Does the public have the right to access a utility easement?

December 12, 2018 11:14 AM

I was looking at some proposed maps for new bike trails, and I was curious where they were going to run. Looking at google maps it looks like a lot of them will be along what looks like a power company's right of way or easement. There's currently what looks like jeep track there. Can I walk or ride on it? (I live in Austin, TX)

I haven't physically gone to look, but I've done some google street view and there isn't fencing or (as far as I can tell) any signage to the contrary. Having a bike trail along this section would be fantastic, but even if they don't build it, I would happily ride or walk a jeep track along that section, because I could avoid a lot of dodgy roads. But I don't really want to break the law to do it.

Googling for this hasn't proved easy, either I don't know the right search terms, or the information is somewhat hard to find.

Admittedly I have ridden on some tracks like these in the past without really questioning it, but that was because they were relatively short and well known bypasses. I have never heard anyone mention these tracks, and they are many miles long. I could easily get from my house in Pflugerville to the Southern Walnut Creek hike and bike trail (where the jeep track intersects), without having to spend any time on major surface streets (I currently have to ride about 8 miles of no-bike-lane streets to get there)

posted by RustyBrooks to Law & Government (13 answers total)

Neither for right of way or easement, legally. If there's no fencing or no no trespassing signs you're not likely to get in trouble, but power company right of way is private property and an easement is someone else's private property that the utility (and the utility alone) has been granted access to.
posted by hwyengr at 11:17 AM on December 12, 2018 [3 favorites]

The way to look at an easement is that it is a document which gives specific entities certain permissions to a piece of property that belongs to someone else.

For example, I could have an easement so my driveway can cross property that technically belongs to my neighbor. That doesn't mean anyone else has rights to that property; I'm the one identified in the easement as having the right. It may limit me specifically to driveway use; for example I couldn't dig up the driveway and plant a tree.

If you're not named in the easement, you don't get anything out of it.
posted by AzraelBrown at 11:40 AM on December 12, 2018 [2 favorites]

In Texas, criminal trespass is defined as a person entering or remaining on or in property without “effective consent.” To be considered trespassing there must be verbal or written notice. If unfenced, written notice can be provided in two ways. These are:

• a sign or signs posted on the property, such as the traditional "No Trespassing" sign, reasonably likely to come to the attention of intruders, indicating that entry is forbidden;
• the placement of identifying purple paint marks on trees or posts on the property. There is a lot of verbiage describing these marks, but the bottom line is they must be easily visible.

In the absence of either of these, you may feel free to travel over the property. Of course, if someone catches you, they may give you verbal notice, after which you'll need to clear out, but you'll be fine up until then.
posted by ubiquity at 12:32 PM on December 12, 2018 [1 favorite]

Growing up there was an easement across our property for the gas line, and the gas company kept that path mowed. It was still our property, which contained a lot of my dad's work equipment on either side of the easement. It definitely would not have been okay for random people to use it as a path, and may have even been dangerous as we were using heavy equipment around that space. Not to mention we let me cousin and some other people go deer hunting back there. So from the property owner point of view they likely don't consider that public land.
posted by thejanna at 12:35 PM on December 12, 2018

By the way, if this really is an easement, then it might actually be a series of easements through different people's unfenced property, each one of whom would have to provide the signage. But if this is what I think it is, and all the property backing up the cleared area is fenced, the land probably belongs to the power company. The rules I mentioned above still apply.

Here is an example of a previous space for power lines which has been converted to a public trail in Dallas.
posted by ubiquity at 12:50 PM on December 12, 2018 [1 favorite]

Response by poster: It *mostly* looks like it runs "between" properties, like for example on the east side of it would be housing and on the left side some businesses. Given that they're thinking of putting bike trails there I would not be surprised if it's owned by one (or just a few) entities, because I imagine securing rights from 500 people would be a huge pain.

