July 27, 2018

Oklahoma is crisscrossed by miles of crude oil and products pipelines, natural gas pipelines, electric power lines, telephone lines and cable television lines. See Real Property: The Effect of Floating Easements Held by Pipeline Companies on Marketability of Title and Land Values, 37 OKLA. L. REV. 180, 181 n.7-8 (1984). The owners of such lines almost always install them across lands owned by someone else. Their rights to place the lines on lands owned by another exist in the nature of a particular kind of easement: a right-of-way. Those rights-of-way are acquired through several different methods. They are perhaps most frequently granted through the use of an instrument voluntarily entered into between the fee owner and the person desiring the right-of-way.

Some rights-of-way were retained by the State for roads. Some are acquired through prescriptive use of the property of another. Finally, some are obtained by exercise of the power of eminent domain. This presentation will examine various aspects of the nature of rights-of-way in Oklahoma, the construction of rights-of-way, the rights of the dominant and servient estates and special issues with rights-of-way across Indian land.

I. WHAT IS A RIGHT-OF-WAY OR EASEMENT?

Generally, an easement is a property right held by a person or group of persons to use the land of another for a special purpose (such as the laying of oil and gas pipelines or telephone lines) not inconsistent with the general property rights of the owner of the land. J. Cribbett, Principles of the Law of Property, 337 (2d ed. 1975). An easement is defined in the Restatement of Property, § 450 (1944) with greater specificity as follows:

An easement is an interest in land in the possession of another which (a) entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists; (b) entitles him to protection as against third persons from interference in such use and enjoyment; (c) is not subject to the will of the possessor of the land; (d) is not a normal incident of the possession of any land possessed by the owner of the interest; and (e) is capable of creation by conveyance.

The Oklahoma Supreme Court has defined an easement as “a liberty, privilege, or advantage without profit, which the owner of one parcel of land may have in the lands of another; or as conversely stated, it is a service which one estate owes to another, or a right or privilege in one man’s estate for the advantage or convenience of the owner of another estate.” Frater Oklahoma Realty Corp. v. Allen Laughon H. Co., 245 P.2d 1144, 1147 (Okla. 1952) (quoting 28 C.J.S. Easements, § 1-a (1941)); see Knudson v. Weeks, 394 F. Supp. 963, 978 (W.D. Okla. 1975) (same).

An easement is the right of one person to do something on another’s land, coupled with an interest or estate in the land. Head v. McCracken, 102 P.2d 670, 676 (Okla. 2004); Bonner v. Oklahoma Rock Corp., 863 P.2d 1176, 1181 (Okla. 1996); Barrett v. Humphrey, 275 P.3d 959, 964 (Okla. App. 2012). It is a grant of a limited use of the land which burdens the servient estate for the benefit of the dominant estate. Bouziden v. Alfalfa Elec. Co-op., Inc., 16 P.3d 450, 456 (Okla. 2000). An easement does not vest title in the possessor. Liberty Mut. Ins. Co. v. East Central Oklahoma Elec. Co-op., 97 F.3d 383, 391 (10th Cir. 1996); Head, 102 P.2d at 676 n.11. Oklahoma law statutorily recognizes two historically distinct types of easements. First are burdens or servitudes upon land which may be attached to other land as incidents or appurtenances. They are identified by statute as “easements attached to land.” 60 Okla. Stat. § 49. Historically, they have been labeled “easements appurtenant” and are commonly referred to as “appurtenant easements.” In the case of an easement appurtenant such as a driveway easement, one tract of land, referred to as the dominant tenement, benefits from the easement, while a second tract of land, referred to as the servient tenement, is burdened by the easement. 60 Okla. Stat. § 51.

The second type of easement recognized by Oklahoma’s statutes is an easement not attached to particular land, but which is a burden or servitude upon certain land. 60 Okla. Stat. § 50. In other words, there is a servient estate but there is no dominant estate. Such easements have historically been referred to as “easements in gross.”

This distinction between easements in gross and easements appurtenant was historically of great significance. While the latter were clearly transferable as an incident of the dominate estate, the former were not transferable under common law. The courts refused to allow the transfer of easements in gross because of the perception that they were personal rights flowing to an individual, were not attached to land, and the grantor never intended them to be transferable. As the existence of railroads and telegraph lines (and eventually pipelines) became widespread, however, the courts began to recognize the commercial intent behind the acquisition of easements obtained for such purposes and the social utility in allowing their transfer. Today such easements are, in the United States, almost universally transferable absent some contrary intent expressly set forth in the granting instrument. See 3. R. Powell, Powell on Real Property, § 419 (1981).

The second question posed above is what is the definition of “real property.” In Oklahoma real property consists of: (1) land; (2) that which is affixed to land; (3) that which is incidental to or appurtenant to land; and (4) that which is immovable by law. 60 Okla. Stat. § 5. Further, a “[a] thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of way or water-course, or of a passage for light, air or heat, from or across the land of another.” 60 Okla. Stat. § 8.

Having statutorily defined real property, it is clear that although an appurtenant easement described in 60 Okla. Stat. § 49 is real property under Oklahoma law because it is appurtenant to certain land, an easement in gross as described in 60 Okla. Stat. § 50 is not included in the definition of real property. This second distinction, between an easement as real property and as personal property, while valid, also appears to be of diminished practical significance today. The statutes pertaining to the conveyance of real property and the recording of instruments of conveyance generally address interests “relating to” or “affecting” real property. For example, 16 Okla. Stat. § 23 states in pertinent part, “No deed, mortgage, or other instrument affecting the real estate shall be received for record or recorded unless executed and acknowledged in substantial compliance with this chapter.” Id. (emphasis added). Further, 16 Okla. Stat. § 61 states, “For the purposes of this Act [Simplification of Land Titles]: (a) An interest in real estate shall include . . . easements . . . .” (emphasis added). The Oklahoma Supreme Court also held early on that the conveyance of a right-of-way over real estate creates an easement and therefore conveys an interest in the land within. Kelly v. Mosby, 124 P. 984, 985 (Okla. 1912). More recently it was held that for real estate title purposes, an easement for a right-of-way is an interest in land. Chicago, R.I.&P.R. Co. v. Morgan, 421 P.2d 268, 273 (Okla. 1966).1

In conclusion, while a typical Oklahoma right-of-way is not real property, it is an interest in real property or one affecting real property. Conveyances of such interests must therefore satisfy the State’s execution and recording requirements as if the easements were itself real property.

II. TYPES OF EASEMENTS
A. Express Easements

The most common type of easement is an express easement. Express easements are granted from a landowner to a grantee in an instrument or other writing. Easements and rights-of-way are typically granted pursuant to a separate instrument, but are also often created through granted or reserved easements in real estate deeds. With express easements, the terms and purposes of the easement, and the parties’ rights and obligations with respect thereto, will be determined based on the language set forth in the granting easement except that where such language does not address certain issues, Oklahoma statutory and case law will be applicable as discussed below.

B. Prescriptive Easements

Just as fee title to real estate can be obtained through adverse possession, an easement can be obtained by prescription in Oklahoma. See 60 Okla. Stat. § 333; Story v. Hefner, 540 P.2d 562, 566 (Okla. 1975). However, easements by prescription are not favored in law because they necessarily work losses or forfeitures on the rights of others. Zimmerman v. Newport, 416 P.2d 622, 629 (Okla. 1975). As a result, the party claiming title adversely has the burden of proving every element by clear and positive evidence, and every presumption favors the rightful owner. See Loris v. Patrick, 414 P.2d 249, 252 (Okla. 1966).

The required elements that must be established to support an easement by prescription are generally the same as those for acquiring fee title by adverse possession. See Zimmerman, 416 P.2d at 629. In order to acquire an easement by prescription, the “possession must be open, visible, continuous, and exclusive, with a claim of ownership, such as will notify parties seeking information upon the subject that the premises are not held in subordination to any title or claims of others, but against all titles and claimants.” Willis v. Holley, 925 P.2d 539, 541 (Okla. 1996) (citing Irion v. Nelson, 249 P.2d 107, 108 (Okla. 1952)). Furthermore, the possession must also be actual, notorious and hostile. Id. If the owner acquiesces in or consents to the use of the land, then the use is not adverse and title by prescription cannot be acquired. Board of County Comm’rs of Jackson County v. Owen, 166 P.2d 766, 767 (Okla. 1946). To establish title by prescription, there must be adverse possession (i.e. presence of all of the above elements) for a period of fifteen years. 12 Okla. Stat. § 93; Wilp v. Magnus, 230 P.2d 733, 735 (Okla. 1951). Needless to say, a person seeking to establish a prescriptive easement has a heavy burden in proving all of the required elements. For a detailed discussion of the various elements of adverse possession and prescriptive easements in Oklahoma, see Rosser and Guse, Adverse Possession in Oklahoma: An Idea Whose Time Has Come and Gone?, Okla. Bar Journal, Vol. 72, No. 9 (Mar. 10, 2001).

C. Easements By Implication; Easements By Necessity; Ways Of Necessity

Another way an easement can be created or imposed upon a landowner is where the easement is created by implication. There are two types of easements by implication. The first type of implied easements are easements by necessity. Such an easement may be implied where it is necessary for another landowner to access his or her land subject to the requirements described below. Such easements are referred to as easements by necessity or ways of necessity. In Oklahoma, an easement by necessity can only arise if the two affected tracts previously belonged to the same person and only if the necessity is present at the time of severance of title. Blackwell v. Mayes County Utility Services Authority, 571 P.2d 435, 436 (Okla. 1977); Dudley v. Meggs, 153 P. 1121 (Okla. 1915). In other words, prior unity of title between the two tracts involved is a prerequisite for an easement by necessity to arise. Franks v. Tyler, 531 P.2d 1067, 1069 (Okla. App. 1975). For example, where a landowner conveys a portion of his land and does not have access to a public street for the retained portion, he or she may have a claim for an easement by necessity. This “necessity” must be based on more than mere convenience. See Hass v. Brannon, 225 P. 931, 935-936 (Okla. 1924). Additionally, the law states that “the court will imply an easement [by necessity] in favor of the grantee more easily than it will imply an easement [by necessity] in favor of the grantor.” Frater Oklahoma Realty v. Allen Lauhon Hardware Co., 245 P.2d 1144, 1147 (Okla. 1952) (citations omitted). “[T]he law is jealous of a claim to an easement and the burden is on the party asserting such a claim to prove it clearly.” Id. at 1148 (citation omitted). The Oklahoma Supreme Court has, however, also stated that “where a conveyor of land retained a landlocked portion, the law implies that a way of necessity was intended, unless contrary intent is inescapably manifested.” Jones v. Weiss, 570 P.2d 948, 949 (Okla. 1977).

There is an apparent conflict among the courts of various states as to the degree of necessity required before a court will imply an easement by necessity. See 28A C.J.S. § 100. Some states require strict or absolute necessity, which means that if the landowner can get to his/her land by water, no easement exists. See, e.g., Hunter v. Marquardt, Inc., 549 So.2d 1095 (Fla. App. 1989).

In New York, for example, the general rule is that where there is access to a property over a navigable body of water, an easement by necessity over a land route may not be obtained. See Peasley v. New York, 424 N.Y.S.2d 995, 1002 (N.Y. 1980). An easement by necessity cannot arise when access is available through a publicly used waterway. See Estate of Thomson v. Wade, 499 N.Y.S.2d 541, 542 (N.Y.1986). In contrast, other states require only reasonable necessity. See Attaway v. Davis, 707 S.W.2d 302 (Ark. 1986). Therefore, if travel by water to the land is unreasonable or too difficult, there still exists necessity for an easement across land. The Oklahoma Supreme Court has held that “[t]he necessity requisite to the creation of an easement by implication is not an absolute necessity, a reasonable necessity is sufficient.” Story v. Hefner, 540 P.2d 562, 566 (Okla. 1975); see also Keller v. Fitzpatrick, 228 P.2d 367 (Okl. 1951).

The second type of implied easement is an easement implied from existing use (sometimes referred to as a quasi-easement). Like easements by necessity, unity of title between the two tracts involved and reasonable necessity are prerequisites for an easement implied from existing use.

