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Chapter 10

Trespass on Easements

Beth R. MinearMinear & Associates, L.C.

Charleston, West Virginia

Synopsis§ 10.01. Introduction ................................................................................. 344§ 10.02. Right of Dominant Estate to Erect Gates or Fences over Servient Land on Dominant Estate-holder’s Own Determination ................................................................. 345

[1] — How Dominant Estate Is Created May Indicate Right ................................................................. 346

[a] — Dominant Estate Created by Express Grant ........... 346[i] — Where Grant Specifically Permits Erecting Barrier ............................................ 346[ii] —Where Grant Specifically Refers to Remaining Open ...................................... 347[iii] —Where Grant Is Silent .................................. 349

[b] — Dominant Estate Created By Prescriptive Rights ...................................................................... 350

[2] — Erection of Barrier May Be Considered a “Taking” of Servient Estate ............................................ 352[3] — Erection of Barriers May Be Dictated by Federal or State Statute ................................................ 353

§10.03. Duty and Liability Regarding Shared or Co-Owned Easements ........................................................... 354

[1] — Duty Owed to Co-Owners of Dominant Estates .............. 354[2] — Liability to Servient Estate for Use or Misuse of Dominant Estate ........................................................... 356[3] — Liability of Servient Estate for Use or Misuse of Servient Estate ............................................. 356

[a] — Encroachments Within Bounds of Dominant Estate ................................................. 357[b] — Excavation of Contractor of Servient Estate Which Injures Facilities of Dominant Estate ......... 357

CITE AS26 Energy & Min. L. Inst. ch. 10 (2005)&

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§10.04. Liability for Injuries to Persons Within Boundaries of Dominant Estate ..................................................................... 358

[1] — Status of Injured Party May Determine Level of Duty of Dominant Estate-holder ................................... 358

[a] — Lines Between Invitee, Licensee and Trespasser Increasingly Blurred ...................... 358

[2] — Standard of Care Towards Those Injured in General ......... 360[3] — Duty to Injured Party .......................................................... 361

[a] — Duty to Inspect Dominant Estate ............................. 361[b] — Duty to Mark or Post Warnings ............................... 362[c] — Duty to Supervise Excavation or Construction ......................................................... 362

[4] — Impact of Comparative Negligence or Contributory Negligence of Injured Party or Others ............................... 363

§10.05. Conclusion .................................................................................... 364

§10.01. Introduction.This chapter will include legal and practical advice on keeping trespassers

off utility or other easements as well as a discussion on potential liabilities of the easement holder, ranging from complaining landowners to holders of shared easements to injured trespassers.

As “utilities” under what legal, literal, statutory or regulatory reference used to define the term, there is always a balancing act between using land rights not owned in fee for the benefit of the public as a whole, and not damaging the rights of a member of that public upon whose property our facilities are located or used. Especially for those utilities in energy generation, where business profiles are high and many companies are constant targets for backlash for even wholly proper use of land rights, the appearance that one of these 800-pound gorillas is stepping on an individual creates a public relations nightmare.

A much more significant—if not more likely worry—or utility businesses, is that of the potential for personal injury on an easement owned by a utility. Whether the injured party is an invitee, licensee or trespasser, any injury is unacceptable and the issue becomes: “How do we in the ‘utility’ business reasonably and rightfully keep unauthorized persons off of our easements in compliance with the land rights held and without infringing on landowners?” This chapter is a general discussion of issues which may

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TRESPASS ON EASEMENTS

arise when dealing with servient landowners, lawfully protecting easements and rights of way, and potential liabilities which may arise in the instance of a personal injury thereon.

§10.02. Right of Dominant Estate to Erect Gates or Fences over Servient Land on Dominant

Estate-holder’s Own Determination.Obviously, the simplest and most effective prophylactic against

injury on utility easements is to barricade the easement from unwanted and unauthorized intrusion. At times, a landowner may request such a barricade, especially when the dominant use is for a natural gas meter site or an electricity substation. Not only for protection, natural material fencing may be more attractive to the landowner than metal, pipes and wires. In the case where there is no such request or when a landowner does not want a barricade, a utility must determine whether or not it has the right to erect gates, fences or other barriers against access to its facilities.

The issue at hand is how to determine the proper use of the easement held. Issues of misuse and overburden of easements arise where the intent of the parties, usually the grantors, is exceeded. The right to erect a fence or gate, therefore, is determined within the scope of the parties’ intent for use or even from continued and/or existing use as not rendering the use of the easement overly burdened.

