Easements........your thoughts.

[hardrock]

Hey all,

I've got a question about property easements.

Do you HAVE to grant one? In other words, can they MAKE me grant one?

I have an 80 acre parcel of farmland that a rural municipal water project is asking me for an easement down the entire length of the west side of my property.
They want to run their water line down a 20 ft. wide strip of the entire frontage.
The request form also includes future provisions for "undisclosed" additional "fee'd' services, but not limited to, Nat'l gas, fibre optic, etc.
(The project is in the planning stages, and shoud begin construction in about 2-3 years.)

I have absolutely no desire to "share" access to my property with any entity,
much less a giant corporate one.
I have no desire to sign up for "fee'd" water, either. Basically, I want nothing to do with it at all.

Can they make (force) me to grant an easement?


The plot thickens.......
A 20 ft. easement, customarily measured from the center of the frontage road, comes to within 4 ft. of my private well.
My first thought was......"How long will it take the (powers that be) to decide, since I have immediate access to "approved" municipal water, my private well is no longer an acceptable source of potable water."
Could they do this?

To complicate matters further........
I will be selling 40 of the 80 acres in 2 years.
Whatever the new owners grant or don't grant, still leaves me in the same boat as now on the remaining 40......minus the well issue.


Any thoughts?

[Drawbar]

I can answer your question in one word...yes, but I think you can keep from getting too buffaloed in all this.

Since you are talking about a public entity, then obviously they can get the easement via Eminent Domain. Even more scary perhaps was that landmark decision in CT where a PRIVATE CORP took land using Eminent Domain that the supreme court ruled they could do. Yes, scary indeed...

I am not well versed in easements, nor am I a lawyer, but typically when these things go down they try to cram as much use into them as possible. I can say with confidence that adding the other stipulations in to this easement is their way of reducing their need for easements in the future. You may not be able to successfully fight off getting the water easement put in, but you probably can fight having the other easements added since its just convenience for them.

A few years ago the town put a culvert in a ditch across the road and then wanted me to sign am easement that stated something like they had access to the ditch that the water ran into, and that this would be in effect forever and whenever they needed to get to it. So anyway I read the fine print and I was like, you want me to grant you permission to roll dozers across my land, at any time, for the foreseeable future? Ummm..

Luckily my best friend is an attorney, so we got the easement scaled back to a one time use instead of forever. I mention this because you might be able to use an attorney and scale the easement back to just the water line. That would at least force them to come to you and give you some degree of control each time another service was installed on the easement.

You can fight anything, but it comes down to how much you are willing to spend (finances and attorney fees) and what you are really giving up and if its worth it. Remember they are in the same boat so they want things to go as smoothly as possible with few confrontations, so usually you can reach a compromise. Still if its a public works project, and they really want to push through across your land, a land owner quickly finds out that landownership has far less rights then they think.

[Drawbar]

The plot thickens.......
A 20 ft. easement, customarily measured from the center of the frontage road, comes to within 4 ft. of my private well.
My first thought was......"How long will it take the (powers that be) to decide, since I have immediate access to "approved" municipal water, my private well is no longer an acceptable source of potable water."
Could they do this?

Its not a matter if they could, because they will. I don't know about other states laws but here in Maine if Municipal water is extended to your home with private well water, you MUST cap the well and buy municipal water.

Period. End of story...that is just the way it is...

They did this on my wifes house "in town" and I have heard of the in other towns as well.

[Drawbar]

My only other thought on this, is you might be screwing yourself in this whole deal. If you are looking to sell land in the future, that water, power, fiber optics and everything else just may be a huge selling point. I don't know your specifics so I cannot say for sure, but I have ran into this myself.

The person that lives in back of me wanted power and phone for his house. His driveway ran along a right of way on another landowner. That landowner would not give him permission to put power lines to his place. Because the way the house and roads are situated, he came and asked my Grandfather if they could put lines across his property going to this house instead. My Grandfather agreed.

The first landowner was downright stupid, because when he went to sell his land, it did not have access to power and phone and thus pretty much useless for a houselot and he got a lot less money for it.

For me (who inherited my Grandfather's land) we made out well. Not only did we get the wood that the power company cut, we also have power and phone to deep areas of our property that other people paid for. When my daughter was born she got 4 acres in a nice secluded spot that has access to the grid. Again all because another landowner did not think ahead.

