Hello everyone,

I have a question regarding utility easements as they apply to museums, and railroads in general. There are a rather large amount of power lines, telephone lines, etc. on poles that follow along our rail line, in this particular section - to the south. Around here, DTE Energy (Detroit Edison) is the primary power company, and AT&T for telephone service. Recently, work had been done on the power poles with new fiberoptic cable being strung from pole to pole. In the process of the work being done, one (or more) of their trucks tore up the ground and left many deep ruts in the grass (which we maintain as it is behind homes, besides trying to keep the right of way looking good). They also ripped out one of our milepost markers- left it snapped right off at the ground just lying there-, and evidence of their big trucks driving all over across our rails. We found all this out during one of our track inspections getting ready for the season opening.

Our Right of Way Supervisor went straight to Edison inquiring what had happened and wondering who's going to pay for the damage. I can't imagine a truck WOULDN'T have felt that pole getting stuck on their truck! The person he spoke to at Edison was actually very helpful, although not really at all. To explain:

DTE owns the poles. As a major trunk line through the neighborhood, they lease out space on those poles to various other companies, including the phone companies, fiberoptic companies, etc. DTE is not responsible for any damages caused by the companies who use their poles. He said that what we need to do is have some kind of Official Policy stating that any entity using our property for the easement has to abide by our rules. Supposedly CN nearby has something like that, but I think it's ridiculous, as ANY company who wants to use those poles can use the easement, but how would WE know who to inform as to any policy? We are extremely upset over the damage that was done, and want to get reimbursed for any work/parts we need to fix. Also, the ZERO communication between the utilities (it happened last year with DTE's tree trimming contractor, and now the fiberoptic company) and the railroad (us!). Could you imagine the look of horror on their faces had our train come down the line and their trucks are sitting there across the tracks and in the way because they couldn't bother themselves to contact the railroad?

My question to the Community is what kind of policy does your organization have in place regarding something like this. We were told that if we have one in place, we can enforce it. Without it, we're pretty much SOL. Does anyone have an example that we may be able to use as a template to draw up one for ourselves from? We definitely want to put something in there regarding CONTACTING us before any work is done (Emergencies are understood), and that any damage done by that contractor will be remedied by that contractor.

My biggest issue with this is that the contractor has to do something against our policy before we can do anything about it. We just don't want to find out we go out one Sunday, do our cursory track inspection before running for the day and end up finding out the idiots rolled a rail and left it or something. We want to be proactive and avoid any potential mishaps or problems.

Any suggestions? Thank you in advance.

At Hoosier Valley RR Museum we use Omega Rail Managment 800-990-1961.

Was DTE a good neighbor and at least tell you they would be doing work...?

If so, you might have been able to request a walk through.

i know that when they trim trees, they notify people and will take the smaller branches away.

Bob H

Try reading here:

http://www.pinsly.com/contact-pinsly/utility-installationsnon-freight-services/

Maybe a great reason to also motorcar or hi-rail inspect your entire track as often as practicable, even rails you may not use a lot and/or in the off season, one, to help show those rails are owned and active, and two, to find damage as soon as possible after it occurs. Park old railcars in key places to block access if possible?

Well firstoff, don't get distracted. Keep your emotional energy and Board docket laser focused on your business. Here's the problem. Distraction causes direct financial losses that are not reimbursable. So stay on your business and cap discussion time to 15 minutes per board meeting. That said...

I've seen a mixed bag in both Michigan and California. It's not like the utility acts with one mind; they have a well meaning corporate office and then contractors who do "whatever". They're paid to get signoff on their work and that is all they care about.

Now consider the agent on the phone, what do they think? Their job is to make you go away. If they're not recorded, they can tell you anything. If they are, they have to structure their statements to say a bunch of confusing stuff and not quite lie to you. Since you're calling, they'll assume you're not a "reader" with a brain. It's also possible the phonedroid was honest but misinformed by others above him. Add to it the inherent difficulty of communicating complex concepts by phone. In any case their company was probably not even involved, so lying to you is a "white lie". Ultimately, the rep's job is to make you go away.

