Scope of Easement on private right of way

Re: Scope of Easement on private right of way

Postby ukmicky » Sat Oct 07, 2017 9:53 pm

MacadamB53 wrote:
ukmicky wrote:I would say a service is something you receive from someone else such as a utility provider
if that is the context here why would the dominant owner require such a right as being discussed - any pipes, wires or sewers in such circumstances would belong to the utility provider who have statutory powers to flex if they need to...regardless, would the recipient of the surface water not be providing a service?




An easement does not compel the servient landowner to agree to a wayleave with a third party utility company allowing them access to lay their services .There are occasions where a utility provider can and do use their statutory powers but it is not something that occurs unless it is absolutely necessary . It can be a very long and expensive process which will include the landowners legal expenses and the developer will be expected to pay for most of it. Which is why you have private easements so the developer can run the necessary pipe work etc. to the highway where the statutory provider can connect to without having to deal with wayleaves.


would the recipient of the surface water not be providing a service


Not through an easement.
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Re: Scope of Easement on private right of way

Postby beardsince1978 » Thu Oct 12, 2017 1:04 pm

Can I just go a bit off topic.

All this is on the dominant owner laying pipes. What about the servient owner? Can they lay pipe under the right way? It's the servient owner's land of course but when I was having gas pipe brought into my property the gas workers told me that the dominant (ROW) owner would need to give his permission for a gas pipe to cross a ROW into the servient owner's house. Were they wrong? Sounded odd to me but who knows with legal stuff.
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Re: Scope of Easement on private right of way

Postby MacadamB53 » Thu Oct 12, 2017 4:38 pm

beardsince1978 wrote:Can I just go a bit off topic.

All this is on the dominant owner laying pipes. What about the servient owner? Can they lay pipe under the right way? It's the servient owner's land of course but when I was having gas pipe brought into my property the gas workers told me that the dominant (ROW) owner would need to give his permission for a gas pipe to cross a ROW into the servient owner's house. Were they wrong? Sounded odd to me but who knows with legal stuff.
there is certainly no "general rule" the gas workers are relying on - how informed of the specifics of your case were these gas workers? I'm guessing not at all, so....
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Re: Scope of Easement on private right of way

Postby beardsince1978 » Thu Oct 12, 2017 5:32 pm

The gas worker were on site so able to see the layout of the land. I said the drive isn't my land I just have ROW and they were adamant that I would need to give permission for gas to cross under my ROW.
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Re: Scope of Easement on private right of way

Postby MacadamB53 » Thu Oct 12, 2017 9:14 pm

beardsince1978 wrote:The gas worker were on site so able to see the layout of the land. I said the drive isn't my land I just have ROW and they were adamant that I would need to give permission for gas to cross under my ROW.
informed of the specifics as in they had had sight of the legal docs, rather than they had had sight of the layout.

like I said, there is no "general rule" so either they're perpetuating a misunderstanding, covering their backs to avoid aggro based on experience, or you misunderstood/misremember what was said.
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Re: Scope of Easement on private right of way

Postby beardsince1978 » Thu Oct 12, 2017 10:07 pm

Eh? Why would the land owner need permission to put a gas pipe in his land? Or are you saying that the ROW which usually just says says dominant can drive over servient's land, must also say servient can run services under ROW, for the servient to have that right? Dose not the servient, the land owner has a right to run services under the ROW since it is his land?
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Re: Scope of Easement on private right of way

Postby ukmicky » Fri Oct 13, 2017 1:18 am

beardsince1978 wrote:The gas worker were on site so able to see the layout of the land. I said the drive isn't my land I just have ROW and they were adamant that I would need to give permission for gas to cross under my ROW.
They were wrong
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Re: Scope of Easement on private right of way

Postby MacadamB53 » Fri Oct 13, 2017 9:37 am

ukmicky wrote:
beardsince1978 wrote:The gas worker were on site so able to see the layout of the land. I said the drive isn't my land I just have ROW and they were adamant that I would need to give permission for gas to cross under my ROW.
They were wrong
+1 (thought I replied last night but apparently not)
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Re: Scope of Easement on private right of way

Postby beardsince1978 » Fri Oct 13, 2017 10:22 am

MacadamB53 wrote:
ukmicky wrote:
beardsince1978 wrote:The gas worker were on site so able to see the layout of the land. I said the drive isn't my land I just have ROW and they were adamant that I would need to give permission for gas to cross under my ROW.
They were wrong
+1 (thought I replied last night but apparently not)


That's what I thought too.
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Re: Scope of Easement on private right of way

Postby smileyman » Sat Oct 14, 2017 2:08 pm

My head is spinning over this one? I am the servient owner my neighbour the dominant owner would obviously like if I allow him to resurface the access to put in flush drainage and soakaway. But he has no right to drainage to prevent surface water going on to highway. Whereas I can see resurfacing is to his benefit and can be and is an easement the right to drain (create drain) is not an ancillary right (I think) and could at best be implied dependant upon circumstance. Then as I understand it it comes down to reasonable necessity and common intention. Certainly at the time if the grant there was no intent to grant drainage rights. We were thinking about putting in a flush drain but made it clear we may or may not.
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Re: Scope of Easement on private right of way

Postby smileyman » Mon Oct 16, 2017 5:19 pm

Hi Guys have any of you any clarity on awhether an easement is valid if it is merely to benefit the dominant land by meeting a condition of planning? i.e draining into a soakaway surface water from the servient land into such a drain on the servient land. As without the drain water would run down the highway along the gully and no doubt drain anyway. Therefore is not the right personal in nature to allow the planning / development to occurr rather than for reasonable and necessary enjoyment of the dominant land? Just a thought. Also agreeing to a soakaway could well come with positive obligations should the enviromental health get involved who can force the land owner to sort out problems they have been notified of.
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