Although not binding on other states’ courts, an opinion from the Supreme Court of Missouri clearly sets forth the position taken by a majority of cases surveyed wherein it was held that an easement, as a non-possessory interest in land, does not include the right to fence: that right remains with the owner of the servient.1 If not contained in the grant “(t)he right to enclose an easement with a fence does not accrue by reason of the dominant owner’s zeal or duty to protect the public, if that right is necessary or desired it must be acquired in an appropriate condemnation proceeding.” 2

1 Beetschen v. Shell Pipe Line Corp., 253 S.W.2d 785 (Mo. 1952).2 Id. at HN1.

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[1] — How Dominant Estate Is Created May Indicate Right.When confronted by what right a utility has to barricade or gate its

facilities existing on easements, the legal departments generally look to the land department for guidance. Many times, by returning to the source of the easement grant, “Legal” can determine what right, if any, the company may have to affirmatively protect its land rights and facilities. At other times, a review of the vesting documents may only lead to further questions.

[a] — Dominant Estate Created by Express Grant.[i] — Where Grant Specifically Permits Erecting Barrier.

Although the majority of legal notations and treatises expressly discuss construction and maintenance of fences and other barricades by the servient owners of real property across easements of the dominant holders thereof, essentially the same theories of interpretation apply in the reverse situation. Further, caselaw on the issue of barriers erected by the dominant estate holders is becoming increasingly common.

Predictably, where the grant of an easement by its express language grants the utility—as dominant estate holder—the right to use the easement so granted and “erect, maintain, remove such fences or gates necessary to effectuate the terms of the easement,” there is the least heartburn over the right to do so. Of course, once in a while, even in this scenario, an heir to the grantor or other successor in interest may feel the need to challenge such an express grant, but in a vast majority of cases, an express grant of the right to barricade offers the least exposure to liability.

Although the right to fence an easement gives the right to exclude the majority of the public, it likely doesn’t preclude the rights of the servient estate to access the easement. A servient estate holder has generally all rights and benefits of ownership consistent with the use of the easement, and the right to use the land remains in him, without any express reservation needed, provided that such right does not conflict with the use and purpose of the easement held by the dominant estate holder.3

3 See 25 Am. Jur. 2d Easements and Licenses in Real Property § 89 (2004) and Restatement (First) of Prop. § 481 (prescription) and § 486 (grant) (1944).

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In Hundley v. Michael, the North Carolina court explained that an easement granting “a permanent and exclusive easement of ingress and regress over a road fifteen feet in width” did not allow the dominant estate owners to exclude the servient estate owners from using the property within the easement not inconsistent with its purpose.4 The court further ruled that the dominant estate owners’ construction of a fence along the easement to keep the servient estate owners from using the road constituted an excessive use and could be enjoined. The court opined that it must rationally examine the express language of an easement that is granted under a deed or other instrument, and construe it “consistent with reason and common sense.”5 Further, if there is doubt about the parties’ intentions, an interpretation should be adopted that conforms to the document’s presumed meaning, and does not produce an unusual or unjust result.6

A further benefit of an express grant of the right to barricade or fence the dominant estate is that, in a majority of states, such right survives for the duration of the easement. In Fort Cobb v. Robinson, an Oklahoma court recognized that a town did not misuse its easement which specifically granted the right to fence its water source easement by fencing the servient property.7 The property had been conveyed to new owners prior to the town’s decision to erect the fence. The court stated that merely because the land had not been fenced by prior owners did not deprive the town of the right to the fence the premises, as “a right clearly given by grant continues to exist even though it has not been fully exercised for a period of time.” 8

[ii] — Where Grant Specifically Refers to Remaining Open.

Another issue of contention between an easement-holder and the landowner is where the specific grant provided in the vesting easement provides that the easement remain open, free, unimpeded or whatever

4 Hundley v. Michael, 413 S.E.2d 296 (N.C. App. 1992).5 Id.6 Id. at 435.7 Fort Cobb v. Robinson, 143 P.2d 122 (Okla. 1944).8 Id.

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verbiage is used in the grant. Predictably, as courts favor strict interpretation of contracts in the absence of ambiguous language contained therein, state courts are generally uniform in prohibiting the erection of fences in light of the words that address the same and without consideration of other factors. In an interesting case where an easement for a crude oil pipeline across a landowner’s property was taken by eminent domain, the specific reference to the right to fence was determinative, even as to the grant of punitive damages for its placement.9 Therein, Shell Pipe Line Corp. acquired an easement by condemnation and then erected a six-foot, barbed-wire fence enclosing the easement. The corporation claimed that the fencing was done in good faith, establishing no basis for punitive damages. The court held that the corporation voluntarily elected to acquire an easement by condemnation and specifically stipulated in the petition therefore that there was no right to fence. Since the act of fencing was intentional, the court found it to be a trespass susceptible to punitive damages.10

Some early cases appear to give support for instances where the easement is specifically so that the way is to remain open, but the gates or fences do not unreasonably interfere with the other estate-holder. In Boyd v. Bloom, the court allowed the servient estate owner to maintain a gate across the defendant dominant estate owner’s right of way, although a grant in the title chain provided that the dominant estate had been granted a “free and undisturbed right to the use” of the way.11 The court found that the language did not imply a way without gates, as long as the gates were not of an unreasonable number or kind to preclude beneficial use of the easement by the dominant estate owner. With humor, the court’s analogy was that if the judge grants “free use, right and privilege of the hall of my house, with free ingress and egress at all times, must I take off the door leading into it, or keep it wide open in order that the grantee may have the free use of it? Or

9 Beetschen v. Shell Pipe Line Corp., 253 S.W.2d 785 (Mo. 1952).10 Id. at 789. 11 Boyd v. Bloom, 52 N.E. 751 (Ind. 1899).

