Kristopher M. Kline, P.L.S. Utility Easement · Enrights' home rather than 50 feet as appeared on the survey by SURVEYORand insured by the Title Company. }He awarded compensatory

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Characteristics of aUtility Easement


} The instrument granting or reserving a right-of-way must be read as a whole and construed to carry out the evident intent of the parties. In case of ambiguity it should be construed most strongly against the grantor.

} However, when the intent of the parties is evident from an examination of the instrument, and the language is unambiguous, the terms of the instrument govern.


} Where the width of the roadway is definitely fixed by the grant or reservation creating the same, its use may be commensurate with the entire width thereof.

} The grant of a right of way 'through and over' a space twenty feet wide is 'the grant of a convenient way' within those limits."

} "right of ingress and egress for roadway purposes along a strip 25 feet in width,"


} Where a way is granted over a piece of land of a certain stated width, it will depend upon the circumstances of the case whether the reference is to the width of the way, or is merely descriptive of the property over which the grantee may have such a way as may be reasonably necessary."


} the servient tenement will not be burdened to a greater extent than was contemplated or intended at the time of the creation of the easement * * * and the use of the easement must not unreasonably interfere with the use and enjoyment of the servient estate." Lidgerwood Estates, Inc. v. Public Service Elec. & Gas Co., above, 113 N.J. Eq., at page 407.

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} …the owner of the unrestricted fee has the right to permit as many persons as he may see fit to drive over his lot.

} The fact that he grants permission to one man to drive over the lot does not in itself preclude him from giving others similar permission.

} He may, of course, by adequate agreement in that behalf, restrict his right to permit others to pass over the land; but he is not so restricted in the absence of some such restrictive agreement.


} If the permission to the first man is by way of formal grant instead of license, the grantee of course acquires an irrevocable right instead of a mere revocable license, but otherwise it is not perceived that there is any material difference.

} The granting of a right of way to one man does not of itself evince an intention that that right of way shall be exclusive and that no other person shall have any right to use that right of way.


} The general rule and principle, as set forth in 19 C. J. 978 is -- as might naturally be expected -- that the owner of lands burdened with a right of way has all the rights and benefits of the soil consistent with the reasonable use of the way.

} This would naturally include the right to pass over the drive himself as often as he saw fit, and the right to grant to other persons the right to similar passage.


Why Bother with Utility Easements?


} Plaintiffs Robert E. and Rosemary S. Enright (Enrights) as owners and sellers of real estate filed this action against defendants Harold W. and Ryna Lubow (Lubows), prospective purchasers; SURVEYOR & CO., a land surveyor, and U.S. Life Title Insurance Co. of New York, a corporation of New York (Title Company), the title insurer.

} The Lubows also crossclaimed against SURVEYOR and the Title Company for indemnification. The Title Company also crossclaimed against SURVEYOR and the Lubows for indemnification and SURVEYOR crossclaimed against the Lubows and the Title Company for indemnification.


} After a seven-day bench trial, the trial judge found that a utility right-of-way was located six feet from the Enrights' home rather than 50 feet as appeared on the survey by SURVEYOR and insured by the Title Company.

} He awarded compensatory damages in favor of the Enrights and against the Title Company for $ 22,000 plus $ 18,438.81 interest and $ 15,000 counsel fees for total compensatory damages of $ 55,438.81.

} He further awarded $ 30,000 punitive damages in favor of the Enrights against the Title Company for a total judgment of $ 85,438.81

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} Higgins also ordered a survey of the property from SURVEYOR.

} The property was traversed by utility easements owned by Tennessee Gas Co. and Rockland Electric Co.

} Instead of plotting a metes and bounds description to locate the easement on the survey, SURVEYOR merely protracted the utility easement from a previously filed map.

} The easement was incorrectly plotted on the original map and the mistake was reproduced on SURVEYOR’s survey. It is this error which gave rise to the present litigation.


} Prior to settlement of the property in 1978, the Enrightswere aware of the power lines and utility poles on the property and discussed the easement with the prior owners.

} They were shown a copy of SURVEYOR's survey which erroneously plotted the location of the easement; neither the Enrights nor the title company knew of the error.

} The power lines and utility poles were actually located a considerable distance from the house.


} The Enrights were not aware of any problem concerning the utility easement until February 1980.

} At that time they received notice from Rockland Electric that they were going to trim vegetation under the power lines.

} When a Rockland Electric employee told the Enrights that the electric company would be cutting down trees near their home, the Enrights became suspect that there might be a problem with the location of the easement.


} SURVEYOR maintains that the Title Company is } (1) solely liable or jointly liable for mislocation of the

easement, and } (2) not entitled to full indemnity. } SURVEYOR further contends that judgment must be

entered against SURVEYOR & CO. a corporation, and not against him individually.


} We hold that the title insurance policy issued to the Enrights insures against loss by virtue of any errors or mistakes contained in the survey made by SURVEYORdated June 23, 1978 attached to the policy.

} Our determination is based upon the reasonable expectation of the insureds that the purpose of requiring a survey is not only to locate the outbound lines of the survey but also to insure its accuracy in the location of those conditions which are shown within the boundaries of the survey.


} It makes little sense to contract to insure a title subject to "[a]ny state of facts which an accurate survey or inspection of the premises would disclose . . ." and then, when a survey is received, to issue a policy with the survey attached stating that the survey is excluded!

} The only possible interpretation of the exclusion is that the survey is not excluded but that it is informational; otherwise, it would hardly be incorporated into the policy in order to be excluded.

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} The survey is recited and annexed to the policy to show the fact of the survey.

} If there are any deficiencies or defects shown on the survey they are noted after the recital of the survey; it is those deficiencies or defects which are excepted or excluded, not the survey itself.


} A title company owes no obligation to attempt to plot a utility easement traversing the property.

} That is the very purpose of an accurate survey; to prepare an accurate metes and bounds description of the easement which traverses the subject property…


} Here the easement is not a local private right-of-way. It transmigrates for many miles both before and after it traverses the entire municipality of Montvale.

} Both surveyors, SURVEYOR and SURVEYOR 2, specialists in measuring land and distances and plotting them on blueprints, testified as to the difficulty that they had in plotting the particular utility easements involved in this matter.


} SURVEYOR 2 stated that there was no way that by merely lookingat the map and the SURVEYOR survey could anyone properly determine where the easement was located because there were no tie distances shown on either of the two exhibits in evidence.

