement of the grantors’ land in the portion below imply a blanket easement?

“Each aforesaid easement includes the right at any time to enter upon the grantors’ land, with the necessary tools and equipment, to do the acts mentioned.

Please advise. If you can point me to specific court cases that would be greatly appreciated.

[jk]

no, a blank in an area that would typically contain a description means just that;

the easement listed (and referred to in the statement following) is exactly what it grants; nothing.

the easement granted in th document you posted appears to be for 2 poles and guy wires as described in the following page including the approximate location.

that is all that grant conveys.

You are reading too much into the grant. It is simply for the two poles (and the location is described accurately enough to not infer a blanket easement) and the guy wires associated with those two poles (again, with location described accurately enough to not infer a blanket easement).


so, if you want to place anything in a location other than where the two poles and their associated anchorages are now, you will need another easement granted.

edit to add: the grant further allows access to those poles and their anchorages. That does not mean other encumbrances may be placed in that access way. It is only to maintain the poles and anchorages previously listed.

2nd edit:

as you should know, the intent of the grantor controls the argument of what is meant and if the grantors are saying it was only for the two poles, that is very likely how a court would read the grant as well.

[rswingley]

The servient tenement is a triangular tract of land with public roads on the east (hypotenuse) and the south. There are currently poles on all three sides of the parcel.

“Each aforesaid easement includes the right at any time to enter upon the grantors’ land, with the necessary tools and equipment, to do the acts mentioned."

This portions states the grantors’ land, not the land described hereon (on the easement). I believe the "acts" mentioned is referring to “in construction and maintaining an electric transmission or distribution line or system”. To me the word "system" implies all the facilities on the land at the time of the easement. I am trying to track down historic aerial photography to verify that the poles along the south and east line existed at the time the easement was created, I have a feeling that they did. I feel that the physical existence of the poles on the south and east prior to the creation of the easement would show the internet of the grantee to secure a blanket easement to cover the existing facilities, as this is customary for the utility company to do so.

[LandSurveyor]

We don't know the date of this easement but I am going to guess, based on the slap-dash nature of it, that it is not very recent.

as jk has pointed out, it has a number of deficiencies.

At the time of the grant, did the grantors own the entire quarter-quarter? Or did they own one or more parcels in it?

Even in older easement grants it is common to see a more specific reference to the identity of the servient parcel as regards acreage and a title reference in the county records.

There is no way I would see this as a blanket easement.

If it were a blanket easement, there would be no need to mention poles, anchors, locations, etc. There would be a need to unambiguously identify the servient parcel.

The fact that this is a deficient instrument does not make the deficiency entirely your problem to solve.

As a surveyor, I would feel confident in attempting to address the location and your idea of consulting historic aerial photographs is an ideal approach. I would also point out that the grantee, your client, prepared this document, likely without the aid of a surveyor or attorney, and they own the problems.

I would approach this with due caution and not get into looking at court cases. The utility company and highway department already have real estate attorneys at hand.

[jk]

“Each aforesaid easement includes the right at any time to enter upon the grantors’ land, with the necessary tools and equipment, to do the acts mentioned.

that's great but they only mention 2 poles in this easement and it specifically states:

“ANCHORS
To place, maintain, repair, or renew two anchors and attendant guy wires and other appurtences, at approximately the following places:
one aprox. 5 feet north of County right of way line and east side of property line fence
one aprox. 27 feet north from last pole set and on east side of property line fence

Poles
To place, maintain, repair, or renew two poles with their incident supports and other appurtences, at approximately the following places:
One pole aprox. 33 fett north of county highway property line and on east side of property line fence.
One pole aprox. 525 feet north of county property line fence and on east side of property line fence.”

so it states the POCO can enter the grantors land to maintain the poles and their anchorages and appurtenances. That's it.

Now where are you getting this from?

I believe the "acts" mentioned is referring to “in construction and maintaining an electric transmission or distribution line or system”.

Oh, I see. You are reading WAY too much into that statement. That is in the portion concerning consideration. That is simply acknowledging the fact the POCO does build and maintain a power system and that in itself is valuable to the grantor. The grantor sees that as a portion of the consideration they receive and accept it as such towards the purchase of the easement.


That in no way grants any actions that can be undertaken on the easement. It infers no actions. It is an acknowledgement of what the POCO does.

[rswingley]

The deed is from the 1950’s. It was common at the time to acquire blanket easements especially if there were existing facilities on the property. No they did not own the entire quarter section.

This deed states “the grantors’ land”, not the lands described here on (on the easement). I believe the “acts” mentioned is referring to “in construction and maintaining an electric transmission or distribution line or system” (#5).
My opinion is the word “system” implies all the facilities on the land at the time of the easement. Webster’s Dictionary defines “system” as “instrumentality that combines interrelated interacting artifacts designed to work as a coherent entity”.

The poles and anchors motioned in the easement are believed to be a service line along the west side of the property which is connected to a main line that runs along the south and east sides of the servient tenement’s land.

The connection of this service line to the main line would create a system because the service line could not function without the connection to the main line.

In my opinion the mentioning the poles and anchors serves a direction as to the location of the new facilities that were to be tied to the existing system already in place, and does not constitute a description because no width is mentioned to limit the use of the utility company’s easement rights to one particular area of the grantor’s land.

[jk]

.

This deed states “the grantors’ land”, not the lands described here on (on the easement).

ya, so. It states the POCO can access the poles and such via the grantors lands. It does NOT allow other encumbrances to be placed.

I believe the “acts” mentioned is referring to “in construction and maintaining an electric transmission or distribution line or system” (#5).
My opinion is the word “system” implies all the facilities on the land at the time of the easement. Webster’s Dictionary defines “system” as “instrumentality that combines interrelated interacting artifacts designed to work as a coherent entity”.

