Dad gets a call that a new pipeline company wants to put new gates on the fencelines and mow and clear the ROW for the old pipeline through his place. This pipeline hasn't been in operation since 1993 (verified on the new owner's T4 permit application on TxRRC website.) Original easement dates back to 1941, with an abandoned 4.5" line (probably nothing but rust now) and a 12.75" line added sometime after 1941 but went unused, unmaintained and otherwise abandoned after 1993. Their signage is long gone. We have built new fences, planted permanent pastures, etc. over the easement since they abandoned it. However, the status on the RRC website now says "active".

This area is highly corrosive on iron pipe. It literally will eat through a 1 1/4" SCH 40 pipe in three years or so. I can only imagine the condition this pipe is in, even 36-48" underground. If they test this thing, it's going to leak like a sieve.

I guess my question is, do they still have a legal right to put in gates through the property? At what point does it become adverse possession? I'm sure they are making an effort to tie up the existing easements that call for paying like 10 cents a foot for new lines added from back in 1941.

ETA: Pipeline is refined products/Non-HVL, runs from SA to Corpus, so it's not a high-pressure gas line. But 20 years without some kind of cathodic protection sounds like disaster in waiting to me. We have no permanent structures over the pipeline.

[This message has been edited by SWCBonfire (edited 8/1/2013 11:10p).]

Do they own the easment eternally? Is it really an easment or a surface lease. If you are concerned about the condition of the pipe, send them a certified letter stating that and when it spills all over your land (assuming they don't test it, which they will) you will own their ass.

If they own the ROW then they have access to that portion of the land and can do with it as they wish. If the place they want to put the fence and gate are on you father's property, then it's definitely up to him if he wants to allow it. Also, the company will test the pipeline before they start pumping anything through. Spills are costly and look bad on the company. Unless its natural gas, then they pretty much just let that **** seep into the atmosphere until it bleeds itself out and suffer basically no repercussions.

You keep using the word "abandoned". Was it truly abandoned via a recorded deed or is this just your word choice? What does the ROW agreement spell out about time frame, time not in use, reversion, etc.? Regarding the CPU's and line corrosion...they'll test the thing but don't be surprised if they propose a line replacement either. Do you feel comfortable sharing which company it is?

My gut says your daddy is at their mercy but if he doesn't just out and out refuse and cause legal action to be taken, he should be able to negotiate with the company and get them to pony up for some new improvements in the area (fences, etc.)

The 4.5" line status is "abandoned" per the TxRRC. The 12.75" line is shown as "active" per the TxRRC. So I am saying it was abandoned in the practical but not legal sense - my word choice. I don't know if the company who just bought what's left of the line is technically doing anything "wrong", they're just claiming something that isn't usable IMO so I'm not going to drag their name in the mud just yet.

From the cover letter of their application:

quote:

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Attached you will find a new T4 permit request on behalf of <us> for <this> . This line was
recently purchased from the Tierra Corporation; however, there was no associated permit, which is why <we> will be
filing for a new permit. This line has not been active since 1993 after Mobil sold it to Coastal, who went bankrupt and
the asset was transfer<sic> to El Paso and then to Tierra. I am still not sure why a T4 permit had not been applied for prior to
us acquiring the system. The shape files have been uploaded to the Core FTP site. Please let me know if you need
anything else to complete this permit application.

<signed>

---

This ROW dates back to WWII, there is likely no language in the deed other than they can put another line in for ___ cents a foot (think 1940's prices). I don't know the exact language but I will ask. I don't think there is any language regarding termination but I'll ask. I do know if you don't use an easement for 20 years, you lose it if you're a common citizen without a herd of lawyers at your disposal.

As far as negotiating for improvements, the place is 100% improved. Them offering to "mow" right of way would only cut my dad's scarce grass and the only thing they would be chipping is air, as the place has been kept clean of mesquites by my father at great personal expense and effort. The fact that they offered to do those things shows they have no idea of what the place even looks like (understandable since they just bought the pipeline). So add 100% of the cost of mesquite control to the adverse possession claim. This ain't some sendero going through mesquite, it's going through coastal and kleingrass pastures.

The only "improvements" they could do is cut my dad's King ranch/staytight 50 netting wire fences for their crappy gates (that will rust completely apart in ten years or less, no exaggeration) and generally destroy crap, so they don't have much to offer non-monetarily. If it was natural gas, I'd hit them up for a tap to run an irrigation pump but it's a refined fuel of unknown/unspecified type (likely changing week to week I would imagine).

I guess what I'm saying is, does anyone know if there is adverse possession of pipeline easements?


[This message has been edited by SWCBonfire (edited 8/2/2013 4:41a).]

