power line right-of-way

Duke Energy has a power line right of way across my property. As you can see from the first picture it is hilly and difficult for equipment to get to the tower on my property or the tower on my neighbor's property. My hay field is flat and easy to drive through. Last summer during the annual tree trimming and bush hogging of the right of way the trimming crews drove through my hay field once again to get to the towers just before I mowed hay. Skid steers back and forth. When I confronted the foreman he said "what is a hay field".

I have installed a gate to try to eliminate machinery traffic. I know it can be torn down. Bolt cutters, battery operated grinders, cutting torch.

Did I just waste my time? The right of way is supposed to be for access, not my hay fields.

Well you can't block the right of way. You can record damage to your fields. They are liable for damage cause outside the right of way. If the pictures you show are your hay "fields" directly underneath the lines, you are SOL. That is their right of way. Maybe you could get with them and have them hold off on maintenance until you get the hay put up.

I do mow parts of the right of way for hay and understand that maintenance crews are entitled to use it. Just not my fields. Ellis

You are correct, they're required access to the right of way that they own. But that's it, there's no excuse for driving through your hay field.

I and my family have many acres under R.O.W shared control. Including the loss of family homes, acres to interstates,and oil pipelines. My father has confronted construction leadership when permits were assumed, not signed. Literally millions of dollars of direct capital loss. I am on your side, but realistic with multiple experiences.

Pitch, below, is correct. That R.O.W. is theirs. The ownership and taxes are paid by you, but the agreement signed (even under Imminent Domain taking of property duress) still stands. A careful review of the documents (with a lawyer is best) will discover any repayment for crop loss, or other damage. If you put the gravel lane (shown in the photos) to gain access to the clear cut under the wires for what ever reason, you are gaining from the maintenance performed by the utility, and loosing that ground to production. (here I am playing the defense position in court, their position, not yours).

A strategy that interacts with the utility to determine timing of mowing, and your removal of crop ahead of that window. might be considered. The gate could only be considered necessary and reasonable if it were to contain animals, and then it would need to be unlocked (opinion) there would also have to be fencing that created that enclosure.

This is my best information based on my experience with 68 years of interface with ROWs. (I wa 4 when Standard Oil of Indiana built its pipeline through the farm. In the 1930s Western Union put underground tunnels asross the entire primary property.)I am not siding with the utility, I am relating to your statements honestly. Jim

You would have to look on your deed for the details of the right of way.
You say right of way, others say easement, etc. They can be written up and described in your deed many different ways.

The land under the powerline does not look hilly enough to justify them running over your fields to get to where they need to be.

I think I get your message Ellis but did you show us a picture of your hay field? If you did, I can't find one that is "flat and easy to drive through". Sounds to me like they are choosing a route that is not pictured (your complaint) and are ignoring a route that you show photos of that they are not using (for the most part) to get to the towers. Obviously they have to use some of the hilly areas to have tower access.

From your picture it is not clear where the right of way ends and your hay field starts. Odds are the third, fourth or fifth party maintenance crews hired by the power company cannot tell either. My best guess would be that the right of way extends from treeline to treeline, or no more than the height of the towers on each side of the power line.

My understanding is that anything built or planted in a right of way is subject to damage or removal. Have the maintenance crews knocked down more acres than the total size of the right of way or do they knock down less total acres than the size of the right of way but some damage is inside the right of way and some is outside the right of way?

I doubt that it would be cost effective to fence off the right of way and harvest the right of way as a separate field, especially if you have to pay to have the right of way re-surveyed.

IMHO, I would leave the gate in place, but never never lock it. Also make sure it can be tied open by any maintenance crews or it will eventually be damaged or removed too.

Good luck.

I am assuming you field is on the other side of the trees, I see no reason they need to be going there to start with. The gravel road is an easy way to access the ROW for them. Something is not making sense here.

I saw an earlier comment about the easement or right of way. Better look at what is in print on the deed. On my farm the easement was for the length of an 80 into the property which I had three 40s stacked and there also was a line on both sides so they had right of way all the way across. I talked to the lawyer and got that reduced to If I remember correctly 200 feet, cost a few dollars but worth it.