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can he not have its free use if he can enter it by opening the door whenever he chooses?”12

[iii] — Where Grant Is Silent.Where the easement grant is silent, parties must look at the language

contained in the grant to determine the intent of the parties at the time the interest was conveyed. If an easement contains the language “to grantee for construction, maintenance, removal of its utility and any uses thereof reasonably related thereto” the argument that the erection of a fence is reasonably related to the maintenance of the utility would likely pass the “straight-face” test if court action proves necessary.

Although caselaw on dominant estates fencing property is scarce, likely due to the immediate nature of litigation by landowners in response, there is an abundance of caselaw as to when a servient landowner fences the ends of a right of way without express grant or prohibition. The analysis for each is similar, as the paramount considerations are the burdens to the respective interest-holders and reasonable use of land rights. Many states recognize a general rule of allowing barricades barring an express or implied prohibition and as long as the dominant estate holder is given access or the estate is not unduly burdened.13

In reaching its conclusion that gates were a reasonable burden upon the easement, the Washington court in Colwell v. Etzell set forth a general analysis the logic for which resonates throughout opinions surveyed on this topic.14 The court held that “(i)f the easement is ambiguous or even silent on some points, the rules of construction call for examination of the situation of the property, the parties, and surrounding circumstances.”15 Although an inconvenience to the easement holder, “(w)hen the owner of a servient estate is being subjected to a greater burden than that originally contemplated by

12 Id. at 752.13 See Kinkade v. Lyons, 30 S.W.2d 963 (Ky. 1930); Walton v. Poplos, 85 A.2d 75 (Del. Ch. 1951); Riddick v. Williams, 273 A.2d 153 (Md. 1971); Palmer v. Newman, 112 S.E. 194 (W. Va. 1922). 14 Colwell v. Etzell, 81 P.3d 895 (Wash. Ct. App. 2003).15 Id. at 898 (quoting Rupert v. Gunter, 640 P.2d 36 (Wis. Ct. App. 1982)).

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the easement grant, the servient owner has the right to restrict such use and to maintain gates in a reasonable fashion necessary for his protection, as long as such gates do not unreasonably interfere with the dominant owner’s use.”16 By comparison, when the owner of a dominant estate has the right to restrict use and maintain reasonable barricades for his protection, provided that such do not unduly burden the servient estate, most courts would likely allow this.

Finally, in reviewing the intent of the parties where the grant is silent, companies and counsel should determine what was in existence on the easement or property as a whole at the time of the grant. Finding that fencing was present on the easement at the time of the grant, and remaining for a while thereafter is a good indication that such was not intended to be excluded form the intent of the parties. Many times, the original grant is too remote in time to practically make this determination. Old surveys or easement delineation exhibits might actually reference or depict fences or gates where currently located, possibly indicating the ones at issue were merely replacements. Old tax maps at the county record rooms may shed some light on what was on site at the time of the grant. More recent grants may merely need an affidavit from the “landman” responsible for obtaining the easement as to the presence of barricades on the easement. By whatever evidence shown, and while not wholly dispositive, it is difficult for a landowner to argue lack of intent to permit fences if one was in existence at the time of the grant.

[b] — Dominant Estate Created By Prescriptive Rights.

A prescriptive use of land is either: “(1) a use that is adverse to the owner of the land or the interest in land against which the servitude is claimed, or (2) a use that is made pursuant to the terms of an intended but imperfectly created servitude, or the enjoyment of the benefit of an intended but imperfectly created servitude.”17 For purposes of this chapter, prescriptive rights are addressed as to the issue of where there is an existing grant broadened by

16 Id.17 Restatement (Third) of Prop.: Servitudes, Servitudes Created by Prescription: Prescriptive Use § 2.16 (2000).

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prescription (as to fencing or gates) and where the entire easement was obtained by prescription.

The period of prescription is mainly a statutory creation, with the time set for prescription varying among the states, whether ten (10) years for West Virginia and New York, twenty (20) years in Georgia or twenty-one (21) years for Pennsylvania. As with easements created by grant, express or implied, once the prescriptive period has expired, the rights and obligations of the servient and dominant estates are fixed until extinguished or released. For the general scope of an easement obtained by prescription, the rights held by the dominant estate are limited to the use of the prescriptive easement during the prescriptive period.18

If the easement was obtained by prescription, what then happens when such use reasonably evolves to one where fences are needed? For example, if an underground telecommunications cable were installed on a property where the documentation of the grant cannot be located, but the cable has been in the ground for the prescriptive period of time, the utility would still have the right to use the easement by prescription. But suppose the FCC now requires an additional monitoring or safely mechanism to be installed on all facilities of the type owned by the utility. In this, the telecomm company would have an excellent argument that the use contemplated is one reasonably necessary to sustain current operations.

