Reusing Existing Easements

Keller & Heckman recently highlighted an issue that anybody building fiber on utility poles should be aware of. In some cases, an easement obtained for using private land to bring electric service might not automatically allow an easement for bringing fiber. There is a subtle difference between easements and rights-of-of way. An easement allows somebody to carry out an activity on private land. It was typical when electric companies built the power grid to seek an easement from each landowner to give permission to erect electric poles for bringing electric service. Rights-of-way are generally more specific and wider in scope. A city will often decree that it has a right-of-way in perpetuity to use the first few feet from the street of each property for civic purposes. The city can then use the right-of-way to allow for underground utilities or to place a fire hydrant. Keller & Heckman warned that the original language of the easement might restrict usage for adding fiber. If the original easement language was narrow and only talked about bringing electric service, then somebody adding fiber would need to seek a new easement for every property underneath a pole line. If the original easement was more generic in nature, it might have allowed for electric and other services, in which case the electric company would have an easement to cover allowing others on its poles.

[Doug Dawson is president of CCG Consulting.]