The right of way is 75 foot in each direction from the center of the tower. Tree line to tree line. I use parts of the right of way for hay and fully understand that they may use it at any time. Ellis

Correct, if you look closely at the gate picture you can see in the background the level hay field through the trees. Ellis

If they find that "too hilly", they'd have to clean their britches if they saw what is dealt with around here. Leave the gate, lock it, and let them park on the easement like they're supposed to.

Exactly, the hay field is barely visible through the gate on the other side of the tree line. I can't help it that they put the right of way over gullies and hills. I put down the gravel to keep from tracking mud out onto the road that is in the foreground of the pictures. Ellis

I am with you 100%. Right now I am feuding with Verizon over damage to hay ground not included in an easement thru my land down the road. There are 2 buried cables and one row of poles. One of the poles broke off during one of our recent high wind events and caused the pole next to it to lean . They used 2 different driveways into 2 different fields to get to the poles, both way outside of the easement, without asking permission.My neighbor told me about the poles so I went up and talked to one of the workers on my way home from my last chemo treatment. Since then I have talked to some sort of boss who was very apologetic and promised they would fix everything. He called the other day and said his contractor had been there and took care of everything. I went and checked it out yesterday and if my neighbor hadnt told me he saw/spoke to them I would never know anyone was there from what they did(did'nt) do. So I made another call today , expressed my concerns and was told " I expected this might happen." More promises of "we will take care of it. So we will see. I know the right people to call next if they dont make it right. It seems like most of the world has little/no respect for anyone elses property anymore, so I say good for you for trying to protect your fields. The gate may keep out unwanted tresspassers of other sorts too.

Is it a right of way or an easement? "Right of way" generally means they own that strip, and you have no right to use it. It's probably an easement, which means they have the right to use it for access to their towers, but you still own it and can use it so long as your use does not interfere with the intended use of the easement. So you could make hay on it, but you have no recourse if they knock down your hay.

Seems like many here don't get the physical layout. Looks like the first pic is looking down the easement, second shows your red gate beyond the edge of the easement, and third is a close-up of the gate showing your hayfield beyond. Bottom line is, they have no right to go beyond the red gate, for any reason. You can lock it if you want, and would probably want to put up a sign on the gate. If the terrain on the easement actually was too steep to be practical to use, they could go to court and condemn an easement along the edge of your hayfield for access (maybe 15 feet), but they'd have to pay you for it. But that terrain is pretty mild compared to some around here, so I don't think they'd get far in court.

2 things: Have you read the actual easement/right of way language? It should be referenced in your deed, or perhaps might be spelled out there. See what it actually says, and take it to a R/E lawyer if you don't understand it. Second, have you talked to the utility itself? (not just the flunkies they send out to the property). I was able to help solve many of these situations for clients, by just getting them together to figure out how the utility could get the access it needed at the least inconvenience for both parties. Looking at your situation, it strikes me that a good man with a D8 Cat could punch a road through those little hills on the easement in a day or so. But that would mess it up for your hay production, and you might just want to give them permission to go along the edge of your hayfield instead.

My farm had 3 towers on it, going diagonally across my property. The problem was that the field through which they would have to go was wet ground, and impassable to trucks and equipment except June through October. The first tower was in the middle of that field, so we agreed to limit access (except for emergencies) to those months. The other 2 towers would be accessible any time of the year, but only through parts of my place that were not on the easement itself. I agreed to allow that access, through gates and so on, and everybody was happy. The field guy made notes in his book, and they always called ahead when they planned to do anything, so I could be there to mind the gates, etc. But of course, that was a county Public Utility District, and they had a vested interest in keeping everybody happy. YRMV.

This is what our newest right-of-way looks like, taken 3 years ago when it we first cleared, now there is very large power line. It's mostly over bedrock in the picture, but it drops off on both ends to swamp. it runs from a new hydro generation facility in Manitoba to the MN iron range, will allow us to shut down a coal fired power plant. They took 13 acres of our land, paid us fair market value, the land is still ours, but we can't raise trees under the line, so it's pretty useless to us. We planted some clover for the deer.