} SURVEYOR testified that it would have been cumbersome, time-consuming and expensive to run the entire easement out by its description in order to find its location on the property.

} There is no basis in fact to impose a duty on a title company to plot the utility easement.


} Lastly, SURVEYOR, insists that the judgment should be entered in the name of the corporate entity, SURVEYOR & CO. a New Jersey Corporation.

} The survey prepared by SURVEYOR in the record before us dated June 23, 1978 merely has the name "SURVEYOR P.E., L.S." with no corporate designation.


Relocation of Easements

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} The Hillsborough Township Planning Board (Board) granted Bernardsville Association, Inc.'s (Bernardsville) application for preliminary and final site plan approval respecting a proposed shopping center upon the condition that the applicant relocate a right of way easement held by the adjacent property owners, John, Alfred and Mary Kline.

} The Klines appeal, contending that a planning board is not empowered to compel relocation of an easement held by a property owner who is not an applicant.

} We agree and reverse.


} Apparently, the Klines' property is essentially landlocked. } While the facts are shrouded in mystery, it appears that

in 1947 the Klines were granted an easement through an 18 foot wide parcel of land that extends from Route 206 between the northerly sideline of Bernardsville's property and the southerly sideline of an adjacent shopping center known as Nelson's Corner.

} Apparently, Bernardsville was granted the same right of way.


} Where the easement comes into being by way of an agreement, as is apparently the case here, the "universally accepted principle" is that "the landowner may not, without the consent of the easement holder, unreasonably interfere with the latter's rights or change the character of the easement so as to make the use thereof significantly more difficult or burdensome."


} It has thus been said that "[i]t is the exclusive right of the owner of the dominant tenement to say whether or not the servient owner shall be permitted to change the character and place of the [easement,] . . . regardless of any consideration of convenience of the owner of the servient tenement."

} Despite the unequivocal language of these opinions, our courts have deviated from these principles on rare occasions where justice and equity plainly mandated that course.


} It has thus been said that "[i]t is the exclusive right of the owner of the dominant tenement to say whether or not the servient owner shall be permitted to change the character and place of the [easement,] . . . regardless of any consideration of convenience of the owner of the servient tenement."

} Despite the unequivocal language of these opinions, our courts have deviated from these principles on rare occasions where justice and equity plainly mandated that course.

} The question has received varied treatment in other jurisdictions.


} Several courts have held that the location of an easement cannot be changed without the mutual consent of the parties regardless of how necessary the modification may be and how little damage or inconvenience may result.

} See, e.g., Youngstown Steel Prods. Co. v. City of Los Angeles, 38 Cal.2d 407, 240 P.2d 977, 979 (1952);

} Edgell v. Divver, 402 A.2d 395, 397-98 (Del.Ch.1979); } Daviess-Martin County v. Meadows, 179 Ind. App. 622,

386 N.E.2d 1000, 1002 (1979) ; } Davis v. Bruk, 411 A.2d 660, 664-66 (Me.1980); } Coast Storage Co. v. Schwartz, 55 Wash.2d 848, (1960).

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} Others have applied equitable principles and have compelled minor relocations where the interests of the parties are fully preserved and protected. See, e.g.,

} Brown v. Bradbury, 110 Colo. 537, 135 P.2d 1013 (1943); } Stewart v. Compton, 549 S.W.2d 832, 833 (Ky. App.1977) } Brian v. Bowlus, 399 So.2d 545, 549 (La.1981);} Millson v. Laughlin, 217 Md. 576, (1958); } Cozby v. Armstrong, 205 S.W.2d 403, 408

(Tex.Civ.App.1947).


} We favor the latter approach. Specifically, we hold that a court may compel relocation of an easement to advance the interests of justice where the modification is minor and the parties' essential rights are fully preserved.

} We have no occasion here to survey the outermost limits of the court's equitable powers. Obviously, questions of this nature are fact-sensitive.

} We merely add that relocation of an easement without the mutual consent of the parties is an extraordinary remedy and should be grounded in a strong showing of necessity.


} We are equally satisfied that a planning board is not vested with the power to compel relocation of an easement at the expense of a property owner who is not an applicant.

} A planning board's powers are derived from the Municipal Land Use Law (N.J.S.A. 40:55D-1 to -136) and implementing ordinances.


} The Law does not grant a planning board the authority to compel relocation of an easement so as to impair or burden the rights of a non-applicant.

} While a planning board may condition site-plan approval on the applicant's granting a right of way to another property owner, it may not compel relocation of an easement to the prejudice of the easement holder.

} We, therefore, reverse the judgment of the Law Division.


Public Water Line Under Public Road


} Route 608, in the area here involved, was originally acquired as a thirty-foot right of way by the HowardsvilleTurnpike Company under the Turnpike Act of 1817.

} The road was constructed by the Turnpike Company about 1848 to a width of approximately thirty feet, but whether the right of way was acquired by agreement or by condemnation is not disclosed.

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} The pipe line in question was installed by W. B. Dodge in 1897 along and under the thirty-foot right of way of this road from a point south of Stuarts Draft northerly to the junction of Route 608 and Stuart street in the village of Stuarts Draft, under easements or permits granted to him by the owners of the underlying fee by deeds of record.


} It is the nature and extent of that easement which is in controversy in the present case.

} The appellee asserts in its brief that the owners of the fee in 1897 "had an absolute right to the use and enjoyment of the land beneath the then existing roadbed." If they had so broad a right they could, of course, convey a valid easement to their grantee to install the pipe line; …

} …but we do not think their right was so unlimited.


} The public easement is coextensive with the limits of the highway and the public right is not limited to the surface of the highway but extends both upward and downward for a distance sufficient to accommodate, as well as to protect, all proper uses to which the way is subject.

} Where the owner of land dedicates it to the public for a road, he impliedly grants the attendant or incidental right to make such use of it as shall suitably fit it for travel.


} We hold on the facts here established that the Virginia Department of Highways has the right to change the grade of the road …

} …which right is superior to the right of the appellee to maintain its pipe line under the bed of the road where it will obstruct the lowering of the grade …

} …and that the said pipe line or lines of the appellee must be relocated, at the expense of the appellee, either within said right of way of otherwise, so as not to obstruct the superior right of the appellant to make the proposed improvement in the grade of the road.