Gorman V. Overmyer, 190 P.2d 447, 450 (Okla. 1948); Boucherie V. Garrette, 366 P.2d 763, 764-65 (Okla. 1962). The existence of an easement must be apparent or obvious to the purchaser of the severed property in order for an easement by implication to arise out of these circumstances. Id. In Gorman, the owner of two adjoining lots constructed a concrete driveway located on both lots for the purpose of serving the residence on a lot subsequently acquired by an easement claimant. The court found an easement by implication because the driveway was present and apparent at the time of the conveyance and construction of an independent driveway would necessitate substantial change in the residence. Gorman, at 450.

III. THE RIGHTS AND DUTIES OF THE RIGHT-OF-WAY OWNER AND THE OWNER OF THE SERVIENT ESTATE
A. In General

Oklahoma statutes define dominant and servient tenements as follows: “The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement.” 60 Okla. Stat. § 51. With respect to easements in gross, of course, there will be no dominant tenement because the easement is not attached to any land.

Nonetheless, the owner of an easement in gross occupies the same position, legally, as the owner of the dominant tenement. It should also be noted that while the grant of an easement is a grant of an interest in the land, the grant vests no title to the land in the possessor of the easement. Instead, easements are grants of limited land use subject to certain established rules of law. Elk City v. Coffey, 562 P.2d 160, 163 (Okla. App. 1977). Although no title to the land is vested in the easement owner, he does own rights which he can assert and protect. In other words, an easement is not a fee interest in property (Aubert v. St. Louis - San Francisco Ry. Co., 251 P.2d 190, 192 (Okla. 1953)), but is an interest in land and its owner is entitled to full legal protection of his rights, no less than the fee simple owner. J. Cribbett at 343.

With the foregoing as background, the inevitable conflict between the easement owner and the owner of the servient tenement in this split of property rights may be addressed. The general rule regarding the rights under an easement is that the fee or servient owner can use his land for any purpose, so long as such use does not unreasonably interfere with or unduly burden the easement.

Lindhorst v. Wright, 616 P.2d 450, 454 (Okla. App. 1980); Elk City, 562 P.2d at 163. Determining whether a servient owner’s use of the land constitutes an “undue burden” on an easement depends on the facts and circumstances of each case. It requires the court to weigh the reasonableness of the interference by the servient owner against the disadvantage to the easement holder. The court must also remember when weighing these overlapping rights that some degree of inconvenience to both parties is to be expected and tolerated. Tidwell v. Bezner, 245 P.3d 620, 623 (Okla. App. 2010). The servient owner must allow the easement owner to enter the land and make necessary repairs to his facility, but the duty to repair rests with the easement owner. Lindhorst, 616 P.2d at 454. This rule that the costs of repair and maintenance and the right to perform repair and maintenance belong to the easement owner absent any agreement to the contrary has been confirmed in Oklahoma. Id. The repairs which are allowed are those which are necessary and reasonable so as not unduly to burden the servient estate. Id. Further, when an alteration in the easement, such as lowering a pipeline where the express terms did not state the depth at which it was to be buried, is made for the benefit of the servient owner then he must bear the expense. Buckeye Pipeline Co. v. Keating, 229 F.2d 795, 797 (7th Cir. 1956), cert. denied, 352 U.S. 830 (1956).

Oklahoma courts have also affirmed the general rule that the servient owner may fully exercise his rights of ownership in any manner and for any purpose not inconsistent with the easement and the easement owner may not interfere with such use. Lindhorst, 616 P.2d at 454; Elk City, 562 P.2d at 163. On the other hand, the easement exists for the easement owner only, and the servient owner may not insist on continuance of the easement or ask damages on its abandonment.

Branch v. City of Altus, 159 P.2d 1021, 1023 (Okla. 1945). The Oklahoma courts have also been clear in finding that the easement owner has a duty to exercise his rights so as not to injure or damage the servient estate as a result of customary use, maintenance, or repairs. Cities Services Gas Co. v. Christian, 316 P.2d 1113, 1115 (Okla. 1957); Shell Pipeline Corp. v. Curtis, 287 P.2d 681, 685-86 (Okla. 1955).

Although it is generally stated that the servient estate owner may not build structures on or over the right-of-way, this may be modified by the specific language employed and the specific construction being undertaken. In Public Service Co. of Oklahoma v. Home Builders Ass’n of Realtors, Inc., 554 P.2d 1181 (Okla. 1976), the court held that the intent of the parties and local custom and usage did not require construction of the word “structure” in a conveyance of an underground electrical easement to mean a driveway and parking lot. Thus, the easement owner was not entitled to an injunction restraining construction of a driveway and parking lot on the surface of the easement owner’s underground easement. Id. at 1186.

The majority of cases hold that the “owner of the right of way has no right to erect any buildings or other structures on the way.” E.g., Aladdin Petroleum Corp. v. Gold Crown Properties, Inc., 561 P.2d 818, 825 (Kan. 1977) (quoting 28 C.J.S. Easements, § 96 (1941)). Pipeline easements, however, have been construed, to allow the landowner to erect buildings and other structures over the line so long as the lines were not injured, but subject to the right of the easement owner to injure crops or structures in maintenance of the easement owner to injure crops or structures in maintenance, repair, and construction and with the obligation of the easement owner to pay for the injury. Babler v. Shell Pipeline Corporation, 34 F. Supp. 10, 13-14 (E.D. Mo. 1940); but see Mississippi River Transmission Corp. v. Wachter, 731 S.W.2d 445, 448-49 (Mo. App. 1987) (questioning Babler).

B. May I Clear Trees From My Pipeline Easement?
1. The HLPSA And Regulations Promulgated Thereunder Require That A Pipeline Company Maintain A Cleared Right-Of-Way

The DOT regulates the construction, operation and maintenance of interstate refined products pipelines pursuant to the Hazardous Liquids Pipeline Safety Act of 1979 (49 U.S.C. § 2001, et seq.) (the “HLPSA”). Pipeline safety regulations promulgated by the DOT are codified at 49 C.F.R. Part 195. Failure to comply with such safety regulations subjects an owner or operator of a pipeline to enforcement actions, including civil and criminal penalties. 49 U.S.C. § 2007. The HLPSA (49 U.S.C. §§ 2001-2014), designed to broaden federal authority over the transportation of hazardous liquids in pipelines, empowers the Secretary of Transportation to impose minimum federal safety standards on interstate pipelines. Enacted in 1979, the HLPSA requires the Secretary to establish and enforce safety regulations for construction of new pipelines and the operation and maintenance of existing pipelines.

Section 2006(a) of the HLPSA requires that each interstate pipeline comply with “any applicable safety standard established under this title.” Failure to comply subjects the pipeline company to civil penalties of up to $10,000 for each violation for each day that violation persists to a maximum of $500,000 for any related series of violations. 49 U.S.C. § 2007(a). Any person who willfully and knowingly violates § 2006(a) faces criminal prosecution with sanctions that include “a fine of not more than $25,000, imprisonment for a term not to exceed five years, or both.” 49 U.S.C. § 2007(c).

Pipeline companies undertake the clearing activities to ensure their compliance with federal statutes and regulations and to responsibly meet their commitment to public safety. More specifically, the clearing is performed: (1) to conform to statutory regulatory requirements imposed on pipeline companies; (2) to be better able to detect leaks from the pipeline; (3) to provide unobstructed access to the pipeline in order to quickly repair leaks which could cause damage to property and danger to the safety and health of persons; (4) to provide unobstructed access to the pipeline for routine operational activities; (5) to expedite the lowering and/or relocation of a pipeline for maintenance purposes; (6) to help minimize third party striking of the pipelines; and (7) to reduce damage to pipeline coatings from enveloping tree roots and thus minimize possible corrosion of the pipelines.

2. A Clear Right-Of-Way Is Required By The HLPSA And DOT

Regulations And Is Necessary For Aerial Patrol

Regulatory compliance issues are directed at inspection and patrolling of rights-of-way and the maintenance of the right-of-way. The operative provisions are 49 C.F.R. § 195.412 (Inspection of Rights-Of-Way) and 49 C.F.R. § 195.3 which incorporates by reference into the regulations certain standards, including ANSI B31.4 “Liquid Petroleum Transportation Piping Systems.” 49 C.F.R. § 195.3(c)(3)(ii). Section 195.412 requires a pipeline company to visually inspect the surface of the right-of-way 26 times per year at intervals not exceeding three weeks for conditions that might indicate a problem or leak in the pipeline. The applicable ANSI standards are as follows:

451.4 Right-of-Way Maintenance (a) The right-of-way should be maintained so as to have clear visibility and to give reasonable access to maintenance crews.

451.5 Patrolling

(a) Each operating company shall maintain a periodic pipeline patrol program to observe surface conditions on and adjacent to the pipeline right-of-way, indication of leaks, construction activity other than that performed by the company, and any other factors affecting the safety and operation of the pipeline. Special attention shall be given to such activities as road building, ditch cleanouts, excavations, and like encroachments to the pipeline system. Patrols shall be made at intervals not exceeding two weeks . . ..Aerial inspection is the only way pipeline companies can effectively accomplish this task. Pipeline companies own thousands of miles of right-of-way. There is simply no way the right-ofway could be walked at the frequency required by the regulations. Industry practice has long been to perform inspections from the air. See Jakobsen v. Colonial Pipeline Co., 397 S.E.2d 435, 436 (Ga. 1990); Rees v. Panhandle Eastern Pipe Line Co., 377 N.E.2d 640, 648 (Ind. App. 1978);

Rueckel v. Texas Eastern Transmission Corp., 444 N.E.2d 77, 81-82 (Ohio App. 1981); 61 Am. Jur. 2d, Pipelines § 34 (2012). The DOT certainly recognized this when it established the inspection frequency in § 195.412. How else could the oil pipeline industry effectively and expeditiously inspect over 203,000 miles of interstate liquids pipelines? National Petroleum Council, Petroleum Storage and Transportation, Vol. 5 at p. 15 et seq. April 1989).

Aerial surveillance is also less intrusive than ground observation. A landowner’s privacy is preserved and activities at home are not interrupted by a request from a stranger to open the fence gate to look in the backyard. Aerial patrols can take place without the landowner’s involvement and most likely outside his awareness.

Section 195.412(a) specifically calls for inspection of not only surface conditions on the right-of-way but also surface conditions adjacent to each pipeline right-of-way. An important safety consideration requires examination of areas adjacent to the right-of-way.

The leading cause of pipeline leaks is the accidental striking of pipelines by third parties during excavation. Aerial surveillance allows the pilot to view activities (e.g. sewer line construction, road work, laying of fiber optic cable) on either side of the pipeline that might soon encroach upon the right-of-way. The pilot reports these activities to local pipeline personnel who then examine the activities for possible encroachment.

An observer on the ground does not share the pilot’s panoramic view. Trees, outbuildings, fences and other structures deny him the picture of activity that a pilot obtains in a flyover. In Jakobsen, the DOT notified the appellees, two pipeline companies, that they were in “probable violation of pipeline safety regulations, 49 C.F.R. Part 195 et seq., in that twelve miles of right-of-way, including that over the subject property, is overgrown with ‘trees and brush [which] obscure the right of way to the extent that aerial patrolling is ineffective in determining the surface conditions on or adjacent to the right of way.’” 397 S.E.2d 436. The court found that because the two pipeline companies operated more than 8,000 miles of pipeline, ground inspection would not be practical; that ground inspection would also interfere with the property rights of the landowners whose land the pipelines crossed; and that because federal regulations required the two pipeline companies to inspect the surface conditions of their easements at least 26 times per year, ground inspection was virtually impossible. Id. Both the warning letter in Jakobsen and the frequency of § 195.412(a) inspections indicate that DOT interprets the provision as requiring aerial surveillance. An agency’s interpretation of its regulations is entitled to great deference. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 371-72, 36 L. Ed. 2d 318, 331 (1973); Tulsa Area Hospital Council, Inc. v. Oral Roberts University, 626 P.2d 316, 320 (Okla. 1981). A court should not substitute its judgment for that of the agency unless there is a clear abuse of discretion. Tulsa Area Hospital, 626 P.2d at 320; State v. Moyers, 189 P.2d 952, 957 (Okla. Cr. App. 1948). A pipeline company must clear the right-of-way and any obscuring side growth to comply with the inspection requirements of § 195.412(a).