Caveat: Have not read earlier posts.

Most likely Duke Energy holds an easement on your property for their power line. Ignore everything that follows if they actually own the land, which is unlikely.

The law of easement varies by state but such common and statutory law is similar in many respects.

You will need to read the easement that Duke Energy holds on your property to know the specific terms of the easement that Duke owns on your land. The easement will (or should be) be recorded in the records at your county administration offices.

Generally, holders of power line easements (including their subcontractors) hold a right of entry to maintain their equipment. This would almost certainly include trimming vegetation that might interfere with their equipment. Usually, such right of entry extends only to the land defined by the easement. Most such easements (and the common law of most states) require the easement holder (Duke Energy in this case) to return the land to the condition that it was in (or compensate for damage) prior to entry upon the land. In other words, Duke must repair any damage or compensate for damage.

The overwhelming majority of such easements DO NOT grant the easement holder any right to access the land defined by the easement by entry upon other land simply because doing so might be more convenient or less costly. In other words, almost certainly, neither Duke nor their subcontractors can cross any of your land not defined by the easement (your hay field) simply because it is more convenient or less costly to do so vis a vis staying upon the land defined by the Duke Entry easement. Ignoring pre-litigated prescriptive easement situations, doing so without prior permission is trespass in nearly all states and nearly all situations.

I own land upon which Duke Energy owns a power line easement. My Father bought this small piece of heaven in November of 1951 and I have spent much of my life here aside from a few decades while working professionally elsewhere. Over the last three decades or so, I have noticed that Duke Energy subcontractors (Duke Energy to a much lesser degree), e.g., tree trimmers, sprayers, etc., have become much less considerate of the rights of property owners for the sake of convenience. My experience has taught me that such subcontractors will try to get away with whatever they can based upon several factors including what they believe the property owner knows about the law.

Bottom Line: Read the easement that Duke Energy holds on your property. Having done so, enforce your rights as a landowner. Failure to enforce your rights may well result in the loss of your ability to do so but such is beyond the scope of this topic.

FWIW: I do not allow Duke Energy subcontractors upon any of my land aside from the land defined in their easement without prior permission which I usually do not grant without something in return. Yes, the Duke Energy easement across my land includes areas that can be accessed only by foot without entry upon other land that I own.

Dean

Excellent summary, counselor. My only disagreement is with the assertion that Duke must compensate for any damages or return the land to its former condition. If it is a true easement, Duke can build roads, etc. so long as those activities are consistent with and in furtherance of the purpose of the easement. In Ellis' case, I think they could build an all-weather road through the hummocks on the easement property for access to their towers, without compensation to Ellis. Ellis could continue to make hay on the portion of the easement that was still suitable for such.

Lots of Christmas trees are grown in my area of SW Washington, and many are grown under power lines or on airport property, because they never get tall enough to interfere with the activities overhead. Most easements now are written such that Christmas trees are authorized, but subject to removal if they reach a certain height- 12 to 15 feet is normal. If they get that tall, they've generally been abandoned.

There is no such thing as an "owned" right of way or easement.
If the power company or anyone else owns the property, it is their property.
Right of way or easement, etc. is a legal agreement with an adjoining property owner to gain access to the other owned property. If the one property owner can not get to that property due to being landlocked, etc.

If things like that really really bother you consider moving to another property and let someone else deal with problems on the right of way. Land swap tax laws make selling and buying another property much easier.

As equipment gets larger subcontractors will continue to do what ever makes their job easier. From the power companies perspective there is always someone complaining about tracks through their hay field, a peony plant got trampled or someone that wants the color of the truck changed so it does not frighten the chickens. That is just part of dealing with the public. When 1,000's of people and businesses need power the power company has to weigh out the needs of the 1,000 verses the one person.

I do not think you can put a gate up, but not sure.

