United States: Unbounded Interests: The Limits Of Blanket Easements

Originally published by Pratt's Energy Report

Blanket easements affect the use of burdened land and the rights of both landowners and easement holders. This article examines the various trends that have begun to emerge as states decide whether to invalidate, uphold, or limit the scope of blanket easements. It then discusses the implications of each trend, with an eye to the interests of utilities and infrastructure developers.

Historically, it was not uncommon for utilities and other infrastructure developers to obtain from landowners blanket easements that allowed improvements to be located anywhere on the subject property. However, as time passes and property changes hands, conflicts may arise between a landowner's plans for their property and the broad rights created by a blanket easement. For example, the landowner may seek to change the use of their property, or the infrastructure owner may try to exercise its blanket easement rights to change the installed facilities or their location. For utilities and other infrastructure easement owners, attempts to limit the broad scope of a blanket easement may stilt their long-enjoyed—and often necessary—use of the land.

States have slowly begun addressing the question of how to balance these interests. Some states disfavor blanket easements and have passed statutes limiting their applicability. Most states refuse to entirely invalidate them, while still recognizing that justice may require limits on easement rights. Such states attempt to fix the easement's location based on one of three inquiries: the original intent of the parties, the area reasonably necessary for use, or the prior use of the parcel. This article examines the application and implications of these trends.

EASEMENTS GENERALLY

First, recall that an easement is an interest in another person's land which permits the easement holder to use or control the land for a specific purpose. Easements may grant a right to place or keep something on the burdened land. While easements may arise in a variety of ways, they are commonly created by a servient property owner's express written grant permitting particular use of a designated area of his land. At a minimum, the grant must identify the servient estate and indicate the owner's intent to create an easement. Where an express grant does not specifically state the boundaries or location of an easement, the easement is often known as a "blanket" or "floating easement."1

VALIDITY OF BLANKET EASEMENTS

Only a few states either expressly prohibit or explicitly validate blanket easements, and then only in limited circumstances. This section examines each of these approaches.

Expressly Prohibited

Some states, like Missouri, Wyoming, and Minnesota, prohibit blanket easements in limited contexts (e.g., those created after a certain date or through condemnation by public utilities). Others, like North Dakota, have passed statutes intended to inhibit blanket easements, but their courts have upheld easements where the parties clearly intended to grant blanket rights.

Under Missouri's condemnation statute, public utility companies can acquire an easement to provide public utility services by condemning private land.2 The statute, however, disallows blanket easements as against public policy. It defines a blanket easement as one created after December 31, 2006, that purports to allow a public utility to locate its facilities at some undefined location on condemned property so that it can access the entire parcel.3 As to easements created before December 31, 2006, the intent of the contracting parties and the language of an express grant control their validity.4 Where a grant clearly identifies a servient parcel and gives a utility company "the right to fully use and enjoy" the land for its public services, the grant creates a valid blanket easement.

Wyoming's statutemore thoroughly prohibits recently-created blanket easements. It nullifies easements created after March 24, 2006 that do not specifically describe the easement's location.5 If a grant expressly permits an easement's location to be fixed later, the easement is invalid if its location is not recorded within one year of its creation. Like Missouri, however, the statute does not govern easements created before March 24, 2006. Instead, courts determine the scope of older floating easements by examining the original parties' intent, reasonable necessity, and prior use.6

Although Minnesota seriously limits modern blanket easements for utilities, it is highly deferential to older express easements that unambiguously give utilities blanket access rights. Minnesota Statute § 300.045, enacted in 1973, requires that public service corporations 1) "definitely and specifically describe" property acquired by an easement, 2) limit the property acquired to "the minimum necessary for the safe conduct of their business," and 3) provide a definite and specific description of an ambiguous easement upon the request of a servient owner.7 The statute, however, does not govern easements created before its enactment.8 The extent of older easements depends entirely on the terms of the grant if the granting language is unambiguous. In Scherger v. Northern Natural Gas Co., a gas utility company was allowed to construct a new pipeline anywhere on a servient owner's property because a blanket easement granted in 1931 clearly gave the utility the right to "construct, inspect, maintain, repair, and replace its pipelines" on the original owner's land.9

Even in North Dakota, where grants must specifically set out the portion of a servient parcel burdened by an easement,10 courts will not invalidate blanket easements that parties intended to create. In Krenz v. XTO Energy, Inc., landowners granted a utility company an easement to construct a pipeline in a surveyed area that comprised several parcels, with the utility expressly given the right to choose where to build.11 The court acknowledged the utility's right to build anywhere within the described area, even though the grant did not designate the pipeline's exact location, because the parties clearly meant to leave the location undetermined at the time of the grant.

Footnotes

1 Law Easements, § 7.4 (2018).

2 Mo. Rev. Stat. § 523.010 (2018).

3 Mo. Rev. Stat. § 523.282 (2018).

4 See Kleinheider v. Phillips Pipe Line Co., 528 F.2d 837, 839, 842 (8th Cir. 1975).

5 Wyo. Stat. Ann. § 34-1-141 (2018).

6 R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 587 (Wyo. 1999).

7 Minn. Stat. Ann. § 301B.03 (2018).

8 Scherger v. Northern Natural Gas Co., 575 N.W.2d 578, 581 (Minn. 1998).

9 Scherger v. Northern Natural Gas Co., 575 N.W.2d 578, 580-81 (Minn. 1998).

10 N.D. Cent. Code § 47-05-02.1 (2017).

11 Krenz v. XTO Energy, Inc., 890 N.W.2d 222, 232–33 (N.D. 2017).

To view the full article, please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Thomas J. Dougherty
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions