First and foremost…
DON’T SIGN ANYTHING!
Kinder Morgan and their representatives (also known as “land men”) have shown themselves to, let’s say… exaggerate …in order to get you to sign away your property rights. Yes, you DO have rights, even though the eminent domain laws are slanted toward pipeline companies, rather than actual people.
Get an attorney, preferably one who has experience with easement negotiations.
We here at BlancoSTP are NOT lawyers, and can’t advise you. However, it has been suggested not to use an attorney whose payment is based on how much they can get from Kinder Morgan for an easement through your property. That is, of course, assuming you DON’T want KM to HAVE an easement through your property.
It has also been suggested that to save money, or just to afford a lawyer in the first place, you can band together with your neighbors to hire an attorney for the group.
One more suggestion: since attorneys typically charge by the hour, you can probably save on fees by doing as much of the legwork as possible. Collecting documents, and perhaps creating a first draft using the checklist below.
Here is an overview of the checklist:
- Determine whether eminent domain power exists (we already know this to be true).
- Identify all parties.
- Determine compensation.
- See that the easement is specific, not blanket.
- Grant a nonexclusive easement.
- Check restrictive covenants.
- Limit the easement agreement to only one pipeline.
- Limit the types of products run through the line.
- Determine the permissible pipeline diameter and pressure.
- Determine the width of the easement.
- Require a specific pipeline depth.
- Specify what surface facilities, if any, are permitted.
- Reserve surface use.
- Provide property access for the landowner
- Limit access to the easement.
- Request the use of the double ditch method.
- Include the right to damages for construction, maintenance, repair, replacement, and removal.
- Set specific restoration standards.
- Request payment for damages.
- Specify fencing requirements.
- Include repairs or improvements to existing roadways.
- Determine maintenance responsibilities.
- Define when the easement will terminate.
- State the requirements for removing facilities.
- Determine remedies for violating the easement agreement.
- Include liability and indemnification provisions.
- List the landowner as “additional insured” on the company insurance policy.
- Do not be responsible for warranty of title.
- Limit the terms of transferability.
- Request a most-favored-nations clause.
- Seek payment for negotiation costs.
- Use a choice-of-law provision.
- Include a forum clause.
- Understand dispute resolution clauses.
- Review by a licensed attorney.
This is not a complete list, but it’s an excellent staring point.
Click the link below to download the pdf (this document further explains all the points above):
Eminent Domain and the Right to Survey Your Land
Question: If a company with eminent domain power has contacted me about obtaining an easement across my property and now wants access to survey, can I keep them off of my land?
In Texas, courts have held that by granting condemning entities the right to condemn land, this includes the right to enter onto the property to conduct surveys to select lands to be acquired. Of course, this means that surveys may be conducted prior to the property actually being condemned. “Ancillary to the power of eminent domain is the authority to enter upon the land to make a preliminary survey.” I.P. Farms v. Exxon Pipeline Co., 646 S.W.2d 544 (Tex. Ct. App. – Houston (1st Dist.) 1982). Courts have issued injunctions against landowners attempting to interfere with this right.
Read the rest of this article (including what you might want to require from Kinder Morgan if they wish to come in and survey your property) at AgriLife.org