3. Trees On An Easement Interfere With Cathodic Protection Of The Pipeline

DOT regulations also require that a pipeline company cathodically protect its pipeline. See 49 C.F.R., § 195.414 et seq. Such protection mitigates the impact of corrosion. A primary means of cathodic protection is a coating applied to the pipeline that acts as a barrier between the metal pipe wall and the soils and moisture surrounding the buried line. Loose soils in back-filled pipeline trenches improve moisture and oxygen supplies and foster root penetration and development compared to “tight” soils in undisturbed areas. Moreover, tree roots most often grow larger and in greater abundance within back filled trenches and will damage pipe coatings by paralleling, crossing and encircling the pipeline when the pipeline is buried three to four feet beneath the surface of the earth. This coating damage reduces the effectiveness of the cathodic protection which could allow corrosion to take place and increases the protective current requirement.

A pipeline company must test the effectiveness of this cathodic protection at least one time each year and maintain test leads enabling it to obtain electrical measurements to ensure adequate cathodic protection. 49 C.F.R. § 195.416. If this annual survey indicates the need for further testing, pipeline companies typically conduct a “close interval survey” which requires testing the pipeline at intervals of 3 to 5 feet. Trees and overgrown brush on the right-of-way could interfere with this close interval survey.

Coating damage from tree roots interferes with a pipeline company’s compliance with pipeline safety regulations. Moreover, such damage necessitates repairs that increase a pipeline company’s maintenance responsibilities and costs. As such, trees on the right-of-way adversely impact public safety and constitute an unreasonable burden on a pipeline company’s rights under an easement. See Rueckel, 444 N.E.2d at 82-83.

4. Trees On An Easement Impair A Pipeline Company’s Ability To Maintain Its Pipeline

Finally, maintenance and repair of a pipeline can, at times, require excavation of the pipeline. This involves the use of heavy equipment which must not only be able to reach the pipeline, but must also have sufficient space to operate on either side of the pipeline. See Rees, 377 N.E.2d at 644, 648; Rueckel, 444 N.E.2d at 82.

Having to go around or remove trees hampers and slows down access to, and maintenance of, the pipeline. The impairment of a pipeline company’s ability to quickly reach and excavate the pipeline by trees which block access to the pipeline could have particularly dire consequences if there were a leak or a rupture.

A pipeline company can only comply with federal statutes and safety regulations and efficiently maintain its pipeline if the right-of-way is clearly visible and affords ready access to pipeline crews and their equipment. The existence of trees and other obscuring vegetation on the right-of-way frustrates compliance with the law, endangers public safety and necessitates their removal.

5. A Pipeline Company Has The Right To Clear Trees On The Pipeline Right-Of-Way

The grant of an easement carries with it all rights incident or necessary to the reasonable and proper enjoyment thereof. United States v. City of McAlester, 604 F.2d 42, 54 (10th Cir. 1979); Hudson v. Lee, 393 P.2d 515, 518 (Okla. 1964); Town of Fort Cobb v. Robinson, 143 P.2d 122, 123 (Okla. 1943).

The owner of a pipeline right-of-way is entitled to reasonable access to the land for the purpose of maintaining it an making necessary repairs. By the grant of the right of ingress and egress, the grantee pipeline company and its successors have the right to enter upon plaintiff’s property for the purpose of maintaining, inspecting, repairing and replacing said pipelines if and whenever the need or occasion arises therefor.

61 Am. Jur. 2d, Pipelines § 37 (2012).

The grant of a pipeline right-of-way with the right of ingress and egress to and from a tract of land for the purpose of laying, repairing, and maintaining a pipeline, implies a right to patrol the pipeline in the most expeditious manner possible. Id. at § 24; see Rees, 377 N.E.2d at 650 n.5.

In Natural Gas Pipeline Co. v. Cox, 490 F. Supp. 452 (E.D. Ark. 1980), the court examined the respective rights of the landowner and easement holder and concluded: “[t]he plaintiff has a right under the easement to operate and maintain its pipeline. It has the implied right to operate its line in accordance with applicable federal regulations.” Id. at 454 (emphasis added). In Lindhorst, the Lindhorsts sought to enjoin the landowners from interfering with the Lindhorsts’ easement. In holding the Lindhorsts were entitled to an injunction, the court stated: The defendants [landowners] use of the easement is restricted in this case to a right of ingress and egress or other uses not inconsistent with that of the easement owner. The planting of crops and trees and the use of the easement for the stacking of brush are uses inconsistent with the easement owner’s use. Such uses by the defendant should be enjoined.

Id. at 454 (emphasis added).

While no Oklahoma court has addressed the issue of whether a pipeline company has the right to remove and/or preclude the planting of trees on its right-of-way, courts from other jurisdictions that have done so have found that it does. In Rees, the Court affirmed the trial court’s order granting preliminary injunctive relief against a landowner’s interference with the plaintiff pipeline company’s easements. Panhandle had attempted to clear brush and trees from Rees’ property. Rees ordered Panhandle off the property and threatened violence if the company returned. After unsuccessful negotiations, Panhandle sought to enjoin further interference with its clearing activity. Id. at 643.

Panhandle introduced evidence at the hearing (1) that it was required under the Natural Gas Pipeline Safety Act to make weekly inspection of over 12,000 miles of pipeline for leaks, soil erosion, and encroachments which could cause a rupture or explosion, (2) that aerial inspection was the only feasible means to patrol the lines and in order to facilitate such inspection, brush and trees must be cleared over the pipeline to a width of 66 feet, and (3) that such a cleared width was also necessary for the ingress and egress of repair vehicles. Id. at 648. The appellate court held that Panhandle’s evidence established the gravity of the possible consequences to the public welfare and supported a conclusion that “irreparable and virtually certain injury would result upon denial of the application for the injunction.” Id. The landowner’s interest in preserving the intangible value of the trees and scenery did not prevail over the more important issue of public interest and public safety. Id. at 647 50 Panhandle was thus allowed to clear the trees and brush from its right-of-way.

In Rueckel, the landowner brought an action against the holders of pipeline rights-of-way seeking damages for pine trees damaged or destroyed during the course of pipeline clearing operations and also a declaratory judgment with regard to his right to plant other trees within the rights-of-way. The pipeline company counterclaimed for declaratory judgment and injunctive relief. 444 N.E.2d at 79.

The Rueckel property was covered with a well established and dense stand of pine trees. Id. at 81. The defendants, Texas Eastern and Allegheny Pipeline Company, argued that the dense stand of pine trees interfered with aerial surveillance of the pipeline crossing the property and also that it was standard practice to observe surface conditions on and adjacent to the right-of-way to determine if there were any leaks, construction activity or other factors affecting safety and operation. Id. At 81-82.

Texas Eastern further contended that aerial patrols were the primary means of observing the lines and that they were observed on a weekly basis. Evidence was introduced that the pipeline companies were required to control corrosion which, if not impeded by cathodic protection methods, could adversely affect the physical integrity of the pipeline. The evidence indicated that the trees within the right-of-way hampered and slowed down the installation and maintenance of the cathodic protection system which protected the pipelines from corrosion. In addition, Texas Eastern and Allegheny argued that the pine trees located on their rights-of-way substantially interfered with and hampered normal maintenance and operating procedures with respect to petroleum products and natural gas pipelines. Id.

Upon review of the record below, the court found: We sustain the trial court’s determination, first, that plaintiffs are not entitled to grow trees on the rights of way that obstruct, unreasonably burden and interfere with the exercise of the easement rights by the owners of those rights, and, second, that Texas Eastern and Allegheny have the right to remove such trees from their rights of way which, in fact, do obstruct, unreasonably burden and interfere with the exercise of their rights as easement owners. We disagree, however, with the court below that there is an issue of damages or compensations to the plaintiffs for the removal of these trees; and we find that the court’s action totally inconsistent in this regard. If, in fact, the court is going to restrict the landowners from engaging in activities which are inconsistent with or interfere with the easement rights of the defendants, then it follows, that if the plaintiffs plant trees on their property which obstruct, unreasonably burden and interfere with the exercise of the easement, including the right to engage in appropriate pipeline maintenance operations, then the growing of such trees is inconsistent with easement rights of defendants and is prohibited under the right-of-way grants and plaintiffs are not entitled to compensation for the trees that are removed. We find, in fact, that the damage clause, which appears in both of these rights-of-way grants, refers to the original construction of such pipelines and also for damages to stock, crops, fences, timber and land which occur as a result of the original construction thereon, and thereafter, only to those matters which do not interfere with the rights of the easement holder.

Id. at 82-83 (emphasis added); see also, Krogh v. Clark, 213 N.W.2d 503, 505-06 (Iowa 1973) (defendants had the right to remove trees which obstructed roadway easement); Stuart v. Larrabee, 14 S.W.2d 316, 320 (Tex. Civ. App. 1929) (easement holder was entitled to unobstructed use of roadway easement and was not liable for damages for removing two trees which prevented him from using the same).

Trees on the right-of-way interfere with aerial surveillance, impede access to the pipeline for needed maintenance and repairs, and can disrupt the coating and cathodic protection which protect the pipeline from corrosion. Moreover, failure to keep the right-of-way clear of trees and brush adversely affects public safety (Rees, 377 N.E.2d at 643-44, 648, 650 n.5; Rueckel, 444 N.E.2d at 81-82) and subjects a pipeline company to both civil and criminal penalties. 49 U.S.C. § 2007. Trees and brush thus constitute an impermissible burden on an easement and a pipeline company’s rights thereunder. A pipeline company is therefore unquestionably entitled to remove trees and brush from and to clear the right-of-way.

6. A Pipeline Company Has The Right To Side Cut Trees Overhanging An Easement

Aerial surveillance is impeded not only by trees on the right-of-way but also by overhanging limbs from trees located adjacent to the right-of-way. They are obstructions that also must be removed so to allow a pipeline company the full enjoyment of its rights under an easement.

In Sun Pipe Line Co. v. Kirkpatrick, 514 S.W.2d 789 (Tex. Civ. App. 1974), the court addressed the issue of the right to side cut. Sun had an easement across Kirkpatrick’s property. Limbs growing upon trees on Kirkpatrick’s lands obscured the surface of the easements and prevented the use of airplanes to patrol and inspect the pipelines for leaks. Id. at 790. After examining the parties’ contentions, the court decided that:

The general rule is that the owner of the easement may prepare, maintain and improve it to an extent reasonably calculated to promote the purposes for which it was created. The removal of the overhanging limbs was necessary in order that Sun could reasonably use the easement for its purposes. This concession is one imposed by law upon the owner of the servient estate because every easement carries with it the right to do whatever is reasonably necessary for the full enjoyment of the easement itself.

Id. at 792 (emphasis added).

Similarly, in Jakobsen, the court upheld the trial court’s conclusion that the easements at issue gave Colonial and Plantation Pipeline Co. the right to side-trim trees overhanging the easements to enable them to make aerial inspections and affirmed the trial court’s grant of preliminary and permanent injunctive relief precluding the landowner from interfering with the pipeline companies’ side-cutting of overhanging trees. Id. at 397 S.E.2d at 436-37; see also Lindsey v. Shaw, 49 So.2d 580, 583-84 (Miss. 1950) (trees overhanging a roadway interfered with roadway easement and subjected landowner to injunctive relief).

Trees overhanging the right-of-way impair a pipeline company’s use thereof in much the same manner as trees and brush on the right-of-way. A pipeline company is therefore entitled to side-cut overhanging trees just as it could remove trees and brush from the right-of-way.

C. Protection From Excavation In And Around Utility Easements

When it enacted the Transportation Equity Act for the 21st Century (“TEA 21”) in 1998, Congress found that “[U]nintentional damage to underground facilities during excavation is a significant cause of disruptions in telecommunications, water supply, electric power and other vital public services such as hospital and air traffic control operations, and is a leading cause of natural gas and hazardous liquid pipeline accidents . . ..” Pub. L. 105-178, Title VII, § 7301(1) (June 9, 1998); 112 Stat. 477; 49 U.S.C.A. § 6101, Historical and Statutory Notes; see MCI WorldCom Network Services, Inc. v. Big John’s Sewer Contractors, Inc., 2003 WL 22532804 at *3 (N.D. Ill. Nov. 7, 2003).

