I am not a lawyer but I did speak with my brother on this topic as his is a land surveyor in the state for which this question has been posed.
With my understanding of how rights of way were explained to me in NY, I would say that in this situation the municipality does not own the road, they have a right of way and it is usually stated for a specific purpose. In this case it is for a road. If the road is not owned by the municipality the municipality does not have the ability to grant use of the right of way for say utility pole unless that is actually specified in their original right of way documentation. Now if the property owner wants to grant you a right of way or easement to place a pole, they cannot do it in any way that prohibits the use of the existing right of way for the highway even if the highway does not occupy the full 50 feet. I am pretty sure that for a municipality to grant utility easements in NY along the roads/ROW they have to own it and it has to be legally recorded somewhere just like a regular land parcel is. Thank You, Brian Webster www.wirelessmapping.com www.Broadband-Mapping.com From: Af [mailto:[email protected]] On Behalf Of [email protected] Sent: Thursday, October 08, 2015 10:40 AM To: [email protected] Subject: Re: [AFMUG] Property law question I have written many easements. ROW normally is a specialized easement so that something can cross your land. Roads specifically are on ROWs. The easement language can be as broad or as narrow as you like. I would normally get as many rights slipped in as I could essentially owning the land without having to provide insurance or property taxes. I wanted the right to enter at any time, remove, replace, upgrade etc etc whatever it is I put there. Sometimes I paid for the easement, sometimes the landowner just gave it away because they wanted the service that I was bringing. One time I swapped plowing in 2 miles of water line for an easement. I didn’t get it signed before we did the work and the land owner reneged. He said lease. I said no, easement. Had to use eminent domain to get him to honor the original agreement. If you are really concerned, get the person possessing the original ROW rights to agree to the new easement or feature in the ROW. County road authorities allow underground cables, poles and towers in their ROWs all the time. From: Adam Moffett <mailto:[email protected]> Sent: Thursday, October 8, 2015 7:57 AM To: [email protected] Subject: Re: [AFMUG] Property law question Does it make a difference if it's a public right of way? In that case the landowner "owns" to the center of the road, but the county or muni has a ROW 50' wide centered on the property line. Is that dramatically different from shared driveways or other arrangements to make a driveway to landlocked properties? On 10/8/2015 9:35 AM, Chris Fabien wrote: This would be largely dependant on the language in the initial easement. And I think you are really talking about an easement on private land, not a public right of way, correct? I don't see any reason why you could not grant a second easement for someone to put a utility pole next to a driveway. That seems like it would be a pretty common situation. If you need to fix the road, you work around the pole. Another common situation would be where there exists an access/drive easement to an adjoining property owner, and they divide the parcel or a property further back divides and wants to have access over the same drive, you can grant those people an easement too over the same land. It can get complicated regarding maintenance costs and who pays for what, but that could be spelled out in the easement or a seperate agreement (or not specified at all). We own property where several parcels share a common private road and there are several different batches of easements in place from various decades as the parcels were split. On Thu, Oct 8, 2015 at 8:49 AM, Adam Moffett <[email protected]> wrote: If you've already provided a right of way through your property, such as for a road or driveway, can you then sell an easement for a piece of land in the right of way? Such as for a utility pole adjacent to the driveway, but still in the right of way. It seems like there could be a conflict here. If the party with the ROW needed to work on the road, but the pole was in their way, would they have a right to remove the pole?