This view is recognized by some courts who are aware of evolutions in use. Predictably, the “unreasonable burden” analysis is generally used. The holder of an easement is entitled to use it in a manner that is reasonably necessary for the convenient enjoyment of the easement or servitude. “The manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude. Permissible uses of an easement are any uses which do not cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment.” 19

18 Restatement (First) Prop. § 477 (1944). 19 Paxson v. Glovitz, 50 P.3d 420, HN. 11 (Ariz. Ct. App. 2002).

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A similar case arises out of Connecticut and generally states that with a prescriptive easement, the “common and ordinary use which establishes the right also limits and qualifies it. . . . An owner of an easement has all rights incident or necessary to its proper enjoyment of the easement.”20 As further support for broadening uses created by prescription, the court held further that “(o)ne who has an easement by prescription has the right to do such acts that are reasonable and necessary to effectuate that party’s enjoyment of the easement unless it unreasonably increases the burden on the servient tenement.”21

[2] — Erection of Barrier May Be Considered a “Taking” of Servient Estate.While generally seen as a form of trespass on the servient estate, the

unlawful burden of a fence, gate, barrier, etc. can have much farther reaching implications than mere trespass. Any kind of use when it impacts the servient estate, which exceeds the scope of the easement however obtained, or which restricts the use of the landowner may be seen as a continuing trespass or a “taking” under the relevant eminent domain statute of the state in question. Not only is an injunction sought to prevent the erection or interference from fences or barricades in many cases, but also the lengthy and, at times, expensive process in determining whether a taking has occurred can put a stain on the budgets of most legal departments. Many states allow burdened landowners to petition a local court to demand initiation of a condemnation action even if that was not the utility’s intent.

Various courts have weighed in on whether the exceeding the scope of an easement is a taking. A Kansas court recognized in Provident Mut. Life Ins. Co. v. State Hwy. Comm’n, that injunction may be had in the instance of continuing trespass and that the case should be remanded for the purpose

20 Hoffman Fuel Co. of Danbury v. Elliott, 789 A.2d 1149 (Conn. App. Ct. 2002)(quoting McCullough v. Waterfront Park Ass’n, Inc., 630 A.2d 1372 (Conn. App. Ct. 1993), cert. denied, 632 A.2d 707 (Conn. 1993)). 21 Id. at 1158.

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of determining the amount to which the plaintiff would be entitled through the defendant’s exercise of the right of eminent domain.22

[3] — Erection of Barriers May Be Dictated by Federal or State Statute.As industry in the collective puts an increasing emphasis on safety,

regulations at all levels of government are promulgated to pull even the most reluctant utility in line with minimum safety protection practices. These regulations are varied, both as to state, if from which the regulation stems, and as to industry. Many times, there is a specific standard applicable to a specific industry which was not contemplated during the time of initial grant of easements.

For example, the California Code of Regulations, Title 8, Section 532 “Installation of Aboveground Storage Tanks” provides:

(a) (4) The valves and other appurtenances on tanks at all bulk plants, if the plant is not otherwise fenced, shall be surrounded by a rugged steel fence or equivalent. Fences which are not of an open mesh type may be used providing they are acceptable to both the local fire department and the Division. The fence required by this Section shall be at least 6 feet in height. Any fence completely surrounding the tank shall be located a minimum distance of 3 feet from the tank. Other tanks shall also be surrounded by a rugged steel fence or equivalent, if in the opinion of the Division a fence is needed to prevent unauthorized tampering. All fenced areas shall be kept locked when unattended.23

Another state statute whichrelates to the telecommunications industry in Illinois provides that, in designing a (telecommunications) facility, “(f)encing should be installed around a facility. The height and materials of the fencing should be in accordance with any county fence regulations of general applicability.”24 Further, many municipalities, in enacting overall

22 Provident Mut. Life Ins. Co. v. State Hwy. Comm’n, 125 P.2d 346 (Kan. 1942).23 Cal. Code Regs. tit. 8, § 532 (2005).24 55 Ill. Comp. Stat. 5/5-12001.1(e) (7) (2005).

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planning and zoning schemes within the bounds of their jurisdiction, are requiring fences “opaque in color” or “of natural material” to help disguise or hide unattractive utilities.

Unfortunately, a utility forced to comply with a local, state or federal regulation is often caught between the applicable mandate and the prohibition to comply by an unsympathetic landowner—usually the same landowner who is first to sue in the case of an injury. The best avenue is, prior to installation of the fence or barricade, to approach the landowner with the facts and a copy of the legislation to notify the landowner of what is now required. As previously discussed, most courts will likely find this to be a reasonable use, as a natural evolution of the original grant. Landowners are generally more receptive to change if brought in at the beginning. Further, if the landowner wants to challenge the erection of a fence or barrier, counsel therefore would likely look first to the promulgating governmental entity and, hopefully, challenge that instead of bringing suit against the utility for trespass or undue burden.

