Patricia and J. Paul Preseault own property adjoining a railroad track easement that was created in 1899. Railroad service ended in 1970, and the easement was abandoned in 1975.

Sometime during the 1950s, under a state law allowing public utility poles and wires to be installed alongside railroad tracks, electric power lines were erected along the railroad easement. After the railroad was abandoned, the power lines and poles remained.

Purchase Bob Bruss reports online.

In recent years, the city installed fiber-optic cable on the poles several feet below the electric power lines. The Preseaults objected, arguing installation of fiber-optic cable over the easement on their property without payment to them violated the Takings Clause of the U.S. Constitution’s Fifth Amendment.

But the city replied it installed the fiber-optic lines within the power-line easement area, and the additional wire did not block the view or otherwise interfere with the Preseaults’ use of their property.

If you were the judge would you order the city to compensate the Preseaults for installing the fiber-optic cable on existing utility poles?

The judge said no!

“When railroad use is abandoned, the right to maintain a then-existing independent electric line continues,” the judge began. This is in the nature of a common-law easement, he explained.

This former railroad easement, he continued, includes the right to maintain the existing utility lines and poles, the judge explained. When the railroad obtained its original easement, he emphasized, it is presumed the adjoining owners at that time were compensated for all the permitted uses, including installation and maintenance of electric and telecommunication lines, even if those uses came into being at later times, he emphasized.

“It is acknowledged that the owner of an easement cannot materially increase the burden of it upon the servient estate, nor impose a new or additional burden thereon,” the judge ruled. But there is no evidence that adding the fiber-optic cable to the existing poles materially increased the burden on the Preseaults’ property, so there was no “taking” and no payment is required, he concluded.

Based on the 2006 U.S. Court of Appeals decision in Preseault v. City of Burlington, Vermont, 464 Fed.3d 215.

(For more information on Bob Bruss publications, visit his
Real Estate Center

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