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  1. #1
    Join Date
    Oct 2010
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    Question Extent of Utility Easement Maintenance Rights

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

    A NYSEG electrical transmission line runs through my land. Over the past 14 years, independent contractors hired by NYSEG have come to maintain this utility easement 2 or 3 times and cut down young trees (mostly pines) within the easement's boundary. The rest of the lower-growing vegetation (wild low and high blueberry bushes, low-growing apple trees, bayberry bushes) was left alone. I harvested the blueberries, apples and bayberries each year.

    Today, without any warning, a contractor razed, hacked, chipped and mowed to oblivion every plant, bush, and tree. I had firewood stacked near an apple tree I had just pruned, that also disappeared in the sweeping cleanup. The site is disfigured and rendered sterile. My access road to the woods was damaged in the process by the heavy machinery.

    Does right of maintenance of an easement under an electrical power line imply that every living plant has to be eradicated in the process? How does a bush prevent the utility company from accessing and repairing its lines?

    I was told by the contractor that the guidelines had changed because of the recent merger of NYSEG with a Rochester-based Utility Company. Do I have any recourse concerning the fact that I was not made aware of this change in the maintenance guidelines?

    Can a utility company change its easements' maintenance guidelines as they see fit with no hindrance or oversight?

    Do landowners have absolutely no say on what happens to their land under utility easement, no right to use it for low-growing crops, but only the privilege and obligation to pay taxes on it?

  2. #2
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    Default Re: Extent of Utility Easement Maintenance Rights

    What is the exact language of the grant of easement? What, if any, notice did you receive in advance of this clearing operation?

  3. #3
    Join Date
    Oct 2007
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    Default Re: Extent of Utility Easement Maintenance Rights

    Does right of maintenance of an easement under an electrical power line imply that every living plant has to be eradicated in the process? How does a bush prevent the utility company from accessing and repairing its lines?
    Possibly. Around here it has happened in public parks and the local governments have been unable to stop it. It may have to do with post 9/11 and a perceived need to observe the lines from the air on a regular basis.

    Do landowners have absolutely no say on what happens to their land under utility easement, no right to use it for low-growing crops, but only the privilege and obligation to pay taxes on it?
    Farming is a defined operation and dealing with it as a hobby, or for personal use, is unlikely to exempt you from what has happened. Your movable personal property, placed on the easement, but not obstructing the utility operation, should not be subject to destruction by the utility.

    But at this point the damage has been done and you are left with a resolution in court, at your initial expense.

    You can always file a complaint with your state public utilities commission, but that is a long shot at best.

  4. #4
    Join Date
    Oct 2010
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    3

    Default Re: Extent of Utility Easement Maintenance Rights

    Hello,
    Thank you for your reply. I am going tomorrow to the County Clerk to retrieve the relevant easement papers. The deed only states "subject to all liens and easements open and notorious."
    I received no notice (written or oral) whatsoever. The foreman of the contracting company visited yesterday and apologized for this. At the time of discovery of the clear cut, one of the workers who were still on the site had been very rude and hostile (threatening to call the police for harrassment! among other things), he apologized for that man's behavior as well.
    I will post the wording of the easement as soon as I get it.

    [QUOTE=LandSurveyor;466921]Possibly. Around here it has happened in public parks and the local governments have been unable to stop it. It may have to do with post 9/11 and a perceived need to observe the lines from the air on a regular basis.

    Hello,
    Thank you for your reply. It seems logical and appropriate that species likely to grow at heights that can obstruct view from the ground and the air and fall on the lines in bad weather (pine, oak, etc...) should be prevented from flourishing in the easement boundary. But how can a 2 foot-high blueberry bush impair view and access from ground and air, or dream of reaching a wire hanging 50 feet from the ground?

    Clear cut seems to be a drastic, extreme, unnecessary measure that is a disservice to the landowner, the adjacent property owners (when one considers the negative effects of landscape disfigurement to real estate property values, in consequence the tax base, hence the community), the wildlife and the environment. NYSEG alone is clearcutting over 40,000 acres of land under easement. Isn't this very costly for the utility company, which in turn will amortize that expense by charging more to the end consumer?

    The more I think and read about this event, the more I feel an effort to stop and think is warranted. There are feasible alternatives.


    Below a quote from the NY State Public Utilities Commission:

    "Central to the Public Service Commission’s longstanding policies on appropriate right-of-way management is the comprehensive and routine treatment of each right-of-way corridor, with the establishment of treatment cycles that ensure each right-of-way is revisited on a periodic basis. Upon treatment, all tall-growing or “undesirable” vegetation is removed along the entire designed right-of-way corridor. Through this regime, “desirable” (i.e., low growing) vegetation is enhanced. Reliability and the environment are preserved at the lowest feasible nominal cost"

    But an "Enhanced Vegetation Management" policy was adopted and recommended by the NYS Pulic Utility Commission on September 8, 2010. I yet have the find the exact wording of this newly recommended management policy. But I know that several affected Townships have already filed actions/comments in which they demand a stop to the clearcutting, or "scorched earth."