An American Gas Foundation (“AGF”) study of “serious incidents” of damage to gas lines, i.e., involving death or injuries serious enough to require hospitalization, from 1990 to 2000 showed “outside force” as the dominant cause, comprising 46.4% of such incidents. 74.3% of the “outside force” incidents were caused by third parties who struck the lines. AGF, “Safety Performance and Integrity of the Natural Gas Distribution Infrastructure” (Jan. 2005) (“Gas Study”) at 4-2 to 4-4, 4-14.2 Studies performed by the National Transportation Safety Board (“NTSB”), the Federal Communications Commission (“FCC”) and the Federal Aviation Administration (“FAA”) show that excavation and construction activities are the largest single cause of accidents to pipelines, accounting for more than 40% of the reported failures. NTSB, “Safety Study: Protecting Public Safety Through Excavation Damage Prevention” (Dec. 1997) (“Safety Study”) at 2.3 Excavation damage is also the single largest cause of interruptions to fiber cable service, accounting for more than half of all facility outages. Id.

The NTSB noted that disruptions of telecommunications service can have significant safety implications, including air traffic control systems, health services, and emergency response activities. Id. at 2-3. A 1999 study mandated by the TEA 214 and sponsored by the United States Department of Transportation (“USDOT”) echoed the NTSB’s pronouncements: Damage to underground facilities can affect the vital services and products delivered through those facilities. Underground facility damage can result in injury and death, as well as severe property damage and loss of vital services and products, such as telecommunications, water and sewer, electric power, cable television, and the flow and supply of liquid petroleum and natural gas. Damage can cause vital facility outages for homes, businesses, hospitals, air traffic control operations, and emergency service providers.

USDOT, “Common Ground: Study of One-Call Systems and Damage Prevention Best Practices”

(Aug. 1999) (“Common Ground”) at 1.5 The Common Ground further concluded, “Damages to underground facilities are usually preventable and most frequently occur due to a breakdown in the damage prevention process.” Id.3 The Safety Study was initiated to formalize recommendations for improving damage prevention and includes the NTSB’s recommendations regarding the essential elements of an effective damage prevention program. Id. at vi, 4. The Safety Study is available at www.ntsb.gov/publictn/1997/ss9701.pdf.

In 2002, Congress amended the TEA 21. In that amendment, Congress instructed the U.S. Secretary of Transportation to “encourage States, operators of one-call notification programs, excavators (including all government and contract excavators), and underground facility operators to adopt and implement the practices identified in the best practices report entitled ‘Common Ground,’ as periodically updated.” 49 U.S.C. § 6105(a) & Historical and Statutory Notes.6 When the Texas Legislature enacted the Texas Underground Facility Damage Prevention and Safety Act, Tex. Util. Code §§ 251.001, et seq. (the “Damage Prevention Act”), it found that excavation work was responsible for 45% of all pipeline failures, which made third party damage or outside force damage the leading cause of all pipeline ruptures. Bill Analysis (Ex. 14) at 1; Tex. Atty. Gen. Op. JC-0234, 2000 WL 817086 (Tex. A.G.) (June 22, 2000) at 4. The Legislature further found that more than 250,000 Texans lost total phone service or access to long distance service due to cable cuts by excavators who failed to call the One-Call center. Id. A cut to a onehalf inch fiber optic cable can disrupt service to thousands of citizens and cut off whole communities from vital 911 service. Id. “Nearly 200,000 Texans lose access to 911 service each year due to cable cuts. Texas leads the nation in FCC reportable cable cuts with 20% of all outages nation wide.” Id. The Texas Attorney General’s office has described the Damage Prevention Act as “ a legislative attempt to remedy the problem of damage to underground facilities caused by excavators and the consequent loss of services to customers.” AG Opinion JC-0234, 2000 WL 817066 (Tex. A.G.) at *4.

The legislatures of not only Texas, but also of the 49 remaining states and the District of Columbia, have, therefore, enacted statutes to protect underground utilities from damage during excavation. These statutes typically require an excavator to contact a One-Call Center before beginning any excavation. The One-Call Center then notifies the owners of any underground utilities in the area of the proposed excavation who must then come out and mark the locations of their facilities. Once that is done, the excavator must take special precautions when excavating within the “tolerance zone” (which varies from 18 to 30 inches, horizontally, depending on the state) on either side of the marks. Failure to follow these law can, depending on the state, result in civil liability, civil fines and even criminal sanctions.

In addition to these statutes, federal regulations for excavation in the vicinity of underground utilities require an excavator, before beginning any excavation, to determine the estimated location of any utility installations in the work area, contact the utility operators to advise of the proposed work, and ask the utility operators to mark the locations of their underground facilities. 29 C.F.R. § 1926.651(b)(1)-(2). The utility operators then respond and mark the locations of their underground facilities. See id. at § 1926.651(b)(2). The burden then shifts back to the excavator to determine the exact location of all underground utility facilities “by safe and acceptable means” when the excavation operations approach the estimated location of those facilities. Id. At § 1926.651(b)(3); see Safety Study at 8. These requirements are designed not only to protect employees, but also to “prevent accidental damage to underground utility installations.” OSHA Safety and Health Information Bulletin SHIB 03-05-21, “Hazards Associated With Striking Underground Gas Lines” (June 13, 2003) (“Safety Bulletin”) at 2.7

Finally, reasonable and accepted industry standards and practices promulgated by, among others, the CGA, the National Utility Locating Contractors Association8, the American National Standards Institute9 and CNA10 set forth a plethora of precautions an excavator should take before excavating, including: (1) contacting the One-Call center at least 48 hours in advance to enable any underground utility operators to mark their facilities; (2) requesting a pre-construction meeting with the facility owners to review the work to be performed and the underground utilities to be marked; (3) inspecting the area before excavating for any indication of underground utilities and ensuring all underground utilities have been marked; (4) not excavating until all underground utilities are marked; (5) arranging for utility locators to be present if there are high priority facilities like gas lines or fiber optic lines in the area; (6) refraining from digging if there are no locate marks or if the locate marks are incomplete; (7) determining the approximate location of all underground utilities before beginning excavation; (8) determining the exact location of all underground utilities by safe and acceptable means when the excavation approaches their approximate locations; (9) planning the excavation to avoid damage to underground utilities; and (10) ensuring its employees are properly trained regarding, and follow, all applicable statutes, regulations and industry standards and practices.

Any person or entity who plans to perform any work in or near a utility easement should therefore be aware of, and follow, these statutes, regulations and reasonable and accepted industry standards and practices.

IV. CONSTRUCTION OF EASEMENTS

Where an easement is granted by means of a written instrument, it is construed and interpreted in the same manner as any other written contract. Public Service Co., 545 P.2d at 1184;  Lindhorst, 616 P.2d at 453. The primary consideration in construing an easement is to determine the intent of the parties thereto. Id.

Absent an ambiguity, the parties’ intent must be determined solely from the language in the easement. Beattie v. Grand River Dam Auth., 41 P.3d 377, 382 (Okla. 2002); Lindhorst, 616 P.2d at 454. However, where there is an ambiguity or an uncertainty as to the meaning of the terms of an easement, a court may consider parol evidence, including the situation of the parties, circumstances surrounding the execution of the easement and the negotiations proceeding and leading up to the easement, to arrive at its true intent and meaning. Public Service Co., 545 P.2d at 1185. A court may also consider customs and usages to interpret the meaning of doubtful expressions and words. Id.

A. Where The Route Is Not Identified In An Easement, How Is The Route Determined?

More frequently in years past than today, easements have been purchased through the use of an instrument which does not specify the precise route of the right-of-way, but which blankets all of some particular parcel of land. The easement purchaser may not at the time he acquires the right-ofway know the route along which he intends to construct his facility. Once construction has begun, the question may arise as to how the route is to be determined. Oklahoma’s answer to this question is not crystal clear. There has apparently been little litigation reaching the appellate level in this area. The one Oklahoma case which is relevant to this issue, however, the court adopted the law of Arkansas and Kansas which in turn, does not deviate significantly from general principles of American law. The first general principle is that when a conveyance is unclear as to the scope of the intended easement, subsequent behavior of the parties can constitute a practical construction furnishing the missing details. 3 Powell, at § 415. In Arkansas Valley Elec. Coop. v. Brinks, 400 S.W.2d 278 (Ark. 1966) the Arkansas Supreme Court held that where the grant of a right-of-way does not specify the location of the way, the landowner has the right to locate it, but if the landowner fails to do so the easement owner may then locate the way. In either case the location must be a reasonable one considering all the circumstances. Id. (quoting 28 C.J.S. Easements § 79 (1941)).

The lone Oklahoma case in this area substantially agrees with the Arkansas case. In Lindhorst, the Oklahoma Court of Appeals adopted the reasoning of the Kansas Supreme Court in Aladdin Petroleum Corp. v. Gold Crown Properties, Inc., 221 Kan. 579, 561 P.2d 818 (1977), stating:

The law appears to be settled where the width, length and location of an easement for ingress and egress have been expressly set forth in the instrument the easement is specific and definite. The expressed terms of the grant or reservation are controlling in such case and considerations of what may be necessary or reasonable to a present use of the dominant estate are not controlling. If, however, the width, length and location of an easement for ingress and egress are not fixed by the terms of the grant or reservation, the dominant estate is ordinarily entitled to a way of such width, length and location as is sufficient to afford necessary or reasonable egress or ingress.

Lindhorst, 616 P.2d at 453; see also Anderson v. Edwards, 625 P.2d 282, 286 (Alaska 1981) (same). Lindhorst involved a dispute regarding a roadway easement. The disputed easement granted “a perpetual right of ingress and egress on and across the easterly 40 feet of the SW/4 of the SW/4 of Section 14 . . ..” 616 P.2d at 454. The trial court found this to be ambiguous, but was reversed by the Court of Appeals which found the granting language clear and unambiguous. The easement owner had originally started the suit as an action to quiet his title to the easement and to enjoin the fee owner from using the roadway. The result on appeal was that the easement owner’s title to his easement was quieted, but the injunction was denied because the instrument had not granted an exclusive easement. The Court of Appeals recognized the judiciary’s power to resolve disputes between an easement owner and the fee owner with regard to route and width of the easement. The Court further recognized the right of either party to appeal to the district court for determination of a reasonable route or width. The right of the easement owner to obtain an injunction requiring the fee owner not to interfere with the easement was also clearly recognized in Lindhorst, although the injunction there was denied.

Lindhorst dealt with an easement appurtenant under 60 Okla. Stat. § 49 so it is possible that the Oklahoma Supreme Court might not follow that reasoning in a case involving an easement in gross. Such possibility seems very remote, however, inasmuch as recently little significance has been attached to the distinction between easements in gross and easements appurtenant. It should also be noted that Lindhorst did not specify who had the right to initially to designate the location, width, or length of the easement. It seems prudent to assume that Oklahoma would follow the majority rule, however, and allow the fee owner the first opportunity to designate the location, width, or length of the easement.

Other states have also allowed the practical location of the right-of-way when the grant did not specify a particular width or location for the right-of-way. In Dwyer v. Houston Pipe Line Co., 364 S.W.2d 736 (Tex. Civ. App. 1963) it was held that where the terms of a pipeline easement are general as to place and size of pipe, the location becomes fixed after pipe is laid with the acquiescence of both the easement holder and the fee owner. Here the court held that the easement owner could not dig up an 18” pipeline and replace it with a 30” pipeline. See 3 Powell, at § 514 n.19 where several similar cases are cited.

This raises a question as to the wisdom of purchasing easements which do not specify the precise route or width. It seems to be prudent in certain circumstances. The owner of the easement, along with the landowner who has first choice as to route, will be allowed to fix a reasonable location of a facility laid pursuant to an easement grant which does not specify the location. Thus, obtaining blanket easements during initial construction or prior to commencement of construction of a facility if the precise location of the way has not been determined will provide a flexibility otherwise unavailable.