§10.03. Duty and Liability Regarding Shared or Co-Owned Easements.

With the increasing push for increased development and developable land, even largely rural areas are laying plans, and actual preparatory facilities, for increased infrastructure to make parcels more desirable. Predictably, if development could segregate all utilities in one corridor, leaving the remaining portions of a property vacant for the unimpeded footprint of a large facility, of whatever character, that parcel likely becomes more valuable in the eyes of potential purchasers, developers and even lessees. Even in improved properties, it is likely that all utilities and rights of way, both above and below ground, will follow the same general path as the rest. In so segregating the facilities, forcing them into one general area, the sharing of the same easement by many estate-holders gets cumbersome, and in some cases worrisome for the care each utility must have for the facilities and appurtenances of the others.

[1] — Duty Owed to Co-Owners of Dominant Estates.Arguably, the duty owed to co-owners of dominant estates is that owed

to the servient estate-holder—reasonable care under the circumstances. Of

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course in determining if there is a greater standard of care or even if one easement holder can exclude others, it is a good idea to start at the vesting document for each particular entity in question. In some cases, if the easement specifically says “grant to Grantee an exclusive easement for underground telephone communication facilities” that easement-holder should be able to exclude others from that easement. Most entities are not that fortunate and must share non-exclusive grounds. Further, some courts have even held that the holder of a non-exclusive easement has the duty to discover subsequent easements.25

One of the best aids in determining the existence of other easement holders is equally available to landowners and utilities. In 1998, the United States Congress passed legislation that codified the requirement that anyone who does earth-disturbing activities, with few exceptions, be required to call a local or regional information repository to have underground utilities marked prior to moving earth. Codified at 49 U.S.C. Sections 6101 et seq., and referred to as “One-Call” legislation, the law further “recommended” to the states that each implement its own one-call system to protect underground facilities as well as human life. Most utilities are required by either state or federal statute to participate in a “One-Call” system and be available to mark facilities for inquiring parties, often only with a few days’ notice. The bare minimum duty of a utility, both to other entities which share an easement and for the safety of its workers, is to place that call and have all underground facilities marked prior to moving any earth.

Once other easement-holders are identified and notified, depending upon the entity, the duty for one performing work may not end there. Many utilities request presence on site during construction within the boundaries of an easement, both to protect their facilities and because the current legal trend is to hold other companies liable for injuries if that utility was not present during the work performed.26A current legal trend is that the utility or easement-holder needing to perform work reimburses a co-owner of an

25 Ashland Pipeline Co. v. Ind. Bell Tel. Co., 505 N.E.2d 483 (Ind. Ct. App. 1987).26 Rivera v. United Gas Pipeline Co., 697 So. 2d 327 (La. Ct. App. 1997); Bridges v. Moritz, 425 P.2d 721 (Mont. 1967).

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easement for direct costs incurred for on-site inspection within a shared easement. At times, indemnification agreements are entered into between the parties making neither liable for any wrongs of the other. Finally, at the outside of the “normal” range of arrangements, some utilities are actually paying others to relocate their facilities to facilitate construction and development.

[2] — Liability to Servient Estate for Use or Misuse of Dominant Estate. Liability to landowners for misuse of an easement follows two basic

themes: breach of contract and/or trespass. The general remedy for the first is either payment of damages for breach plus any restorations needed by virtue of the misused easement and/or a permanent injunction against further misuse by the holder of the dominant estate. For the latter, trespass damages may be sought for the amount of property disturbed, misused, or wasted (as in the case of cut trees) in addition to the aforesaid injunction action.

In rare instances, a dominant estate holder can be forced to forfeit the easement back to the landowner. This most usually arises in the case of prescriptive easements where the right obtained by prescription has changed, but there is no document of grant to fall back on.

[3] — Liability of Servient Estate for Use or Misuse of Servient Estate.Although it does happen that utilities misuse servient estates, the return

for doing so is so little in comparison to the likelihood of suit, that it is infrequently done; even more rare is the intentional misuse by a utility. Much more frequent, however, is the landowner who is unaware of the existence of an easement and unaware of the “One-Call” requirement who puts a new deck over one or more underground facilities. With title searches for residential purchases being generally performed for only 40 (4) years past, there is an increasing likelihood that such a short examination will not catch the easement in question. Further, some landowners, blatantly assert the position that the property is theirs to do with what they please, period.

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[a] — Encroachments Within Bounds of Dominant Estate.