As I said before, you are taking a phrase out of the section concerning consideration, not allowed use of the easement. You are way off base with your positition. It has nothing to do with the easement.

look at a more complete portion of that phrase:

in the consideration of its services to rural residents of said county in construction and maintaining an electric transmission or distribution line or system, and for other valuable consideration, the receipt of which is acknowledged

and for other valuable consideration, That means they spoke of some valuable consideration first then they added there was some other form of consideration as well as the first specifically mentioned consideration. That first consideration is the acknowledgment that the POCO is putting forth an effort to provide service to the area.

I repeat; this clause deals with consideration paid to obtain the easement. It does not list the uses or encumbrances allowed by the easement.

I suspect that phrase might have been included as a result of the POCO taking the path they did which allowed for the grantor to be able to have easily accessible power.

The poles and anchors motioned in the easement are believed to be a service line along the west side of the property which is connected to a main line that runs along the south and east sides of the servient tenement’s land.

the poles and anchors and appurtenances are the poles and anchors and appurtenances and that is the only encumbrances allowed and their location is quite specific.

The connection of this service line to the main line would create a system because the service line could not function without the connection to the main line.

the lines attached to the poles (at that time) would be the appurtenances. Presumably the power lines placed there at that time would be included in said appurtenances.

In my opinion the mentioning the poles and anchors serves a direction as to the location of the new facilities that were to be tied to the existing system already in place, and does not constitute a description because no width is mentioned to limit the use of the utility company’s easement rights to one particular area of the grantor’s land.

it does provide a width; 1 poles width and the space required for the guying system. They did not provide a specific width. That does not mean you can run all over because you believe they did not limit the easement.
It is limiting in itself because all it allowed was:

placement of poles as indicated; placement of guying system, as indicated; access as needed to repair, maintain, or replace those 2 poles, the guying system and any appurtenant equipment of the poles and guying (associated power lines).


So, how about telling us what is the problem with this. Are the land owners claiming what I am saying and you and the POCO want to read more into the easement?

I simply do not understand how you can claim ambiguity as to the intent of the easement regardless how non-specific the location of the poles was allowed. I would suggest to determine any underlying land that is considered to be part of the easement would be to discover the location of the poles in the easement and draw a straight line from pole to pole and extend it both ways.

Additionally, I do not believe the location of the poles is truly ambiguous. Obviously you will need to do your research to determine the location based on the reference points listed but once those references are established, the location of the poles becomes quite evident.

It was common at the time to acquire blanket easements

all fine and dandy but due to the specificity of the encumbrances, both enumerated and specifically located, this is obviously not a blanket easement. A blanket easement would be quite general to the use and the land area concerned would be actually spoken of in the grant.

I will give you one thing on a blanket easement: the grantors allowed any access via any land they controlled to maintain the poles and such the easement was granted for.

[rswingley]

“If construction of the instrument as a whole leaves the intention of the parties in doubt, consideration must be given to the situation and circumstances of the parties at the time of the execution of the deed in order to determine what was within their contemplation at that time.”

NORTHWEST REALTY v. JACOBS, 273 N.W.2d 141, Supreme Court of South Dakota (1978)

What if the description of the conveyance was inadvertently left out? Does that change the intent of the parties? While I’ll agree that the mentioning of the poles and anchor may appear to be what is conveyed, but because the blank area does not mention a note “see exhibit…” and the page that mentioned the location of the poles and anchors does not say “Exhibit….”, how can we determine that this is the only conveyance when there is obviously other extrinsic evidence of existing facilities that would be in the best interest of the utility company to acquire?

I see your point on the consideration part, but I don’t think this is as cut and dry as you make it.

[jk]

rswingley;367129]“If construction of the instrument as a whole leaves the intention of the parties in doubt, consideration must be given to the situation and circumstances of the parties at the time of the execution of the deed in order to determine what was within their contemplation at that time.”

I think I said that way back in my first post only more specific to the grantor because, after all, it is they who were granting the easement and their intent and understanding is what is conveyed in the grant:

as you should know, the intent of the grantor controls the argument of what is meant and if the grantors are saying it was only for the two poles, that is very likely how a court would read the grant as well

.

What if the description of the conveyance was inadvertently left out? Does that change the intent of the parties? While I’ll agree that the mentioning of the poles and anchor may appear to be what is conveyed, but because the blank area does not mention a note “see exhibit…” and the page that mentioned the location of the poles and anchors does not say “Exhibit….”, how can we determine that this is the only conveyance when there is obviously other extrinsic evidence of existing facilities that would be in the best interest of the utility company to acquire?

because it was not an exhibit. It was simply page 2.

I see your point on the consideration part, but I don’t think this is as cut and dry as you make it.

then you are really not going to like my next point, which is what I would argue if you were opposing me on this:

it is apparent the grant in whole is defective and as such should be considered invalid. I argue that there is no easement and any encumbrances placed due to the rights the POCO believed were conveyed be removed immediately at the POCO expense and return the land to it's previous virgin condition, again, at POCO expense.

How ya like them apples?


so, what are you trying to achieve in all of this? Is there a problem with the parties involved or are you simply trying to "get ahead" of any possible problems?

[LandSurveyor]

Sometimes I am not as brief and clear as I should be, but I have been accused on this board of being rude and even cruel.

The entire problem with the easement document is the gross Patent Ambiguity in the description of the grant. IT'S NOT THERE. It is not a scrivener's error, but a huge blunder.

You can google the term and find a series of court cases which will indicate to you that courts are loathe to supply any of the missing words, even when parol evidence is available. The Patent Ambiguity can negate any meeting of the minds of the parties to the contract. It's that simple.