It has gradually become more difficult to purchase easements which specify no precise route or width of the easement granted as landowners have become more savvy and protective of their lands. In certain areas, however, it is still possible to purchase such imprecise easements. Recognizing the value of such blanket easements, many pipeline companies have adopted policies under which, when requested by the landowner after initial construction, the pipeline company will execute partial releases as to those portions of the land described in the easements lying outside a width and route the pipeline company deems reasonable for its purposes. After the width and route of a pipeline right-of-way have been defined by practical location with such location memorialized in writing some companies sometimes go further and enter into written, recordable encroachment agreements with the fee owners whereby minor encroachments of the defined right-of-way are permitted. Although the monetary result of such policies cannot easily be quantified, they seem to have a favorable public relations impact, lessen the costs of acquiring new rights-of-way, and make landowners less apprehensive when asked to execute a blanket easement.

B. Enforcement

The requirements for an easement by prescription are generally the same as those for acquiring title by adverse possession. Willis v. Holley, 925 P.2d 539, 540 (Okla. 1996). There must be adverse possession for a period of 15 years to establish an easement by prescription. Brown v. Mayfield, 786 P.2d 708, 712 (Okla. 1989). Permissive use cannot give rise to an easement by prescription no matter how long it continues. Id.

Easements by prescription are not favored in the law. E.g., Zimmerman v. Newport, 416 P.2d 622, 629 (Okla. 1966); Irion v. Nelson, 249 P.2d 107, 109 (Okla. 1952). The party claiming an easement by prescription bears the burden of proof. E.g., Walthers v. Tanner, 233 P.2d 303, 306 (Okla. 1951); James v. Board of County Comm’rs of Muskogee, 978 P.2d 1002, 1004 (Okla. App. 1998); Mefford v. Sinclair, 859 P.2d 1127, 1130 (Okla. App. 1993). The burden is more stringent when a person is claiming an easement by prescription over unenclosed land than when a person claims an easement over enclosed land. Friend v. Holcombe, 162 P.2d 1008, 1010 (Okla. 1945); Willis, 925 P.2d at 541.

That burden, however, shifts to the party resisting the establishment of an easement by prescription when the party claiming the easement shows open, visible, continuous and unmolested use of the easement for the required time. James, 978 P.2d at 1004; Mefford, 859 P.2d at 1130. Where the party claiming an easement has shown open, visible and continuous unmolested use for the required period, the use is presumed to be under a claim of right and the owner of the servient estate bears the burden of rebutting that presumption by showing that the use was permissive. Friend, 162 P.2d at 1010; James, 978 P.2d at 1004.

A person claiming an implied easement similarly bears the burden of establishing the existence of the easement. Frater Okla. Realty Corp. v. Allen Laughon Hardware Co., 245 P.2d 1144, 1147 (Okla. 1952). An implied easement may be established by parol evidence. Story v. Hefner, 540 P.2d 562 (Okla. 1975).

Controversies often arise over the use of the section line to access property. Oklahoma law gives a landowner the right to use the abutting section line for ingress and egress to his property. See 69 Okla. Stat. § 1201; Burkhart v. Jacob, 976 P.2d 1046, 1049 (Okla. 1999). The fee owner need not show his property is completely land locked. Trustees of the Charles Page Family Care Charitable Remainder Trust v. Siegel, 38 P.3d 919, 920 (Okla. App. 2001). The fact that the fee owner may have other means of accessing his property will not deprive the owner of the right to use the section line to access his property. Burkhart, 976 P.2d at 1050. The fact that the section line may be partially impassable similarly will not preclude the fee owner using the section line to access his property. Donathan v. Wageman, 955 P.2d 759, 760-61 (Okla. App. 1998).

One method of establishing or protecting an easement is to seek an injunction to prevent another person from interfering with an easement. See, e.g., Lindhorst, 616 P.2d at 454; Tidwell, 245 P.2d at 620. Another method to establish an easement is a quiet title action. See, e.g., Head v. McCracken, 102 P.3d 670, 674-75 (Okla. 2004).

C. Abandonment

Facilities laid pursuant to right-of-way agreements will, for economic reasons, sometimes lie unused for periods of time. Such non-use may cause the owner of the underlying to claim that the easement has been abandoned and thus lost. The law regarding abandonment is clear. The facts in any particular situation, however, may be very unclear. While the ownership of real property cannot be lost by abandonment at common law (3 Powell, at § 423; 2 American Law of Property, § 8.98 (A.J. Casner ed. 1952)), ownership of an easement may be so lost. The question is one of definition: what constitutes abandonment of an easement. The general rule is that it must be demonstrated that the holder intended to make further use of the easement. 3 Powell, supra. While verbal statements of intention by themselves are insufficient, they may aid in interpreting otherwise equivocal acts. Two kinds of acts are generally required: (1) cessation of use; and (2) conduct inconsistent with an intention to use the easement further. This position has been adopted in Oklahoma in a series of cases involving railroad rights-of-way which have formulated the rule as follows: “To constitute abandonment of an easement for right-of-way purposes, there must not only be an actual relinquishment, but an intention to abandon, and this is a question of fact to be determined under all the evidence.” Kansas, O.&G. Ry Co. v. Rogers, 191 P.2d 209, 211 (Okla. 1947). Mere “non-user for a definite fixed period is not of itself sufficient to establish an abandonment, but when the non-user is accompanied by acts on the part either of the dominant or servient tenement, which manifest an intention to abandon, and which either destroys the object for which the easement was created, or the means of its enjoyment, an abandonment will take place.” Canadian River R. Co. v. Wichita Falls & N.W.R. Co., 166 P. 163, 167 (Okla. 1917). Thus, with regard to a pipeline, the mere failure to move product through the line should not extinguish the easement. Nor should taking up the pipeline if the easement owner intends to replace the line within a reasonable time. Several cases dealing with railroad rights-of-way, however, have found an abandonment after a short period when the tracks have been removed. In addition, 60 Okla. Stat. § 59 provides for extinguishment of a servitude (including an easement) upon the performance of any act on the tenement by the owner of the servitude that is inconsistent with its nature or exercise. Thus, removal of the pipeline should extinguish the pipeline right-of-way if the line is not being replaced.

D. Additional Burdens and Apportionment

Easement corridors have become increasingly valuable as the population of the United States has grown. Owners of such corridors are presented with the opportunity to market their rights to other persons who desire to construct new facilities such as pipelines or telephone lines and need rights-of-way to do so. The sale of an interest in such rights-of-way then gives rise to two questions: The first is whether the installation of the new facilities imposes an additional burden on the underlying fee. The second question is whether the right-of-way can be divided, or apportioned, or whether, if assignable, it must be assigned in toto. What constitutes an additional burden on the underlying property is sometimes a complicated question the answer to which depends first upon the purpose for which each right-of-way was granted and second upon whether that purpose and the “new” purpose are the same. The uses to which an easement may be put are generally limited to those specifically and expressly provided for in the easement grant or any legitimate purpose incidental to the specific purpose for which the right-of-way was originally granted. Further, if the easement is limited in scope or purpose, the owner of the property subject to the easement burden is entitled to prevent that burden from being increased or to obtain additional compensation in the event of such an increase.11

The law is also clear in allowing, without requiring additional compensation, all uses reasonably necessary to the full employment of rights-of-way. If the new facilities are reasonably necessary to the operation of the old, then no additional compensation would be required if the right-of-way owner were to lay install new facilities and use them solely for some purpose directly related to the original purpose. Installation of for purposes of modernization would require no additional compensation to be paid the landowner. Such rights should be deemed to have been included as part of the original grant.

Pipeline easements commonly state that the purpose of the grant was the laying of a pipeline (or pipelines) for the transportation of oil or oil products, crude oil, or gas, or some similar language. Similarly, telephone line easements frequently provide that the grant is for telephone poles and lines or conduit. The grants are not usually of a general easement. It is generally clear that the installation along rights-of-way of new facilities for a commercial purpose unrelated to the purpose for which the right-of-way was originally granted without first obtaining additional rights should constitute an additional servitude placed upon the underlying fee. Such purpose would not fall within the purpose of the original grant nor be incidental to it. Such additional servitude would require additional compensation to be paid to the underlying fee owner.

An increasingly common issue, however, is whether the easement owner could construct new facilities directly related to its use of the old but with capacity greater than its current needs, use so much of the new capacity as would be necessary for its internal needs, and sell or lease any excess capacity to other persons without such constituting an additional servitude on the underlying fee. A clear answer has not been found to that question.

Cases addressing these issues seem to have arisen initially in the context of railroad rightsof- way and the right of a railroad to construct telegraph or telephone wires along its right-of-way. The original case dealing with constructing a telegraph line along a railroad right-of-way appears to be the case of Western Union Telegraph Co. v. Rich, 19 Kans. 517 (1878). The court in that case set forth a basic rule of easement law:

A telegraph line, if not indispensable to the railroad, tends so much to facilitate its business, and to [sic] the speedy and safe running of its trains, that the railroad company has the right to build it, to use its right-of-way therefor, and to remove all obstructions thereon, to its fullest and most uninterrupted and beneficial use . . .. In short, the railroad company may use its right-of-way not merely for its track, but for any other building or erection which reasonably tends to facilitate its business of transporting freight and passengers, and by such use in no manner transcends the purposes and extent of the easement, or exposes itself to any claim for additional damages to the original landowner.

Id. at 160. Rich did not, however, specifically address sales of excess capacity although it is occasionally cited as authority for allowing such sales. The Rich case was followed in American Telephone & Telegraph Co. v. Smith, 18 A. 910 (Md. 1889). There a railway company had entered into a contract whereby an individual had constructed a telegraph and telephone line along the railway’s rights-of-way. The railway and AT&T then entered into a contract whereby AT&T agreed to construct another telephone line upon those rights-of-way. AT&T and the railway claimed that such contract was entered into to facilitate the operation of the railway and to increase its business.

The AT&T Court noted that Rich had recognized the right of the landowner to compensation for every additional burden cast upon the land outside the scope of the original easement, and that whether a given structure creates an additional servitude is a question of fact, depending on the circumstances in each case. The court went on to state that, If, then, this line is in process of construction, or is about to be constructed over the right of way of this railway, in good faith, for the use and benefit of the latter in operation of its road, and to facilitate its business, or is reasonably necessary for that purpose, the landowners have no ground of complaint, because such use of their land is within the scope of the original easement, for which they have already received compensation. But on the other hand if this is not the motive for its construction and the main object in constructing is to establish an extensive line of telegraph and telephone communication through this and other states for general commercial purposes for the use and benefit of the defendant and such a line is not reasonably necessary for the purposes of the railroad then it will be a new easement and put a new and additional burden upon the land for which the owners are entitled to compensation.

Id. at 913 (emphasis added). In deciding that this new line constituted an additional burden the court found that all of the railway’s communication needs were satisfied by the original line laid under the earlier contract. The court noted that there was no mechanical difficulty in putting on the earlier policies as many wires as the railroad company might ever need for its business purposes and further that its financial inability to do so or to employ telegraph operators at its stations was irrelevant to the question confronting the court. It should be noted that the court here did not rule that the original telephone line constituted an additional servitude nor did it hold that the railway could not sell its excess capacity along such original line. It only ruled that the building of new lines for which the railway had no need constituted an additional servitude.

In 1908, a Missouri appellate court confronted a factual situation similar to that addressed by the AT&T court. The Cape Girardeau & Chester Railway Company condemned a right-of-way. The railway company then entered into a contract with the telephone company granting the telephone company a right to construct and operate a line and system of telephone over and across the right-of-way. The grant to the telephone company to erect poles on the right-of-way was for the purpose of serving the railway in the operation of its road. However, the telephone company also contemplated serving so much of the general public as might see fit to patronize the telephone. The owner of the burdened property claimed the telephone service to be furnished the public amounted to an additional burden on the plaintiff’s property. In its analysis, the court echoed Rich and AT&T v. Smith stating that, [I]n so far as the telegraph company serves the purpose of the railroad, its occupancy of the right of way easement is not an additional servitude or burden upon the fee of which he may complain. Nevertheless, in so far as the telegraph or telephone company thus rightfully occupying the right of way serves the general public as a commercial enterprise, distinct from the avocation of the railroad, it constitutes a use of the right of way easement other than for railroad purposes, and it is therefore a servitude not contemplated in the original grant and a burden upon the fee of which the adjacent owner may rightfully complain. It is obvious the transmission of intelligence by means of electricity to all the world who may be willing to pay for the service is not a railroad use and such service is certainly not contemplated within the grant of the railroad right of way, for it is entirely disassociated therefrom.