Encroachments on easements may occur even when a landowner or his contractor uses the state “One-Call” system to locate lines since utilities are not yet in the habit of marking both the underground facility and the boundaries of the easement. Again, an educated landowner, while not always happy, is far less likely to encroach on a utility right of way. Problems may arise, however, with older easements which do not specify the calls or attach a map as to the dimensions of the easement claimed. Generally, the location of an undefined right of way is established upon placement of the facility. If not defined, some classes of utilities have been successful in getting consistent rulings as to the width of a right of way by consistently proving what is “reasonable and necessary” for the enjoyment of the easement.27

Many courts, in recognizing the seriousness of the encroachment issue and the potential for both injury and interruption of services to the community by an encroachment, have approved various, fairly drastic measures for remedying encroachments, up to and including relocation of a partially-constructed house.28

[b] — Excavation of Contractor of Servient Estate Which Injures Facilities of Dominant Estate.

Generally, landowners are not liable for excavator’s breach of duty to underground facilities. As professionals in fields which are accustomed to earth-disturbance, they are generally held to a higher standard than a landowner. Although contact workers for a landowner, adhering to the old test for principal-agent relationships, a landowner does not have the ability to “direct or control” the work of an excavator. Unless the excavator has required the landowner to indemnify him in the event of any loss or damage, the excavator should be liable for any damages to underground facilities. As

27 Tex. E. Transmission LP v. Bowers, 65 Fed. App’x 791 (3d Cir. 2003); Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d 538, 544 (3d Cir. 1995).28 Columbia Gas Transmission Corp. v. Mangione Enters., 964 F. Supp. 199 (D. Md. 1996); Columbia Gas Transmission Corp. v. Burke, 768 F. Supp. 1167 (N.D. W. Va. 1990).

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a caveat, be sure that your client or your utility company correctly marks the location of underground facilities. If incorrectly marked, an excavator or landowner is not liable for damages.

§10.04. Liability for Injuries to Persons Within Boundaries of Dominant Estate.

A good rule of thumb for any utility or similar entity is, in the case of injuries within easements, whether due to your facilities or to the fault of another, assume that a court will find your utility liable . . . then work backwards.

[1] — Status of Injured Party May Determine Level of Duty of Dominant Estate-holder.Deriving from duties owed under the common law, the status of an

injured party at the time of an injury on property of another may be a factor to consider by a utility if a third party is injured within the boundaries of an easement. The definitions across the states remain generally consistent in determining whether an injured party is an invitee, licensee or trespasser.

An invitee is one who is an invited member of the public who is on the property for purposes for which the property is open to the public, or a business visitor on property for reasons related to the property owner’s business.29 A licensee is on the property for his or her own reasons but with the landowner’s permission.30 Finally, a trespasser is one who enters without permission or invitation. 31

[a] — Lines Between Invitee, Licensee and Trespasser Increasingly Blurred.

Many states adhere to the three-tier level of liability or duty of care toward third parties on real property that are found in common law. Under Maryland law, the standard of care owed by a possessor of land to those

29 Restatement (Second) of Torts § 332 (1965).30 Id. § 330.31 Id. § 336.

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entering the land depends on whether the person’s status in entering land is an invitee, licensee, or trespasser.32 While the owner owes invitees the duty to exercise reasonable and ordinary care to protect against known or should be known dangers, the owner of premises owes no duty to “trespassers,” who intentionally enter without privilege or consent of the property owner, other than to abstain from willful or wanton conduct or entrapment.33 Under Michigan law, the duty a premises landowner owes an individual on his property also depends on the individual’s status: trespasser, licensee, or invitee.34 The distinctions of invitee, licensee, and trespasser would not be abolished in determining the status of a person seriously injured or killed in a premises liability action and replaced by the reasonable person standard; distinctions between licensee and invitee had been developed over many years and were grounded in reality.35 The duty of a possessor of land toward a third party entering the land depends upon whether the entrant is a trespasser, licensee, or invitee.36

While common-law classifications of invitee, licensee, or trespasser generally dictate the duty of care owed by an owner or occupier of land to an entrant on the premises, they are likewise only applicable to the duty of care owed by a landowner to an entrant only with regard to defective conditions on the premises. Many jurisdictions have totally rejected the common-law status classifications as determinative of liability and have instead created the rule that an owner or occupier of land is held to a duty of reasonable care under all the circumstances, going back to a general torts standard of foreseeability of the injury rather than the status of the entrant being the controlling factor in determining the liability of a landowner or easement-holder. Therefore, the status of the entrant has been held to be a relevant but not a controlling factor in determining the foreseeability of the injury and the corresponding negligence of the landowner. Also seeming

32 Bass v. Hardee’s Food Sys., Inc., 982 F. Supp. 1041 (D. Md. 1997).33 Id.34 Vella v. Hyatt Corp., 166 F. Supp. 2d 1193 (E.D. Mich. 2001). 35 Titus v. Williams, 844 So. 2d 459 (Miss. 2003).36 Updyke v. BP Oil Co., 717 A.2d 546 (Pa. Super. Ct. 1998).

