Landowners — Here’s the Deal (or the Joke) — A PATH Right of Way Agreement

We now have a PATH right of way agreement on record, and on the Internet, in Jefferson County, WV.  If you are a land owner who will be affected by the PATH line, take a good look at this agreement at this link.  (This is a new link to a regular .pdf file.  It works reliably now.)

This document is shocking.  It also gives you a clear picture of why you need to hire your own attorney and draft your own agreement BEFORE you sign an option that the PATH companies put in front of you.  BEFORE you sign the option, PATH Allegheny or PATH West Virginia should already have signed YOUR agreement.

Let’s take a look at this right of way agreement –

  1. On page 1 – Unbelievable.  The land owner conveyed to PATH “a perpetual transmission line easement (the “Easement”) a minimum of two hundred (200) feet in width…”  Yup, you read that right.  A minimum of 200′ in width, with no limit on the maximum width.  On paper, this land owner just allowed PATH to take his whole farm if PATH said they needed it for their easement.  Unbelievable.
  2. On page 2 – The agreement says that the easement is to be located as shown on an attached survey plat, but … “its location shall be finally evidenced by a line connecting the center points of the poles, supporting structures and towers of said electric transmission line when constructed on said lands.” In other words, “here is a pretty map, but the location of the line will be where we end up building it.”
  3. On pages 2 and 3 – The agreement gives the power companies the right to enter the owner’s land at any time, in any place to get access to the transmission line.  If there is no current access to an area, the power companies can build one in a “mutually agreed” location.  There is no provision in the agreement specifying what will happen if the parties can’t “mutually agree.”
  4. On page 3 – PATH will pay for or repair any damages to the land owner’s property “at its option.”  If PATH tears something up, they will decide whether they will pay for it or repair it.  Again, there is nothing in the agreement that sets any standards for “repairs” from the land owner’s point of view.  There is also no mechanism spelled out for determining or agreeing on the adequacy of any damage payments.  When the time comes, it will be “take it or leave it” for damages to the land owner.
  5. On page 4 – This is very important.  “This instrument contains the complete agreement, expressed or implied between the parties…”  In other words, if it isn’t in the agreement, the parties have no agreement on that issue.  For example, there is nothing in this agreement protecting the land owner from being sued by PATH for any liability they claim as damages to their equipment on the easement.  What if PATH equipment is damaged and the company wants to sue the land owner, not only for the cost of repair, but the total cost of the power outage while the line was off?  They can do it, because there is nothing in this agreement that says they can’t.  Remember this Texas case?
  6. There is no restriction on PATH that prevents them from assigning the right of way to any other company for other uses.  The agreement does allow PATH to give others rights of way on the easement for fiber optic cable, but provides no additional payment or rent sharing for the land owner.  All the money from the fiber optic income would go to PATH, not the land owner whose land will be used.
  7. There is nothing about free electricity.
  8. And the land owner only got $90,000 on a big farm in Jefferson County.
  9. And finally, on page 6 – “This instrument was prepared under the direction of Edward G. Kennedy, Attorney at Law, 800 Cabin Hill Drive, Greensburg, PA…”  This statement fails to say that 800 Cabin Hill Drive is the address of PATH Allegheny or that Mr. Kennedy is a staff attorney for PATH.  If you realize those facts, then the statement tells you all you need to know about the rest of the right of way agreement:  it was prepared by PATH for PATH and does nothing to protect the land owner.
  10. Note who signed and who did not sign this agreement.  The document is, in effect, a deed, so legally only the seller needs to sign it to give up whatever rights they are conveying to the grantee.  However, if it were me, I would also want to make sure an authorized representative of PATH Allegheny signed this document so that there is a clear record that PATH Allegheny agreed to ALL the limitations, requirements and stipulations that I had placed upon them to perform.  There is no such signature in this document by PATH Allegheny acknowledging that they have obligations under this agreement.

I can’t speak for anyone else, but if this agreement was put in front of me, my only response would be “You must be joking.”

If you are a land owner affected by PATH, and you have read this PATH agreement, and you still think you “can’t afford” a lawyer of your own to draft your own agreement or take your case to condemnation, good luck to you.  You will need it.

If you don’t know where to start, go to a local lawyer and ask them to refer you to a firm that does right of way and condemnation work.  Get started now, so you will be ready when the PATH land agent starts putting documents in front of you.  You are the only one who can stand up and protect your land and your family.