St. Louis, I., M., & S. Ry. Co. v. Cape Girardeau Bell Tel. Co., 114 S.W. 586, 588 (Mo. App. 1908) (emphasis added). This case indicates that a sale of excess capacity by an easement would constitute a compensable additional burden in Missouri. There are a few cases which lend some support to the notion that an easement owner could install support facilities with more capacity than it currently needs and could then sell or lease that capacity to other persons without such constituting an additional servitude. The first of these cases is Dickman v. Madison County Light and Power Co., 136 N.E. 790 (Ill. 1922). In Dickman a strip of land was condemned for railroad purposes. The easement owner, a streetcar company, used electricity to power its streetcars. The streetcar company entered into an agreement with Madison County Light and Power Company by which the power company agreed to pay a portion of the fixed charges of the streetcar company’s power plant. The streetcar company agreed to sell to the power company any excess current to be generated by the plant, reasoning that this plan would enable the power company to obtain power more cheaply for distribution to its customers and at the same time enable the streetcar company to operate its streetcars more economically.

The court found evidence showing that it was more economical for the streetcar company and the power company to have the arrangement by which the excess power was sold to the power plant and distributed; that the public was thereby better served by both companies; that it was necessary for the streetcar company to generate such excess current and power for its possible needs in the future; and that it was customary for other similar railroads to thus provide for their future wants and to sell their excess power until the emergency arose for its future use by the railroads themselves. Id. at 793.

The plaintiff, however, claimed that the construction and use of the electrical wires for general commercial purposes, constituted an additional burden on the fee and that such was not warranted by the earlier judgment and order for condemnation. In response the court stated, Under the authorities it cannot be questioned that the [streetcar] company had the right to provide for the future growth of its business and to erect and maintain a power plant of sufficient capacity to generate electricity to provide sufficient power for all its railroad purposes that might be required by the future enlargement of its railroad business, and to sell its excess power not needed for immediate use to industries along its line or to sell to the power company such excess power to be by it distributed and sold on its own account to such industries.

The question is whether or not the wires were erected in good faith with the view to be used by [the streetcar company] in the future in its business as a railroad . . . or whether such construction was solely for the use of the power company in the pursuit of a different business from that conducted by the [streetcar] company and for the profit of both companies. If the wires were constructed with the latter motive their construction was illegal and wrongful, but if for the former reason their construction was legal and the appellant cannot recover in this suit. Id. at 795, citing Hodges v. Western Union Tel. Co., 45 S.E. 572, and AT&T Co. v. Smith, 18 A. 910 (Md. 1889) (emphasis added).

The rule in Dickman was followed by the Maryland Court of Appeals in Potomac Edison Co. v. Routzahn, 65 A. 2d 580 (Md. 1949), but with a twist. In Routzahn, a power company claimed that although it had an agreement with the underlying railroad company to sell the railroad company power, the power lines provided were not for the future growth of the railway business with temporary incidental sale of excess power, but constituted creation of a new power company with a large new plant and high tension transmission lines to handle the already existing and expanding light and power business. In return, the railway business was to get cheaper and adequate electric service. The power company claimed that such acts exceeded any rights it might have had under the earlier easement and thus gave rise to a prescriptive easement. The court agreed stating that “the power business was not temporary or incidental to the railroad business, but the railroad business in a few years became incidental to the power business.” Id. One other type of railroad case casting some light on this issue is typified by the case of Marthens v. B&O RR Co., 289 S.E. 2d 706 (W. Va. 1982). This case dealt with a deed containing a reversionary clause which stated in part, It is fully understood that said land is to revert to [the grantor], at any time when said railroad company shall cease to use it solely and strictly for railroad purposes.

Id. at 709. In Marthens, the grantee railroad executed leases with local businesses allowing such businesses to store scrap and conduct a retail building supply business on the deeded property. The owners of the reversionary interest claimed that such use was other than for railroad purposes thus triggering the reversionary clause. The court confirmed that the railroad company could make any use of the land which directly or indirectly contributed to the safe, economical, and efficient operation of the railroad and which did not interfere with the rights of the adjacent property owners. The court noted that the railroad had the right to do all things which might be essential or incidental to its full and complete use of the land to accomplish the purpose for which the easement was acquired. Id. at 711 (citing Missouri Kansas Texas Ry Co. v. Freer, 321 S.W. 2d 731 (Mo. App. 1959), and Mitchell v. Illinois Cent. Ry Co., 51 N.E. 2d 271 (Ill. 1943) (in which the railroad was permitted to grant leases to several retail businesses)). It should be noted, however, that the cases relied upon in Marthens allowed retail businesses which clearly contributed to the growth of the business of shipping items on the railway. They did not allow businesses which contributed to the growth of the railway merely by the generation of additional revenues for the railway.

Throughout these cases the courts emphasize that the inquiry is one of fact with the intentions of the easement owner and the purposes of the easement grant being the paramount considerations in that inquiry. Dickman is by far the strongest case supporting any sale by the easement owner of excess capacity from new support facilities.

Several cases throughout the United States have dealt with the apportionability issue in relation to the installation of cable television or telephone lines on existing power poles. At common law, easements in gross were not assignable. However, under the modern view, easements in gross which are of a commercial character are alienable and assignable property interests except where restricted by the granting instrument. See Restatement of Property §§ 489, 490. However, where a party is assigning only part of its rights under an easement without divesting itself of all control over the easement, the transfer of rights cannot be considered an assignment but rather an attempt to apportion the easement. Salvaty v. Falcon Cable Television, 165 Cal.App.3d 798, 804 (Cal. App. 1985); Hoffman v. Capitol Cablevision System, Inc., 383 N.Y.S.2d 674 (N.Y.App. 1976); Restatement, § 493. Although there is a distinction between partially assigning an easement and granting a license to use an easement, the principle California case addressing apportionment of utility easements held that the grant of a license was an attempt to apportion the easement. Salvaty,at 804. Thus, an agreement by which easement rights are assigned or licensed to a grantee are generally viewed as an apportionment of the easements.

In Salvaty, a telephone company owned an easement “for the stringing of telephone and electric light and power wires.” The telephone company executed a license agreement with a cable television company under which the cable company ran its lines along the telephone company’s right-of-way without obtaining the consent of the underlying landowners. The Court adopted the Restatement approach that easements in gross are apportionable if the following factors are established: (1) the easement is “exclusive vis-a-vis the grantor”; and (2) apportionment was within the intention of the parties to the granting instrument based upon the terms of the instrument granting the easement. 165 Cal.App.3d at 804 (citing Restatement of Property § 493). With respect to whether an easement is “exclusive vis-a-vis the grantor, the Salvaty court does not clearly define the phrase. However, it held that the easement at issue was exclusive vis-avis the grantor because the grantors had no interest in providing utility services and could not interfere with the easement owner’s facilities. Id. at 804. In another California case, Witteman v. Jack Berry Cable TV,12 the court stated that in the context of determining apportionability of an easement, the term “exclusive” refers to the exclusion of the owner and possessor of the servient tenement from participation in the rights granted, not to the number of different easements in or over the same land.” 228 Cal. Rptr. at 588 (citing Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825, 828 (Mo. App. 1985)). Thus, “exclusive” in the apportionment context does not mean that the grantor cannot grant additional easements to other parties across his property, but rather means that he cannot participate in or interfere with the easement granted.

Other cases applying the Restatement approach as well as the official comments to the Restatement support this conclusion. In the comments to § 493 of the Restatement, two examples are illustrative of the point. In the first example, A is the owner of Blackacre and grants to B an exclusive right to mine iron in Blackacre retaining no such rights for himself. Restatement of Property § 493, cmt. c, ill. 1. The easement is exclusive and thus, apportionable and B is free to allow others to mine the iron. Id. In the second example, A owns Blackacre and conveys to B a nonexclusive privilege to mine coal. Id. at § 493, cmt d, ill. 3. B, while still retaining in himself a privilege of mining, conveys to C a privilege to mine coal. In such a case, the conveyance of a privilege to C interferes with A’s retained rights to mine coal or to grant such rights to others. Thus, the conveyance to C will not be allowed as the easement is nonapportionable. Id. The key concept in these examples is that where apportionment interferes with, creates a surcharge or additional burden upon the retained rights of the landowner, it will not be allowed. Thus, rights granted by an easement owner in a permitted apportionment cannot be inconsistent with or in excess of the rights granted in the original easement. However, this does not mean that apportionment cannot be to the disadvantage of the landowner to any extent as made clear by Restatement comments where it is stated as follows:

Though apportionability may be to the disadvantage of the servient tenement, the fact that he is excluded from making the use authorized by the easement, plus the fact that apportionability increases the value of the easement to its owner, tends to the inference in the usual case that the easement was intended in its creation to be apportionable.

Id. at § 493, cmt c. Although this concept is difficult to apply to easements for the running of telephone lines across property, the Salvaty court addressed the issue by citing the New York case of Hoffman v. Capitol Cablevision System, Inc., 383 N.Y.S.2d 674 (1976) where it stated: There is no claim that plaintiffs’ predecessor had, at the time the easements were granted, any authority for, any intention to seek authority for, or any interest whatsoever in the distribution of electricity and messages via the said easements. Nor is there any indication that plaintiffs’ predecessor or plaintiffs have at any time sought to treat the utility easements as non-exclusive by seeking to share with [the telephone company] in the distribution of electricity and messages by the easements.

Salvaty, at 804; Hoffman, at 676.

In another case applying Restatement principles, an easement to a power company was found to be exclusive and thus, apportionable, where the terms of the easement prohibited the landowners from doing anything inconsistent with the easement or from constructing buildings or other structures over the easement evidencing the power company’s exclusive right to use the easement. Centel Cable Television Company of Ohio, Inc. v. Cook, 567 N.E.2d 1010, 1014 (Ohio 1990).

The second requirement for a finding of apportionability that the parties intended the easement to be apportionable must be determined from an examination of the terms of the easement. Restatement, § 493; Centel, 567 N.E.2d at 1013. The cases do not provide clear guidance on this requirement but rather focus upon the terms of the easement to determine if the easement is exclusive. In Jolliff v. Hardin Cable Television Co., 299 N.E.2d 588, 590 (Ohio 1971), the court found an intent to allow apportionment in the granting clause of the instrument which granted the rights to the grantee and its “successors, assigns, lessees, and tenants.” The court held the words “lessees and tenants” clearly indicate that it was intended by the parties that the power company could lease some portion of its interests to third parties. Id. Otherwise, the determination of whether the parties to an easement in gross intended them to be apportionable will be made under general principals of contract construction.

V. ACQUISITION OF EASEMENTS ACROSS INDIAN LAND

When addressing the acquisition of Indian lands, it is necessary to understand the types of Indian lands which invoke federal and tribal jurisdiction and which will affect the alienation of lands, including rights-of-way. Indian lands may be: (1) owned in trust by the United States for the benefit of individual Indians or Indian tribes; (2) allotted by the United States in severalty to individual Indians with restrictions on alienation; or (3) owned by Indian tribes subject to restrictions on alienation. The relationship between the United States Government and the various tribal and individual allotted real property by the Government is one which has been likened to that of a guardian and ward. Town of Okemah v. United States, 140 F.2d 963, 964 (10th 1944).

Because of this relationship, numerous federal laws and regulations have been promulgated to control the sale, lease or other disposition of lands held in trust by the United States for individual Indians or Indian tribes and lands allotted in severalty to individual Indians with restrictions on alienation. Thus, Indian lands include both tribally owned lands (“tribal lands”) and “allotted lands” owned by Individual Indians. “Allotment or allotted lands is a term of art in Indian law, describing either a parcel of land owned by the United States in trust for an Indian (“trust” allotment) or owned by an Indian subject to a restriction on alienation in the United States or its officials (“restricted” allotment).” The two forms of allotments are treated virtually the same by the Department of Interior, Congress, and the Courts. Cohen’s Handbook of Federal Indian Law, 2005 Edition, at 1039-40.