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to obviate the “attractive nuisance” doctrine as well, a Rhode Island court vacated a judgment for a landowner in an civil action involving the drowning death of an infant who trespassed on a construction site.37 The court held that the decedent’s common-law status as an invitee, licensee, or trespasser did not control the landowner’s duty of care. Florida law has eliminated the distinction between business visitors and social guests upon the premises, applying to both the single standard of reasonable care under the circumstances, and a limited duty only to avoid willful and wanton harm to others.38 Landowners or possessors of property in West Virginia also owe any non-trespassing entrant only the duty of reasonable care under the circumstances.39

[2] — Standard of Care Toward Those Injured in General.As litigious as society has become, in the search for deep pocket after

personal injury, if a third party is injured by a gas explosion or other incident resulting from the negligence of a contractor or excavator, likely the utility will be sued along with that contractor or excavator, even if it did not perform the work. In the absence of statutory prescriptions imposing stricter liability, or specifically identifying a company as abnormally dangerous,40 the general standard of care among the states surveyed in this chapter is negligence.41 As to a trespasser, many states still hold that a landowner or

37 Mariorenzi v. Joseph Di Ponte, Inc., 333 A.2d 127 (R.I. 1975).38 Arias v. State Farm Fire & Cas. Co., 426 So. 2d 1136 (Fla. Dist. Ct. App. 1983).39 Strahin v. Cleavenger, 603 S.E.2d 197 (W. Va. 2004).40 Restatement (Second) of Torts §§ 519, 520 (1977).41 See Brown v. Kan. Natural Gas Co., 299 F. 463 (8th Cir. 1924); King v. Pub. Serv. Co. of Colo., 476 P.2d 52 (Colo. Ct. App. 1970); Lindstrum v. Ill. N. Util. Co., 214 Ill. App. 560 (1919); Westfield Gas Corp. v. Hill, 169 N.E.2d 726 (Ind. Ct. App. 1960); Blackman v. Iowa Union Elec. Co., 14 N.W.2d 721 (Iowa 1944); Bayou Materials, Inc. v. Donaldsonville, 192 So. 2d 373 (La. Ct. App. 1966); Ward v. Iroquois Gas Corp., 251 N.Y.S. 300 (N.Y. App. Div. 1931), aff’d 179 N.E. 317 (N.Y. 1932); Bellevue Gas & Oil Co. v. Carr, 161 P. 203 (Okla. 1916); Nashville Gas & Heating Co. v. Phillips, 69 S.W.2d 914 (Tenn. Ct. App. 1933); Richey & Gilbert Co. v. Northwestern Natural Gas Corp., 134 P.2d 444 (Wash. 1943)).

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easement-holder may only be held liable upon a showing by the trespasser that the action that caused the injury was done in a willful or wanton manner towards the trespasser. When a landowner or easement-holder is aware that trespassers intrude into the area where a dangerous condition exists or if the dangerous condition was created artificially that is likely to cause serious bodily injury or death, the landowner must then exercise due care towards the trespassers.

[3] — Duty to Injured Party.[a] — Duty to Inspect Dominant Estate.

Although the lines between the identities of entrants on easements have been blurred, the duty of “reasonable care” imposed is not a simple one. Depending upon the industry and the jurisdiction, that duty can be defined. In 1974, a Pennsylvania decision was rendered that held an electric company liable to a third party for injuries bases solely on an assumed duty to inspect and trim trees along a roadway.42 The action arose when the driver of an automobile was killed when a branch from a tree fell through his car while he was driving. The record indicated that the electric company had inspected and removed branches and overhanging limbs from the trees along that road for more than 20 years and had even removed branches from the tree that killed the driver. Failure to identify and remove the dead limbs imposed the liability on the utility.

Similarly, an Ohio court imposed upon a gas company the duty to maintain its lines in good repair, to make necessary and timely inspections, and to exercise ordinary care to assure that the gas mains are in such condition as to prevent gas leakage. The utility has a further duty not to place its gas line too close to the surface, where such lines can be exposed to temperature changes, vibrations of passing traffic or a settling of ground, and has a duty to inspect work of contractors digging in the vicinity of the lines.43 To render the company liable, there must be facts alleged to show notice of defects, or facts from which a duty to inspect arises either from contract, custom, or imposition by statute or caselaw.

42 Beury v. Hicks, 323 A.2d 788 (Pa. Super. Ct. 1974).43 Thompson v. Ohio Fuel Gas Co., 224 N.E.2d 131 (Ohio 1967).

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[b] — Duty to Mark or Post Warnings.Where one other than the pipeline owner grants a third party permission

to use the surface of the pipeline right of way, the pipeline owner’s duty to mark or warn the third party of the location of its pipeline largely depends upon whether the pipeline owner had either notice or knowledge, actual or constructive, of the person injured or of the activity that person was doing within the boundaries thereof. Again, the “One-Call” can be a burden if a call was placed but a utility failed to respond, indicating constructive notice. More often though, the lack of record of such a call being placed by any entity can be a blessing for a utility in proving lack of knowledge.

