Easement vs. Tenancy

On Mar 23, 6:43 am, ddl@danlan.*com (Dan Lanciani) wrote:

> Suppose a utility easement explicitly grants the utility the right to
> clear the land in its easement of any obstructions and to erect a
> fence to exclude all others from the (e.g., dangerous) area under the
> high voltage lines that might be installed.

In that case, the interest the utility owns would not be a mere easement, but IMO a tenancy, if their right to exclude others extended even to the fee simple owner.  The tenant has a right to set up a fence and/or lock his door to keep the landlord out (except for limited, specified purposes) but the easement holder doesn't; he merely has a right to make a specific use of the property, with the owner still permitted to make other, non-conflicting uses of it..

In your power line example, at least around here the only thing the owner can't do within the boundaries of a power line easement is erect a permenent structure for human occupancy.  The owner can still build fences that run under the power lines, so long as he leaves the gates unlocked or provides the easement holder with a key, and can grow gardens, etc. beneath the power lines, along with structures such as trellises, tool sheds, etc. so long as they do not prevent the utility from having access to its power lines when needed..

However, if the owner builds a structure for human occupancy within the borders of the easement, the utility has every right to get a court order permitting it to come in and knock it down, and to charge the owner for the cost of doing so, if the owner refuses to do so himself.  I have seen it done.

> Does a neighbor's shed
> in the easement now start the prescriptive clock because it is adverse
> to the utility's right to exclude?

If in fact the utility has a tenancy, not a mere easement, then yes, the utility is entitled to exclusive possession of the entire swath of property within its tenancy, and yes, any structure erected by anyone (including the fee simple owner) in violation of that tenancy and allowed to stand for longer than the prescriptive period, could extinguish that tenancy -- at least to the extent of the area being adversely held.   IMO it wouldn't extinguish the fee simple owner's right to recover the remainder of the property at the conclusion of the tenancy, however, because it is not adverse to him, as long as someone keeps paying the rent and/or meeting whatever other conditions the owner set up as consideration for the tenancy.   It is possible that the tenant of a long-term commercial lease of land (such as a farm, forest etc.) may have given an easement back to the original fee simple owner, to permit the owner to have continued access over and thru the leased property to get to some other landlocked parcel the owner owns; if that is the case, and if the adverse possessor blocks the original owner's access thru the property, you may have a real mess.   I can't predict what would happen then.

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Mike Jacobs
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