Power company access may be an issue

Posted June 23, 2009, at 12:34 p.m.

Q: The power company is planning to put up a power line along an easement which runs through our property to a new house being built. It appears that they are planning to cut outside of the easement and into my property. I asked them about it, and they said if there’s any problem, I get to keep the cut timber for firewood. I don’t want firewood – I want the trees. Can I force them or my neighbor to have a new survey done first, to prove it’s their property, not ours?

A:A lot depends upon when the easement was created and how it was written. What an easement is meant to cover – its scope – is not unlimited, and can vary. So the first question is, “Does the power company (or the homeowners instructing the power company) have the right to install utility lines on the easement?”

An easement does not automatically include the right to install utility lines, and if the easement was created after 1990, the easement must expressly include the right to install utility lines.

If the easement was created before 1990 and does not accurately define the scope of its use, lawyers will try to determine the original intention of the creator of the easement as well as its historical use.

It is quite possible that in this instance, the installation of power lines could very well exceed the scope of the easement if the parties to the original deeds creating the easement did not expect the property on which the new house is being built to be used for residential purposes, or did not mean for the easement to carry utilities to the residence.

However, if the easement is specific and includes the right to install utility lines, you still may question whether action is being taken beyond the bounds of the easement. In some instances, action reaching beyond the bounds of the easement is permitted. For example, if the easement provides for the maintenance as well as installation of utility lines, this may require trimming of abutting trees. There are also specific rules related to the service and maintenance of power lines in a “power line easement” owned by a public utility company, which is beyond the scope of this discussion.

If it turns out that none of these standards applies – easement does not allow for maintenance beyond its bounds and this is not a “power line easement” – cutting your trees by accident or on purpose would constitute a trespass under Maine law. If it was an accident (i.e., the neighbor was unaware that the trees were not on his or her property), you as landowner are entitled to double the damages. If it was done intentionally or knowingly, then you may be entitled to triple damages.

Various factors are taken into consideration when establishing the level of damages for illegal tree harvesting, including but not limited to the replacement costs of the trees and reimbursement of other costs, such as survey and attorney fees.

In this instance, considering that warning was given, it looks intentional – so the big question goes back to the easement and what it allows.

It would be wise first to reach out to the new owners and make them aware of your concerns. If there is no response or the response to your concerns is not adequate, you should contact a lawyer, who may help you seek a temporary injunction before any damage and-or further damage is done to your property. Trees grow slowly but cut quickly – so the sooner you consult with a lawyer the better.

This column is a service of the Lawyer Referral and Information Service of the Maine State Bar Association. Its contents are a general response to the question and do not constitute legal advice. Questions are welcome. Go online to AAL@mainebar.org, describe your question and note you are a BDN reader. Written questions mailed to ” Ask a Lawyer,” Bangor Daily News, P.O. Box 1329, Bangor 04402-1329 will be forwarded to the LRIS.

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