Protecting Your Property Rights: The Need for Easements

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Protecting Your Property RightsThe Need for
Easements

• Christopher C. Kit Earle
• Bose McKinney Evans, LLP

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What is an Easement?

• What Lawyers Say

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What is an Easement?

• An interest which one person has in the land of
  another. A primary characteristic of an easement
  is that its burden falls on upon the possessor of
  the land from which it is issued and that
  characteristic is expressed in the statement that
  the land constitutes a servient tenement and the
  easement a dominant tenement.
• - Blacks Law Dictionary

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What is an Easement?

• What Normal People Say

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What is an Easement?

• A legal right to use someone elses land for a
  specific purpose. Once that right is
  established, it takes priority over other uses of
  the land in the area where the easement exists.

Key Point Easements should always be for a
specific purpose.
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Types of Easement Interests

• In Gross
• Personal interest between two entities
• Appurtenant
• Interest that is tied to the land
• Dominant and servient estates

Key Point An Easement is always dominant over
other servient interests in property
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Public Easements

• Types of Public Easements
• 2 Common Types
• Rights of Way
• Utility Easements

Focus of my presentation
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Public Easements

• Who Can Create Them?
• The Federal Government
• The State
• Counties
• Municipalities
• Private Utilities
• Why?
• Key Point For the public benefit.

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Public Easements

• How Are They Created?
• Used to be created by prescription
• Usually created by statutory authority

Key Point A Statute usually says how public
easements can be created and for what purpose.
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Utility Easements

• Types of Utility Easements
• Electric
• Natural Gas
• Telecommunications
• Water
• Sewer
• Pipeline

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Utility Easements

• Where Do They Run?
• Frequently Along Existing Roads
• In the Public Right of Way
• Why?
• It Is Less Expensive
• An Easement may already Exist

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Utility Easements

• Utility Easements can be obtained across private
  property
• The Power of Eminent Domain
• The authority to take private property for the
  public good
• (For a Price!)

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Utility Easements - Eminent Domain

• Who can use it?
• Federal
• Natural Gas Pipelines
• Petroleum Pipelines
• Electric Transmission Operators
• State
• Public Utilities (Gas, Electric, Water, Sewer,
  Telecom)

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Eminent Domain

• What is the Process?
• Good Faith Negotiation
• Bona Fide Offer
• Condemnation (Lawsuit)

Not Required Under Federal Rules!
Key Point All parts of the process must be
followed!
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Public Easements

• Compensation
• Grantors complete discretion
• Fair Market Value
• Compensation Considerations
• Land value
• Burden on the land
• Duration of use
• Associated damages
• Future sale of property

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Public Easements

• Considerations During Creation
• Authority of Use
• Location
• Scope/Terms of use
• Damage mitigation
• Duration
• Indemnity/Hold harmless
• Termination

Limit the Scope ! !
Get it in Writing!!
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http//www.rexpipeline.com/docs/REX_east_brochure.
pdf
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REX PIPELINE

• 1663 miles long
• 42 inches wide
• 4.4 billion investment
• 1.8 billion cubic feet per day capacity
• 9 affected counties
• Vermillion, Parke, Putnam, Hendricks, Morgan,
  Johnson, Shelby, Decatur, Franklin

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REX PIPELINE
http//www.rexpipeline.com/docs/REX_east_brochure.
pdf
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REX PIPELINE
http//www.rexpipeline.com/docs/REX_East_map.pdf
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REX PIPELINE

• Requires approval from FERC
• Pre-Filing Process
• Open house meetings ?June 2006
• EIS Scoping ?September 2006
• Surveys ? October 2006 - ongoing
• Draft EIS ? October 2006 ongoing
• Purchase Easements and Easement Options ? ANYTIME
• Application Submission ? April 2007
• FERC Approval ? by February 2008
• Construction ? Spring 2008
• In service ? December 2008

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REX PIPELINE

• Eminent Domain Authority
• FERC approval Public Use Certification
• Federal authority for condemnation
• May use State or Federal procedures

NOT UNTIL APRIL 2007
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REX PIPELINE

• Negotiating an Easement with REX
• Somewhat limited
• Agreement must be reached eventually
• Location
• Duration
• Free to negotiate
• Compensation
• Scope of Use
• Agricultural Mitigation
• Abandonment

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REX PIPELINE

• Compensation
• Land value
• Loss in crop productivity
• Timber loss
• Loss of conservation program lands
• Future damages associated with maintenance

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REX PIPELINE

• Scope of Use
• Only give what you are required to give
• One 42-inch pipeline to be used for natural gas
  transport
• Easement shall terminate upon abandonment of
  pipeline

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REX PIPELINE

• Agricultural Mitigation
• Farm Bureau is working!
• Things to request

• Erosion Prevention
• Conservation program mitigation
• Land leveling
• Rock and debris removal
• Etc

• Depth
• Soil segregation
• Drainage tile
• Fertilization/Liming
• Compaction mitigation