In a 1945 case, a Missouri court held the foreman of a gas company to a duty to accurately warn linemen for a rural electric co-operative about the location of a high-pressure gas pipeline44 where the foreman knew the location of the pipeline and that employees of the co-op were to set and anchor a pole at or near the pipeline. Dispositive was the evidence that the foreman had observed that the cooperative’s employees used dynamite to blast out rock or other obstructions in holes.

[c] — Duty to Supervise Excavation or Construction.

While many utilities which own easements on fee properties have internal policies to monitor or supervise construction by or on behalf of the landowners on that property, it is unclear as to whether the policy deflects liability or increases liability. Does the affirmative act of supervising make the utility more liable for being on site and “controlling” the activity? Does the absence of a representative during known excavation or construction constitute negligence by omission? As with most responses in the law—it depends.

With the relatively recent introduction of federal notification legislation geared toward notifying underground facility owners when construction or excavation is to occur, there can rarely be a claim by a company that it

44 Stumpf v. Panhandle E. Pipeline Co., 189 S.W.2d 223 (Mo. 1945).

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wasn’t aware of the work to be performed.45 The “One-Call” systems of the various states were then created by state-specific legislation in response to the federal directive.

A pressing issue for many dominant estates is the one of liability for damage or injury resulting from work in the vicinity of utilities. This is of increasing significance for utilities which share non-exclusive easements or bunching of rights of way in areas of increasing development. While this issue arises most often from resulting explosions after damage to underground gas facilities, at times landowners and excavators are injured or killed by hitting underground power cables as well. Does the utility have an obligation to supervise the work of third parties working within the boundaries of the dominant estate? If not, when another utility, a landowner or an excavator therefore causes property damage or personal injury resulting from damage to facilities within an easement, is the utility liable nonetheless?

Predictably, the duty to inspect and/or supervise the work of third parties in and around utilities, primarily underground, hinges on the knowledge of the utility that the work is being performed in the vicinity of its facilities. Without knowledge of the activity, either specific or constructive, there can be no duty to be on site. Prior to the federal recommendation and state promulgation of the “One-Call” statutes previously discussed, unless there was specific notification of work to be performed, which notification was not generally required at law, there was no organized system of notification of work being done. At present, with the proliferation of notification requirements, a utility covered by the mandates of the “One-Call” location requirements is hard-pressed to claim lack of knowledge (actual or constructive) of excavation or construction activities. Once there is knowledge, does there naturally follow the duty to supervise to avoid liability for actions of third parties?

[4] — Impact of Comparative Negligence or Contributory Negligence of Injured Party or Others.

To determine the effect of comparative negligence and contributory negligence of the plaintiff, practitioners will have to recall the days of Torts

45 49 U.S.C.S. §§ 6101 et seq. (LexisNexis 2005).

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101. The doctrine of contributory negligence provided that there can be no recovery of damages for negligence if the injuries inflicted on one person if that person, by his or her own negligence, proximately contributed to the injury.46 This absolute bar was judicially created and serves as complete defense in an action based on the negligence of the defendant. Conversely, comparative negligence seeks to reduce the amount a defendant owes an injured plaintiff by comparison to the fault of other defendants and that of the injured plaintiff. The difference between the doctrines lies in their legal impact on a negligence claim is in their effect on a defendant. Contributory is generally a complete bar to recovery and comparative is only a qualified or partial bar to recovery. Both doctrines, however, involve negligent conduct on the part of a plaintiff that is a “contributing” or “concurring” cause of the plaintiff’s injury.

Unfortunately, there is no hard and fast rule for determining which jurisdictions adhere to contributory negligence and which to comparative. Many jurisdictions which were hard and fast contributory are now softening the impact as to an absolute bar and going instead to a modified contributory or comparative.47 For each case that arises, even in the same state, practitioners would be wise to look at recent caselaw and relevant statutes to determine where their jurisdiction stands.

§10.05. Conclusion. Throughout this chapter, recommendations are made to return to source

or vesting documents whenever possible. These documents will likely dictate the terms and conditions, dimensions and parameters of easements held by dominant estates. They will also give needed guidance to courts in civil actions brought to determine rights and responsibilities as to each party and maybe even the status of those injured on parcels.

Again, if an injury does occur, all parties will look to others for liability and the possibility of apportionment of fault. Oftentimes, utility companies

46 Restatement (Second) of Torts § 467 (1965).47 See, Comparative Negligence Manual §§ 1-2 (Clark, Boardman, Callaghan 3d ed., 1995). See also, generally, Victor E. Schwartz, Comparative Negligence (The Michie Co. 3d ed., 1994).

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will appear to be the deep pockets for any type of large damage payment sought not only by gross income, but also due to the probability that each is insured. No matter where an injury occurs or how often a jurisdiction has heard cases as to the same defendant, it is always prudent to review and re-review pertinent statutes, administrative rulings and caselaw for each situation. Although the laws of real property and torts stem from the common law, gradual changes in both fields merit research at each juncture

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