Actually, 007, there is such a thing as an "owned" right of way. You can't just say "right of way or easement" without distinguishing between the two. Owned right of way means a different entity than the underlying property owner "owns" it- good example is county roads. The county owns the land on which their road is situated, even if it was originally owned by the property owner(s)on both sides of it. At some point, the county came to him and he sold the 60' strip to the county, county now owns it, and adjacent property owner has no further rights in the property.

Easement is generally between two private parties- A grants an easement to B, usually for access to B's property which would otherwise be landlocked. Most often arises when it was all A's property at one time, A splits it and sells the back part to B, together with an easement for ingress, egress and utilities. A can still use the easement property so long as it doesn't interfere with the purposes for which the easement was given. Example- most counties require a 60 foot easement for a public road, and in anticipation of that possibility, won't allow transfer of property with a an easement less than 60'. But of course, a private road doesn't need that much width. So A grants a 60 foot easement to B, with the understanding that B will put his road and utilities as far to one side as practical, so that A still has 35 or 40 feet of the easement to use for his own pasture, crops, etc. If county ever wants to put in a county road (which they almost never do- who wants more roads to maintain?), the rest of the 60 feet is available for that purpose, and A must quit using it.

Huh- I guess law school wasn't such a bad investment after all! lol

Why not? The power line easement is not interfered with, and it is only keeping folks off land that they are not entitled to be on.

I don't blame you Ellis, these contractors seem to think they can do anything just to get the job done. They cut down trees, top trees, and you have the mess to clean up. I know they can WALK to the place they need to cut back, they only drive there for their own convenience, at least then they wouldn't be tearing up your field. They can stack the limbs etc. which would make it easier for you to clean up their mess, and you could clean it up when it is right for you.

Interesting, Cushoo, and likely a difference in state law or perhaps a misunderstanding of my previous post.

Though the Duke Energy easement across my land includes portions that cannot currently be accessed other than by foot without entry upon areas of my land not defined within the easement, Duke Energy has no right to build access roads, bridges, etc., to such areas upon such areas not defined by the Duke easement nor can they obtain such right by necessity, prescription or otherwise, so long as I defend my rights. Of course, Duke could build access roads, bridges, etc., upon the area of the land defined within their easement (I certainly hope that they do so but such is beyond the reasonable realm of likelihood.) but Duke cannot do so for any reason upon other lands not defined within their easement without prior consent and/or compensation. Moreover, damage incurred to the land defined within the easement must be repaired to the condition prior to such entry and has been done multiple times in my case.

Perhaps, I do not understand the OP's situation (I did not read the earlier posts.). In my case, the land defined within the Duke Energy easement is pasture land rather than crop ground but some is very steep and subject to erosion if the ground cover is disturbed. Duke Energy has been quite willing to restore my land (within the easement) to conditions similar to that prior to heavy vehicle traffic each time that such entry has been necessary but most (all?) subcontractors much less so until I assert my rights. I make a point of keeping my Duke Energy contact information for the regional vegetation management person up to date so as to name drop on the tree trimmers when necessary, which has become increasingly necessary (and effective) in recent years.

Dean

Agreed.

Dean

Yo Counsellor, I loved that part of real estate law when I was in law school also. I will never forget "Future Estates" O grants Blackacre to A for Life then to B etc

John T

You cant block the easement holder that access as defined in the grant, BUT YOU CAN BLOCK OTHERS. Maybe the power company has the key ???

John T BSEE,JD Attorney at Law

As long as the gate is not on the right of way, you are completely within your rights, it appears to be off the right of way. they do not have any right to other use of your property.

FWIW, John, I memorized the Blackacre stuff and aced it on my Property exam.

IIRC, I was the only one in my LI Property class who recognized a springing executory interest.

Glory days.

Dean

We pasture cattle under the high voltage lines. They rarely need access if you take care of land under them. Did have some contractions drive true some corn to get to a pole on another farm. The pole was not on the land I was farming so I ran them off and got a check for damages. Low bidders for ya!

I'm thinking I'd get the name, "rank and serial number" of the contractor
AND the power company and having a heart to chat with both of them.
Sometimes you have to explain things to them in "four letter words"
they can understand. You might even suggest they contact you before
they enter your land so you can show them where to go.
Often times a chat is more effective and cheaper than fighting with them.