Practical Location


} "The general rule applicable to descriptions in conveyances of easements holds that where the conveyance does not definitely fix the location of the easement, the grantee is entitled to a convenient, reasonable and accessible way within the limits of the grant." Edward Runge Land Co. v. Busch, 594 S.W.2d 647, 650 (Mo.App. 1980); see also Hall v. Allen, 771 S.W.2d 50, 53 (Mo. banc 1989) (holding that

} "if the location is not precisely fixed when the easement is first created, the grantee is entitled to a convenient, reasonable and accessible use").

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} As such,} 'if an easement in land is created in general terms but

without giving a definite location and description, } a selection may be inferred within the boundaries of the

land over which the right is granted by proof of the use of a particular course or way on the part of the grantee or owner of the dominant estate along with the acquiescence of the grantor or owner of the servient estate.‘


} It is argued that the instrument is indefinite as to the location and therefore the right is too uncertain to be enforced.

} The answer is that the parties have defined the right and privilege by practical location.

} If the location and limits of the servitude are not defined in the grant, a reasonably convenient and suitable way is presumed to be intended. Here the defendant exercised the right in a particular line with the acquiescence of the owner of the servient tenement.


} The location and extent of the servitude was determined by practical location and use by the defendant, acquiesced in by the grantor and his successors in title, for a long period of time.

} The location and extent of the right and privilege is as fixed as if it had been described in the grant by meets and bounds.


} Where an easement in land, such as a way, is granted in general terms, without giving definite location and description of it,

} the location may be subsequently fixed by an express agreement of the parties, or by an implied agreement arising out of the use of a particular way by the grantee and acquiescence on the part of the grantor, provided the way is located within the boundaries of the land over which the right is granted.

} As otherwise expressed, it is a familiar rule, that, when a right of way is granted without defined limits,


} The prime question in this case is whether the owner of the land through which a petroleum pipeline easement runs may erect a building over the line.

} The property involved is a somewhat irregularly shaped tract of land, having an average depth of approximately 1,800 feet and a frontage of about 500 feet on the westerly side of Blair Road, a north-south highway in that section of the Township of Woodbridge near the boundary of the Borough of Carteret.


} to The Tide-Water Pipe Company, Limited, its heirs, successors and assigns, a right of way upon and through our lands lying in Woodbridge Township, Middlesex County, State of New Jersey, and described below, for the purpose of constructing from time to time, two lines of iron pipe for the transportation of petroleum, in such manner as said grantee may deem necessary, and with free ingress and egress, to construct, operate, repair, replace, maintain, and from time to time alter and remove the same in such manner as it may desire.

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} Provided, that said pipe or pipes shall be so laid as not to interfere with the usual cultivation of the premises nor with any buildings thereon -- and that all actual damage done to crops, timber or otherwise, by the construction or operation of said pipe lines shall be paid for in full by the said grantee.

} And that the said grantors shall fully enjoy the said premises except for the purposes hereinbefore specified.”

} "Bounded on the north by J. Toth, Lands of P.R.R. Co. and others, East by the Blair road, on the south by New Jersey Terminal Railroad and on the west by said R.R."


} …another instrument, dated March 15, 1915, about four months after the first, is found on record. It is identical with the earlier one except that the recited consideration is $ 1, the grantor is Edward S. Savage, and the following language appears after the description:

} "Being same lands for which the Carteret Realty Co. gave a right of way, for said pipe lines but which land is now owned by E. S. Savage. Said pipe lines to be operated and maintained where they are now located."


} The two parallel pipelines were installed either just before or just after the second grant since a survey in evidence made for plaintiff under date of January 4, 1915 plots their course.

} At the time the grant was given, the tract was vacant and unimproved.

} It is unlikely anyone even dreamed at that date of the vast industrial and commercial development which would take place in this general section during the next few decades.


} Apparently a small factory of some kind was built somewhere along the frontage of the tract about 1920.

} By 1937 two commercial or industrial buildings, which still remain and are used by defendants, had been erected parallel to each other, near the southeasterly corner and generally east of the pipelines.

} A railroad siding was brought in between the buildings. It is probable that the lines were relocated a few feet westerly at that time to clear the northwesterly corner of the northerly of the two structures


} In the latter part of 1961 defendants decided to construct a large addition to the northerly building which would extend about 100 feet beyond the lines and would cover them for its entire 90-foot width.

} Defendants took the position that they had a legal right to build over the lines and decided to proceed with construction of the building accordingly and encasement of the pipes under it.

} …that they had gone ahead on their own with construction of the $ 50,000 addition during the …litigation, their position had been found to be wrong and they had lost their gamble.


} "The resulting congeries of privileges had by [an easement holder] takes its basic framework from the kind of easement in question * * *." 3 Powell, The Law of Real Property § 414, p. 457 (1952).

} Equally well recognized is the corollary principle that there is, arising out of every easement, an implied right to do what is reasonably necessary for its complete enjoyment, that right to be exercised, however, in such reasonable manner as to avoid unnecessary increases in the burden upon the landowner.

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} It is apparent that the grant of rights is not only plain, but broad, particularly in reposing in the plaintiff the decision as to the manner or method to be used in laying, repairing or replacing the pipes.

} Since burial of the pipes in the ground as here done is obviously one method of construction contemplated and allowed, it has to follow that it was equally the intent that plaintiff should have the right to dig up the ground in the easement strip in some fashion to repair or replace them.


} The instrument goes on to make two express qualifications of the rights granted: one, the pipes "shall be so laid as not to interfere with the usual cultivation of the premises nor with any buildings thereon"; and, two "the grantors shall fully enjoy the said premises except for the purposes hereinbefore specified."


} Neither the first nor second qualifications can be read expressly to permit the erection of a building over the lines; by the same token, they contain no express prohibition.

} We think the first one must be read to go no further than to state the intent that, since no specific route for the lines was delineated in the grant, the original path chosen should avoid, and the construction and later operation should not interfere with, any buildings on the land at the time construction is commenced.


} There the parties appear to be saying that if the landowner exercises the express right reserved to him to cultivate the easement strip, the plaintiff still has the right to excavate to repair the pipes despite the cultivation at the point, but must pay for the damage to the crops occasioned thereby.

} This provision could hardly be sensibly applied with respect to a building constructed over the lines.


} The question of reasonable necessity versus convenience is a question of fact and we see no reason to disagree with the finding of the trial court that plaintiff's method of repair, which is the customary practice in the industry except where encasement is absolutely unavoidable, and unobstructed access to the lines for that purpose are reasonably necessary and not just a matter of convenience, because of the substantially additional burden in time and money involved if defendants' position were compelled..


