Digital revolution butts heads with property rights

Patricia and J. Paul Preseault own property adjoining arailroad track easement that was created in 1899. Railroad service ended in1970, and the easement was abandoned in 1975.

Sometime during the 1950s, under a state law allowing publicutility poles and wires to be installed alongside railroad tracks, electricpower lines were erected along the railroad easement. After the railroad wasabandoned, the power lines and poles remained.

Purchase Bob Bruss reports online.

In recent years, the city installed fiber-optic cable on thepoles several feet below the electric power lines. The Preseaults objected,arguing installation of fiber-optic cable over the easement on their propertywithout payment to them violated the Takings Clause of the U.S. Constitution’sFifth Amendment.

But the city replied it installed the fiber-optic lineswithin the power-line easement area, and the additional wire did not block theview or otherwise interfere with the Preseaults’ use of their property.

If you were the judge would you order the city to compensatethe Preseaults for installing the fiber-optic cable on existing utility poles?

The judge said no!

“When railroad use is abandoned, the right to maintaina then-existing independent electric line continues,” the judge began.This is in the nature of a common-law easement, he explained.

This former railroad easement, he continued, includes theright to maintain the existing utility lines and poles, the judge explained.When the railroad obtained its original easement, he emphasized, it is presumedthe adjoining owners at that time were compensated for all the permitted uses,including installation and maintenance of electric and telecommunication lines,even if those uses came into being at later times, he emphasized.

“It is acknowledged that the owner of an easementcannot materially increase the burden of it upon the servient estate, norimpose a new or additional burden thereon,” the judge ruled. But there isno evidence that adding the fiber-optic cable to the existing poles materiallyincreased the burden on the Preseaults’ property, so there was no”taking” and no payment is required, he concluded.

Based on the 2006 U.S. Court of Appeals decision in Preseaultv. City of Burlington, Vermont, 464 Fed.3d 215.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

Copyright 2006 Inman News

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