To add, total length around 5140' per Google earth. It crosses boundary fences into adjoining neighbors north and south. It is farmed /open country to the south, to the north it is grown over with mesquites that are now trees. I would say allowing it to grow up in 8"+ diameter trees (which are the same size as the surrounding trees) would constitute neglect/abandonment.

Here is the state of the easement through the neighbor's from Google street view:



Nothing has been maintained since the 80's. The signs have been replaced on the road frontage only. They have not accessed our place since my dad bought it in 1990.

I'm not an attorney, but deal with easements daily. First, I would read the original easement agreement. Second, I would try to discuss concerns with pipeline company. Do not believe this is an adverse possession issue, think that a deed would be required to relinquish easement rights.

Unless there is specific language in the original lease document, stating that after so many years the rights revert back to the property owner or after so many years of non-use the easement is abandoned, then there is still an easement there. These easements are not fee simple, they are just easements.

They will have the right to come in and maintain the easement and there will have to be adequate ingress/egress for them to access, normally gates on the easement.

You will still have the surface rights to the easement, but they will be responsible for everything underground. That's why most pipeline easements state that the lines must be "a specific number of feet deep", to allow for normal activities above ground, such as farming.

quote:

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they will have the right to come in and maintain the easement and there will have tof be adequate ingress/egress for them to access, normally gates on the easement.

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They haven't had access to the property for years... locks have been changed, fences built over the pipeline affecting their access, etc. I know you lose surface easements over that fact alone. They can be afforded reasonable access through existing gates, however. What they likely want to do is cut our fence to provide access through our clean property to get to where they can clear the ROW through the neighbors' mesquite jungle.

As for the original easement, it is ancient so it likely has no protections whatsoever. I'm not adverse to using the existing easement for future lines but it would be nice to get some protection in writing (and compensation) if they do. They likely will claim the original deed.

ETA: If you're saying I can buy up old pipelines, sit on them, do nothing and pay no upkeep and/or taxes whatsoever on my investment for decades, only to use them in the future without paying current rates for pipeline ROW's, I think I need to do some investing.

[This message has been edited by SWCBonfire (edited 8/2/2013 7:52a).]

Doc is right. You need to read the original ROW agreement. Old agreements like that may not even address abandonment. Even in newer ROW agreements, the language for abandonment is usually left pretty vague, which favors the pipeline company. It will typically state that the pipeline has to be "maintained", which to the point of view of the pipeline company, could be a variety of things that you may never see.

IF there is an abandonment clause in the original agreement and IF you can prove the line was in fact abandoned (per the terms of the agreement), then I think you do have a case, but you will most likely get in a legal battle with the pipeline company (this has been done before and landowners do sometimes win).

On the flip side, if the line was not technically abandoned, then the pipeline company does have the right of ingress/egress to their pipeline/ROW. You don't have to allow them to install a gate on their ROW, but then you would have to give them access by some other means (an existing gate, which now means they are driving through your property to get to their pipeline).

Unfortunately the ROW agreements that are that old usually are very vague, which will typically favor the pipeline company. The agreement may not even have a survey plat of the pipeline. Sometimes they simply state something like "A pipeline will be installed between the East and West boundary fence".

I don't think Coastal went bankrupt, just got acquired by El Paso. But goodness, anything Oscar touched, I would be concerned about on my land.

quote:

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These easements are not fee simple, they are just easements.

---

That's the key here....and why adverse possession is irrelevant in this case. Like I said earlier, read the original document. If there is no verbiage relating to reversion, etc. then you're at their mercy, regardless of the state of the pipeline/easement.

Just realized that this thing is under where I am laying out a center pivot... it's been inactive so long I forgot about it. What's the SOP on pipelines under center pivots? (No water supply/electrical will cross on or over the easement).

A couple of (probably highly) stupid questions:

1. You know the easement is there, and it really sounds like one of the things you are concerned about is what type of gates they will put in should they decide they need access. Can you not just request a certain type of gate, or even make an offer that you will help them offset the cost to get the type of gate you want?

2. RE the electrical - most easements won't allow something of that nature. At the very least, if you do put some type of electrical (or other "permanent") fixture, you are doing so at your own risk and the owner of the easement will be under no obligation to replace in kind. I'd talk to them about it concerning depth, markings, etc. They may be more than willing to work with you on something.

*These are both guesses of the highest order.

One big thing...adverse possession won't be an issue for either side. PL company won't be able to claim AP due to it being an easement and you won't be able to claim AP on property you already own.

