Easement vs. Ownership for Ditch and Pipeline
My farmland, and that of others, will be the location for one mile sewer pipeline to service a small town in Kansas. The city purchased a railroad right-of-way that had been abandoned in the mid 1960's from a successor railroad ignoring laws & court rulings regarding reversion of ROWs to servient landowners and the state adverse possession law. The ROW bisected our property increasing our concern. They have now realized the error of their ways and are willing to buy the 100 foot strip of land from us.
I want to preserve my land ownership for the future by proceeding with an easement to protect the continuity of the land when the city's need goes away assuring that it will be restored and not be spit into two parcels. There are plenty of examples of drainage ditch and pipeline easements that apparently meet the needs of the dominant estate.
Is there a reason I would loose pursuing an easement in court? I do have an attorney.
Thank you
Re: Easement vs. Ownership for Ditch and Pipeline
Row ask....
"Is there a reason I would loose (sp) pursuing an easement in court?"
If you have a lawyer as you have indicated then they should be giving you advice on this matter.
The City does have the option of moving for condemnation of the land in question if you refuse to sell. Kansas code regarding eminent domain can be found here. There has been a general movement toward limiting eminent domain powers across the United States since the US Supreme Court case a few years ago involving New London.
Ultimately the City is the one who will decide if they need an easement or title to the land in question. Whether you will lose in court insisting that only an easement is necessary rather than title to the land would be up to the court. The court will base their decision on the specific facts of the case and the needs of the City versus your desires.
Good Luck.
Re: Easement vs. Ownership for Ditch and Pipeline
The city can of course attempt to negotiate an outright purchase from you, but I think you already see through that ploy.
Here in Ohio, and many other states, (not sure about Kansas), the city would certainly have right of condemnation for a sewer project. But they would be limited to the acquisition of the minimum property right required for the project (an easement) and the easement would be limited to the specific purpose of the project.
Your attorney should be able to advise you on these points.
Re: Easement vs. Ownership for Ditch and Pipeline
A conservation easement would trump future development and preserve your land beyond your lifetime. You may want to do some research.
However, you are fighting a losing battle with the City. Best bet is to get paid fair market value and walk away. The sewer pipe is underground.
Re: Easement vs. Ownership for Ditch and Pipeline
A conservation easement basically removes all of your future benefits from the property which does not involve the most basic forms of agriculture.
If that is your goal, just go for it. If you had other hopes, you need to avoid it big time. Once you give it, you can never change your mind and get it back.
Your best advice will be from your attorney. Ask the question of your attorney if the city needs only an easement, can they actually get a fee simple take from you by condemnation. If not, get your defense into place.
If they can do a fee simple take, you will have a bike path, a gasline, some fiber optic, and whatever they want to add as they will own it.