A. Fee Land Owned By Individual Indians

With regard to lands owned by an individual Indian in fee simple, state law, will apply.There are no federal or tribal restrictions on the negotiation or condemnation of lands owned in fee simple by an individual Indian. This is true even if the land had originally been allotted and a fee patent is later issued or the federal restrictions on alienation have been removed. See United States v Waller, 243 U.S. 452 (1917); Cass County v Leech Lake Band of Chippewa Indians, 524 U.S. 103. (1998); 25 U.S.C. § 349. The restrictions run with the land, not the individual.

B. Tribal Lands

The Indian Right-Of-Way Act which was enacted in 1948 (the “IRWA”) empowers the Secretary of Interior (“Secretary”) or his authorized representative (the designation is made to officials of the Bureau of Indian Affairs (“BIA”), the Agency within the Department of Interior (“DOI”) with oversight over Indian lands) to grant rights-of-way across Indian lands for all purposes. 25 U.S.C. § 323. The IRWA, however, specifically provides that the Secretary may not grant a right-of-way over and across any lands belonging to a tribe without the consent of the proper tribal officials. Id. at § 324.

The IRWA also gives the Secretary the authority to grant such rights-of-way “subject to such conditions as he may prescribe . . ..” Id. at § 323. The regulations the Secretary promulgated pursuant to § 323 provide that no right-of-way shall be granted over and across any tribal land without the tribe’s prior written consent. 25 C.F.R. §169.3(a).

The IRWA, however, specifically provides that it does not amend or repeal any existing statutory authority empowering the Secretary to grant rights-of-way over Indian lands. 25 U.S.C. § 326. In addition to the general provisions of the IRWA, there are prior statutes which allow the Secretary to grant rights-of-way across Indian lands for specific purposes. Section 961 of Title 43 gives the Secretary the authority to grant rights-of-way for a period not exceeding 50 years through any Indian or other reservation for the distribution of electrical power. The language of § 961 itself does not require the tribe’s consent. Courts, however, has held that such statutes must be read in conjunction with the IRWA and held that the tribe’s consent is required, even under the prior statutes like 43 U.S.C. § 961. E.g., Southern Pacific Transp. Co. v. Watt, 700 F.2d 550, 551-54 (9th Cir. 1983); see Blackfeet Indian Tribe v. Montana Power Co., 838 F.2d 1055, 1056-59 (9th Cir. 1988).

Moreover, the regulations the Secretary has enacted pursuant to § 961 specifically provide that any rights-of-way granted for electrical poles and lines for the transmission and distribution of electrical power are subject to the other provisions of Part 169. 25 C.F.R. § 169.27(a). This includes the requirement for the consent of the tribe found in 25 C.F.R. § 169.3. Even though 43 U.S.C. § 961 itself does not specifically require the tribe’s consent, it does not provide a method for SCE to obtain a right-of-way across tribal land without the tribe’s consent.

C. Allotted Lands

Allotted lands are subject to restrictions on alienation. The IRWA also empowers the Secretary or his authorized representative to grant rights-of-way for all purposes over any lands held in trust by the United States for individual Indians or Indian tribes or owned by individual Indians or Indian tribes subject to restrictions on alienation. 25 U.S.C. § 32313. The prior written consent of the proper tribal officials or the individual landowner(s) is required. 25 U.S.C. § 32414.

Application for a right-of-way pursuant to the provisions of §§ 323 and 324 must be made in accordance with 25 C.F.R. §§ 169.1 through 169.28. These regulations set out the specific requirements which must be complied with before a right-of-way will be approved. A written application must be made to the Secretary of the Interior or his representative. The application must cite the statute under which it is filed and the width or length of the desired right-of-way. 25 C.F.R. § 169.5. The application must be accompanied by maps showing a definite location (25 C.F.R. § 169.6(a)), the field notes of the survey (25 C.F.R. § 169.7), and affidavits by the engineer who made the survey and maps. 25 C.F.R. § 169.11(a). Permission to survey for a right-of-way across the Indian land must be obtained by written application to the Secretary of the Interior or his representative. 25 C.F.R. § 169.4.

At the time of the filing of the application for right-of-way, the applicant must deposit the total estimated consideration in damages with the Secretary of the Interior. Consideration for the right-of-way must be not less than, but is not limited to, “… the fair market value of the rights granted, plus severance damages, if any, to the remaining estate.” 25 C.F.R. § 169.12. The applicant is also liable for “… all damages incident to the survey of the right-of-way or incident to the construction or maintenance of the facility for which the right-of-way is granted.” 25 C.F.R. § 169.13. An applicant must comply with the regulations set out in 25 C.F.R. § 169.1 through 169.28, to the satisfaction of the Secretary or his representative, before construction work on the right-of-way may begin. 25 C.F.R. § 169.15.

The term for a § 323 grant of an oil or gas pipeline may be unlimited (25 C.F.R. § 169.18), although it is likely either the landowner or the BIA will seek to limit the terms. The most common term for rights-of-way is a 25 year term with the option to renew for 25 years. There can, however, also be terms of 35 or 50 years. It may be that a longer or unlimited term can be negotiated with the individual(s) since they benefit directly from the compensation. In addition to the general provisions of 25 C.F.R. Part 169 governing rights-of-way across Indian lands, discussed above, § 169.25 sets forth specific regulations for oil and gas pipelines. For example, “all oil or gas pipelines, including connecting lines, shall be buried a sufficient depth below the surface of the land so as not to interfere with cultivation.” § 169.25(c). The size of the proposed pipeline must be shown in the application, on the maps, and in the engineer’s affidavit and applicant’s certificate. § 169.25(c). Applicants may apply for additional land for pumping stations or tank sites with the maps showing clearly the location of all structures and the location of all lines connecting with the main line. Such applicants must file a stipulation agreeing that upon abandonment of the right-of-way the land will be restored as nearly as may be possible to its original condition and that a grant for a pumping station or tank site shall be subservient to the owner’s right to remove or authorize the removal of oil, gas, or other mineral deposits….§ 169.25(e). the applicant must also agree that the books and records of the applicant will be open to inspection by the Secretary at all reasonable times. § 169.25(g). Given the current policy of the DOI/BIA to allow the landowner, whether an individual or a tribe, to negotiate the terms and conditions of the right-of-way agreement, a company seeking a right-of-way will need to negotiate with the landowner(s) as well as apply to the BIA Agency with jurisdiction over the lands. It is therefore a good idea to work with the Agency from the beginning of negotiations so that when an agreement is reached, it will be acceptable as in the best interest of the Indians and meet the requirements set forth in the regulations.

D. Condemnation Under 25 U.S.C. § 357

Lands held in trust by the United States for an individual Indian or lands allotted by the

United States to an individual Indian may be condemned for any public purpose under the laws of the state where such land is located. 25 U.S.C. § 357.15 While § 357 authorizes the condemnation of such lands under the laws of the state where the land is located, it does not authorize the use of state condemnation procedures. Minnesota v. United States, 305 U.S. 382, 389 (1939); Oklahoma Gas & Elec. Co. v. United States, 609 F.2d 1365, 1366 n.2 (10th Cir. 1979); see Nicodemus v. Washington Water Power Co., 264 F.2d 614, 615 (9th Cir. 1959). Therefore, land held in trust for, or allotted to, an individual Indian must be condemned in federal court and be brought under the procedures set forth in Fed. R. Civ. P. 71A. The United States is also a necessary party to a condemnation action under § 357. Minnesota v. United States, 305 U.S. at 386.

1. Necessity For Consent From The Secretary

In Minnesota v. United States, the United States Supreme Court declined to address the question of whether, as a matter of substantive law, the Secretary’s consent was required for a condemnation under § 357. Id. at 391. Since that decision, however, the overwhelming weight of authority holds that the Secretary’s consent is not required. Nebraska Public Power Dist. v. 100.95 Acres of Land in the County of Thurston, 719 F.2d 956, 960 (8th Cir. 1983); Yellowfish v. City of Stillwater, 691 F.2d 926, 930-31 (10th Cir. 1982), cert. denied, 461 U.S. 927 (1983); Southern California Edison Co. v. Rice, 685 F.2d 354, 357 (9th Cir. 1982); Transok Pipeline Co. v. Darks, 565 F.2d 1150, 1153 (10th Cir. 1977); Nicodemus, 264 F.2d at 617-18; United States v. Minnesota, 113 F.2d 770, 771-73 (8th Cir. 1940); City of Stillwater v. An Easement and Right-Of-Way for Water Pipeline Purposes Across Various Tracts of Land in Noble County, 552 F. Supp. 54, 65 (W.D. Okla. 1981), aff’d sub nom., Yellowfish v. City of Stillwater, 691 F.2d 926 (1982); Oneida Tribe of Indians of Wisconsin v. Village of Hobart, 542 F. Supp. 2d 908, 921-22 (E.D. Wis. 2008).

In Nicodemus, a privately owned public utility corporation sought pursuant to § 357 to condemn an easement for construction and maintenance of an electric transmission line across allotted lands. 264 F.2d at 615. One of the issues on appeal from the district court’s order allowing the condemnation action to proceed was that the utility company had failed to obtain the Secretary’s permission or approval for the condemnation action. Id. at 616. In addressing this issue, the Ninth Circuit stated: Appellant’s argument that the order of the district court is void because the [utility company] failed to obtain approval or permission of the Secretary of the Interior before proceeding with the condemnation is without merit.

Id. at 617 (emphasis added). The Court reasoned that, in enacting § 357, Congress expressly authorized the condemnation of allotted lands for any public purpose. The Court further opined that § 323, which empowers the Secretary to grant rights-of-way, and § 357, offered two separate and distinct methods for acquiring an easement across allotted lands for the construction of an electric transmission line. Id. at 617-18. The Court then went on to state:

We hold that the [utility company] was not required to secure the permission of the Secretary of the Interior before initiating the condemnation suit under Section 357.

Id. at 618.

In Southern California Edison, Edison filed suit pursuant to § 357 to condemn a right-ofway to install electrical transmission lines across allotted lands owned by members of the Agua Caliente Band of Cahuilla Indians. The district court, following Nicodemus, held that § 357 authorized condemnation of rights-of-way over the allotments and the Agua Caliente allottees appealed. Southern California Edison, 685 F.2d at 355. On appeal, the Agua Caliente allottees argued that 25 U.S.C. §§ 323-324, which empowered the Secretary to grant rights-of-way across allotted lands, was the exclusive means by which Edison could obtain a right-of-way across the Agua Caliente lands. Id. at 357. The Ninth Circuit noted that with respect to condemnation actions by state authorities, “Congress explicitly afforded no special protection to allotted lands beyond that which land owned in fee already received under the state laws of eminent domain.” Id. at 356. The Ninth Circuit then stated that the issue was controlled by Nicodemus and held that: Section 357, which provides that lands allotted in severalty to Indians may be condemned for any purpose in accordance with state law, . . . is an alternative method for the acquisition of an easement across allotted Indian land to which the United States has consented.

Id. at 357 (emphasis added). In so doing, the Ninth Circuit noted that this holding was also in accord with the Tenth Circuit’s holdings in Yellowfish and Transok Pipeline and the Eighth Circuit’s holding in United States v. Minnesota. Id. The Ninth Circuit further stated that it was “bound to the holding in Nicodemus until such time as an en banc panel of this Court overrules it.” Id. at 357 n.6 (citing Upton v. Comm’r, 283 F.2d 716, 723 (9th Cir. 1960), cert. denied, 366 U.S. 911 (1961)).

A number of the courts outside the Ninth Circuit have similarly relied on the Ninth Circuit’s decisions in Southern California Edison and/or Nicodemus when holding that the Secretary’s consent was not required before a condemnation action under § 357 could proceed. See Nebraska Public Power, 719 F.2d at 960; Yellowfish, 691 F.2d at 929-30; Oneida Tribe, 542 F. Supp. 2d at 921-22. In each of these cases, the courts described Southern California Edison and Nicodemus as having held that § 357 authorized condemnation of rights-of-way over allotted lands without the Secretary’s consent. Id.

Despite the Ninth Circuit’s plain and unambiguous holding in Nicodemus that the Secretary’s consent was not required before initiating a condemnation suit under § 357 (see 264 F.2d at 618), and the Ninth Circuit’s adherence to Nicodemus in Southern California Edison (see 685 F.2d at 357 and n.6), the Ninth Circuit’s decision in Pend Oreille III does create uncertainty which a utility company will have to address should it decide to institute condemnation proceedings against the Indian allottees in the Ninth Circuit.

