Val and Alena Kanifolsky own a property over which there is an easement for high-voltage power lines. The easement authorizes the United States to “erect, operate, maintain, repair, rebuild and patrol one or more electric power transmission lines and appurtenant signal lines, poles, towers, wires, cables and appliances necessary in connection therewith.”
During the fall of 2004, the Kanifolskys began building a house on their property, which is subject to the power-line easement. They knew about the easement, but mistakenly assumed it was 60 feet wide. In fact, the easement is 425 feet wide.
Purchase Bob Bruss reports online.
When power-line employees saw the construction, they advised the Kanifolskys that part of their large home will encroach upon the easement. Construction ceased.
The parties agree if the house is completed the Kanifolsky house will not interfere with the present use of the easement, although it may do so in the future if more power lines are added.
The Kanifolskys sued the United States to determine their rights to build their house within the easement area on their property that is not being used for power lines. They argued, as owners of the servient estate they should be entitled to use their property without interfering with the dominant estate owner’s use of the power-line easement.
If you were the judge would you allow Val and Alena Kanifolsky to build their home within the unused easement area?
The judge said no!
“The person who holds the land burdened by a servitude is entitled to make all uses of the land that are not prohibited by the servitude and that do not interfere unreasonably with the uses authorized by the easement or profit,” the judge began.
The evidence shows the house will not create a hazard or hinder use of the power lines nor will the house ever do so unless the power lines are relocated, he continued.
Although the United States paid valuable consideration for its power-line easement, the large, expensive home to be built by the Kanifolskys would minimally encroach on that easement, the judge explained. But the encroachment is both substantial and permanent; it would be very costly to remove the house and further litigation would be required to relocate power lines in that part of the easement, the judge emphasized.
Allowing the Kanifolskys to build their home partially within the easement area might encourage their neighbors to also disregard the power-line easement, he added. Therefore, the Kanifolskys are required to remove their partially completed house from the easement area, the judge ruled.
Based on the 2005 U.S. District Court decision in Kanifolsky v. U.S., 368 Fed.Supp.2d 1118.
(For more information on Bob Bruss publications, visit his
Real Estate Center).
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