20 | VOLUME 29, NO. 2 | SUMMER 2020
One of the more challenging aspects of getting a
drain project o the ground is acquiring easement
rights over the newly added or relocated route
and course of the drain that traverses over
private property. Unfortunately, there is no
alternative; Section 73 of the Drain Code requires
it. Landowners are often willing to work with
drain commissioners and will often donate the
needed easement to the drainage district. Other
times, landowners will accept compensation in
return for the easements, sometimes asking for
certain conditions to be placed in the easement
language.
Easement acquisition, however, is often not
as simple as it sounds. The easement that a
landowner provides for a drain is subject to other
interests in the property that already exist at the
time the easement is given. These could include
mortgages, conflicting easements, oil and gas
leases, land contracts, deed covenants, and
residential or commercial leases to name a few.
Any one of these interests could undermine the
easement rights obtained from the landowner and
could create the need to reacquire (and perhaps
re-compensate for) the easement. While the
Drain Code itself may not require that all these
interests be legally addressed, other law might.
That “might” turns into “will” when it comes to
condemnation.
When landowners are unwilling to give an
easement, drainage districts are entitled to use
condemnation (eminent domain) to acquire the
necessary rights. No one likes to use eminent
domain both because it is unpopular with
constituents and expensive. It is tempting to save
money and time in the condemnation process
by taking short cuts, but these have led to
costly results under the Uniform Condemnation
Procedures Act (UCPA), the statute that governs
the process.
One of the very first steps under the UCPA is
to obtain a professional appraisal and submit
a good faith written oer to the owner of the
property in an amount the agency considers
to be just compensation. The UCPA defines an
“owner” much more broadly than one might
think. It defines “owner” as “a person, fiduciary,
partnership, association, corporation, or a
governmental unit or agency having an estate,
title, or interest, including beneficial, possessory,
and security interest, in a property sought to
be condemned.” So “owner” means more
than its common usage and includes lessees,
mortgagees, statutory lien holders, easement
holders, even trust beneficiaries and others who
are not in physical possession of the land. Under
the UCPA, all of these persons or entities are
“owners” and must be sent the good faith oer.
The consequences for failing to locate and include
all of these other interested persons was made
clear just over a year ago by the Michigan Court of
Appeals in Board of County Road Commissioners
v. Shankle. In this condemnation action,
landowners claimed that the circuit court did not
have the power to hear the case simply because
the condemning agency did not provide a copy
of the good faith oer to all who had an interest in
the property. And they won.
In Shankle, a county road commission sought
temporary grading permits or agreements and
permanent right-of-way easements for a road
improvement project. The road commission made
good faith oers to the landowners, who were in
physical possession of the land. However, it failed
to send the oers to others with a legal interest in
the property. The Court of Appeals held that strict
compliance with the UCPA is required for a court
to have subject-matter jurisdiction (the power to
hear the case). So, because not everyone defined
as an “owner” in the UCPA received the oer, the
Court of Appeals held that the circuit court could
not even entertain the case. The road commission
had to start the process all over again.
Why didn’t the road commission send an oer to
all interested parties? The answer might seem
logical: someone else may have an easement
on the property, but nowhere near the easement
being taken, so there’s no conflict. Most
mortgage companies don’t know or don’t care
about easements (until, of course, they do). A trust
beneficiary might not know that he or she even
has an interest in the property. A statutory lien
might have expired. These types of arguments
were made to the Court of Appeals in Shankle,
TRAPS FOR THE UNWARY IN
ACQUIRING EASEMENTS – WHO’S
THE OWNER?
By: John S. Brennan, Fahey Schultz Burzych Rhodes