Plus, their "policy policy" doesn't pass a sniff test! You don't need a policy to tell them not to damage the improvements on your property. Which includes railroad tracks, fences and mileposts. That's already baked into state law.

As for the bare land, you have to prove it on paper. Show their actions deviate from a long, ongoing practice. Show it was groomed before, and is now not. Show a letter from a neighbor "I mowed it for you before, now I can't because of the ruts." Google Earth is a good place to start.

Speaking of policies, what are DTE Energy's policies toward homeowners and landowners? They probably conform with state law, which is also worth checking.

Maybe they DID try to contact you. Have YOU ever tried to contact you? It boggles the mind how many heritage railways are for all practical purposes unreachable. Does your Registered Agent postal address actually work? Do you have a readily accessible email? Google Voice and Google Mail let you share phone and email access with volunteers, without giving away the master password to them. Google apps for Business also allow all sorts of other stuff, including email@your domain, for free for nonprofits.

Figure out your actual, direct, financial losses and write em down with proof. You're not going to get more than that. You definitely won't get legal fees. If you can keep it under a grand, they're likely to pay the bill just to get you to go away.

And one more thing. Don't be "difficult to deal with". It matters.

Last, and first, hit the county tax assessor's office and register of deeds and pull all the deeds and easements on that property. Make sure it's yours, and see what ancestors agreed to in the easements, because it may address the very issue you're having today. Obviously, their competent and painstaking care in crafting those agreements is utterly defeated if you don't look it up.

Good afternoon,

What isn't said is who is the owner of the property, the museum or D.E.?

Along with the Pinsey doc, here is the U.P. one, which is interesting that there is a non refundable fee, which may or may not allow access.

http://www.up.com/real_estate/tempuse/p ... /index.htm

Protection of one's property is a issue, and if possible to have regular inspections is certainly a good thing.

Good luck

Karl Johnson - WRM

Major railroads were generally meticulous in their agreements with utilities and those agreements usually carry over to subsequent owners of railroad property unless the railroad specifically retained the utility rights. Some occupancies were by license agreement (annual payments) and others by easements (one time payments). Some started out as license agreements and were subsequently converted to easements. Utility agreements and other right-of-way occupancies can be a significant source of income. Don't forget underground utilities as well.

I would encourage any organization that owns its own right-of-way to research your archives for property agreements. If you can't find documentation, ask the utility for a copy.

Most utility agreements are very specific, down to the number and size of wires (or pipes). If the railroad sold off easements, they are generally very specific and do not necessarily allow for sub leasing or secondary easements to other utilities. I have more than once instance of electric power, telephone and cable tv all attached to the same pole and we have separate agreements with each company.

If the utility line is not located on railroad right-of-way and they are damaging your property while accessing their line, then you may have a trespass issue which is a different matter.

Alan Maples
Everett Railroad

When the Youngstown & Southern Railroad was sold under STB order from a real estate developer to the Columbiana County Port Authority, the developer did not sell the easements and still collects payments for easements on property that he no longer owns.

One easement holder has a crossing over the Y&S in Boardman, OH and stopped paying the outrageous assessment to the developer, so the developer had an excavator come out, trespass on railroad property that he no longer owned and rip the crossing out!

Legally, I do not know how he can justify doing that. Also, what if the easement holder just gave up that existing easement and executed a new easement with the current railroad owner? I suppose if the existing easements did not go to the new owner, the right to create new easements would not be retained by the previous owner, so rip up the old easement and execute a new one.

More on the Y&S easement issue:

http://www.vindy.com/news/2009/nov/18/p ... teel8217s/
http://www.supremecourt.ohio.gov/rod/do ... o-3088.pdf

Thank you all for responding. Sorry for not replying back sooner. I have not read the links just yet, but I will.

Just to clarify: YES, we do own the property. I think at trip to the Assessors Office may be in order just to make sure we have all the documents we should have. I couldn't find anything on the easement in our files. (it doesn't mean we DON"T have one, just that it was a long time ago and I may not have been looking in the right place, either.)

