By NANCY VORIS
INDIANAPOLIS, Ind. — Cell phone towers, pipelines, access roads … a farmer’s lower 40 or even 5-10 acres around a rural home can be appealing to utilities and developers who want a piece of it.
They send letters or show up at the door with documents full of legalese, and suddenly the farmland that has remained unchanged for generations is in jeopardy and considered public domain. Many farmers feel violated, helpless, angry and confused.
Those emotions are understandable. But once the shock wears off, land owners must gain control of the situation and learn the art of negotiating to insure their interests are protected.
Marcus Selig, right-of-way project coordinator for Indiana Farm Bureau, and Christopher “Kit” Earle, a partner in the utilities group at Bose McKinney and Evans, led a session on Your Property, Their Profit: The Need for Easements at the Indiana Farm Bureau State Convention on Dec. 9.
Selig pointed out that private easements are granted by the owner to neighbors, individuals or business for any purpose including rights-of-way, timber rights, mineral or gas/oil rights or conservation. Public easements are created for the public benefit and include rights of way for roads and utility easements. They are created by federal, state, county and municipal statutes and by private utilities.
In private easements, compensation is at the owner’s, or grantor’s, complete discretion. Compensation should be based on several considerations, including:
•Burden on land (compaction, erosion, conservation, timber loss)
•Duration of use
•Associated damages (drainage tile, lower crop yield)
•Future sale of property
In the written contract, the scope of the agreement should be limited.
For instance, in the case of a pipeline, use should be restricted to one pipeline that ends when the pipeline is abandoned.
“You want to tailor the scope as narrowly as possible,” Selig said, “You may want to get money for negligence down the road.”
Some details to consider include:
•Authority of use
•Damage mitigation, requiring correction of any damage caused
•Duration of agreement
•Termination if in violation of contract
Earle said public easements are commonly created by prescription, meaning they have existed for decades but perhaps were unused, very common for utilities. Utility easements include electric, natural gas, telecommunications, water, sewer and pipelines.
Most utilities are run along a public road in the public right-of-way, but cell phone towers and pipelines involve private property. These easements are almost always granted by statutory authority – a law written stating that this entity is entitled to use the land.
“A statute usually says how public easements can be created and for what purpose,” Earle said.
He said the offer to the land owner must follow these steps:
•Good faith negotiations
•A bona fide offer in writing, based on appraisal
•Condemnation involving a lawsuit
“Under state and federal law,” Earle said, “all three must be followed. If not, it can be thrown out.”
He said the same considerations for negotiating private and public easements are the same, and land owners must get everything in writing.
“If not, 10 years down the road they may come to you and say, ‘Oh, by the way, we want to install a (communications) line,” Earle said.