Plotting easements in practice - Do preambles really limit?

User avatar
Paul Goebel
Posts: 102
Joined: Wed Mar 14, 2007 1:47 pm

Plotting easements in practice - Do preambles really limit?

Postby Paul Goebel » Wed Dec 12, 2018 7:25 pm

We are plotting an electrical utility easement where the caption paragraph of said utility easement does not include the most of the easement alignment described more particularly in a following paragraph.

We located power poles and lines which closely follow the alignment of the easement as particularly described without ambiguities. I'm doing more title research now to determine if the grantor owned all of the property encumbered by the easement at the time the deed recorded. If the grantor did own all of the property, and given the physical evidence I have, I'm inclined to just plot the entire alignment in cases like this and assume that the scrivener made an error while writing the caption. I have talked with at least one knowledgeable person who disagrees with me.

I know we were taught that the caption limits the area in which a following detailed description may operate. Wattles Writing Legal Descriptions page 3.2 mentions this and cites Piper v. True 36 Cal 606. Notwithstanding these authoritative directives, I think there is room for interpretation in some cases.

Do you have occasions where you disregard portions of the caption?

User avatar
David Kendall
Posts: 306
Joined: Thu Apr 10, 2014 1:45 pm
Location: Sonoma

Re: Plotting easements in practice - Do preambles really limit?

Postby David Kendall » Thu Dec 13, 2018 8:12 am

I’d bet on the easement being legally binding. Especially if there are other indicators of ownership or location such as map or deed references or even distinct monuments or bounds which could identify the location of the parcel in question. See line 2 from attachment.
You do not have the required permissions to view the files attached to this post.

DaveRyan
Posts: 3
Joined: Wed Sep 06, 2017 11:46 am

Re: Plotting easements in practice - Do preambles really limit?

Postby DaveRyan » Fri Dec 14, 2018 11:53 am

Paul-

I've also encountered the same dilemma using Wattle's reference, but don't believe any aspect of the law or relevant cases are to be so strictly interpreted that we get cornered into a faulty conclusion when other evidence takes us in a different direction. Here's a convenient quote; "the contrary may be shown" (Wattles). Take a look at these from the Ca. Civil Code, for instance. They may give some guidance in arriving at a conclusion you can feel is warranted.

1067. A clear and distinct limitation in a grant is not controlled by other words less clear and distinct.

1068. If the operative words of a grant are doubtful, recourse may be had to its recitals to assist the construction.

1069. A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.

1070. If several parts of a grant are absolutely irreconcilable, the former part prevails.

Dave Ryan,
Arcata

User avatar
E_Page
Posts: 2010
Joined: Thu Jun 23, 2005 6:49 am
Location: El Dorado County

Re: Plotting easements in practice - Do preambles really limit?

Postby E_Page » Fri Dec 14, 2018 6:34 pm

A couple of thoughts:

Sometimes, there might be an overall description of an alignment which crosses several properties and it is just tacked on to the easement deeds for each of the parcels after the caption. i.e. "All the following described strip of land within Parcel A of ...."

The result is that the deed creates the easement for that alignment for the portion crossing Parcel A but has no bearing on the existence or non existence of valid easements covering any portion of the alignment not within Parcel A. However, it is a very good indication that easement deeds for portions of the alignment falling within other parcels do exist somewhere.


Many utility corridor easements, especially if written by someone with at least a modicum of knowledge of the construction of the type of utility in question, will qualify the alignment as being along the utility as placed in the field. Then it's a matter of determining if the present alignment is in the same location as the original alignment. I've even seen a couple that also qualify "and as may be realigned from time to time", but that's pretty rare. If there is any qualifying language citing along the utility as it is placed, then it's centered on the actual physical line (as originally placed unless the realignment qualification is present) regardless of the recited bearings and distances.


As a practical matter and based upon laws of repose (same basis as for adverse possession, prescriptive easement), if the utility lies within the subject parcel but falls partly or wholly outside of the strip as defined by the recited bearings and distances, has been there for several years with the location known by both the dominant and servient estate owners, with neither party making an issue of it, it is very unlikely that the utility would be required to move it into the corridor per the recited dimensions even if the deed lacks the "as placed in the field" qualification. As with other boundaries, monuments as placed in the field are regarded as the most reliable indicator of the actual intent of the original parties and dimensions or measurements will rarely be held as superior, even when the monuments are not expressly mentioned in the deed. For a utility, it is the monument and if it exists in the location where it was originally placed, it is an undisturbed monument. But, in such a case, it would be wise to have the parties file a correction deed with dimensions that follow the existing alignment.


If a portion of the physical alignment was inadvertently placed on an adjacent parcel, believing it to be on the subject parcel, and no easement deed or agreement exists with the neighboring landowner, the utility company has problems. The easement is valid across the subject parcel and may follow the existing alignment as it was built for the preceding principles, but there is no valid easement or right on the adjacent property since there was never an agreement with that landowner. This would especially be true if the owner of the adjacent parcel is unaware of the existence of any portion of the utility within his or her land.
Evan Page, PLS
A Certain Forum Essayist

User avatar
Paul Goebel
Posts: 102
Joined: Wed Mar 14, 2007 1:47 pm

Re: Plotting easements in practice - Do preambles really limit?

Postby Paul Goebel » Sun Dec 16, 2018 8:35 am

In the case of this 1942 electrical utility easement, the alignment as particularly described was only a few hundred feet long, and would encumber only two parcels. I do not think this is a case where the utility prepared a group of deeds at the same time for a long alignment and just changed the captions to fit each owner. I do think that all of the surrounding parcels were under the same ownership at the time the easement recorded.

The utility company has now provided a survey dated near the time of the deed, drafted to clearly show the particular easement and underlying parcels. This evidence, along with the physical pole locations makes me confident enough to plot the easement on the parcel map now.

Evan, the deed does not contain an "as placed in the field" clause. However, I often locate electrical easements by centering them over the surveyed poles, especially in cases where the deed description is difficult to accurately re-trace. I doubt that the poles existing today are the original "monuments" but they probably provide the best location. Many utility easement descriptions have a point of beginning miles away and contain few if any calls to other properties along the way.

Thanks for the well-informed replies.


Return to “General Discussion”

Who is online

Users browsing this forum: No registered users and 2 guests