These easements may not mean much to you, or mean much to you now, but they could mean a lot to a potential buyer down the road. I would be more worried about what the easement allows for access and what physical things I will see on my property , then I would something that is buried out of sight by 6 feet.

Just don't shoot yourself in the foot,especially if you are thinking about selling.

[WRTN]

Your first answer is NO! PERIOD

That puts the ball back in their court.

If they decide to use eminent domain to steal the easement.

Your answer will require figuring up the current AND future value of the land in purpituity, the value of current and future timber, minerals, etc. Current and future impact of this easement on the value of your land especially with respect to how is does or does not conflict with the primary reason for purchase or and enjoyment of the land.

This will require going to the property assessors office and asking for all recent local utility and road easements deeded. This will give you an idea of what has been paid in the past for an easement. Pay very close attention to commercial properties where easements have been deeded. This is what is called a real estate market value analysis. This will help you place a value on your easement being taken based upon other recent easements.

The other part of your second answer should be that the easement is restricted to this waterline ONLY AND restricted to the current diameter of this waterline ONLY. CLEARLY stipulate the easement can NOT be used for ANY other purposes. CLEARLY stipulate that you and any land you own is forever exempt from future annexation from the town or authority installing the waterline, any future property taxes imposed, any requirement for you or subsequent owners to hook up ot the waterline, any increased property assessment, and liability/responsibility for any damage done to the waterline. CLEARLY stipulate that ANY future additions, modifications, or other uses of the easement REQUIRE another easement added to your deed and the accompanying payment for the additional easement. Require that the easement be fenced or blocked off at the points it enters and exits your property.

You will need to put all of this in a type written real estate market value analysis and counter proposal. Chances are that they will have contracted a land acquisition company to negotiate with you. The negotiator will contact you with a BS low ball offer first. Most folks just roll over and take it.

Just say NO and wait for them to contact you. Be sure you have the above info. ready to spring on them. Send it via registered mail to the negotiator. Then wait for their reply. The longer you can drag them out the better because this puts them in a bind time table wise to get started on the waterline. As long as you are negotiating with them they will look REAL stupid if they try to use eminent domain.

This process is akin to tennis, just keep up on the offer/counter offer until they say that is there final offer and they will take it to court. If you keep a very positive and amicable repour with the negotiator he or she is likely to tell you that they are authorized to offer you a maximum amount of money. Then they have to get any over and above that approved.

Submitt your market analysis along with your counter offer requesting the max amount of money. Wait and see what happens. It is a 50/50 proposition but it is WAY cheaper for them AND you to reach an agreement to a figure something a good bit under court costs and their previous max offer.

I have done this on 2 occasions and gotten VERY good results which definitely justified my time and effort. Once with the thugs at the TVA (who by the way do NOT have to negotiate with you, they just take it by using the TVA Act of 1933 & add it to your deed without your permission)

http://en.wikipedia.org/wiki/Tennessee_Valley_Authority

In this case it was a little different because the TVA just took our land and changed the deed. They sent out negotiator who was all arrogant and proud of himself to tell me about it until I reminded him that the access to the area where the powerline easement was NOT my driveway. They tried to force an easement through my driveway which was promptly refused because they already had an easement to this area where the powerline joined the road. On each side of my property where the powerlines crossed there was a 20-20 wide by 10-15 deep creek ditch. I also reminded them that ANYONE caught on my private property would be charge with trespassing and any equipment would be confiscated until the sheriff could remove it from my property. The smart ass arrogant negotiator immediately disappeared and a much nicer and accomodating representative appeared about a month later after some heavy rains which flooded most of their work areas except our property. Long story short, we got double what was originally offered and they trucked in about $20,000 worth of gravel for using my driveway, skidded many of the trees they cut upto my house so I could cut them for firewood, and did some real nice landscaping with their backhoe. The wife inturn would bring them cold drinks and on occasion pizza. ;D

The other occasion was with the Tennessee Dept. of Transportation when they widened a highway. In this case they offered me $1500 for 1.5 acres. In the end after a fact filled email to Governor Bredsen, who involved a staff member, I got over $10,000.

Stand up, defend and protect your property rights. If you don't nobody else will. You can retain an attorney if you like but they don't come cheap and most will eat up any extra money or concessions you would have made.

