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).
Comment:
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