Fellow Attorneys:
One of my cities has a waterline which crosses acreage between the city and one of the subdivisions we serve.  It is time to upgrade that line.  The landowner has a water well, and there does not appear to have ever been a Waterline Easement, or anything in writing.  Owner is complaining about the City upgrading the line, although our contractor will completely repair the land, fencing, anything which we have to disturb.
I also practice quite a bit of "land law".  My peers and I, in our small town, used to debate whether or not one could obtain an Easement by adverse possession.This line has been in place over 15 years.
Thoughts?  Authority?
Thanking you in advance.
Kay Wall

I would research whether your city has obtained a prescriptive easement under Oklahoma law.

Beth Muckala
Assistant City Attorney

From: Kay Robbins Wall lkrw@sbcglobal.net
Sent: Thursday, May 12, 2022 2:37 PM
To: OAMA Luistserv oama@lists.imla.org
Subject: EXTERNAL EMAIL : [Oama] water line easement by prescription

Fellow Attorneys:

One of my cities has a waterline which crosses acreage between the city and one of the subdivisions we serve.  It is time to upgrade that line.  The landowner has a water well, and there does not appear to have ever been a Waterline Easement, or anything in writing.  Owner is complaining about the City upgrading the line, although our contractor will completely repair the land, fencing, anything which we have to disturb.

I also practice quite a bit of "land law".  My peers and I, in our small town, used to debate whether or not one could obtain an Easement by adverse possession.
This line has been in place over 15 years.

Thoughts?  Authority?

Thanking you in advance.

Kay Wall

Kay,  I have several thoughts.

1. If the original use began with permission from the owner, then there can be no adverse possession because the use by the city was not adverse.  If could have become adverse if the person granting permission revoked that permission and the city continued to use the property openly and notoriously adverse to the owner’s interests.  However, if the original owner who granted permission sold the property, and the new owner was unaware of the water line, then the original permission will carry forward to that owner.  It might be interesting to see what the title report shows if the owner is a new owner and acquired an owner’s title policy when he bought the property.
2. If the original use was permissive, with nothing in writing discussing the length of time that the use would continue, it can be argued that the city had nothing more than a license.  A license can be revoked at any time.
3. The City might have better luck arguing that there was a public dedication of the property.  The requirements to accomplish a public dedication are not as great as you might imagine.  It also seems that the city would not have spent the resources required to construct the line without some understanding that the line would be permanent in nature.  Anyone who was there at the time that can shed light on how that line came to be?  Is the current owner the same person who was there when the line was originally installed?
4. See what the owner wants to allow the city to replace the line.  If you can come to terms, tell the owner that need to get this in a written easement so the city can address these issues if they need to do repairs or replacements.  Then you can get the easement in writing.
5. If all else fails, condemnation is an alternative.  That could be costly, though.

Good luck.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments.  If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others.  Sharing this email may result in a loss of the attorney-client privilege.

From: Kay Robbins Wall lkrw@sbcglobal.net
Sent: Thursday, May 12, 2022 2:37 PM
To: OAMA Luistserv oama@lists.imla.org
Subject: [Oama] water line easement by prescription

Fellow Attorneys:

One of my cities has a waterline which crosses acreage between the city and one of the subdivisions we serve.  It is time to upgrade that line.  The landowner has a water well, and there does not appear to have ever been a Waterline Easement, or anything in writing.  Owner is complaining about the City upgrading the line, although our contractor will completely repair the land, fencing, anything which we have to disturb.

I also practice quite a bit of "land law".  My peers and I, in our small town, used to debate whether or not one could obtain an Easement by adverse possession.
This line has been in place over 15 years.

Thoughts?  Authority?

Thanking you in advance.

Kay Wall

Kay,

Look at the attached opinion regarding a common law dedication.

Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
'  405.217.7700 | 6 405.366.5425 | • rick.knighton@normanok.govmailto:rick.knighton@normanok.gov | þ www.normanok.govhttp://www.normanok.gov/

This e-mail is the property of the City Attorney’s office, City of Norman, Oklahoma, and the information contained in this e-mail is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by e-mail. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this e-mail in error, please immediately notify us and return the original message.

From: Jon Miller JMiller@cityofmustang.org
Sent: Thursday, May 12, 2022 3:03 PM
To: Kay Robbins Wall lkrw@sbcglobal.net; OAMA Luistserv oama@lists.imla.org
Subject: EXTERNAL EMAIL : [Oama] Re: water line easement by prescription

Kay,  I have several thoughts.

1. If the original use began with permission from the owner, then there can be no adverse possession because the use by the city was not adverse.  If could have become adverse if the person granting permission revoked that permission and the city continued to use the property openly and notoriously adverse to the owner’s interests.  However, if the original owner who granted permission sold the property, and the new owner was unaware of the water line, then the original permission will carry forward to that owner.  It might be interesting to see what the title report shows if the owner is a new owner and acquired an owner’s title policy when he bought the property.
2. If the original use was permissive, with nothing in writing discussing the length of time that the use would continue, it can be argued that the city had nothing more than a license.  A license can be revoked at any time.
3. The City might have better luck arguing that there was a public dedication of the property.  The requirements to accomplish a public dedication are not as great as you might imagine.  It also seems that the city would not have spent the resources required to construct the line without some understanding that the line would be permanent in nature.  Anyone who was there at the time that can shed light on how that line came to be?  Is the current owner the same person who was there when the line was originally installed?
4. See what the owner wants to allow the city to replace the line.  If you can come to terms, tell the owner that need to get this in a written easement so the city can address these issues if they need to do repairs or replacements.  Then you can get the easement in writing.
5. If all else fails, condemnation is an alternative.  That could be costly, though.

Good luck.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments.  If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others.  Sharing this email may result in a loss of the attorney-client privilege.

From: Kay Robbins Wall <lkrw@sbcglobal.netmailto:lkrw@sbcglobal.net>
Sent: Thursday, May 12, 2022 2:37 PM
To: OAMA Luistserv <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] water line easement by prescription

Fellow Attorneys:

One of my cities has a waterline which crosses acreage between the city and one of the subdivisions we serve.  It is time to upgrade that line.  The landowner has a water well, and there does not appear to have ever been a Waterline Easement, or anything in writing.  Owner is complaining about the City upgrading the line, although our contractor will completely repair the land, fencing, anything which we have to disturb.

I also practice quite a bit of "land law".  My peers and I, in our small town, used to debate whether or not one could obtain an Easement by adverse possession.
This line has been in place over 15 years.

Thoughts?  Authority?

Thanking you in advance.

Kay Wall