A few years ago, TransCanada had a natural gas pipeline explosion on my property. Their transmission lines right-of-way goes through a wetland. So when they needed to bring in their repair crew and equipment, their Field Manager came to me and asked permission, then offered compensation to park equipment on my land adjacent to the right-of-way while repair work was being done.

My eyes just kind of glazed over on all those exotic "interests" in property. I memorized enough to get through the property exam, but figured I'd never encounter them in real life. And I was right.

There is actually case law in Washington that holds that it is not malpractice to screw up a Rule against Perpetuities issue, because the whole thing is just too complicated.

I have a gas pipe lining running thru one of my places,they put a gate and fence up we double lock the gate with our own locks so either of us can get into the property.The entrance is on the right of way.

When you say Duke has a power line right of way, you are referring/interpreting that as just the cleared area the transmission line runs in; from the way it sounds. Did you make the agreement with Duke or was it in place when you acquired the property? How wide is the right of way on the written document for this right of way? You may find the written right of way is wider than the cleared area in your photos and the existing line might be center or one side of the ROW/easement area. I know of transmission right of ways and easements that had a cleared area for one transmission line. The actual document description was for 3 times that width so they could add two more lines if they wanted/needed. They added the second line years ago in one area and are looking at adding the third one, using the full width they are entitled to. Depending on how the ROW or easement was written your hay field, located beyond the gate, might be in part of the ROW/easement area they have not used as yet. Professional review may be needed to be sure of the facts.

I work for a utility and deal with landowners and rights of way on a daily basis. While most things have been discussed to death, based on the picture you showed, they should have no problem getting down that right of way, heck, that's flat even for portions of Michigan. Our crews routinely traverse areas like that without any problems.

You do have the right to fence/gate the right of way, just make sure Duke can get access if needed (we often install 16-ft gates so our trucks will fit through). Your gate off the right of way shouldn't be any cause for concern.

Nothing matters except what is recorded on the deed. If you don't have a copy it is easy to get at your county court house.

(quoted from post at 08:19:06 05/16/20)

Nothing matters except what is recorded on the deed. If you don't have a copy it is easy to get at your county court house.

Click to expand...

Many counties allow you to get it online.
We go to the property appraisers website.
Look up out parcel via our name.
From there you can find owner history with links to the various
"instruments" filed at the courthouse related to your property.
Like deeds, liens, sales, splits,etc.

With the easement being 75' to each side of the centerline it's easy to tell your hay field to outside of the easement and they have no right to travel there without your permission.
I have two power lines crossing my farm at different locations by two different utility companies, part of the easement involves cliffs and a nearly 200' elevation change requiring the crews to gain access to these ares thru other parts of my farm.
The crews alway come and ask me how they can access those ares or where I'll allow them access.
In the pass couple years they have had to replace a set of poles behind my barn, repair a broken line last November here a dozer was needed to drag the trucks across my pasture field and this spring the mowing crew used my poultry house parking lot for a staging and maintenance area, each time they contacted me and repaired or paid for any damage they did, after smoothing down the ruts in my pasture they resowed it with the same grass mix and left me a bag of seed in case some didn't come up.
In exchange for using the parking area they trimmed back some tree limbs overhanging a field and topped out a dead tree near my corral.
I work with them and they work with me.
That said if a crew just comes in and cuts across my fields we have a quick talk and understanding.
As for the pics of your power line the crews around here would be tickled to drive on a easement that smooth.

Have not delt with any in a long time. I had 2 pipelines about 6' apart, a burried cable line that crossed the pipe line and next door farm that we rented had overhead power lines with 1 leg of power line in field. These all were just right of way easments. They could come in at any time to do work. But if they did do any work on the right of way we were paid for crop dammage. The big power line we did not know it was comming thru untill neighbor with mounted corn picker was opening our corn field found a strip of corn cut across field in roasting ear stage. They did pay us for that corn. And when we had found out about it and was able to talk to a worker it was found out that the eldery lady that owned the farm had been talked to about it and signed papers she did not ever remember seeing or evening singing them.