} We are likewise in thorough accord with the trial court's determination on defendants' counterclaim that plaintiff did not violate the easement authorizing the transportation of "petroleum" by carrying No. 2 fuel oil through the pipes. There was much evidence that "petroleum" in its crude state technically is composed of the various products, -- gasoline, kerosene, naptha, fuel oil, etc.

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} It is a well settled principle of easement law in this State that the owner of an easement in the land of another is not bound to use it in the particular manner prescribed by the instrument which creates it.

} He may use it in a different manner if he so desires, provided he does not, in doing so, increase the servitude, nor change it to the injury of the owner of the servient tenement."


} The issue is whether New Mexico will recognize the concept of a "floating" easement where the intent to grant an easement is clear, and the easement can be located on the ground as a result of construction and usage, yet the conveying document does not describe the easement such that it can be located from the description alone.

} The concept of a floating or blanket easement is well-accepted in the law. … ("A 'floating easement' . . . is an easement . . . which, when created, is not limited to any specific area on the servient tenement. . . .").


} Moreover, it is not unusual for a deed creating a floating easement to give the easement holder the right to later locate and fix the easement upon the ground.

} Further, if otherwise recognized, floating easements do not require a deed specifically delineating their location; they can be fixed by use.

} When the precise location of an expressed right-of-way is not fixed or defined by the deed, it is competent for the parties to define a location by subsequent agreement, use or acquiescence.


} We see no conflict with prior case law or New Mexico policy in recognizing the validity of an undescribed, or "floating" easement in these circumstances. The intent of the Village and Calley is undisputed. The parties actually built and located the subject of the easement on the ground within a reasonable time after the Indenture was signed.

} There is little fear of adversely affecting the security of titles or the property rights of use and exclusion by recognizing floating easements limited to circumstances similar to those present in this case, and we hereby do so.


What is the Purposeof the Easement


} A "final plat" for the subdivision "indicate[d] a twenty foot wide (20') 'access and utility easement to [NJAWC] and [the] Township' running over Lot 18.12 and connecting the Township's stranded undersized lot, Lot 16, to the cul-de-sac."

} As drawn "on the plat, the easement follow[ed] the southern border of Lot 18.12, extending twenty feet into Lot 18.12."

} The parties did not provide any further description of the easement and MTR never recorded it.

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} MTR later sold Lot 18.12 to a developer. On May 11, 2006, that developer sold Lot 18.12 to plaintiffs.

} The property description in the deed referred to the final plat which, as stated above, depicted the access and utility easement to NJAWC and Lakewood Township. However, the developer did not otherwise reference the easement in the deed.


} However, MTR advised the Zoning Board that it would build a "driveway [for the single-family home] over plaintiffs' side yard" in the twenty-foot area comprising the easement previously granted to NJAWC and the Township.

} On July 11, 2011, the Zoning Board issued a resolution approving MTR's application.

} Plaintiffs also sought a declaration that the easement NJAWC and the Township obtained on what became their property was a utility easement that did not permit MTR to construct a driveway through their side yard.


} As Judge Grasso cogently explained:} Viewing these undisputed facts in a light most favorable

to MTR's position, the court finds that the easement running across plaintiffs' property was not intended to accommodate a driveway running to Lot 16.

} The court must view the grant of the access easement in the context of Lot 16 being an undersized, undeveloped lot that the Township intended to sell and consolidate with a contiguous property.


} The evidence in this record establishes that the utility easement that encumbers plaintiffs' property was intended only for permanent access to the water and sewer lines and not permanent access to Lot 16.

} Stated differently, the court finds that no reasonable, fair reading of this record would suggest that the parties contemplated a driveway over the easement. MTR cannot now claim a property interest greater than the one that was created in 2004.

} Simply put, this is a utility easement and nothing more.


Trees in thePower Line Corridor


} This case concerns a 6 to 8 mile loop of transmission line in northwest Bergen County, particularly a 1500 to 2000 foot stretch through Upper Saddle River.

} Plaintiffs are the owners of single family homes whose property is crossed by the utility's easement for the line. The easement is 50 feet wide.

} The line consists of three transmission wires and a ground shield wire hung on 70 foot wooden poles, beginning 37 1/2 feet from the earth.

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} In February 1980, Rockland notified the plaintiffs that it was about to institute a "selective removal" program on its easement.

} Translated, this meant that the utility intended to clear the easement area of any trees that had the capacity to grow to the height of the wires.


} Rockland had acquired its easement in 1927 when the land was undeveloped.

} In 1962 the utility clear cut along the easement to construct and erect the line. The land was thereafter subdivided and plaintiffs bought single family dwellings subject to the easement.

} When they bought their homes, the area was a woodland with trees, shrubbery and underbrush on the easement.

} From time to time the utility trimmed and pruned the trees to keep them off the wires. The 1980 "selective removal" program was to be drastically different.


} right of way or easement [originally 100 feet in width] for the purpose of constructing, maintaining and operating thereon, electrical transmission lines with all necessary towers, conductors, guys and other fixtures and equipment, together with the right at all necessary times to enter upon said premises for the purpose of repairing, replacing, improving, enlarging and rebuilding, said system, and the purpose of patrolling the same, together with the right to cut and keep cut the trees, shrubbery and underbrush, as may be necessary for the proper operation and maintenance of said system over said entire right of way and to remove all buildings and obstructions from said right of way.


} Plaintiffs emphasize that the easement never speaks of the right to "cut down" or "remove" trees but only the right to "cut and keep cut" in the sense of trimming and pruning.

} Defendant emphasizes that "cut" means to "fell; hew," the latter signifying the cutting down of a tree, citing Webster's Third New International Dictionary 560 (1976).


} We do know that trees had to be cut down and removed in the 1960s when the original utility line was erected.

} We also know that the easterly 50 feet of the easement has been clear cut to allow the construction of an underground gas transmission line by another utility that acquired its rights by condemnation.

} Suffice it to say that we do not find that the easement's language "settle[s] the matter completely,"


} The easement language defines the parties' rights in terms of what is "necessary for the proper operation and maintenance of said system."

} In some sense this concept mirrors the statutory charge of the Board of Public Utility Commissioners.

} where a court has concurrent, discretionary jurisdiction with another court or an administrative agency, the decision to exercise jurisdiction…should be fully responsive to the competence, expertise and status of the other tribunal.

