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Protecting Your Property Rights: The Need for Easements

Christopher C. “Kit” Earle Bose McKinney & Evans, LLP. Protecting Your Property Rights: The Need for Easements. What is an Easement?. What Lawyers Say:. What is an Easement?.

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Protecting Your Property Rights: The Need for Easements

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  1. Christopher C. “Kit” Earle Bose McKinney & Evans, LLP Protecting Your Property Rights:The Need for Easements

  2. What is an Easement? • What Lawyers Say:

  3. 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.” - Black’s Law Dictionary

  4. What is an Easement? • What Normal People Say:

  5. What is an Easement? A legal right to use someone else’s 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.

  6. 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

  7. Public Easements • Types of Public Easements • 2 Common Types: • Rights of Way • Utility Easements Focus of my presentation

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

  9. 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.

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

  11. 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

  12. 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!)

  13. 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)

  14. 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!

  15. Public Easements • Compensation • Grantor’s complete discretion • Fair Market Value • Compensation Considerations • Land value • Burden on the land • Duration of use • Associated damages • Future sale of property

  16. 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!!

  17. http://www.rexpipeline.com/docs/REX_east_brochure.pdf

  18. 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

  19. REX PIPELINE http://www.rexpipeline.com/docs/REX_east_brochure.pdf

  20. REX PIPELINE http://www.rexpipeline.com/docs/REX_East_map.pdf

  21. 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

  22. REX PIPELINE Eminent Domain Authority • FERC approval = Public Use Certification • Federal authority for condemnation • May use State or Federal procedures NOT UNTIL APRIL 2007

  23. 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

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

  25. 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”

  26. 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

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