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  1. #1
    Join Date
    Nov 2009
    Location
    Smith Mountain Lake, VA
    Posts
    2

    Question Is a Prescriptive Easement Possible for a 40 Year Use of a Utility Easement

    The situation is that the power company bought land and or obtained easements over other lands to flood as part of a hydroelectric project licensed by the Federal Energy Regulatory Commission(FERC). For over forty years AEP abdicated it's authority to manage to shoreline to the local counties for docks shoreline erosion controls(bulkheads and riprap) and to the Corps of Engineers for dredging. They participated in no way whatsoever for 40 plus years. Their license comes up for renewal in 2010. As part of the license renewal FERC requires that they demonstrate that they manage and control the shoreline with what is called a Shoreline management Plan(SMP). In 2003 AEP began the process of writing an SMP and it was approved in 2005. In 2003 they began taking over control and all permits for docks, riprap, and dredging contained the language that the permits were revocable without cause in accordance with their flowage easement. The flowage easement language is in fact broad enough to allow them the right to remove all structures within the project boundary. While it is certainly in everyone’s best interests to preserve as much of the natural and esthetic beauty of these resources as we can, it would be unfair and unjust to do so at the expense of individual citizens who have invested sizeable sums (for many their entire life’s savings). While AEP’s flowage easement has been around since the beginning of the lakes, the language explaining the full extent of the easement’s impact was never included in the language of subsequent deeds for purchase of subdivided properties. There is only language stating that the deed is “subject to the AEP flowage easement”. After attending over 300 real estate closings for properties on Smith Mountain Lake, I can assure you that at not one of those closings did an attorney ever explain to a purchaser that their rights to access the lake and build a dock on the lake were privileges that could be revoked without cause by AEP under the terms of that flowage easement. Furthermore, the two lakes were allowed to develop for 40 years with minimal restrictions imposed by the counties who never gave any indications that permits were revocable. While we do not dispute the rights granted to AEP in the flowage easement, we believe that AEP allowed the development to continue unabated and has only recently begun to manage the shoreline development. Is there a possible case for a prescriptive easement situation here?

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,576

    Default Re: Is a Prescriptive Easement Possible for a 40 Year Use of a Va Utility Easement

    Is there a possible case for a prescriptive easement situation here?
    Not if the use was permissive.

  3. #3
    Join Date
    Nov 2009
    Location
    Smith Mountain Lake, VA
    Posts
    2

    Default Re: Is a Prescriptive Easement Possible for a 40 Year Use of a Utility Easement

    AEP never issued a permit. The counties did and no mention was ever made of the permits being revocable at will.

  4. #4
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,576

    Default Re: Is a Prescriptive Easement Possible for a 40 Year Use of a Utility Easement

    As you say, AEP "abdicated" it's authority to the counties. I'm sure that if we looked at the granting documentation we would find that authority was more authorized than abdicated.

    The etymolgy of the words "permit" and "permissive" are the same- they both derive from the latin verb permitterre "to allow". A permit is permissive use. You will need to try a different approach than a prescriptive easement.

    As the flowage easement is in the chain of title for every property, it is not necessary to recite it in full in subsequent deeds.

    we believe that AEP allowed the development to continue unabated and has only recently begun to manage the shoreline development.
    Probably AEP allowed the development to take place under local authority which was accepted at the time by AEP, the counties, and the landowners. Years later, a new project management concept is put forth by a federal agency controlling the project and AEP is forced to comply.

    Have any of you asked what AEP's actual intent is in regards to your shoreline improvements?

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