Sorry for the long reply and good luck with your easement. I am working on another easement now as we speak from a neighbor who wants to widen an existing easement and another with TDS who wants to install a DSL remote box.

My advice to ANYONE with respect to ANY easement is to just say NO (if you can). Otherwise fight them like hell. Easements are the biggest source of HUGE headaches with land ownership. If you must or want to accomodate an easement requestor, I suggest offering them a lease for a defined period for STRICTLY defined uses. At the end of the lease the land reverts back to the owner without have to get a quit claim deed or correction to your deed.

[Catalpa]

As far as the well: it might be different in your state, but in Michigan running the municipal water line does not automatically mean your private well must be abandoned. So long as the well meets structural code and isolation distances, it can be kept in service, even after hooking up to the city water. Lots of people do that so they can use the well water to water lawns and wash cars.

HOWEVER, if the water authority chooses, they can make it part of their ordinance that you MUST hook up, and that your well MUST be abandoned, and then, if they choose to enforce it, you might be out of luck. In most places, they do make a rule that no existing water wells can be repaired, or new ones drilled, within the water district. So if your well needs any work at all, make sure you get it done before the water line gets put in.

As far as the easement, I'd go along with what's been said. Unfortunately, most property buyers will see all that civilization as a plus, so if it's in, your property will be worth more. (And probably will be taxed more!) So having the utilities may be a plus.

But certainly fight it every step of the way. Use every legal trick you can to restrict the easement and make them pay for it. And don't fall for any threats! When city water was put down my Mom's street, she knew she had to pay the assessment, but wanted to stay with her three year old, perfectly good well. But they threatened her with massive fees and fines if she didn't hook up to the city water right away. So she did, and now she has an extra bill.

So fight every step of the way.

[hardrock]

Thanks for the replies.

Drawbar,
I understand about the availability of municipal water adding value ($$$) to the property in 90% of peoples minds, (everybody tells me that ;)) but this is basically all farmland, and I hope to keep it that way.
I'm 3rd generation here, (Gramp's farm) and would like to
have some input/control as to it's future use. With the current interested parties, I think I can keep it in production.

To my way of thinking, a good private well (read free) is worth far more that any "fee'd" water supply.
Anytime "THEY" can attach a "fee", "THEY" can raise it...
and raise it.....and/or restrict/ration it......or treat it, or......
Of course, most people don't think like I do! ;D ;)

As a potential homesite, it may be worth 7,500.00/AC in 5 AC chunks with municipal water, but as farmland prices keep skyrocketing, it's probably worth about 6,000.00/AC just to keep it tillable acreage.
(I know, I know....rediculous!)
9 out of 10 people would go for the top dollar regardless of the consequences, but I really don't want to encourage a population increase in my area, if I can help it.
the extra $60,000.00 difference would no doubt disappear fairly quickly, but troublesome neighbors could last forever.....


In my area, most regular folks aren't/can't even think about buying/building homes, given the current economy, but mega-farmers are climbing all over each other to buy up more and more farmland. In fact, that's the ONLY buyers I will entertain.......That, or a like minded homesteader.
They, like me, prefer the lowest possible property taxes, and rural municipal water doesn't mean a thing when you're not planning on developing it into rural residential homesites.
The proposed water project is, I think, a private company contracted to, or in partership with the County.
Actually, no one can really give me a definitive answer as to exactly WHO they are. I do know they're not 100% State or County. They frequently get refered to as "a service provider".


WRTN,
Sounds like a plan. My basic position is...." If the easement doesn't benefit the present or future landowner(s) in any measurable way, assuming the property is kept in it's current and best use (agricultural), then it must be viewed as a detriment, or loss requiring just compensation."
It would only benefit the lanowner(s) if there were actually homes there, or planned to be put there.
This proposed leg of the project serves only one home, then terminates, if I read the map correctly.

[..real estate market analysis...] Hmmmm,....we just had a Wal*Mart Supercenter go up in town. (I'm 12 mi. out.)
The County fell all over themselves kissing Wally's butt to get it in here.
Wonder how they handled road access, utilities, etc.??
They said property values would go up..... ;D ;D

Methinks the County has future sprawl in the back of their minds.....I've heard rumblings about Smart Growth programs.....

