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Published October 17, 2011, 04:30 AM

Landowners have the right to grant, deny access

BISMARCK, N.D. — The repercussions of the North Dakota oil boom are being felt throughout the state, and even throughout the nation. One effect of the ever-expanding oil industry is that farmers and ranchers now have to decide whether to grant an easement to that oil, pipeline, road construction or other company who has constructed a path to the middle of a wheat field or calving pasture.

By: Derrick Braaten, Special to Agweek

BISMARCK, N.D. — The repercussions of the North Dakota oil boom are being felt throughout the state, and even throughout the nation. One effect of the ever-expanding oil industry is that farmers and ranchers now have to decide whether to grant an easement to that oil, pipeline, road construction or other company who has constructed a path to the middle of a wheat field or calving pasture.

Here are some tools to guide you in your decision. First, what exactly is an easement? An easement creates an interest in land that consists of the right to use or control the land, or an area above or below it, for a specific, limited purpose. An easement generally stays in place for an indefinite period of time. It travels with the land in the event of a sale or lease of the land. Basically, it is a perpetual promise to the pipeline company, for example, that they can construct and maintain a pipeline on your property.

Second, do I have a choice whether to grant an easement? The answer is a resounding yes. (Keep in mind that the easements discussed here are not the type that are connected to the mineral estate or that arise in certain public utility situations, which may limit your rights. In a situation where the mineral rights underneath land on which the power line, pipeline or road is being constructed are leased, the construction of these utilities generally is included in the mineral lease. In that situation, the surface owner does have protections and damages under state law (NDCC Chap. 38-11.1), but does not have the power to stop construction.

If you are in this situation, see Sarah Vogel’s Oct. 4, 2010, Agweek article on surface use agreements.

If you have questions about your rights, contact an attorney.) Although many companies give the impression that you have no say in the matter, ultimately, it is your land and you have the right to grant or deny access.

More importantly, if there is construction occurring on your land before you have been contacted or before negotiations are completed, inform the workers immediately they cannot be there; they are trespassing and must stop their operations immediately. Then, immediately contact the company. Also ensure that your land is posted with no trespassing signs. If the work continues, contact local authorities to report the trespass.

Finally, what should I think about if I decide to grant an easement? The key aspect of an easement is that it is limited in scope. That means the purpose and physical description must be carefully and specifically described.

An easement must contain either a specific legal description of the area, including the width of the easement and its exact location within your parcel of land, or an attached detailed survey or map of the easement. If it is not attached to the agreement, do not sign the agreement. It might give the company the power to construct the utility anywhere within the parcel without your input.

With regard to compensation, ask your neighbors what they have been paid. This will be the best indication of the “market.” Do not rely on the company agent to tell you what the going rate is; he or she likely will have one rate that they offer to everyone.

Lastly, you have the right to determine where the easement will be located, request that they backfill the ditch over the pipeline with topsoil, require them to maintain any sinkholes or any other special requests. Ultimately, remember this is your land, and you have the right to say how it will be used.

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