Posted by R. Harris on October 20, 2004 at 07:30:50:
Thank each of you for your response. Curious, the problem is that the sewer main is about 5? away from our home and runs the entire 170?north to south property line. Village?s proposed right-of-way would take out our central a/c, fireplace, and thousands of dollars of landscaping, mature trees, fencing etc. Village has reduced the footage it wants but the area still comes within centimeters of the a/c and encompasses all the landscaping and infrastructure we?ve installed over the years (appraised value is $40,000). Note we found out about this several months ago when our neighbor?s contractor began digging up our front yard (without any notice to us) to repair a breach in this sewer main. We subsequently unearthed a manhole cover buried some 2? below grade in our backyard. This area was previously graded and the original iron pipe denoting the property line was in place and recorded on our survey. Sewer mains can last about 50 years. . then it?s time to reline or replace. Undoubtedly, immediately following our agreement to give the Village our property will result in tearing up our property to address the sewer main breaches. Oh, and by the way, our home is not connected to this sewer main! Lastly, albeit not as convenient as simply using our property, there are other ways in which each affected home can directly connect to the Village sewer main.
Do You Know Where Your Sewer Is? - Posted by R. Harris
Posted by R. Harris on October 19, 2004 at 11:39:24:
We recently learned that our local municipality installed a sanitary sewer main on our property some 45 years ago. This main services several homes that surround our property. There are no recorded easements, warranty deeds, bill of sale, Board of Trustee minutes etc. evidencing any public knowledge of its existence. We’ve owned our home for 15 years and never knew of its existence nor have seen the municipality service this main.
The municipality is claiming that this is simply a SCRIVENOR’S ERROR. Accordingly, we are being bullied to simply give up a portion of our property (without any compensation) or take on the wrath of eminent domain proceedings. Frankly, both our title company and attorney seem stumped and some 8 months later there is still no resolution.
Can a municipality, whether willful or not, install a public utility then simply take the property away from the unsuspecting owner?
Re: Do You Know Where Your Sewer Is? - Posted by Curious
Posted by Curious on October 20, 2004 at 05:11:48:
So, what is the problem? (Not trying to be smart a**.) You say it’s been there 45 years and you never knew of it nor have seen it serviced. Are you now wanting to build in a way that their easement is preventing? Or are they wanting to do something new that you object to?
If the sewer drain has been installed under your property for the last 45 years, the city would probably have a fairly easy case for a perscriptive easement. Their only difficulty may be estblishing that it was open and notorious. I’m sure there is plenty of case law on this issue. Your attorney should be able to find it without much difficulty.
An interesting question to which I do not know the answer.
However: I would advise your attorney to look at the recent “Poletown Case” in Michigan. The city, as they typically do, took land and gave it to a developer to put in a new shopping center, etc…under eminent domain…for the added taxes, etc.
It went all the way the to Michigan Supreme Court and the decision was that eminent domain is for the “Public Good,” fire stations, police stations, etc …NOT… for private good to be given to a developer to build and profit from.
In other words they cannot take your land and use it for someone else’s beneift. That was ruled as not eminent domain.
You might have a case that the encroaement is private, ie., the other few houses and eminent domain is not applicable.
The other three or four houses are not a new fire station or police station, etc.