Catalpa,
As far as I have determined so far, in Illinois, you can still retain a private well if it doesn't inter-connect with the municipal supply in any way. (common plumbing)
Separate systems are permitted, and in some rare instances, inter-connection is allowed with a check valve and an extensive professional inspection.
I suspect this will change sooner, if not later...
(I just figured on a suprise visit from the local Health Dept.
asking to inspect my well if I gave a flat "NO" to the easement request.....)

Just a side note....
The contract to receive municipal water service, (yep they actually call it a "service"!) states that, once connected, it remains connected in perputuity......for the life of the property. Any decision to terminate this "service" by any property owner, present or future, will still result in accrument of monthly minimum fees set forth by the governing board of blah, blah, blah.......
And in the event of non-payment, the property will be leined.
Who the heck would want that??? ???
As it stand now, it's a $500.00 connect fee in advance, or $1500.00 at time of construction, and luckily, connection isn't mandatory.
BUT,.....let them get a foot in the door.....

Glad to know I can fight it, or at least wrangle it in a better direction.

Thanks all!

[HockeyFan]

Easements are a concept borrowed from the facists. Many in this country admired the way the facists managed private property in Germany, and now we've had it so long, that most people don't think their rights have been violated. The mere definitiion of an easement is, in most cases, unconstitutional and should never have been allowed. We can't get rid of them now.

[hardrock]

HockeyFan,

Couldn't agree with you more............
'cept to add covenants, restrictions, zoning, and RE taxes. ;);D

After some extensive background sniffing and digging, I found out that the "service provider" is actually a non-profit private entity formed soley for the purpose of applying for and receiving State grants under the fmHA and other rural development schemes set forth by the PTB.
It's an easy sell, because most people have become too lazy and helpless to not only feed themselves, but evidently can't water themselves, either.
It's a big bux scam that allows several things to transpire...

1.)Progress soley for the sake of progress (moves money)
2.)Justification of excessive taxation (moves money)
3.)Keeps overpaid contractors busy (moves money)
4.)Creates a "Rural Water District" that raises property values and, thus, RE taxes. (moves money)
5.) need I go on?

Anyways, a great big THANK YOU to WRTN!!
definitely got me to thinking!

The short story........

Contacted the Twp. Super (old classmate) got another
copy of the easment request, looked it over.
It had changed now to include the south border, also.
Wording was different, fees had changes, etc.
New funding (grants) received, all systems go.
START DATE moved up to this week!!! YIKES!!

Cruised the backroads and found the work crew already
boring under the roadways........Laying pipe next week.
Struck up a conversation with the on site engineer.
BS'd about how great it was to finally get water, BS, BS,
get any rain?, BS, where ya from, BS, etc........
Got a good look at the maps, and who was getting a hook up, and who wasn't.

Hmmmm,.................interesting!

[hardrock]

Continued...

Acted like the dumb hillbilly I am......asked why some lines just ended in the middle of nowhere, and others went clear through.

Answer: "Not all the easements are in yet."

"Um, what if ya don't get one 'o them easement thingies?"

Answer: "Well, we go where we want to go, in the end.
we just try to get property owners to give it outright, first."

"Oh, look at the time! gotta go! Thank you for your time, and have a good'n. See ya!"

[hardrock]

Continued.....

Recalling the maps from memory, I went on a door to door maneuver.
Whoo-Hoo! People have alot to say once ya get'em started!

(At this point, I requested 3 irate subscribers call the head office and raise hell about an, as yet, unrelated issue.)
(**see below)

Armed with more info than I could possibly remember, i sat down with a plan and called the head cheeze in the engineering dept. of this water project.
Once introduced by his secretary, he immedetely recognized my name as one of the outstanding easements......
Hey, -------, how ya doin', ole' buddy! Get any rain up your way?
(I could tell this was going to be like dealing with a used car salesman.....The guy didn't know me from Adam.)

We cordially discussed the business at hand, and I eventually stated that, in light of the information available to me; having my questions answered fully; my understanding of easements; and reasons personal to me, (that in no way reflect an opinion either in favor of, or against the proposed water project), I must respectfully decline granting the easement, and my official written
response would be forthcoming.
THE GUY CAME UN-GLUED!!!!

I listened patiently to all the NWO "Eninent Domain" garbage, blah, blah, blah.

