Getting a Prescriptive Utility Easement Through a Driveway Easement

[farmerbrown]

I have bought 6-acre, vacant parcel in Tennessee which is accessed by a 40-yr-old, deeded right of way easement. The same easement also serves two other properties which are even more land-locked than mine (they have to cross the easement over my property), both of which have houses on them which have been occupied for 30 years or so. The deeded easement is expressly for a "roadway and right of way" to the specifically referenced landlocked properties, including mine, and no one disputes that the easement exists and continues to be legally used. The shared driveway also serves as a route for the underground water service off the main at the public road, for the two existing homes neighboring my lot.

The previous owner of the lot (call him Dr Evil) that we all have to cross (call it the gateway lot) to get to our properties, when he sold to the new owner in 2003, wrote a restrictive covenant into the deed that no part of the gateway lot could ever be used for "access to or utilities to" "other lands" without his permission (Dr Evil's). Dr Evil apparently intended to retain consent rights on cross access and installation of utilities for some strange mix of personal vendettas against former owners and dreams of extorting money from future purchasers of the land locked pieces.

Question 1: Clearly he can't block a deeded, functioning driveway easement or make the other homeowners dig up their water lines, but can he stop me from installing a new water line under the easement across the gateway lot? Recall that the deeded easement says nothing about utilities -- I guess I would be relying on a prescriptive easement since there have been water lines there for 30 years, though I'm not sure whether that would definitively apply to someone wanting to install a NEW line. Note that the water lines were put in by the people who were originally party to the creation of the easement, so the implicit intent was for it to be a driveway and utility way.

Question 2: Do I need Lot A owner's permission to pave the right of way? It is currently gravel. Of course I'd ask permission anyway and try to do it nicely, just wondering whether he could stop me.

Thanks.

[Mr. Knowitall]

Let's sidestep the legal issues for a moment - what does the present owner of the servient estate think? That is, even without the formal grant of the easement, will he allow you to run the new water line?

[farmerbrown]

Yes, the current owner is willing to let the water line be installed. In fact, he is willing to record a document clarifying that the easement may be used for utilities.

[Mr. Knowitall]

The covenant itself may not be enforceable, but that's something you would need to discuss with a local real estate lawyer who can review its language. I'll assume that it is enforceable, that Dr. Evil would object to the new easement, and that he will sue if he finds out about it. (If he'll consent to the water line, the rest is easy.)

The problem with recording a document, of course, is that it potentially puts Dr. Evil on notice of the new easement, and it could subject the owner of the servient estate to liability (depending on the terms of the restriction). The disadvantage of not having a recorded easement is that you have a permissive use which could (theoretically) be terminated; although given the investment of resources in running a water line and the presumed associated investment on your property I would be surprised if a court ordered removal of the line even if permission were revoked. You could also enter into a contract (e.g., a very long-term lease with renewals and/or with an option to later acquire an easement for a specified cost) to protect yourself without having an actual recorded easement. (Dr. Evil won't live forever.)

I doubt that you have the right under the easement to pave the right-of-way, absent consent from the owner of the servient estate (and probably also from other affected users of the easement).

[farmerbrown]

Thanks for the insight. It seems to me that reason is on my side (I'm not a lawyer but did take 2 commercial law classes in college, and they were great, main thrust being that most law and practice seeks its foundation in what is reasonable), but technicalities may give Dr Evil a platform for causing me grief. I may not do anything immediately, but if I do, I'll post it to this thread if it's still running to let you know how it turned out.