BWL Asserts Legal Right to Trim

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Monday, October 6, 2014, 10:06 pm
By: 
Alice Dreger

Does BWL have the right to come onto privately-owned property and trim or remove trees without the owner’s permission in the absence of a written legal easement? The BWL Director of Communications is suggesting the answer is “yes,” but an MSU property rights legal expert says the details would be complicated.

I asked Steve Serkiain, BWL’s Director of Communications, to answer three questions, on the record:

  1. If BWL has easements for residential properties in East Lansing, how would we locate those? (We have tried a number of methods and failed to find any.)
  2. Does BWL have easements for all of the properties over which BWL lines run in East Lansing?
  3. Does BWL have legal documents giving it the right to cut trees and other vegetation in the right of ways in East Lansing?

 

Serkiain responded to these three questions with this statement:

The BWL has the right to maintain its utility lines, whether it be in a formal easement document or any other implied or equitable right as a matter of law. Each parcel of property is evaluated differently relative to utility rights and utilities [sic] ability to maintain the integrity and safety of it power lines.”

I ran Serkiain’s statement past David Favre, MSU College of Law’s Nancy Heathcote Professor of Property and Animal Law. According to Favre, the best way to have an easement “is of course by written instrument,” properly recorded. “However,” Favre says, “a valid easement can also be created by prescription, a first cousin to adverse possession.”

Favre explains: “Under this theory of law, if someone (or corporation) takes occupancy and use of a portion of someone's land and it is open and visible for the world to see, and the owner of the land does not object for 15 years or so, then the law will recognize the existence of an easement to the extent of actual use.”

How might this apply in the case of BWL’s “vegetation management” program?

According to Favre, if “a utility by the placement of poles and wires, without permission,” ended up with this kind of unwritten easement, “they would also get some level of capacity to maintain the wires.” But “the exact scope of that—as in tree trimming—is vague at best as there was no written agreement between the parties. It is quite possible for BWL to have an easement without having [it in] writing, but of course fact patterns might be different for some property and have different results.”

In other words, whereas a written easement might specify what rights BWL would have in terms of tree trimming, and thus what the limits of those rights would be, a situation in which BWL is appealing to an easement “by prescription” leaves much unclear.

For this reason, according to Favre, “Best practices for a utility would be to get it in writing so it is clear for all to understand.”

UPDATE, October 7, 11:15 am: In response to a question from a reader, I asked Prof. Favre to explain "whether the BWL has to go to court to claim a prescriptive easement or do they simply tell a property owner that they 'have' one and intend to exercise it? Is their a requirement of legal notice?"

Prof. Favre responded: "Two things can happen: (1) BWL could go to court and seek judicial acknowledgement for each parcel. This would be very expensive and time consuming and is not required to have the easement by prescription. (2) BWL could simply proceed to use the space regardless of what the owners say. The primary option for the land owners is to file an action in trespass in court, very time consuming and expensive. Whether a land owner could win in court would have to be evaluated on a case by case basis."

He added, "Understand that these are legal principles I am sharing not legal advice to particular individuals."
 

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