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} The Board must see that safe, adequate, proper and environmentally sound service is rendered by a utility at rates that are reasonable. N.J.S.A. 48:2-23.

} The Board cannot benefit the utility's customers or its stockholders at the expense of property owners by enlarging the contract rights of the utility.

} In essence, this would be a taking of an owner's property that can be accomplished only by exercise of statutory grants of eminent domain.


Trees in a Gas Line Easement:

Federal Regulation vs. Private Property Rights


} This action was initiated by the Township of Piscataway and a group of homeowners to prevent Duke Energy Operating Company, LLC ("Duke") and Texas Eastern Transmission, LP ("Texas Eastern") from removing fifty shade trees planted along a public street in Piscataway, New Jersey.

} The companies claimed that it was necessary to remove the trees for the safe inspection and maintenance of three high-pressure, natural gas pipelines located beneath the street.


} In the early 1940s, Flora and H. Morgan Heath, predecessors-in-title to the homeowners in this lawsuit, took title to a large tract of undeveloped land located in the Township of Piscataway (the "Heath property").

} In May 1944, the Heaths granted Defense Plant Corporation ("Defense Plant"), and its successors and assigns, "the right to lay, operate, renew, alter, inspect and maintain" two pipelines for the transportation of natural gas. App. at 72.


} The 1944 grant required Defense Plant:} to bury such pipelines so that they will not interfere with

the cultivation or drainage of the land, and also to pay any and all damages to stock, crops, fences, timber and land which may be suffered from the construction, operation, renewal, alteration, inspection or maintenance of such pipelines.


} January 1960, the Richters and Gerbers granted TETCO the right to construct a third pipeline across the property. The 1960 grant imposed the following restrictions on the parties:

} The said Grantor is to fully use and enjoy the said premises, except for the purposes granted to [TETCO] and provided the said Grantor shall not construct nor permit to be constructed any house, structures or obstructions on or over, or that will interfere with the construction, maintenance or operation of, any pipe line or appurtenances constructed hereunder, and will not change the grade over such pipe line.

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} [TETCO] agrees to bury all pipes to a sufficient depth so as not to interfere with cultivation of soil, and agrees to pay such damages which may arise to growing crops, timber, or fences from the construction, maintenance and operation of said lines.

} App. at 74. TETCO then constructed a third, thirty-six-inch diameter pipeline.


} In February 1963…TETCO agreed to reduce the size of the easement by releasing all portions of the land in the 1944 and 1960 grants not needed for the pipelines.

} Attached to the 1963 agreement is a drawing prepared by TETCO, which shows a proposed residential neighborhood (referred to as "University Hill") through which TETCO's sixty-foot wide easement runs at a slight diagonal.

} The 1963 agreement preserved all of the rights and restrictions set forth in the 1944 and 1960 grants.


} As a result of residential development of the property, the land on which the easement is located became a one-block long public street named Fountain Avenue.

} The street is flanked by a large number of trees, many of which were planted in the early 1960s as part of the original residential development of the neighborhood and have grown to nearly seventy-five feet in height.

} In April 2000, Duke announced that it would be removing approximately eighty trees from Fountain Avenue in order to better maintain the pipelines.


} We now turn to (1) whether removal of the trees on Fountain Avenue is "reasonably necessary" to Duke's maintenance of the pipelines…

} The Company is subject to regulation by FERC under the Natural Gas Act, 15 U.S.C. § 717, and by the Department of Transportation ("DOT") under the Natural Gas Pipeline Safety Act, 49 U.S.C. § 60101.

} Applicable regulations require Duke to inspect the pipelines on a regular basis, but do not prescribe a particular method of inspection.


} Duke has promulgated a set of Standard Operating Procedures ("SOPs") that meet and, in some cases, exceed federal requirements.

} Pursuant to its SOPs, Duke typically conducts aerial surveillance of the easement three times per week in order to identify any encroachments on or near the pipeline right-of-way, as well as any distressed vegetation that might indicate a gas leak.

} Duke also routinely patrols the pipeline right-of-way by car.


} The easement grant explicitly confers upon Duke the right to inspect and maintain the pipelines, but does not specify whether that right includes the authority to remove trees or foliage from the pipeline right-of-way.

} Even in the absence of an express right, however, "there is, arising out of every easement, an implied right to do what is reasonably necessary for its complete enjoyment, that right to be exercised, however, in such reasonable manner as to avoid unnecessary increases in the burden upon the landowner."

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} More specifically, Duke contends that } (1) the trees prevent it from conducting aerial

surveillance of the pipeline right-of-way; } (2) the trees impede emergency access to the pipelines in

the event of an unexpected and potentially devastating pipeline emergency; and

} (3) root growth from the trees is damaging the protective coating of the pipelines thereby increasing the possibility of a dangerous gas leak or explosion.


} According to the certified statement of Don Thompson, a Right-of-Way Supervisor for Duke Energy:

} The most effective way to patrol the pipeline on a regular basis (i.e. three (3) times a week, weather permitting) is by air.

} Inspection by "drive by" alone is not as effective because of parked vehicles, blockage of lateral view by vegetation and the difficulty in observing dying grass or other vegetation (indicating gas leaks) from a horizontal view.

} "Drive by" inspections are also cost prohibitive.


} This evidence, of course, does not necessarily establish that aerial surveillance is necessary to the safe maintenance of the pipelines, as opposed to being more convenient or cost-effective than land surveillance.

} As with Duke's evidence concerning its inability to effectively inspect the pipeline right-of-way by air, we conclude that the evidence in the record concerning emergency access to the pipelines raises a factual issue that is properly resolved at trial.


} c) Root Growth} With respect to alleged dangers posed by root growth,

the District Court stated:} [Duke] proffered no evidence during discovery that any of

the tree roots that have been on Fountain Avenue for forty years are rubbing against the pipelines;

} In sum, we conclude that because there is a triable issue of fact as to whether removal of the trees is reasonably necessary to Duke's maintenance of the pipelines, the District Court should not have entered summary judgment in favor of the homeowners.


} In its decision, the District Court rejected, out of hand, Duke's proffered explanation for not seeking to remove the trees prior to April 2000.

} In the District Court's words, "[Duke's] explanation for this delay is that they have increased the stringency of their SOPs beyond that legally required by safety standards, an event completely within [Duke's] control.

} Stringent procedures are laudable, but [Duke] can produce equal results with ground surveillance as with aerial surveillance."