There was no phone call involved (yet)- our member went straight to the DTE office. He didn't get the feeling he was being led on or anything. He was given numbers of people to contact with the contractors, but advised us to have a policy in place first so we can enforce it. I still don't believe that the contractors can just go in whenever they want without making an attempt to contact us as the landowners first. You would think for their own safety next to a rail line that they would at least TRY!

Our phone number is listed in the phone book, and yes, we do use an answering machine as we are not manned daily- someone checks it every couple of days. We would've known if someone had tried to get a hold of us for this.

DTE's tree contractor pulled this last winter- their truck with the big balloon tires left tire tracks all over the track so they could trim the trees back along the ditch line. I would've been fine with that, had they contacted us FIRST! Instead, we find out they drove down our line with that big truck, bottomed out on our track in a couple of places, and left the trees in the ditch, which we get blamed for by the locals who complain that the ditch keeps backing up! We inspect the track regularly, and probably a bit more thoroughly before the train ventures out for the first time of the season (we only run six months a year). This issue with the utilities is a fairly new one for us, but we're trying to get all our ducks in a row, so we are all on the same page. By all means, we want to be good neighbors and not difficult to deal with. If I come across as frustrated, it because I am. Seems like every time we start making strides as an organization, something else pops up and demands our attention. (I know, that's how it goes, but with a small volunteer group as our is, EVERYTHING is magnified). We just don't want to end up inspecting the line before we run that day only to find out damage was done and we couldn't possibly fix it in time- especially for a heavily publicized event day or something!

I'll look over the links tomorrow when I have some time. It's actually past time to head to bed right now, as I have to get up at 3am for work. Thank you again for your replies. Once again, this board has proven to be a wealth of information!

Take care,
Dave J

Of course he wouldn't, if the person applied charisma. I guess I'm asking whether he went to the DTE office that deals with railroads and pipelines all day long... or the office where 99.9% of the time they're dealing with consumers and ordinary businesses? Because the situation with railroads is different enough that the stock homeowner advice just doesn't fit.

You need to know where the property line is.


Michigan law calls out the specific situation of utility companies needing to muck about on a landowner's property to access utility lines. I don't have chapter and verse, but a search should turn it up. However it's a bit different with railroads. Most likely your crew saw "abandoned looking railroad" and went "let's just follow normal landowner rules and get-er-done".



And I get it. I really do. But having been around the block with this enough times, I noticed a pattern. Things like this are insufferable when...
members are getting bored or burned out with the business.
members lose passion in the Mission and the business just seems like self perpetuating work.
members really want a Private Train Club and don't want to work beyond what is needed for bare survival.
members can't imagine ever being successful, so they resist it.

At that point Boards tilt at windmills because it's easier and less scary than actually doing a fearless, searching moral inventory of the organization's internal demons and 'elephants in the room'.

A mark of successful organizations is they don't let stuff like this knock them off stride.


Great example of 'don't worry about it'. Only a few people have business in your corridor. They have deep pockets and a healthy fear of government regulation and public scandal. If they break your railroad, you'll have no trouble reclaiming costs and lost revenue, especially if that revenue was booked in advance because it's trivial to prove. Also, you will get the sympathy of the public and many will tell you to just keep the $6. If it comes down to public scandal, you'll get thousands more in sympathy support. So doesn't end bad for you at all.

I'm not sure how relevant or helpful this will be, but it can't hurt to throw it into the mix: Several years ago, a power company wanted to build a power line across the East Broad Top Railroad right of way in Pennsylvania. Maps showed the E.B.T. as an abandoned railroad; but the dormant railroad had never been formally abandoned. The power company made their plans according to what the maps said, rather than what the law said. The Kovalchik Salvage Company, owner of the E.B.T., successfully fought the power company and forced them to make alternate plans.

Maybe the experience of Kovalchik Salvage is relevant, and maybe they could provide useful information about that experience.

Tom

This should be required to be published annually in the newsletter of every volunteer group in the industry, preferably just before elections, to encourage thinking before confirming a popularity contest.

dave