The best and least expensive way you have with this is to let them construct a gate where the easement enters and exits your property. This way you have some legal recourse if any of those yahoos decide to drive around and do a little hunting. As stated above, requiring them to enter and exit a gate somewhere else on your property, to get to the PL, will prove to be a PITA.

Thanks everyone for the quick feedback. OB comes through again.

Hunting is not an issue (place is wide open w/ no deer) so I'm going to lean towards making them use existing gates and roads. I think the letter idea is a good one for when they destroy several acres pumping the old line full of seawater to test it.

The pivot would be centered far from the easement but one side will get clipped by it. No water lines or electrical service will be anywhere near the easement.

If anyone in Bee Co. knows someone I should be talking to about center pivots other than Peerless Equip. in SA let me know.

Also, you'd be surprised at how well preserved even iron can be when it is in stable soil conditions.

I'm just up the coast from you, and we have pipelines that are 100 years old that still have plenty of life left to them. The vast majority of corrosion occurs in the zone that is a we/dry zone (that's where the cathodic protection you talked about comes into play). Usually when you get below that zone into stable conditions, corrosion isn't an issue. Above that zone where it is typically dry, and corrosion is present but usually slow and easily mitigated with protective coatings.

No doubt there will be leaks (and that pipe you talked about is some oddball sized pipe, no doubt), but it may not be as bad as you think. Hopefully for everybody it is not.

Per Judon Fambrough at the Texas Real Estate Center on campus at TAMU ...




Adverse Possession of An Easement
"Adverse possession of an easement by the servient tenement for ten continuous years will terminate an easement. For instance, suppose "A" grants "B" a rightof-way easement in 1950. The easement leads to some property recently acquired by "B." "B" intends to live on the property following retirement. In 1970, "B" retires. However, in the meantime, "A" erected a fence across the easement and also a barn and catch pens. Other portions of the easement were plowed and placed in cultivation. In such an instance, the easement granted in 1950 may have terminated if it has been "actually and visibly
appropriated, commenced and continued under a claim of right inconsistent with and hostile to the claim of 'B'," as described in the Texas Civil Practice and Remedies Code, Section 16.026. The character of the claim must indicate unmistakably an assertion of exclusive ownership by "A" for ten consecutive years."

If you read your easement, there is a better than even chance that it says the pipelines shall be buried "below plow depth". I saw that on dozens of old easements. A city I worked for wanted to built baseball fields over an old pipeline easement. The owner of the easement required all sorts of conditions, such as minimum cover, not fences crossing it, power lines crossing at right angles, etc, etc. I read the easement, and it was brief and generic, so we just told them to pound sand and built the fields. Sometimes poorly worded easements can work to your advantage.

Hmmmm....

I don't know how Doc Hayworth feels about this, but as an LSLS he's certainly got more experience than me (an RPLS). But Big Leroy, your link uses the term "right of way easement".....personally I despise that term. As a land surveyor a "right of way" and an "easement" are different things and yet are used interchangeably by real estate agents, title companies, etc. Furthermore in your case, the example given is an access easement, certainly a different animal than a pipeline ROW in which pipe has been laid and is still in the ground.


[This message has been edited by D-Day96 (edited 8/2/2013 12:17p).]

I actually saw that in my mad haste to research this. My issue is what constitutes "an assertion of exclusive ownership by "A" for ten consecutive years."

Don't know if building fences, controlling mesquite, plowing and planting on top of the easement, and eliminating unused locks off gates is enough of an "assertion of exclusive ownership", but if it is, we're way past the 10 year mark. The signage is also knocked down/faded to illegible/gone on at least several fencelines (not going to say conclusively that they are all gone before I check myself), and of course isn't on any of the newer cross-fences, one of which is over 10 years old.

Got the name of an attorney from my FIL, going to run this by him before we let anyone on the place.

It may happen, but I just don't see adverse possession with a pipeline easement by the owner of property.

You really need to look at the original document. If it states in there that the easement will forever be defended by current and future owners, heirs, etc. the I don't believe adverse possession will stand up in court, no matter what you have done to the easement, gates or fences.

With all the pipelines crossing agricultural property, adverse possession just does not make sense to me. If that were the case, then with all the farming going on in South Texas, there would be no easements existing and pipeline companies would not have access to their lines.

Not intended to be critical, but from the looks of the photo you posted, it doesn't look like you have done anything other than replace the fence in that area, with all the overgrowth.

Personally, I would rather have the easement and have some legal recourse, if something happened to the pipe, than to find out there was no easement and there was a bad leak from an abandoned pipe, that leaves you with all the legal hassels with TCEQ and remediation requirements.

Most pipeline easement/agreements will state that if the line is ever abandoned, the pipe will be removed. That would be the best avenue to have in dealing with this. But without the easement you are stuck.

