St. Charles County wanted to widen a road, which required moving the gas line within the right-of-way of Pittman Hill Road. Pittman Hill Road was created by subdivision plats which designated the road’s right-of-way as a utility easement for gas lines (among other utilities), dedicating the entire right-of-way to the public.
The County asked Laclede Gas Company to pay for the relocation of its gas lines to the right-of-way of the reconstructed road. Laclede claimed that this amounted to an unconstitutional taking of its property. On a motion for summary judgment, the trial court ruled for the County, requiring Laclede Gas to pay for the relocation. Laclede appealed directly to the Missouri Supreme Court.
On appeal, the County made four objections:
- The County’s complete power over the public road means that the County doesn’t have to pay the costs of moving Laclede’s gas lines located within the County’s road.
- Under a statute (section 445.070.2 RSMo) that provides that areas of plats that dedicated to the public convey the dedicated areas to the local government (such as the town or city, or in this case, the County), the County owns the gas lines already. So Laclede would have to pay for placing the new lines.
- Laclede’s easement rights are subordinate to the County’s ownership, because the dedication of the right-of-way to the public pre-dated the installation of the gas lines.
- The primary objective of the subdivision plats was to establish a public roadway, because the road dedication language on the plats came before the utility easement dedication, if you read from top to bottom. Somehow, this means that that the gas lines are somehow less important.
From the text of the Supreme Court’s decision, these four points barely seem plausible, leaving the reader to wonder how the trial court was able to rule for the County. You can get a better sense of the County’s arguments by going to the Missouri Supreme Court’s website and reading the briefs of the parties and listening to the oral argument. You can also see that a trade association for utilities and the Missouri Municipal League, which is a “trade” association of city governmental bodies, filed “friend of the court” briefs, indicating the importance of this suit.
The Missouri Supreme Court easily dispensed with all four of the County’s objections, focusing on Laclede’s vested property right represented by the easement. Citing a U. S. Supreme Court decision and a 1933 decision of the Missouri Supreme Court, the court ruled:
Although an easement does not vest title, an easement is a form of private property that can be taken only upon paymente of just compensation…Becuase an easement is subject to the Takings Clause of the Fifth Amendment, the general rule is that when a utility’s right to construct and maintain its utility equipment is premised upon an easement, the utility is not responsible for the costs of relocating its equipment.
Rather than the ratepayers of Laclede Gas having to pay for the relocation of gas lines, the taxpayers will pay. County roads are financed from property taxes and other sources, so those who pay will not necessarily be those who use the gas lines to be relocated.
The cost of relocating gas lines will be a part of the equations used in determining how St. Charles County spends its road money. This cost could be enough to make a County defer the widening of a heavily traveled road.
Related articles
- Christopher DiPompeo ’04, econ, Clerking for Supreme Court Justice (umbcalumni.wordpress.com)
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This is an interesting ruling and has considerable detrimental impact on any county wanting to widen or realign a roadway. It makes me wonder if, in the future, a city or county couldn’t require a utility to to cover the cost of relocating lines as a part of granting an easement.
Some time ago I examined the plat for the subdivision where I live. That plat also dedicated the roads to the public. This subdivision is on the Lake of the Ozarks and when it was formed the owners also dedicated several lakefront lots for the use of all owners of lots in the subdivision. While I didn’t see an actual reference to these lake access lots in the plat, I assumed that they were also ‘owned’ by the county since the county sold one of them to an individual and, subsequently, the new owner built a home on the lot. (Much to the consternation of second and third tier lot owners who used the lot for their access to to lake.)
Since the roads in this subdivision were dedicated to the public, it seems that the county would be responsible for maintaining these ‘public’ roads. However, they don’t. Some utilities have lines under our roads and I wonder who the utility goes to when they are required to obtain an easement. I assume they would have to go to someone and according to this blog, it would be the county.
We can always rely on Harry Styron for a thought-provoking newsletter.
My wild guess about what may have allowed the county to sell lots in your subdivision is that nobody paid the property taxes, so the county collector sold the lots. I am aware of an instance in Taney County, Missouri in which a subdivision street was erroneously designated by the county assessor as a tax parcel. Taxes weren’t paid, and the county collector sold the street (which led to a boat dock). The party that bought the street from the county collector built a very narrow house right on the lake.
If a county or city would become responsible for street maintenance whenever a plat was recorded that designated the streets as public, then the parties filing the plat would be able to essentially take money from the public treasury to add value to their lots. Under Missouri law, a city or county is not obligated to maintain a public street unless its governing body has adopted an ordinance to maintain the street.
Regarding my original comment, I have since obtained a copy of the original plat from back in 1953 when the corporation that bought bought the land from the utility that owned all of the land surrounding the lake. The plats show all of the lots that were surveyed and it shows several “beach access” and “park” lots that gave second and third tier owners access to the lakefront. I don’t know who initially paid taxes on these lots, but I presume it was the corporation that subdivided. As I mentioned in my first comment, one of those “beach access” lots was sold by the county (or otherwise transferred) to an individual. Noone seems to know who ‘owns’ the other four lots or who is paying taxes on them.
The county puts parcels on which the taxes haven’t been paid up for auction every year, but these lots are never on that list. I can’t imagine that the original corporation is still in existence and paying property taxes.
As for the ‘public’ roads, it seems odd to me that the county would be responsible for utility easements but for no other aspects of the use or maintenance. There are many private utility lines (water, electrical, etc.) crossing these roads and I’m certain that no easements were obtained for most of them.
Actually, as I understand it, in many municipalities the developer is required to not only install a street to stringent construction specifications with plans requiring approval of the agency before construction and platting, and the controlling municipality must actually ‘accept’ the improvements as part of the dedication, AND some municipalities charge substantial ‘impact fees’ on development supposedly to compensate for things such as future maintenance, though the increase in property taxes that result from the presence of improved houses is also supposed to make up for some of it, and is supposed to be part of the justification for property taxes, though some theorists charge that the impact fees are actually intended to divert incomes from the development process to the municipality in which part of the value of the underlying undeveloped land is captured by the municipality through impact fees and taxes to compensate for the greater community development expenses, such as Branson Landing, parks systems, building inspectors, police, and other pests, the administration of P & Z, a functioning health department, school system, etc, etc,, or other community assets and infrastructure that impute value to the finished residential product.
As to where somebody goes to get an easement in the public rights of way, many dedications contain language that dedicates the ROW to both the public and to various utility providers, though state laws usually allow the relevant municipality to control access to the dedicated rights of way regardless of what the dedication language may contain. The classic example of this is cable television where a provider pays the city a substantial cut of your cable bill in exchange for the use of the “city’s” ROW, usually in the form of a ‘franchise’ that in effect grants exclusive use of ROWs to the provider, allowing the provider to charge monopolistic rents for cable service. This is why the cites are all whining about DishTV-no easements required, so the city can just FO, and thus the costs to the customer are lower.
To respond to the original article, though, I think this is an example of how local governments seem to think that they own in fee everything they have any connection with and that they have total dominion over everything within their purview.
The flip side of this case would be where the municipality claims that not only do they own the right of way, but they can mandate that the adjoining property owner be responsible for its maintenance under penalty of criminal law. .