} For example, Thompson, Duke's Right of Way Manager, offered the following explanations in his certified statement:

} 6. [Duke's Guideline TG-010] states that "[p]lanting of trees is not permitted on the pipeline right-of-way," [and] "[p]lanting of shrubs, bushes or other plants associated with landscaping on the pipeline right-of-way is subject to Company approval and shall not exceed 4 feet in height."

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} We recognize that a bench trial on the merits could result in precisely the same outcome should the District Court, after a full evidentiary hearing, conclude that removal of the trees is not reasonably necessary to the safe maintenance of the pipelines, or that Duke's decision not to seek removal of the trees prior to April 2000 bars it from doing so now.

} Nevertheless, we conclude that such a determination should only be made after the parties have the opportunity to fully develop the factual record at trial.


} The right of way agreement provides in pertinent part:} [A] right of way and easement for the purposes of laying,

constructing, maintaining, operating, repairing, altering, replacing and removing from time to time one or more pipelines, together with valves, tie-overs and other appurtenant facilities, for the transportation of gas, oil, petroleum and petroleum products, upon, under or across the lands of the Grantor, in the Township of East Brunswick, Middlesex County, New Jersey …together with such other rights as may be necessary or convenient for the full enjoyment or use of the rights herein granted, which such rights shall include, among others:


} (a) the right to enter upon the right of way and easement herein granted and to pass along the said strip with equipment, material and men, at such times as Grantee may elect,

} (b) the right from time to time to keep said right of way free from trees, undergrowth and all other obstructions that may endanger or interfere with the construction, operation and maintenance of Grantee's pipe lines[.]…

} Grantor specifically covenants and agrees:} (a) Grantor will not . . . use the said permanent right of

way or any part thereof in such a way as to interfere with Grantee's immediate and unimpeded access to said permanent right of way Copyright 2019, Kristopher M. Kline,

2Point, Inc. All Rights Reserved

} Grantor specifically covenants and agrees:} (a) Grantor will not . . . use the said permanent right of

way or any part thereof in such a way as to interfere with Grantee's immediate and unimpeded access to said permanent right of way


} Transcontinental subsequently sold the property along Timber Road subject to the easement, and in the 1980s, this property was developed into a residential community of single family homes.

} The one-hundred-foot width of the easement covers the width of Timber Road, the adjacent sidewalks and portions of the plaintiff residents' front yards.

} The pipeline is buried forty inches below the surface and runs along one side of the street in the public space between the sidewalk and the curb.


} Concerned about possible damage to the pipeline's protective coating by tree roots, maintaining a clear line of sight along the pipeline, and preventing any delays in reaching the pipeline in an emergency, …

} …Transco sought to remove the trees above the pipeline along Timber Road as part of a larger effort to remove trees above all of its pipelines in the Princeton Division.

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} Transco produced uncontroverted evidence of potential harm, citing other sections of its pipeline in New Jersey where their protective coating had been damaged by tree roots.

} A 2004 "Smart Pig" investigation revealed metal losses ranging from 6% to 15% at various locations on Transco's pipeline along Timber Road.

} Finding that Transco need not wait for actual damage to its pipeline before exercising its express easement rights…


} The easement also clearly gives Transco the right to remove trees if they interfere with Transco's immediate access to the right of way. The easement specifically states that the grantor "will not . . . use the said permanent right of way or any part thereof in such a way as to interfere with Grantee's immediate and unimpeded access to said permanent right of way."

} Thus, the easement here stands in stark contrast to that in Twp. of Piscataway v. Duke Energy, 488 F.3d 203 (3d Cir. 2007)


} In contrast here, the plain language of the easement gives Transco the express right to remove trees and does not require actual damage to or interference with pipeline operations before the grantee may act to remove trees.

} In other words, the easement permits preventive action to avoid potential harm, disruption or interference with the operator's pipeline.


In Gross, Appurtenant,Profit a Prendre?


} The distinction between the two, of course, is that an easement appurtenant requires a dominant tenement to which it is appurtenant, whereas an easement in gross belongs to its owner independently of his ownership or possession of any specific land.

} In the construction of grants of this character the presumption is always in favor of their being easements appurtenant.


} In determining whether a prescriptive easement is appurtenant or in gross, courts consider whether the adverse use took place in connection with and for the benefit of a particular parcel of land. 3 H. Tiffany, B. Jones, The Law Of Real Property § 759 (3d ed. 1939).

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} Easements are of two types: easements appurtenant and easements in gross. "The distinction between the two, of course, is that an easement appurtenant requires a dominant tenement to which it is appurtenant, whereas an easement in gross belongs to its owner independently of his ownership or possession of any specific land."


} An easement appurtenant is created when an owner of one parcel of property (the servient estate) gives rights regarding that property to the owner of an adjacent property (the dominant estate).

} It enhances the value of the dominant estate and cannot exist separate from the land itself.

} An easement in gross, by contrast, benefits no specific parcel owned by another; it is independent of and unconnected to the ownership or possession of any particular tract.


} …the strict and technical definition of an easement excludes a right to the products or proceeds of land, or, as they are generally termed, profits a prendre.

} But that such a right is in the nature of an easement, and although capable of being transferred in gross, may also be attached to land as an appurtenance and pass as such, is shown by the authorities …

} In Post v. Pearsall (supra) the language of the chancellor is, "for a profit a pendre in the land of another, when not granted in favor of some dominant tenement, cannot properly be said to be an easement, but an interest or estate in the land itself."


} In determining what the parties intended, “there are no limits on the kinds of combinations of servitude benefits that can be created,” and “the full range of possibilities should be kept in mind.”


Pole Attachment Agreements


} The crucial words of the grants which are determinative of the intention of the grantors are "successors, assigns, lessees, and tenants."

} The words "lessees and tenants" indicate, particularly, that it was clearly intended by the parties to the grants that Ohio Power could lease some portion of its interests to third parties.

} Such language ("its * * * lessees" obviously means "its * * * sub-lessees," in the absence of any restrictive definition of "lessee" in the easements -- and there is none) is open to no other interpretation.

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} In Wiggins v. Lykes Bros. Inc., 97 So.2d 273, 276-77 (Fla. 1957), the court stated that " no intention to convey an exclusive easement . . . can be imputed to the grantor of the [**3] easement in the absence of a clear indication of such intention . . . ." Professor Boyer reaches a similar conclusion:

} In determining the scope of easements as in construing deeds generally, the court is aided by various rules of construction.


