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I purchased land last year and have 4 easements on my property. It has been discovered that the water line to my dominant easement holder is NOT in the easement. It is at least 25ft outside the legal easement. The elderly gentleman did not know at the time of his contract signing a couple years ago. My (servient) easement is already 40 ft wide (enough for a highway :-)! ). Do we have any legal remedies?

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    Laws can vary around the world, so which jurisdiction (country, province, state, principality etc) are you in?
    – Rock Ape
    Jun 7 at 15:54
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    I am having trouble visualizing/understanding the fact pattern. What kind of easement is it? And, in what jurisdiction?
    – ohwilleke
    Jun 7 at 21:36
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    If I understand correctly, you're saying that there is a utility easement across your property, and one of your neighbors has a water service line running across your property, and the service line is supposed to be in the easement, but is not. Is that right? Also, have you suffered any kind of harm, damages or loss as a result of the service line being where it is? Jun 8 at 1:31
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    This is in Harrison Country, MO, USA Jun 8 at 16:17
  • Loss of significant portion of land for the 40' easement already agreed upon on the property edge. This waterline (2yrs old) is 25' outside THAT. Significant loss to buildable land. Jun 9 at 18:29
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Easements are normally rights granted by the property owner to others. When a person buys property with existing easements, the purchase is normally subject to those easements. That is, the new purchaser agrees to grant the same rights to the easement holders that they previously had.

The property owner can always grant additional easements for whatever purpose and on whatever terms the owner chooses. If the problem is that the easement does not cover what you or the easement holder wants it to cover, you can grant an additional easement, free or at a price, if the other party agrees. If the problem is that the easements are too large (either in area or in rights granted), the other party can surrender some of the easement, but cannot be compelled to do so, and may not be willing to do so, or may demand payment.

The property owner does not normally hold an easement, the owner holds all the rights except what is granted by easement to others.

It would be a very good idea to have any changes in any easement drafted by a local lawyer skilled in property law in the relevant jurisdiction. Easements are normally permanent, and affect the nature and value of the property from then on, including what rights the owner can later sell or leave by will. If not carefully worded, the undesired effects may be significant, and hard or impossible to undo.

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  • The problem is my property offers 40 ft easement already for all utilities. The waterline is OUTSIDE the easement. They wrote an easement, but the waterline was already somewhere else. I am not willing to give another easement as this would increase the easement size to 65 - 70 ft wide. Jun 8 at 16:14
  • @Kimberly Curls The utility company may refuse to service the line without anseasement covering the area where the line is placed. That is their choice, unless local law imposes a requirement on them. The line could perhaps be moved. That would have significant costs, which you might have to pay. Or an additional easement could be granted. Note that most easements impose few restrictions on the use of the land by the property owner, mostly that access be granted. But the exact terms vary. You might wish to consult a lawyer on the details of what effects a new easement would actually have. Jun 8 at 16:19
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Relevant Legal Considerations

A few observations:

  1. If the water line has been there long enough there is a probably a prescriptive easement that arises by operation of law from using the property of another without permission of a statutory length of time (ten years in Missouri). See generally, Wallace v. Snider, 204 S.W.3d 299, 303-304 (Mo. App. S.D. 2006).

The use by the utility company/dominant estate must be "continuous, uninterrupted, visible, and adverse under claim of right." Proving continuous, uninterrupted and adverse use under claim of right would be easy in this fact pattern. The hard part would be showing that the use for the waterline was "visible". But while the waterline wasn't visible once it was installed and the dirt leveled out and the grass grew back in, until they it would have been very visible that the trench was dug and then refilled and that probably would satisfy the prescriptive easement requirements under common law.

  1. If the utility company failed to get an easement in advance, it probably has the right to obtain one with the power of eminent domain (a.k.a. condemnation) after the fact, even if it isn't a government agency, by paying you the fair market value of the loss of property or use of property that you experience as a result. This fair market value would probably be modest.

3.a. You might have an action for trespass against the utility company for putting the water line a place that it didn't have an easement if the prescriptive easement period has not run. But, if no one knew that it was there and it didn't impair use of the property, damages would be nominal at most, although an injunction ordering the utility company to move the water line might still be available.

3.b. As a defense to the trespass action, even if the prescriptive easement period hasn't run, the utility company is likely to raise the defenses of waiver and laches. The argument would go that your predecessor in title couldn't have possibly missing the fact that the utility company dug a big ditch through their yard with a backhoe in the wrong place. By failing to object when that was happening, the right to sue for trespass may have been waived. By failing to object when it was feasible and cost effective to fix the problem causing the utility company to be prejudiced in relocating the water line when it is much more expensive to do so, the doctrine of laches may provide relief.

3.c. The utility company could also argue as a defense or in a counterclaim that the language of the recorded utility easement was a case of a mutual mistake and could seek to have the instrument reformed to reflect where the water line was actually located, retroactively validating the presence of the water line where it was located.

3.d. A trespass action isn't one where you can usually get your attorney fees if you prevail, unless the utility company is a governmental entity. But, Missouri has a special law allowing for an attorney fees award in certain trespass lawsuits against utilities (that applies when it unlawfully expands the scope of an existing easement, which might or might not apply in this case).

  1. If the utility company is a government agency, you may have the right to bring an inverse condemnation action asking for just compensation for the use of your land (and attorney fees in most cases). But the statute of limitations would typically run from the time that the water line was put in that would typically be much shorter than the statute of limitations to establish a prescriptive easement.

  2. If the utility company failed to use the designated utility easement for a long period of time because it put the line somewhere else, it may be possible to adversely possess the easement back from the utility company or to obtain a court order to vacate the abandoned easement. This may or may not have value to you.

Bottom Line

Unless there is a good reason for you to move it (e.g. house expansion plans that you purchased the house in reliance upon), it probably isn't worth the money and trouble to sue the utility company.

Seeking to get the utility company to vacate the easement not used and to draw up a new easement at their expense may make more economic sense and may be more likely to prevail, quite likely without litigation.

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