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Does a public utility company have the right to occupy this easement?
Posted by paden-cash on August 10, 2020 at 3:07 pmdave-karoly replied 3 years, 9 months ago 17 Members · 24 Replies- 24 Replies
I’ll bite. Not knowing what type of utility you are interested in, I could imagine that an electric utility or fiber optic would be permissible under the terms of the agreement if they were supplying power for signaling or cameras or signage for instance. That type of utility would be incidental to the public highway. Water might be necessary for irrigation and sewer necessary for a rest stop. It would be hard to say no if these things were necessary.
IANAL, but it’s pretty explicit that only the highway and things used to support use of the highway are permitted. Unless there is legislation that overrides that and forces other uses to be permitted, then electric, phone, cable, fiber, etc. to places other than highway facilities (rest stops, or monitoring) or to other parties are not allowed.
.As long as said Utility is an agent or contractor for the Grantee, you’re good.
I hope everyone has a great day; I know I will!Strange. My reply is missing…
Utilities regulated by the PUC are usually allowed in public rights of way.
I would tend to agree with Dan. Utilities that would benefit the public use of the highway are good. But now if someone just wants to piggie back? But the words… “incidental thereto”
Should have used that million dollar work “exclusive”
Subscribed to this thread as I’d like to see the opinions.
Franchise Agreements with the local agency usually cover the right for public utilities to utilize public rights of way within the jurisdiction of that local agency – with the proviso that construction is inspected for compliance with road standards. That would have to be allowed under State statutes contained in the Public Utilities Code.
Does a public utility company have the right to occupy this easement?
Whoever in court has the most convincing attorney with respect to the interpretation of incidental facilities.
??????..in the discretion of the grantee, necessary for the construction and maintenance of a public highway and incidental facilities over, across or along the above described tract of land; the supervision and constructing, maintaining or regulating the use of said public highway and incidental facilities??.?
????
The County included language that limits the right of way to items incidental to a highway. That would be grading of swales, storm sewers, curb and a fence. Electric, telephone and water may be common along a highway but are not incidental to use of a highway, they are a separate use. The County cannot grant use to these other utilities per the county’s language. That being said these utilities will need separate easements which the Court would give them at a nominal price, like a dollar a pole within the ROW. Is it worth the legal cost to prove a point, only the land owner knows?
The extra 16.5 feet does not say a public right of way, only an easement for a highway. It is possible that other utilities may fit within the original narrower public right of way.
Paul in PA
Railroads have been abusing this situation for over a century despite them being an easement not a fee title situation. Now we have a trillion miles of abandoned railroads with utilities believing they still are in control.
- Posted by: @paul-in-pa
The County included language that limits the right of way to items incidental to a highway. That would be grading of swales, storm sewers, curb and a fence. Electric, telephone and water may be common along a highway but are not incidental to use of a highway, they are a separate use. The County cannot grant use to these other utilities per the county’s language. That being said these utilities will need separate easements which the Court would give them at a nominal price, like a dollar a pole within the ROW. Is it worth the legal cost to prove a point, only the land owner knows?
The extra 16.5 feet does not say a public right of way, only an easement for a highway. It is possible that other utilities may fit within the original narrower public right of way.
Paul in PA
I tend to agree. Although some of the opinions, specifically Warrens regarding Franchise Agreements are compelling arguments but in a pinch were there was an issue, if the original Grantor was not a party to the Franchise Agreement the court would likely rule with the content of the four corners of the original grant. IMO
I think any Appellate Court worth its salt would cook up reasoning for why public utilities are part of the public road use and permissible.
i haven’t researched the question though so maybe there is a case specifically disallowing it.
If you won’t allow PUC to place their utility boxes along the road/sidewalk then I think they will push for legislation to acquire a portion of private properties through the government via eminent domain.
The biggest problem: People that are against this, don’t understand what a vital part of our society, utilities play; and that their opposition only raises utility costs by causing the utilities to defend their actions.
The next morning, after it’s all said and done, they’ll look out their window and enjoy the same view they had before it all started.
It’s a shame…
I hope everyone has a great day; I know I will!I’d like to thank everybody for their comments. The trend of giving only one occupant of “public” R/W regulatory authority and implying exclusivity is what sticks in my craw. I will agree that the travelling public is an important part of the “open access and commerce” that the U.S. Congress guaranteed citizens around here when they implemented statutory R/W. But the other occupants of “public R/W” have equal rights IMHO.
This particular stretch of road is a country road with an ADT of around 250. But it is considered a “primary” route by the county meaning it gets plowed first in case of snow and the USPS and emergency vehicles rely on it being open. But the rural water line, power distribution, telephone and more recently high-speed internet are all just as vital in my mind.
Another one of my sticking points is the fact that the original 16.5′ of statutory public R/W has been swallowed up and now is almost totally occupied by a double-bituminous surfaced road bed. The only space left for other concerns falls into the “new” R/W described in the deed. The grantee of that easement is given at least an implication of exclusivity and regulatory rights over anyone else that utilizes the R/W (even the airspace). The power line that occupies that R/W feeds approx. 1500-2000 private services while the roadbed only services approx. 250 vehicles a day.
And while I’m venting: When I prepare a plat within my local municipality additional R/W and easements are usually required. A few years ago the city started requiring R/W and easements to be dedicated NOT to the public, but to the City of Norman, a municipal corporation, with rights of assignment.
OK. Let’s say our local municipal corporation privatizes their operations to a private (for profit) corporate entity and, for legal reasons, assigns these easements and R/W to said private corporation. Our “public” R/W would then be operated and regulated by a private company. Where does that leave ol’ John Q. Public?
Just an old man’s ramblings I guess…carry on.
- Posted by: @paden-cash
A few years ago the city started requiring R/W and easements to be dedicated NOT to the public
Do they just get to make this shit up?
I hope everyone has a great day; I know I will! There are overhead powerlines on both sides of the road west of the cemetery.
If the powerlines can’t go in the new R/W where would they go? In the middle of the traveled way?
As far as I am aware, California Cities and Counties require an encroachment permit for work in the R/W.
- Posted by: @dougie
Do they just get to make this shit up?
Pretty much.
An ADT of 250? You’re making my head spin. That’s a major thoroughfare in my neck of the woods. I have no desire to live on such a busy route. I’m more into the roads where you have a flat tire and maybe thirty minutes later someone cruises up just as you finish tossing the jack back where it came from. Walking to the nearest house is almost definitely faster than waiting for someone to come by………..and that’s at my pace………..some refer to it as moseying, others call it sauntering.
- Posted by: @holy-cow
An ADT of 250? You’re making my head spin. That’s a major thoroughfare in my neck of the woods. I have no desire to live on such a busy route. I’m more into the roads where you have a flat tire and maybe thirty minutes later someone cruises up just as you finish tossing the jack back where it came from. Walking to the nearest house is almost definitely faster than waiting for someone to come by………..and that’s at my pace………..some refer to it as moseying, others call it sauntering.
It’s a veritable metropolis out there compared to somewhere near your stompin’ grounds. I stood in the middle of the road for 15 minutes (sorry, no vest) looking for a nail at the 1/4 corner and didn’t have to mosey to the edge of the road once.
I believe a saunter is a somewhat quicker pace than a mosey. But they are both definitely slower than a sashay.
This question helps one understand why some agencies (Caltrans example attached) prefer to be vague about what rights are included in a grant of right of way.
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