[hardrock]

Continued......(yet again)

**When he finally calmed down, I quietly informed him that I was fully prepared to bring forth, in person, at the next regularly scheduled board meeting, (two weeks) several disgruntled district subscribers that had, in good faith put up connection fees of $750.00/ea. OVER 12 YEARS AGO, who had not yet received water in ANY of the previous 3 phases of this project. (As initially promised)

Along with those people, we'll have several questions for 3 other specific subscribers that have received hookups within months of their up front money. (less than 1 year)
All 3 will be present, as they currently sit on the Water District Board.
They include:
1.) The current Twp. Supervisor
2.) the current Twp, Road Comissioner
3.)Brother in law of the Twp. Supervisor

As chief architect of this project, you know, these 3 subscribers have collectively, among them over 5 miles of waterline that terminates at their property, but goes no further. Yet closer, easier to access subscribers from 12 years past remain unconnected.

Among the aforementioned subscribers, I will be bringing with me 2 additional members that will detail for the board, conversations held with you specifically, as recent as 2 days past, that will outline the "offering" of *immedeiate water hook up to any one that brought you back my easement, granted.
Council from the law offices of -------&------ will be present to gather any affidavits that they feel might be needed, along with a reporter from the local newspaper, and, pending scheduling, a representive of *this district's State Representive's Office.

Should you or the Water District Board decide that this approach is totally un-necessary, we can discuss Real Estate Market Value analysis', you obligations, mine, the twp.'s, etc. begin negotiations, and hopefully by Christmas, reach an agreement........

I am rather busy, what with mowing my yard and feeding my cat........how soon did you say you needed to lay pipe???

CLICK........

Now that was just plain rude......he didn't even say good bye! :o :o

[hardrock]

WRTN,

Well Dad, did I do good?

I had to kinda wing it. This phase of the project WAS scheduled for the spring of '08, but our illustrious Governor
seemed to have misplaced a couple million dollars of revenue earmarked for this.
Last I had heard it was pushed back a year or two.
(Musta finally figured out where he misplaced the funds.)

Luckily, 90% of what I told the Chief Engineer, I can back up.

Two of the "irate" subscribers are fairly influencial area businessmen, the 3rd's wife is the secretary for another "high-end" Insurance broker and area big-wig.
He voluntarily offered up the Congressman and the law firm.....
I chased down a tenative commitment from the local paper, and stirred the pot with several subscribers that had paid up front for, but never received water between 7 and 12 years past. Two more will sign affidavits to the effect of "unethical enticements"offered them.
Working on the REMV Analysis, but other than that, I'm outta ammo.........

[WRTN]

Looks like ya done as much as you can so far. Expect these arrogant thugs to steam roll you and other against this project. (it is that way across the country)

Another option you may want to consider is a Conservation Easement being place upon your land. Conservation Easements have their benefits and disadvantages so you will have to probably talk to a lawyer or good financial advisor. In short, a Conservation Easement can tie up you land and prevent any development or disturbance to its environment. It has some tax and income advantages but you will be forsaking future development rights.

Don't tell anyone about this as they may go to court to stop you before you can get it done. This would likely be a HUGE road block to them if you did have a Conservation Easement placed on your land.

[hardrock]

WRTN,

I've not slept much in the last 5-6 days. :P ;D
Hope my long winded post(s) didn't annoy anyone.
There's alot more details, but ya can kinda pick out the high points.
For the most part, I'm a pretty laid back guy till someone starts poking sticks in my cage...
Right now, everything is so quiet in my neighborhood you can hear a pin drop! Even the boring crew didn't come to work today.
Just told everyone to cease calls, gossip, etc. Just lay low and wait......

Conservation Easements are a pretty good way to head off development.

I'm on 180AC here, and for a long ways in either direction, it's all farmland. Just old homesteads from way back that folks keep up. Probably not more than 6-8 homes to a section. We like it that way.
In fact, my closest neighbor was so concerned about outsiders coming in and making the area over in their own image, he bought the acreage that lays between the two of us and put it in a Conservation Program.
Not sure how many years.
Planted trees, provided some wildlife habitat, etc.
About 46AC worth, so no more crops there, but it sure is beautiful. Gives my place and his a nice buffer zone.
Most of the neighbors here prefer living a good distance apart.
Around here, we guage "a good distance" like this......
On a still day, if you can strain to just hear your neighbor running his chainsaw wide open, that's a good distance. ;D

He's retired and doesn't much care about income, but I rent my ground out to an area farmer. Pays the taxes and gives me enough pocket money that I can keep folding it over throughout the year...

