My question involves an easement in the state of: Utah. I recently (Nov/2011) bought a building lot in Utah. The seller didn’t know that a utility pole and associated overhead lines were on the property and therefore, there is no mention of them in the specific portion of the Seller’s Disclosure for such. She also affirms through her real estate agent that she does not remember any contact from the utility company at all (the utility company estimates that the poles were placed in the late 70’s or early 80’s). The seller and her late husband bought the property in 1971 but lived out of the area so would not be able to see the “open & notorious” use of their property by the utility company. The plat drawing attached to the title insurance policy shows an easement along the neighboring property line at the back boundary and states “existing power line located at center of easement” so I was quite surprised when the survey I requested (after having purchased the property) showed that the pole and the lines encroach onto my lot by 15-20 ft. I contacted the power company in hopes of having them move the pole and overhead lines back into the easement but they claim to have a “prescriptive easement” over my property, stating that the pole and lines have been in place for over 20 years. I have two questions:
• Can a use truly be “open & notorious” if the (previous) owner is completely unaware that their property is being used? The utility company didn’t notify them and also, they lived outside the area so it is unreasonable that they should “notice” that the pole/lines were placed.
• If the “prescriptive easement” is affirmed in a court action, can I ask to be compensated for the loss of the amount of the fair market value for the acreage of the easement?