Ma Easement Agreements - DOC

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                                  Requested by: Georgia
                              Survey Deadline: March 5, 2007
Georgia asks:

Recently in Georgia, we are having cases involving power companies’ existing
facilities located off of existing right of way that are impacted by our upcoming
highway projects. Our policy states that the utility shall be reimbursed where it
has the right of occupancy in its existing location by reason of fee, easement, etc.
(written documentation) The power companies have not been able to provide
documentation that determines a compensable property interest.

Does your state pay for utility relocations for facilities located off of existing right
of way with no supporting documentation from the utility company? (Please
provide any supporting documentation/policy that you may have and/or contact
information that could help our State).


We only pay utilities relocation with proper prior rights on the land.

Greg Wroniewicz, PE

State Utility Engineer



Massachusetts requires that the utility provide the deed or easement documentation.

Guy Rezendes, P.E.

MassHighway Department

Utilities/Railroad Engineer

10 Park Plaza - Room 6340

Boston, MA 02116
(617) 973-7512

FAX: (617) 973-7554


When there is reasonable doubt that a utility has a property interest outside known
public (city, county, or state) right-of-way they are requested to submit documentation.
Gas transmission pipelines are one utility that contractually must submit documentation
of property interests, it is cited in the reimbursement contract. Utility distribution lines are
generally considered reimbursable outside public ROW without further documentation.
In Tennessee there is a general practice among distribution utilities that the customer's
service contract contains a provision that the customer will provide any and all
easements deemed necessary by the utility to provide utility services. The standard
TDOT estimate form directs the utility to submit a statement attesting that a percentage
of utilities are outside public ROW and compensable. If there is a property dispute,
historically there has not been, and subject to an audit, the utility would be contractually
bound to refund any reimbursements that were determined not eligible for

Joe Shaw

TDOT Utilities Office

Suite 600 JK Polk Bldg.

Nashville, TN 37243-0337


Phone: 615.741.2891

Fax: 615.532.1548

CELL: 615.202.7268


Below is from Missouri's Project Development Manual, Chapter 7-02.6 located at:

7-02.6 RIGHT OF WAY. The Commission is obligated to acquire only that width of right
of way required by the design
standards for each highway classification. When utility facilities are located on
company's private right of way, the

company may obtain its own new easements. A determination should be made in the
planning stage whether these

easements can be readily obtained. If the company cannot negotiate or by company
policy will not condemn, the

easement can be acquired by the Commission in the same manner that the roadway
right of way is being obtained.

Every effort should be made to establish the need for the Commission to obtain these
easements prior to final

negotiations or filing of the plans for condemnation. The company may request that the
Commission obtain the

replacement easements. Central Office Right of Way should be asked to acquire them.

It is possible that the utility is located on private land without written easement rights.
The Commission will honor

this oral right provided acceptable documentation is furnished to Central Office Design.
An example of acceptable

documentation is shown in Figure 7-02.7. Other forms of documentation will be
considered on an individual basis.

Jim Zeiger

Utilities Liaison Engineer

Phone No. 573.522.5994

Fax No. 573.522.2281


In Alabama, we require supporting documents to support compensable interest.

Robert G. Lee

State Utilities Engineer
Alabama DOT

1409 Coliseum Blvd.

Montgomery, AL 36110


                                  NEW HAMPSHIRE

 New Hampshire does not reimburse if they cannot furnish documentation of property
rights. The utilities all understand this and realize if they do not come up with the
documentation they are responsible for all costs.


Charles Schmidt

Chief of Design Services

New Hampshire Department of Transportation

Tel: 603-271-2297

email CSchmidt@DOT.State.NH.US


All compensatory rights must be fully documented per State & Federal Laws.

Kenneth E. Weldon, P. E.

Florida Department Of Transportation

Quality Assurance & Engineering Support

Phone (850) 414-4364, Fax (850) 414-5261 Kenneth.Weldon@DOT.STATE.FL.US

                                  NORTH DAKOTA

 Our policy doesn't state they must provide easement documentation. However, ND
Century code 24-01-42, since 1959 reserves 100' from the center line of any state or US
highway 75' from the center line of any county road for DOT highway expansion. If the
utility was placed before 1959 on private right of way within this 100' then they would be
reimbursed to relocate if needed. In this case we would make them provide
documentation to prove this.


Wisconsin has a law that grants a utility company prescriptive rights if it occupies land
unchallenged for 10 years. A law also prohibits such action against State owned lands.

893.28 Prescriptive rights by adverse user. (1) Continuous adverse use of rights in
real estate of another for at least 20 years, except as provided in s. 893.29 establishes
the prescriptive right to continue the use. Any person who in connection with his or her
predecessor in interest has made continuous adverse use of rights in the land of another
for 20 years, except as provided by s. 893.29, may commence an action to establish
prescriptive rights under ch. 843.

(2) Continuous use of rights in real estate of another for at least 10 years by a
domestic corporation organized to furnish telegraph or telecommunications
service or transmit heat, power or electric current to the public or for public
purposes, or a cooperative association organized under ch. 185 to furnish
telegraph or telecommunications service or transmit heat, power or electric
current to its members, establishes the prescriptive right to continue the use,
except as provided by s. 893.29. A person who has established a prescriptive right
under this subsection may commence an action to establish prescriptive rights under ch.