} One of these rules is that the presumption is in favor of a non-exclusive easement. An exclusive easement is one for the sole benefit of the easement holder and excludes use thereof by the grantor servient owner.

} A non-exclusive easement, on the other hand, permits use by the servient owner. Hence, if there is any doubt, the court will conclude that the grantor likewise may make use of the land subject to the easement so long as he doesn't interfere with the use thereof by his grantee.


} In determining the scope of the easement, the court may, if it concludes the words of the instrument the least ambiguous, resort to extraneous matters to arrive at the probable intent of the parties.

} Thus, the purpose of the easement, the location of the realty, the situation of the parties, and all surrounding circumstances may be considered.


} The plaintiffs are owners in fee of real property in Latham, New York. In 1954 their predecessors in title granted to the Niagara Mohawk Power Corporation and to the New York Telephone Company "their respective successors and assigns, the right, privilege and authority to construct, maintain, operate, repair and replace lines, consisting of poles, conduits, guys, guy stubs, crossarms, wires and appurtenances for the distribution of electricity and messages upon, under, along or across the property which we own".


} On June 17, 1971 and November 1, 1971 Niagara Mohawk and New York Telephone, respectively, executed pole attachment agreements with defendant Capitol Cablevision Systems, Inc., whereby the latter was granted a "license" to install coaxial cable, for the transmission of cable television, on existing utility poles.


} As easements independent of the ownership or possession of any specific property, thus lacking a dominant tenement, the said easements owned by Niagara Mohawk and New York Telephone are easements in gross as opposed to easements appurtenant.

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} Because the utilities did not divest themselves of all control over their easements in their agreements with defendant, the interest acquired by the latter cannot be considered an assignment, such as is specifically permitted by the original grant of the easements.

} The transactions must rather be considered as attempts by the utilities to apportion their easements…


} Whether an easement in gross is apportionable depends largely on whether it is viewed as exclusive as opposed to nonexclusive

} Although exclusive easements are not generally favored by our courts, …the very nature of the said 1954 easements obtained by the utilities indicates that they were intended to be exclusive vis-a-vis the grantor.


} "Though apportionability may be to the disadvantage of the possessor of the servient tenement, the fact that he is excluded from making the use authorized by the easement, plus the fact that apportionability increases the value of the easement to its owner, tends to the inference in the usual case that the easement was intended in its creation to be apportionable.

} This inference is very strong in cases where an increase in use is the fact advantageous to the possessor of the servient tenement


} …whether a developer, which retained a utility easement on a homeowners association's property, exceeded the easement's scope by allowing telephone antennae to be placed on the developer's tower on the burdened property because persons outside the development also benefited.


} In considering the homeowners association's contention that the judge erroneously dismissed its pleaded causes of action, we begin by recognizing what cannot be disputed.

} First, the developer undeniably retained for itself, at the time ownership was transferred to the homeowners association, an easement on the utility parcel and, pursuant to the easement's terms, the developer permissibly erected a steel tower on the utility parcel.


} Second, the tower was used, pursuant to the easement's terms, to provide cellular telephone service to the development; this required the placement of antennae on the tower.

} Third, these antennae incidentally provided service to surrounding areas as well.

} And, fourth, the transfers that followed — to the extent they conveyed rights set forth in the easement — were not inconsistent with the homeowners association's ownership rights.

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Pipeline Crossing Railroad Corridor


} The Morris and Essex Railroad Company was incorporated in 1835 (Pamph. L., p. 25), with all the rights and powers necessary to lay out and construct a railroad or railroads, with the power of purchasing and holding any lands and tenements necessary …

} …and when such condemnation proceedings were consummated as provided by the act, then the company should be deemed to be seized and possessed in fee-simple of such lands and real estate.


} By deed dated March 26th, 1864, Stewart conveyed to the railroad company a strip of uniform width of seventy-five links on each side of the centre line …

} ”…grant, bargain, sell, convey and confirm to the Morris and Essex Railroad Company, and to their successors and assigns forever, the tract of land described, with full power to make use of the same in all lawful ways for the purpose of the extension of their said railroad and as part of the route thereof."


} The deed from Stewart contained a stipulation that the company should erect and forever maintain under the rails of their railroad "a suitable wagon-road or crossing, which shall be at least thirteen feet wide by thirteen feet high, * * * so as to enable said Stewart to travel and cross freely between his lands on each side of said granted premises."


} The Morris and Essex Railroad Company took possession of the land conveyed and built its railroad upon it, with an embankment, under which it constructed an undergrade crossing, with masonry abutments and wing-walls, of the height and width specified in the company's deed.


} The trespass complained of consisted in the excavation of the soil in the bottom of the "wagon-road or crossing" under the railroad of the plaintiff reserved in the Stewart deed, …

} …and digging trenches and placing therein two contiguous lines of iron pipe, extending completely across the lands of the railroad company and forming part of the pipe line of the defendant company, which they are using as part of their pipe line for the purpose of carrying oil.

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} The stipulation in the deed from Stewart to the railroad company for a wagon-road or crossing operated as a grant of an easement appurtenant to the two parcels of land retained by Stewart.

} Where a grant is made of an easement or right of way to be used for a particular purpose, the grantor is not bound to submit to its being used for any other purpose.

} Whether the right claimed will impose a greater or less burden on the servient tenement than the right granted is an irrelevant inquiry.


} Grants of this character, like all public grants, are to be strictly construed -- what is not plainly given is withheld.

} The rule for the construction of public grants in strictness has never been extended beyond these principles.

} Wherever the legislature has given in plain terms that which the company has the capacity to take, the court is not justified in frittering away the legislative grant by denying the legal effect of words of technical signification contained in it,


} It is within the power of the legislature, in authorizing land to be condemned for a public use which may be permanent, to determine what estate therein shall be taken and to authorize the taking of a fee or any less estate in its discretion.

} Where a statute authorizes the taking of a fee it cannot be held invalid or that an easement only was acquired thereunder, on the ground that an easement only was required to accomplish the purpose the legislature had in view.


} To justify the acts complained of the defendants rely upon the stipulation in the deed from Stewart to the railroad company, whereby the company agreed to erect and maintain the wagon-road or crossing in question. This stipulation, although inserted in a deed to the company, was the covenant of the grantee…, and at law operated as a grant of a newly-acquired easement, or, as was said by Lord Westbury, "as if it were a counter grant by the grantee."