I'm not going to play atty, but you really should contact a good real estate atty.

If you need the name of one, I can get that for you.

I agree with D-Day96,

right of way should only be used when talking about fee simple transactions.

Easement would indicate a temporary use or a specific use for a specific period of time.

When attorneys put the term right of way into an easement document, they open a can of worms for future buyers and surveyors, trying to figure out the meaning of their classification of the area involved.

When I see this in Deeds, it just reminds me of why Attorneys hire Surveyor as Expert Witnesses to help resolve these matters in court. If they were that knowledgable in land law, they wouldn't need us. Don't get me wrong, the atty's know how to twist things around to get a jury to view things their way and muddy the water to produce doubt, but as far as the technical aspect, not much there.

Again, I'm not trying to offend any attorneys reading this, so if it came off offensive, I apologize. I basically restated what a real estate attorney told me after hiring me as an expert witness.

quote:

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Not intended to be critical, but from the looks of the photo you posted, it doesn't look like you have done anything other than replace the fence in that area, with all the overgrowth.

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That's the neighbors and was simply to show an example of how neglected the easement was (and what it would look like if WE didn't maintain it).

Here is the view from the highway, through the neighbor's place and those trees are in the far, far distance in this pic:



That is not our boundary fence at the highway. Our boundary fence is midway in the picture.

ETA: find the sign at the road, and follow it straight back in the picture. There is not a single, God-forsaken mesquite (or tree/bush/shrub of any kind as far as that goes) on top of their easement as it crosses our place.


[This message has been edited by SWCBonfire (edited 8/2/2013 1:10p).]

My Bad.

quote:

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My Bad.

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I've spent too much time strapped to a backpack sprayer full of remedy and diesel to let that one slide... I had to defend my internet honor, Doc.

quote:

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They are still free to use the easement for its intended purpose of running a pipeline. Now you may be denying the right to monitor, inspect etc, but that is only partialy hostile.

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I understand the issue on whether something that sits and does nothing can be "adversely possessed", but right now the part through the neighbor's is being adversely possessed by mesquite roots.

R.T.F.D.

Ditto. NOCHYUTRTFD

As a general rule - unless they remove the pipeline the ROW or easement is in use, not abandoned. You MUST read the document to see the terms of the agreement.

With that spraying rig you describe, you sound like my brother keeping our Bermuda and Klein fields clear of mesquite.

quote:

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Can you not just request a certain type of gate, or even make an offer that you will help them offset the cost to get the type of gate you want?

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+1

I understand your preference that they never come on your land. But if they are going to anyway, figure out a way to make it as painless and productive for you as possible.

-Dad met with the local rep for the pipeline yesterday
-Rep said that they are converting the 4.5" Non-HVL pipeline to gas.
-TxRRC lists the 4.5" line going through the place as "abandoned".
-The paper trail/T4 permit for the older, abandoned line is literally 503 pages long.

From TxRRC:

PIPELINE ATTRIBUTES
Record #1
OPERATOR _________
CONTACT PHONE NUMBER _______
COMMODITY DESCRIPTION REFINED PRODUCTS
SYSTEM NAME CSCG TEXAS PIPELINE SYSTEM
SUBSYSTEM NAME MOBIL
DIAMETER 4.5
T4PERMIT 00655
T4PERMIT MILES 414.07
P5 NUMBER 253368
COMMODITY Product
INTERSTATE No
SYSTEM TYPE Non-HVL Liquid Products
STATUS Abandoned

Record #2
OPERATOR ___________________
CONTACT PHONE NUMBER ____________
COMMODITY DESCRIPTION REFINED PRODUCTS
SYSTEM NAME TIERRA PIPELINE
SUBSYSTEM NAME
DIAMETER 12.75
T4PERMIT 08939
T4PERMIT MILES 135.13
P5 NUMBER 850925
COMMODITY Product
INTERSTATE No
SYSTEM TYPE Non-HVL Liquid Products
STATUS In Service

They're not converting a 12.75" (casing OD size?) line designed to carry fuel to carry compressed natural gas without the hoop stress destroying the thing. 4 1/2 I could see if it was thick wall and in good condition, but I think it's literally from the 1940's. That's probably fine if it's in sandy soil that won't rust a nail, but this is a corrosive fine clay loam likely with all kinds of metal salts in it that eats iron alive.

As I suspected, they don't want the pipeline they have for fuel, they want a pipeline to funnel Eagle Ford gas from Karnes County to the Corpus LNG facility.

The original agreement is a "plow-depth" caliber description, with no legal description of the pipeline or easement.