(3) The mere use of a way over unenclosed land is presumed to be permissive and not

893.29 No adverse possession against the state or political subdivisions. (1) No
title to or interest in real property belonging to the state or a city, village, town, county,
school district, sewerage commission, sewerage district or any other unit of government
within this state may be obtained by adverse possession, prescription or user under s.
893.25, 893.26, 893.27 or 893.28 unless the adverse possession, prescription or user
continues uninterruptedly for more than 20 years and is based upon a continuously
maintained fence line which has been mutually agreed upon by the current landowners

                                    NORTH CAROLINA

No! The Utility Company must show documentation of a compensable interest.

The NCDOT identifies a compensable as existing or prior easements rights within the
limits of the project, either by recorded right of way or adverse possession (Utility
occupying the same location for twenty (20) plus years outside the existing highway
rights of way).

NCDOT has denied payment to a power company where their facilities were outside the
right to way but the company could not provide documentation of a compensable

R. Memory


In Delaware, the utility must provide documentation of compensable interest


Ohio requires the utility to demonstrate a vested interest in the property...however, we
do have an "Affidavit" process we use when the pole line was the property of a utility that
was purchased by another utility, is generally an old installation and has/is being
maintained by the acquiring company....this Affidavit is notarized and becomes part of
the project file....we do not use it very often but it does allow us to deal with primarily old
installations that change ownership....hope this helps...if you need a copy of an Affidavit
please let me know...

G. Raymond Lorello

Utility & R/W Program Manager

Ohio Department of Transportation

1980 West Broad St.

Columbus, Ohio 43223

614 466-2279

fax. 614 466-0158



Gary C. Fawver, PE


Utilities and Right of Way Section


In Montana, we require supporting documents to support compensable interest.

Walt Scott

Supervisor - Utility Section


Maryland's Utility Policy Section 2.15 COST RESPONSIBILITY states, "Cost
responsibility is determined by considering rights in the land over which or in which the
utility facility is located. If the Utility owns the land or has real property interest in it, the
Utility is said to have prior rights. If the land is outside of the SHA right-of-way and the
SHA has no prior rights, the Utility is said to have prior rights even if the Utility has no
real property interest in the land. The party without prior rights is responsible for all of
the non-betterment costs related to that segment of utility relocation. Section 8-506 of
the Transportation Article and Sections 58 through 63 of Article 89 provide exceptions to
these rules under certain specific conditions."

Nelson P. Smith, Jr.

Statewide Utility Engineer

Maryland State Highway Administration

211 East Madison Street

Baltimore, MD 21202

Chapter 13 of our Right of Way Manual, section ( states that the utility company has to submit
documentation of prior and superior rights. If the Owner is outside the existing R/W
without supporting documentation, they would be considered to be in trespass. The
Utility Owner may claim Prescriptive Rights under section by submission of
a prescriptive rights claim letter (Right of Way Manual, 13-EX-19) showing the elements
of prescriptive rights are present and we accept this as prior rights and the State is 100%
liable. If the Owner cannot provide documentation and will not submit a Prescriptive
Rights Claim Letter, we will purchase the property in fee and the State does not take
subject to any prior rights and the liability would be 100% Owner.

Lorrie L. Wilson

Office of Organizational Development and Utility Relocations Division of Right of Way
and Land Surveys


ATSS 8-453-2132


The utility must provide written proof of their property interest, otherwise we can not pay.

Tom Swafford

Utilities, Railroad & Agreements Manager

Washington State Department of Transportation

PO Box 47329

Olympia, WA 98504-7329


Nevada requires the utility to provide documentation proving they have a vested interest,
however should they claim they have a prescriptive easement NDOT has a "Affidavit"
process. We will pay for all engineering costs as well as acquire replacement
easements on their behalf if they can claim a compensable right as noted above. Heidi

The utility must provide written proof of their property interest, otherwise we can not pay.

Cheryl Cathey

Illinois Department of Transportation

Design and Environment


In Oregon there are four ways an easement may be acquired. They are by recorded
document, unrecorded document, prescription and estoppel. We have forms for utilities
to complete for claims of prescription or estoppel. I have attached a discussion paper
on our laws regarding easements.


Matthew C. Caswell, P.E., P.L.S.

State Utility Engineer

Oregon Dept. of Transportation

355 Capitol St NE

Salem, OR 97301-3871

(503) 986-3658


Although it happens very infrequently, we have had a few similar cases. In these cases
the utility was able to prove that they had a "prescriptive" right and was
therefore reimbursed for their relocation costs. In Michigan these have been categorized
as "Friendly" or "Hostile" Adverse Possession. Friendly being when the utility has openly
occupied the land and has paid the underlying fee owner a sum of money to do so, but
does not have a formal easement document. Hostile being when the utility has
occupied, by adverse possession, the property without the permission of the underlying
fee owner for a period of at least 15 years. Attached are some affidavit forms that were
developed many years ago for these type of situations.


Nick Lefke

Utility Coordinator

Michigan DOT

(517) 33-2208

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