Access to Right of Way (ROW)

Letter to Surface Land Owners Regarding Rights of Way from George Neall:

My wife and I own property where two other property owners have a deeded ROW/easement across our property. Anyone could use this ROW, even unauthorized people, if we did not control it by having a locked gate and/or periodically checking people who use it. We can install gates on the ROW for control of our goats and horses, i.e., where they graze. Right now there are 3 gates through which the ROW users must go through and promptly close. So the deeded ROW does not prevent us from using the property as we see fit.

The video from the BBC details what visitors to family cemeteries where mountain top removal has taken place must typically do in West Virginia. Visitors have to “jump through several hoops” to visit such cemeteries. They have to schedule the visit in advance, wait for an escort, and undergo “hazard training”.

I visited several fracking sites two years ago where energy companies had uncontrolled access to well pads, across surface land they did not own. At that time, I questioned how such companies could do this without any input or control by the surface property owner. I understand the reality that many state’s laws give mining and energy companies the right to do almost anything they think they need to do in order to mine the coal or recover the gas/oil they are after. But do those same state laws mean that surface owners have no legal rights”? I don’t think so as this would surely be seen as a violation of their Constitutional rights.

I’m not an attorney, but it seems to me that surface owners would still retain certain legal rights over the access and use of their property for ROWs or activities like mining. If I were a surface owner and companies were driving across my land, I think I would try to manage or control what was happening. I realize that I could not legally prohibit a mineral owner from gaining access to my property, but surely I would retain the right to ensure that anyone entering the property had the legal right to do so.

Without this right, unauthorized parties could “openly and notoriously” enter my property and potentially claim it under adverse possession. Pollution and/or damage might occur to my land. Without knowing exactly who might have caused it, it would be difficult to recover damages from the responsible party. My land might be posted for hunting and fishing and this cannot be controlled if unauthorized people have access. This would require knowing who the authorized people and companies were. I would also notify the company of any insurance requirements that might affect their access or operations. We are all familiar with signs that say something like “Our insurance prohibits customers from entering the shop”. As landowners, we have similar rights.

I think that if I were a property owner and had mining/oil/gas/pipeline construction traffic across or through my property I would try doing the following:
1.            Notify the mining owner/ROW user that effective on such-and-such date I would be installing an access gate to the road. The purpose of the gate would be to ensure unauthorized personnel were not trespassing on or using my property.
2.            Ask the mineral owner/ROW user to provide me with the names of companies, personnel, and vehicles (by vehicle make/model and license plate number) who are authorized to have access to the land and let them know that access to people or companies not listed would be denied.
3.            Ask the mineral owner/ROW user to notify authorized personnel that the land is posted and hunting and fishing are prohibited. Firearms are not permitted to be carried on the property.
4.            The gate would be in the closed position when attended and personnel desiring access must stop and check in with the attendant, who would open the gate after ensuring the person was authorized. Vehicles will be required to stop upon both entering and leaving.
5.            When the gate is unattended, persons/vehicles wishing access would not be required to stop, but a camera (like a game camera) could record the license plate number of each vehicle and the time/date.
6.            Notify the mineral owner/ROW user that smoking on the property is prohibited due to the increased fire hazard and litter associated with cigarette butts. The mineral owner/ROW user should advise all authorized personnel of this restriction. Littering is also prohibited. Violators will be issued a fine and/or denied access.
7.            Notify the mineral owner/ROW user they are responsible for contamination resulting from their use of the ROW
8.            Post speed limits on unpaved access roads to limit the amount of dust generated.
9.            Notify the mineral owner/ROW user that livestock (goats, cattle, horses, etc.) may be grazing in certain areas and that gates controlling livestock access, if closed, must be promptly re-closed to prevent livestock from straying.

Mining companies have the “hazard training requirements. Surface owners have a similar “rules” requirement, whereby people authorized by the mineral owner/ROW user to have access would be required to read a “rulebook” and sign a form acknowledging they have read the book and will comply with the requirements? They could even be issued a card, just like the coal companies do for the hazard training. Of course, authorized personnel would need to show their card each time. Perhaps they could be required to schedule visits in advance, just like the mountaintop removal coal companies do for people visiting grave sites?

I would expect the mineral owner(s)/ROW users to legally try to prevent me from doing this. With proper backing/support, such legal actions should be welcomed as they could be used to generate lots of negative public opinion of the mining/oil/gas company/ROW user, and might help establish a legal precedent that would help protect other property owners’ rights.

>> George Neall, Retired Engineer/P.E.

Watch the video at this site:
http://www.bbc.com/news/magazine-28304338