New project......shiney new roof for my well pit.
Rekon I can get it finished before the County Health Dept.
shows up??? ;)

[WRTN]

Hardrock,

You have one heck of a good neighbor if he bought the land and put it in CRP as well. He spent a few bucks. I put about 80 acres in CRP last year.

Just remember and I hope I have not given you false hopes.........you will NOT beat these clowns at their own game. The best you can hoep for is to bleed the beast as much as possible and hopefully make a small exception for yourself. If you can ralley your neighbors and build an area coalition of good folks of conviction, a rigid spine, and foresight; you may be able to extract more concessions and protect your land.

My hat is off to you for your efforts and spirit. Unless and until landowners stand against these violations of our property rights as a well organized group, the land theft will NEVER stop.

[hardrock]

Yep, my neighbor and his wife are around my age. (47)
Maybe a little older.
Moved here around 15-16 years ago, about the time I came back home.
Built a log style home on 30+ AC, dug a pond on an acre of it, put his feet up and retired. He was in the construction trade, built it all himself. Nice place.
Big into hunting and wildlife preservation.
Plants ALOT of trees and food plots.
Raised two good boys that are moved off now.
He and his wife get a deer or two every season for the freezer. Couple horses.........
Probably the best neighbor a guy could hope for!
We share the creek that runs through both our properties, and when I needed to make a crossing back to the farthest 9 1/2AC, he was the first in line to help.
If he ever needs anything, I just tell him "Come get it if ya need it." When he's done, it's right back where I left it....

Now, if I can find a couple more like that....... ;D




I've been doing my best to wean the area residents away from the "Well, whata ya gonna do..." way of thinking.
Most aren't that way, but there's a few that ya have to light a fire under every so often!

I've had my ideas on things for quite awhile, but never made much more than an occasional mention of it.
A little here, a little there.........eventually they are catching on.

[hardrock]

UPDATE!!

Well, I think I might have made just enough stink to get them to reconsider the easement.

I noticed the utility companies had came and marked the phone and electric lines on my property, so.....
I decided to park my old grain truck along the west edge of my property about the spot that the waterline would run.
Just left it there the past week or so, just in case they needed to come ask me to move it, I'd know they were going full ahead on with the line.

The VERY morning of the scheduled water district board meeting, the spineless monkeys sent the Twp. Supervisor to my house...........

She's a woman that I went to school with, and she's very nice and I respect her alot.
She approached me as I was just finishing up weeding the garden and said "Well, ______(Head Cheeze) asked me to stop by and let you know....... not to worry about anything.
The board called a special meeting and reviewed your portion of the project.....
and, er.....well,....it seems that someone inadvertently overlooked an easement that was ALREADY granted through the property just the other side of the road from you. They will be going up that property instead."

She continued on with how good it will be to finally get rural water, etc. and how the company bends over backwards to accomodate everyone it can, etc.

With every word, her face turned more and more red!

Finally, I just couldn't let her belittle herself on the District's behalf any longer......

"So, no need of me going to the meeting tonight?"

"Oh, no, that won't be necessary. Everything's been taken care of."

"Well hey, that cool... Glad to hear everything's going to work out OK. Come on over here and take a look at my garden."

"Saw your new house going up.... Looks like it's going to be a nice place."
Probably a little late in the season to put in a garden of your own. If you want some nice tomatoes and sweetcorn, don't hesitate to stop by and grab ya some! I'll probably have more than I need!"

Her face lit up with a big smile......

I didn't have the heart to tell her.... that "overlooked" easement was my ace in the hole if push come to shove.
(I'd known about it from searching my data for the REMVA!)

Yesterday and today, I went cruising the countryside and low and behold, one of the subscribers that had signed on 9 years ago had a big freshly dug trench in his yard!
They now have water connected!
Came back to the farm, dropped the tailgate and pulled up a lawnchair.....
Watched them trench down the entire length of the property just west of me. 8) 8)

Life's been good so far.......

[Catalpa]

Awesome! It's heartening to hear of folks fighting back! Keep it up!