Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the January 17, 2018 mailing of "Constructive Notice":

Easements & the Electrical Safety Code

Constructive Notice rarely spotlights cases decided on procedural grounds, but an Indiana case presents a tantalizing scenario: can the clearance requirements of a nationally recognized safety code effectively expand the width of a previously granted easement?

The original 1957 easement granted the Utility the right to maintain electrical lines over a ten-foot wide strip of land.  In 2002, the Indiana Utility Regulatory Commission adopted the National Electrical Safety Code, which is published by the Institute of Electrical and Electronic Engineers, Inc., a private professional association. The NESC is a copyrighted publication and is only incorporated by reference into the state Administrative Code, not reproduced word for word.

The problem arose from the fact that NESC compliance requires clearance between the power lines and the buildings on the land in excess of the easement’s width. The Landowner commenced an inverse-condemnation action alleging that Utility’s maintenance of its electrical line on the property, in accordance with the Safety Code, effectively enlarged the easement. The trial court dismissed on statute of limitations grounds.

The Supreme Court reversed. Because the complaint “does not recite when the additional burden first occurred” [emphasis in original], the Court held that dismissal on statute of limitations was inappropriate. Bellwether Properties, LLC v. Duke Energy Indiana, Inc., No. 53S04-1703-CT-121, (Indiana Sup. Ct., December 20, 2017).


The Court’s analysis focused primarily on the availability of the NESC text to the general public and specifically the Landowner in this case. In addition, the Court did not spell out when the statute of limitations would commence. For instance, would it commence when the Utility installed power lines whose technical specifications required compliance with the broader clearance requirements of the NESC? Or perhaps when the NESC was adopted by the Legislature? In either case, the discovery rule seems to come into play. When did the NESC become “reasonably accessible” to the Landowner so as to give notice of its requirements?

From a Land Title Law standpoint, of course, the big news is the courts’ apparent willingness to accept the substantive allegations of a regulatory widening of the easement as a cognizable form of action. Constructive Notice will monitor further developments in this case and keep you posted