We had one like your link in Dallas behind our house in Plano and I imagine if they get a trail going it'll look much like that.
posted by RustyBrooks at 1:05 PM on December 12, 2018

The jeep track is probably for the utility's maintenance trucks. In the absence of No Tresspassing signs, I personally would feel totally comfortable strolling around in there. It's something I've always done and never thought twice about. I'd expect to see trash, fire rings, fire rings full of trash, and other evidence of hooliganism. Don't be like that, and in the highly unlikely event that you see a utility worker and they ask you to leave, leave. (This has never happened to me in my 30 years of wandering around under high tension power lines.) At least where I am, these are interesting areas to explore because they create long, narrow ecosystems where you can find species that are rare elsewhere.
posted by Anticipation Of A New Lover's Arrival, The at 2:21 PM on December 12, 2018 [3 favorites]

If it's useful to you to find out who owns this land, you probably want Austin's own parcel maps. And if the proposed bike trails are proposed by anyone in particular (is it a map of planned future paving projects?), you could contact the entity responsible and ask for an update and what the current status of that land is. They'll very likely be happy to tell you all about it.

FWIW, this is the kind of trespassing I'd be happy to do on my own recognizance but wouldn't do for an employer (and they wouldn't want me to.)
posted by asperity at 3:16 PM on December 12, 2018

Response by poster: OK so this is interesting, I ran this by a friend of mine who's in to local history, and he says the whole stretch I was looking at used to be part of the MKT Railroad line, which used to serve lots of small communities around here (that mostly don't exist now - such as Desssau, Sprinkle, and Daffan). This kind of makes sense since putting in power lines along an abandoned railroad would give you a long straight shot that no one had built on.

He thinks the state probably owns the land now. I'll check these parcel maps and see if I can tell.

I've only looked at google street view so far. I will probably go scout these out and see what the entrances look like.
posted by RustyBrooks at 5:31 PM on December 12, 2018

Response by poster: So I can totally see this land on the parcel map - it's long strips like 30 feet wide travelling along the tracks I see. I can't really see who owns it or what it is though.

The only thing I know about the proposed bike trails comes from this. It's the dark green dotted line running north to south on the far right of the image. It says "Planned or Possible Major Bike & Pedestrian Pathways"
posted by RustyBrooks at 5:41 PM on December 12, 2018

Adding that key piece of information makes it entirely different and, as you might expect, very state-specific with an element of Federal involvement, since railroads historically received their interests via land patents from the Federal government. Each state has different rules on the "rails to trails" concept.

Since "they" are developing plans for an official bike trail, you can assume that they will be ensuring that they do so legally. In the meantime, follow ubiquity's suggestions, and above all be respectful of other people's land.
posted by megatherium at 4:41 AM on December 13, 2018

Check with Austin's urban trails contact. (Off-road trails seem to fall under a different division from bikeways in Austin's public works department.) I'm not familiar enough with Austin geography to tell whether that route's among the current urban trails projects, but if it's not, they'd be able to tell you what the likelihood and timeline of a trail conversion happening there are.

I'd also suggest signing up for their newsletters so that you're aware of opportunities for public comment. Cycling infrastructure doesn't just happen in US cities without a lot of encouragement, and it's often not unopposed.

And looking at the parcel map at a couple of points along that route: it's owned by the State of Texas. I haven't confirmed that's true for the whole thing and can't tell you what that might mean for practical access now. (Also this particular GIS implementation is probably my least favorite of the ones commonly used by cities and counties. Try looking at its help if you want to get more out of it, since how it works isn't obvious on its face.)
posted by asperity at 8:58 AM on December 13, 2018

One more point, even if the owner is the state that doesn't automatically allow for public access.

Property rights are so strange, which is why title insurance is a thing. The railroad rights of way could be partly owned by whatever company bought the assets of the old RR. There's an abandoned railroad in central Illinois that went bust some 60 years ago and it's adjacent to some of the best farmland in the world. You can still pick out the narrow stretch where the rails used to be.
posted by hwyengr at 6:21 AM on December 14, 2018 [1 favorite]