    I did not mean to turn this reply into an opinionated essay, I apologize. I realize this is not the function of this forum. I intend to use the advice I get here, which I appreciate greatly, to the best of my ability.

    Thank you,

  5. #5
    Join Date
    Apr 2008
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    176

    Default Re: Extent of Utility Easement Maintenance Rights

    This problem begins when thelandowner or their attorney doesn't really negotiate the easement agreement. The power companies get the right to clear and keep clear any and all obstructions in the right of way. Without the landowner making the power company accept language allowing for plants and even trees which don't grow higher than 14 feet, you are at their mercy. I would think you might have a case for damages regarding the blueberries.
    Once the power company's multiple use easement has been signed you now have to ask, beg, etc, the power company to approve a permit for the activities you want to do on your own property within their easement. Isn't that nice. Start taking pictures and documenting all conversations. Get names and phone numbers and names of companies, contractors.
    If you really want to fight this then first work with a real employee of the power company, not a contractor. The power company may not know about this yet. Next is the Public Utility Commission, then the board members of the power company asking for a change in policy. Don't forget the local newspaper or local TV station. Might want to make a big sign and put in the easement area. Try to stay nice until they tell you to just piss off. Might want to go ahead and start talking to a good lawyer. On that's not afraid to walk into a courtroom.
    Knowing a fair bit about blueberries, (I have six acres, irrigated, rabbiteye) they may very well grow back but it will take a couple of years to get back where they were. That's lost income. If they have sprayed round-up then that's another story. Good luck and please keep us informed.

  6. #6
    Join Date
    Oct 2010
    Posts
    3

    Question Re: Utility Easement Maintenance Rights - Easement's exact words

    Hello,

    Here is the exact wording of the NYSEG easement:

    “.....(Grantors) hereby grant and release unto the New York State Electric and Gas Corporation, a corporation organized under the laws of the State of New York having its principal office at 108 East Green Street, Ithaca, New York hereinafter called “the Grantee”, its successors and assigns forever, the right, privilege, and authority to construct, reconstruct, relocate, operate, inspect, maintain, repair, replace, and at its pleasure remove any poles, towers or lines of poles, lines of towers, supporting structures, cables, crossarms, overhead and underground wires, guys, braces, communication facilities, and other fixtures or appurtenances which the Grantee shall require now and from time to time for the transmission and/or distribution of electric current for public or private use, in, upon, over, under and across said land.

    The easement and right of way hereby granted and released is 100 feet in width throughout its extent, situate, lying and being as follows:

    XXXX

    Together with free ingress and egress for all of the above purposes including the right now and from time to time to trim, cut, burn and remove by manual, mechanical or chemical means trees and brush and other obstructions within said easement or right of way.

    Provided, however, that any damage (other than for trimming, cutting, or removing trees, as above provided) to the property of the Grantors, caused by the Grantee in constructing or repairing said line or lines, shall be borne by the Grantee.

    Reserving, however, to the Grantors the right to cultivate the ground between said poles, towers and supporting structures and beneath said wires and fixtures and the right to cross and recross said easement and right of way provided that such use of said ground shall not interfere with, obstruct or endanger any rights granted as aforesaid and shall not disturb the grade of said ground as it now exists, and provided that no structure shall be erected, no road, path, or driveway shall be constructed, and no excavating, mining, or blasting shall be undertaken within the limits of the right of way without written consent of the Grantee. Grantors in said use of said ground shall maintain a clearance of 10 feet or more from Grantee’s aerial wires with equipment or otherwise.

    This instrument shall be binding on their respective heirs, executors, administrators, successors and assigns of the respective parties hereto.

    .......” 1962

    It seems to me that:

    - the "right to cultivate" by the owner commercially or not (no differentiation is made) without endangering the Grantee's operations on the easement would include the right to prune and keep different low-growing berry bushes and apple trees within the easement boundaries. If I understand this correctly, all I had to do was keep machinery and plants 10 feet away from the aerial wires. The Grantee was never granted the right to clear cut indiscriminately without any warning or prior notice, since the right to cultivate was reserved.

    - therefore, loss of property, including the loss of firewood, berry-bearing bushes and apple trees because of the clearcutting operation is the Grantee's responsibility.

    I look forward to reading your comments.

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