In Pend Oreille, the district court concluded, despite the Ninth Circuit’s holdings in Nicodemus and Southern California Edison, “that before the Utility can institute condemnation proceedings under § 357, it must obtain the consent of the United States.” 1995 WL 17198637 at *6. The Court found that since the United States had not given its permission to the condemnation action, § 357 could not serve as a basis for the utility’s condemnation claim. Id. On appeal, the Ninth Circuit, citing Southern California Edison, stated that the PUD could obtain the lands of individual Indian allottees through either condemnation under § 357 or by obtaining a license and paying an annual charge under the FPA. Pend Oreille III, 135 F.3d at 614. The Ninth Circuit, however, then held that the PUD could not rely on § 357 to condemn an easement in that case because the United States, which was a party to the appeal, strongly opposed the PUD’s condemnation of the land at issue and that, “[t]he consent of the United States is required before the lands can be condemned.” Id.

There are a number of bases to argue that a court should follow Nicodemus and Southern California Edison rather than Pend Oreille III if a utility company were to pursue a condemnation proceeding under § 357. First, Pend Oreille III was a decision of a three-judge panel, not an en banc decision. The Ninth Circuit has held that only an en banc panel can overrule a prior decision. E.g., Southern California Edison, 685 F.2d at 357 n.6; Upton, 283 F.2d at 723. Therefore, a utility company can argue the Pend Oreille III Court acted improperly in failing to adhere to its prior holdings in Nicodemus and Southern California Edison that the Secretary’s permission was not required for condemnation of allotted lands under § 357.
Second, it appears that both the district court and the Pend Oreille III Court misconstrued the Ninth Circuit’s prior holding in Southern California Edison. In Southern California Edison, the Ninth Circuit stated that § 357 was an alternative method for acquiring an easement across allotted Indian land “to which the United States has consented.” Southern California Edison, 685 F.2d at 357 (emphasis added). A reading of Southern California Edison in its entirety in conjunction with the Ninth Circuit’s earlier statements in Nicodemus makes clear that the “government consent” to which the Ninth Circuit referred in those cases was not a consent given in each of those two individual actions. Rather it was Congress’ enactment of § 357 which constituted the government’s consent to the condemnation of allotted lands. See Southern California Edison, 685 F.2d at 356-57; Nicodemus, 264 F.2d at 617-18. This latter interpretation finds additional support from courts outside the Ninth Circuit which have relied on Southern California Edison and/or Nicodemus to hold that the Secretary’s consent is not required for the condemnation of allotted lands under § 357. See Nebraska Public Power, 719 F.2d at 960; Yellowfish, 691 F.2d at 929-30; Oneida Tribe, 542 F. Supp. 2d at 921-22.

2. Manner Of Determining Just Compensation

When allotted land is condemned for a public purpose under § 357, the condemnor must provide just compensation to the property owner. Northwest Pipeline Corp. v. 95.02 Acres of Land, 2003 WL 25768634 (D. Idaho Dec. 19, 2003) at *2. The appropriate measure of damages in a partial taking case, is the difference between the value of the parent tract before the taking and its value after the taking. When the interest taken is merely an easement, the proper measure is still the before-and-after method of valuation “expressed as the difference between the market value of the land free of the easement and the market value as burdened with the easement.” Id. at *2 n.2. “Fair market value takes into consideration: [t]he highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future . . .to the full extent that the market prospect of demand for such use affects the market value while the property is privately held.” Id. at *2 (emphasis in original) (quoting Olson v. United States, 292 U.S. 246, 255 (1934)). The fair market value is to be assessed at the time the condemnation action is commenced. See Etalook v. Exxon Pipeline Co., 831 F.2d 1440, 1443-44 (9th Cir. 1987). In Northwest Pipeline, the Court addressed the proper measure of just compensation in § 357 condemnation in conjunction with a motion in limine directed at the defendants’ expert who was to testify regarding just compensation. In that case, the plaintiff, Northwest Pipeline, operated a multi-state natural gas pipeline that crossed part of the Fort Hall Indian Reservation. In 1992, Northwest sought consent to construct a second pipeline along the existing easement and to extend its contractual rights to cross the Reservation which were due to expire in 1995. Shortly thereafter, Northwest began construction on the second pipeline believing it had been granted consent to do so. In May 2000, following a series of communications between the BIA, representatives from the Reservation, and the pipeline company, the BIA issued a letter declaring the pipeline company was trespassing on the Reservation. Id. at *1. In December 2001, Northwest instituted a condemnation action under § 357.

In his report regarding what he considered just compensation for the easement Northwest sought to condemn, the defendants’ expert included an amount not only for the value of the real property, but also an amount for the improvements Northwest had previously installed on the property. The defendants’ expert had included this latter amount based on the common law rule “that ‘a trespasser who builds on another’s land dedicates his structure to the land’s owner.’” Id. At *3. The Court acknowledged this common law rule but, citing Etalook, found that the Ninth Circuit had recognized an exception where the entity which had installed the improvements had the power of eminent domain. Id. at 4. The Court then found that “an owner whose property is condemned is not entitled to compensation for improvements erected thereon by the condemnor at a time when the condemnor occupied the premises as a lessee . . ..” Id. The Court further found that requiring Northwest to compensate the landowners for the increased value due to the presence of the pipeline Northwest had installed when it was a lessee, would unjustly enrich the landowners. Id.; see Etalook, 831 F.2d at 1445. If a utility company does seek to acquire a right-of-way across the subject properties by condemnation under § 357, the measure of just compensation should be the market value of the land free of the easement and the market value as burdened with the easement, based on the highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future.

1 The above distinction between real and personal property also has been applied with respect to oil and gas “leases” in Oklahoma. The typical oil and gas lease in Oklahoma is a statutory easement in gross. Under 60 Okla. Stat. § 50 it is “[t]he right of taking water, wood, minerals, or other things,” but not attached to land). The Oklahoma courts have consistently held such easements to be personal property. 1 H. Williams & C. Meyers, Oil And Gas Law, § 214.2 (1981). The courts have also, however, consistently recognized such personal property interests as interests “relating to,” “affecting,” or “in” real property when a statute has been written in those terms.

2 The Gas Study is available via a link to that study on the American Gas Foundation website, www.gasfoundation.com.

3 The Safety Study was initiated to formalize recommendations for improving damage prevention and includes the
NTSB’s recommendations regarding the essential elements of an effective damage prevention program. Id. at vi, 4. The
Safety Study is available at www.ntsb.gov/publictn/1997/ss9701.pdf.

4 As originally enacted, the TEA 21 directed the U.S. Secretary of Transportation, in consultation with other appropriate federal agencies, state agencies, one-call notification system operators, underground facility operators, excavators and other interested parties, to undertake a study of damage prevention practices. The purpose of this study was to gather information and to identify and validate existing best practices for preventing damage to underground utility facilities. The TEA 21 further directed the Secretary to publish a report within one year of the TEA 21’s enactment identifying those practices most successful in preventing damage to underground facilities. 49 U.S.C. § 6105, Historical and Statutory Notes. The Common Ground is that report. Common Ground at 1-3.

5 The Common Ground is available via the “Best Practices” link on the Common Ground Alliance (“CGA”) website, www.commongroundalliance.com.

6 The CGA is the organization that was formed following the publication of the Common Ground to update the “Best Practices” as contemplated by the TEA 21. The Common Ground Best Practices is available via a link on the CGA website.

7 The Safety Bulletin is available at the OSHA website, www.osha.gov, and can be found by entering the bulletin number, SHIB 03-05-21, in the search box.

8 NULCA, “EXCAVATION PRACTICES & PROCEDURES FOR DAMAGE PREVENTION: A Guide For Protection of Underground Facilities” (rev’d Sept. 17, 1997) (“NULCA Guidelines”) at 3; see Safety Study at 27. The NULCA Guidelines are included as Appendix F to the Safety Study and are available as a part of the Safety Study.

9 TIA Document 590-A, “Standard for Physical Location and Protection of Below-Ground Fiber Optic Cable Plant” (Jan. 1997) published by the Telecommunications Industry Association (“TIA”) in January 1997 (“TIA Standard”).

10 “MINIMUM DAMAGE PREVENTION GUIDELINES: Excavation Procedures for Underground Facilities” (“CAN Guidelines”). The 1998 version of the CNA Guidelines cited in the Common Ground can be found at www.wjmins. com/infocenter/Bulletins/EXCAVATION%20DAMAGE%20PREVENTION.pdf. An updated version CAN published in 2005 can be found at www.cnaproperty.com/downloads/risk_control/Client_Use_ Bulletins/Construction/ DamagePreventionGuidelines/ExcavationProceduresforUndergroundFacilities.pdf.

11 The following are illustrative cases from various relevant states. Consolidated Cable Utilities, Inc. v. City of Aurora, 439 N.E. 2d 1272 (Ill. Ct. App. 1982); Marlatt v. Peoria Water Works Co., 252 N.E. 2d 403 (Ill. App. 1969); Brown v. Heidersbach, 360 N.E. 2d 614 (Ind. App. 1977); Chamberlain v. Myers, 120 N.E. 600 (Ind. App. 1918); Wiegmann v. Baier, 203 N.W. 2d 204 (Iowa 1972); Williams v. Northern Natural Gas Co., 136 F. Supp. 514 (N.D. Iowa 1955); Spears v. Kansas City Power & Light Co., 455 P.2d 496 (Kan. 1969); Potter v. Northern Natural Gas Co., 441 P.2d 802 (Kan. 1968); Minneapolis Athletic Club v. Cohler, 177 N.W. 2d 786 (Minn. 1970); Thomas v. Mkronich, 78 N.W. 2d 386 (Minn. 2956); U.S.A. v. 43.12 Acres of Land, 554 F. Supp. 1039 (1983); Hennick v. Kansas City Southern Railway Co., 269 S.W. 2d 646 (Mo. 1954); Jolliff v. Hardin Cable Television Co., 269 N.E. 2D 588 (1971); City of Elk

v. Coffey, 562 P.2d 160 (Okla. App. 1977).

12 228 Cal. Rptr. 584, 588 (Cal. App. 1986), review granted 727 P.2d 753 (Cal. 1986), review dismissed 742 P.2d 779 (note subsequent history is unclear as review was granted and dismissed by the California Supreme Court and dismissal stated that cause was remanded to the Court of Appeal which never issued further published decision).

13 Alternatively, the Secretary is also authorized and empowered to grant rights-of-way for pipelines under 25 U.S.C. § 321. This statute limits pipeline rights-of-way to 20 years with the possibility of renewal for an additional 20 years. Regulations concerning oil and gas pipelines are found at 25 C.F.R. § 169.25, which section also makes other pertinent sections of 25 C.F.R. Part 169, including the landowner’s consent provision, applicable to grants under § 321.

14 The consent of an individual owner to the grant of right-of-way is qualified by the following: (1) the land is owned by more than one person, and the owners or owner of a majority of the interests therein consent to the grant; (2) the whereabouts of the owner of the land or an interest therein are unknown, and the owners or owner of any interests therein whose whereabouts are known or a majority thereof, consent to the grant; (3) the heirs or devisees of a deceased owner of the land or an interest therein have not been determined, and the Secretary of the Interior finds that the grant will cause no substantial injury to the land or any owner thereof: (4) the owners of interests in the land are so numerous that the Secretary finds it would be impracticable to obtain their consent and also finds that the grant will cause no substantial injury to the land or any owner thereof; (5) the individual owner of the land or of an interest therein is a minor or a person non compass mentis, and the Secretary finds that such grant will cause no substantial injury to the land or the owner; which cannot be adequately compensated for by monetary damages. 25 U.S.C. 324 (1983); 25 C.F.R. 169.3(c).

15 The provisions of 357 do not apply to property owned by an Indian tribe or owned in trust by the United States for the benefit of an Indian tribe. Nebraska Public Power District v. 100.95 Acres of Land in County of Thurston, 719 F.2d 956, 962 (8th Cir. 1983). Therefore, Application for a right-of-way must be made pursuant to the provisions of § 323 and 324 and in accordance with 25 C.F.R. § 169.1 through 169.28 which are discussed above.