} One granting an easement may limit the grant and the grantee takes subject to the restrictions imposed. The limitation may be with reference to the purposes for which the easement may be used, as, for instance, a right of way may be granted for agricultural purposes only, or for mining purposes, or with reference to its use as a footway or a carriageway or a way for cattle

} In this instance the subject of the grant is defined as "a suitable wagon-road or crossing,"


} Where a way is created by a grant for the benefit of particular land, its use is limited to such land, and cannot be extended to other land.

} If one grants a right of way from D. to Blackacre, and the grantee afterwards purchases lands adjoining to Blackacre, he cannot justify the user of the way to those lands.

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} A right of way appurtenant to a dominant tenement can be used only for the purpose of passing to or from that tenement. It cannot be used, even by the dominant owner, for any purpose unconnected with the enjoyment of the dominant tenement, neither can it be assigned by him to a stranger, and so be made a right in gross, nor can he license a stranger to use the way when he is not coming to or from the dominant tenement.


} The laying of these pipes in the roadway in no sense conferred a benefit on the lands to which the way was appurtenant, nor were the pipes adapted to facilitate or promote access between the two parcels of land to which the easement was appurtenant.

} They extend underground the entire distance of the way, and are designed to be used as part of a pipe line for the purpose of conveying oil.


} Where the words of the grant are clear and unequivocal there is no room for the application of the principle that the grant must be construed most strongly against the grantor; the parties must be confined to the plainly-expressed agreement in the deed.

} Whether the right claimed will impose a greater or less burden on the company's land than the right granted is an irrelevant inquiry.


What is the Purposeof the Easement


} The easement was described in a 1998 subdivision plan. } The easement was depicted as a cross-hatched corridor

along the northwest and northern edge of the property the Laufers purchased.

} The area was labeled "PROPOSED ACCESS AND UTILITY EASEMENT[.] PROPOSED LOT 33 FROM LOT 32[.]"

} However, the deed transferring title to William Laufer described in detail only a "sanitary sewer easement."


} The Hagans knew the driveway encroached on their property before their transaction with the Laufers.

} Their neighbor, Richard Fanucci, originally began to install it sometime in 2003, in conjunction with the construction of his house.

} The Hagans protested. They relied on their February 4, 2000, deed from Seaview Corporation, which referred in detail only to a sanitary sewer easement. It did not refer to an access easement.

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} After providing the metes and bounds of the easement area, the deed specifically referred only to a sanitary sewer easement, stating:

} "THE ABOVE DESCRIBED being a sanitary sewer easement to the benefit of Lot 33, Block 9502, located on Lot 32, Block 9502 and as illustrated on the aforementioned proposed Minor Subdivision prepared by Michael W. Hyland Associates and bearing Drawing No. H-4726."


} Prior to selling the property, the Hagans did not disclose to the Laufers or the Laufers' attorney their title insurance claim, its settlement, or the fact that the Fanucci driveway was actually situated within the boundary of the Hagan property.

} William Laufer noticed the reference to the sanitary sewer easement at the closing. He asked his attorney if he should be concerned about it. His attorney reassured him that the easement was not an issue.


} We also assume the Hagans withheld the information knowing the omission created a false impression of the property, intending that the Laufers rely on the omission.

} It is of no moment that the driveway was in place when the Laufers agreed to purchase the property. While the driveway was visible, its location within the boundary of the Hagans' property was not discernable to the naked eye. It is the location of the driveway within the easement that was withheld.


} On the other hand, the title commitment and deed specifically identified and described a sanitary sewer easement.

} It was silent on the purported right of the neighboring property owner to erect and maintain a paved driveway within the boundary of the purchased property.

} William Laufer asserted that he was aware of the partial disclosure of a sanitary sewer easement, and relied on assurances that the easement, so limited, was not a matter of concern.


Prescriptive EasementFor Underground Pipe


} In 1956, Heyward granted an easement to Berkeley Electric to construct and maintain transmission lines over what is now Tract 498 and Tract 135.

} In 1972, Brown granted an easement to Berkeley Electric to construct and maintain distribution lines over Tract 498.

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} In 1977, Charleston County issued an encroachment permit authorizing St. John's Water to install a water main along Kitford Road pursuant to an accompanying map that illustrated the water main's approved location. St. John's Water finished construction on the water main in 1978.

} As to St. John's Water, the Court of Appeals …reversed the master's finding that it had an express easement after determining Charleston County lacked the authority to grant a right to use property owned by another.


} In 2005, Simmons discovered a water meter under bushes on Tract 135.

} Simmons subsequently contacted St. John's Water, which informed Simmons that it would not move the water main because it believed it had an easement giving it the right to use the property.

} St. John's Water…based its belief on the encroachment permit and its understanding that the water main had been in its current location for more than twenty years.


} "'Open' generally means that the use is not made in secret or stealthily. It may also mean that it is visible or apparent."

} Here, the water main is located underground. } Both Tract 498 and Tract 135 are heavily wooded and

undeveloped. According to Simmons, the water meter was hidden under bushes when he first discovered it.

} The water main also had not been "blue-flagged" at that time. Considering these conditions, we find there is a genuine issue of material fact as to whether St. John's Water's use was open.


} "'Notorious' generally means that the use is actually known to the owner, or is widely known in the neighborhood."

} We disagree with this determination because Simmons' water also came from a spigot, but was supplied by a water well. Further, even if it is widely known that a majority of the neighborhood's water comes from a water main that does not necessarily mean the location of the water main is widely known.


} Consequently, we hold there is a genuine issue of material fact as to whether St. John's Water has established each element of a prescriptive easement by clear and convincing evidence.


} Simmons contends, and Berkeley Electric agrees, that Berkeley Electric must show that any distribution lines crossing Tract 135 are covered under a prescriptive easement since …

} …neither the 1956 easement nor the 1972 easement grants Berkeley Electric the right to run distribution lines over Tract 135.

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} Both stated: they were familiar with the age, configuration, and characteristics of the distribution line located at 3507 Kitford Road;

} the line is clearly visible from Kitford Road; …} …to the best of their recollections, the line had never

been moved; } the power poles for the line have birthmarks of 1984

and 1986; …} …and that they believed the line has been in its current

configuration since at least 1980.

Documents

Kristopher M. Kline, P.L.S. Utility Easement · Enrights' home rather than 50 feet as appeared on the survey by SURVEYORand insured by the Title Company. }He awarded compensatory