BEWARE OF THE SECRET USE OF HERBICIDES IN UTILITY CORRIDORS

Utility companies interpret generic language allowing them to “destroy” or “control” vegetation to include the use of herbicides on private property.  However, neither the easements nor Michigan Law require the utility companies to provide actual notice to property owners about the use of herbicides.

Generally, utility corridors or easements include a lengthy list of verbs describing the actions that they can take on property. For example, Vegetation Management Easements acquired by International Transmission Company (ITC) in Washtenaw, Oakland and Wayne Counties include the following provision:  “The purpose of this Easement is to provide each Grantee with the perpetual right to enter at all times upon Grantor’s Land to cut, trim, remove, destroy or otherwise control any or all trees, bushes or brush now or hereafter standing are growing within the Easement Area.”

The easement itself never mentions the use of herbicides upon private property.  However, ITC interprets words such as “remove,” “destroy,” or “control” to allow use of herbicides.  The easement does not contractually obligate ITC to forewarn property owners prior to the use of herbicides. 

Unfortunately, Michigan Law does not impose any such requirements.  The Michigan Administrative Code does govern the use of herbicides and contains specific language relating to a right-of-way, which would include a utility transmission quarter.  The Administrative Code does require “documented efforts to provide prior notifications to persons who own or reside on property that is within the target area.”  However, publication in the legal notice section of a local newspaper is sufficient to meet that requirement.  Therefore, from a practical perspective, no true notice is required because it is highly doubtful that property owners are regularly scanning the legal notice sections of all of the general circulation newspapers in the area to identify when herbicides may be used. 

While it is true that the types of herbicides used are regulated by the State of Michigan, many property owners view the use of herbicides as offensive.  Indeed, even people who may employ yard services that use herbicides would be troubled by the lack of notice.  Yard services universally post notices in treated yards forewarning people to stay away for some period of time. 

The use of herbicides may have greater impacts upon particular types of properties.  For example, herbicides used in the vicinity of livestock could cause health problems for the animals. 

The use of herbicides is one of many examples of the hidden impacts of a partial taking acquisition that property owners may not understand.  For that reason, it is critical to consult with an attorney specializing in representing owners who can help identify these types of issue and the impact they will have on a particular property.

Please feel free to contact me if you have any questions.

United States Supreme Court Addresses Abandonment of Railroad Easements

Underlying fee property owners and not the United States are entitled to the fee simple interest in an abandoned railroad easement.

As an eminent domain specialist, I also follow legal developments relating to easements.  I also frequently address title issues.  Sometimes, owners take advantage of the filing of an eminent domain case that necessarily names all interested parties in a property to file cross-claims that both quiet title defects and establish the owner’s entitlement to unallocated just compensation proceeds.  Therefore, issues relating to title are related to my condemnation practice.

The United States Supreme Court recently issued an Opinion discussing the ramifications of abandonment of easements.  Marvin M. Brandt Revocable Trust, et al. v. United States, which contains an interesting discussion of the history of railroad development in the western United States, held that the rights to an abandoned railway easement reverted to the fee simple property owner.  In doing so, the Supreme Court reiterated that under general common law rules easements may be unilaterally terminated by abandonment, leaving the underlying fee title holder within an unencumbered interest in the property.  Since railroad abandonment occurs through a specific statutory procedure that was followed in this matter, the case does not discuss the elements necessary to establish abandonment.  The case focuses upon the interests that Congress intended the United States to retain when it authorized railroads to obtain easements pursuant to a specific statute in effect from 1875 until 1976.  Therefore, while the ruling may be narrowly applicable to one particular statute involving railroads, the holding may be informative about a wider variety of abandoned right of way corridors.  A link to the full text of the case can be found here: http://www.supremecourt.gov/opinions/13pdf/12-1173_nlio.pdf

If you have any questions about easement or title issues, whether they relate to an eminent domain matter or not, please do not hesitate to contact me.

TRIAL COURT EXCLUDES EVIDENCE THAT ITC WOULD NOT USE ACQUIRED RIGHTS TO FULLEST EXTENT ALLOWED BY LAW

In a partial taking case, Michigan law requires just compensation to be awarded based upon the assumption that the agency will use its newly acquired rights to the fullest extent allowed by law.  A recent trial court ruling excluded evidence that ITC sought to admit based upon this principal.

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VICTORY IN LENAWEE COUNTY AIRPORT CASE

The Michigan Supreme Court refused to review a published opinion issued by the Michigan Court of Appeals upholding a successful verdict and the requirement that the County pay significant interest on the judgment.

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ITC PROCEEDING WITH PRELIMINARY ACQUISITION EFFORTS DESPITE OSHTEMO TOWNSHIP APPEALING MPSC DECISION IN WEEDS LAKE PROJECT

Despite Oshtemo Township appeal an MPSC ruling favorable to International Transmission Company (“ITC”), ITC is undertaking preliminary steps to initiate condemnations.

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