Amunrud v. Sprint Communications Company, L.P.
EASEMENT DEED BY COURT ORDER IN SETTLEMENT OF LANDOWNER ACTION. Signed by Magistrate Carolyn S Ostby on 2/10/2012. (POC, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
JANET AMUNRUD, KALFELL RANCH, INC., )
and FLYNN RANCH OF TOWNSEND, INC.
for themselves and all others similarly situated,
) CV 10-57-BLG-CSO
SPRINT COMMUNICATIONS COMPANY
EASEMENT DEED BY COURT ORDER
IN SETTLEMENT OF LANDOWNER ACTION
WHEREAS, the parties to the above-captioned class action (the “Action”)
entered into a Montana Class Settlement Agreement, as of July 22, 2011, (the
“Settlement Agreement”) (terms capitalized herein and not otherwise defined shall
have the meanings ascribed to them in the Settlement Agreement); and
WHEREAS, on February 10, 2012, the Court entered a final Order and
Judgment approving the Settlement Agreement and ordering that this Action may
be settled as a class action on behalf of the following class:
A class (the “Settlement Class”) defined as:
a class comprising all Persons who own or who claim to own,
for any period of time during a Compensation Period, any Covered
Property, provided, that “Settlement Class” or “Class” does not
include: (1) Right-of-Way Providers and their predecessors,
successors, parents, subsidiaries, and affiliates, past or present; (2)
federal, state, and local governmental entities; (3) Native American
nations and tribes; or (4) any Person who files a valid and timely
exclusion on or before the Opt-Out Deadline.
Members of this Class are referred to below as Class Members; and
WHEREAS, the Settlement Agreement provides for the entry of an
Easement Deed by Court Order in Settlement of Landowner Action by which the
Settling Defendants acquire, to the extent that Class Members have the right to
transfer it, a permanent telecommunications easement in the Right of Way adjacent
to the property of each Class Member;
THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED THAT:
To the extent that each Class Member owns rights in the Easement
Premises (as hereafter defined), the Class Member (the “Grantor”) hereby grants to
Sprint Communications Company L.P., together with its successors, assigns, and
licensees (the “Grantee”), a permanent telecommunications easement in the
Easement Premises. For each county in which this Easement Deed by Court Order
in Settlement of Landowner Action is being recorded, a list of affected Class
Members and their affected parcels is attached as Exhibit 1. Exhibit 1 shall
describe Class Members’ affected parcels with the following information, to the
extent that it is in the Database of Identification Information: owner name; owner
mailing address; tax map identification number; tax parcel identification number;
lot number; and section, township, and range.
Exhibit 1 may describe Class
Members’ affected parcels with any other available information.
The terms and conditions of the permanent telecommunications
easement that is the subject of this Easement Deed by Court Order in Settlement of
Landowner Action are:
a perpetual easement and right of way (hereinafter, together with the rights
and privileges herein granted, the “Easement”) and right to place, lay, bury,
construct, install, operate, repair, maintain (including aerial patrol), renew, rebuild,
replace, upgrade, expand, relocate, and remove fiber optic cables, copper cables,
coaxial cables or other cables through which voice, data, video or other signals are
transmitted, conduits, inner ducts, hand holes, splice vaults, poles, optical or
electronic equipment, regenerator huts, marker posts or signs, and other related
facilities appropriate for installation, use, or maintenance of such cables
(collectively, the “Telecommunications Cable System”), in, on, over, under,
through and/or across the Easement Premises. The Easement Premises means all
that real property that (a) either (i) is included within a parcel of property that is
described in Exhibit 1 or (ii) has a common boundary with the property described
in Exhibit 1 (the “Grantor’s Property”) (for purposes of this Telecommunications
Cable System Easement Deed, a parcel of property shall be deemed to have a
common boundary with the Easement Premises if it is separated by a non-
navigable river or a street, road, or highway, other than a numbered state or federal
highway) and that (b) (i) is or was used as a railroad right of way (“Railroad Right
of Way”) and (ii) is on a side of the centerline of the Railroad Right of Way that is
next to the Grantor’s Property (the “Grantor Side”), and (iii) extends no more than
ten (10) feet on each side of the Grantee’s Telecommunications Cable System (A)
as it existed on September 20, 2011 (B) where the actively used components of the
Grantee’s Telecommunications Cable System are moved or placed, provided,
however, that only a single 20-foot easement per moved component may exist at
any point in time in the Easement Premises, and the width of the moved
component’s Easement Premises shall be reduced on one side and increased by an
equal linear footage on the other side wherever necessary in order that it shall in all
places remain solely within the limits of a single Grantor Side of the Railroad
Right of Way, and (C) where new components are installed to connect the existing
Telecommunications Cable System to the edge of the Right of Way.
Easement shall be construed to grant Grantee all rights necessary to abandon in
place unused components of Grantee’s Telecommunications Cable System.
The Easement shall not include the right to construct on the Easement
Premises regenerator huts and similar structures (“Buildings”) in addition to those
existing on September 20, 2011. The Easement shall include the rights to repair,
replace, and expand existing Buildings, provided, however, that no such repair,
replacement, or expansion shall increase the site that the Buildings occupy, or the
height of any Building, by more than twenty-five percent. The Easement does not
permit the construction of microwave towers, cell towers, or other components of a
primarily aboveground statewide Telecommunications Cable System.
The Easement includes the right to temporarily use the entire Grantor Side
of the Railroad Right of Way for construction or maintenance, so long as Grantee
uses its best efforts not to interfere with any real property which, although within
the boundaries of the Easement Premises, is actually being used by Grantor;
provided, however, that in no event shall Grantee be prohibited from using such
real property if it is commercially reasonable to do so under the circumstances or if
Grantee’s Telecommunications Cable System is currently located within such area.
The Easement shall include the right of reasonable ingress and egress to and from
the Easement Premises over that portion of the Grantor’s real property that
underlies the Railroad Right of Way and, for repair and maintenance, over any
existing private roads of Grantor, where access from public or railroad roads is not
reasonably practical, provided Grantee has made commercially reasonable efforts
to give prior notice to Grantor of Grantee’s use of Grantor’s private roads. Grantee
shall not be liable for damages caused by its removal of trees, undergrowth, and
brush within the Easement Premises necessary or appropriate for the enjoyment of
the Easement. Nothing contained herein shall constitute a waiver of any right that
Grantor may have for any damages to Grantor’s property outside of the Easement
Premises caused by Grantee’s action. If Grantee’s action causes damage to any of
Grantor’s existing improvements, including houses, garages, shops, sheds, and
fences, or growing crops, which are within the Easement Premises, Grantee shall
pay reasonable compensation to the Grantor for such damage to the extent
provided by law.
From and after February 10, 2012, subject to all the restrictions and
limitations stated herein, the Easement includes the right to construct and install
additional components of a Telecommunications Cable System within the
Easement Premises. Grantee agrees that, unless (a) it is required to do so by the
railroad or other owner of Railroad Right of Way or (b) it is commercially
reasonable under the circumstances to do so, it will not install additional
components of a Telecommunications Cable System in the area of the Easement
Premises that is outside a parallel fence constructed by the railroad or other owner
of Railroad Right of Way or is actually being used by the Grantor or its successor,
provided, however, that the foregoing shall not be binding upon Grantee if
Grantee’s Telecommunications Cable System is currently located within such area.
If Grantee’s action causes damage to any of Grantor’s existing improvements,
including houses, garages, shops, sheds, and fences, or growing crops, which are
within the Easement Premises, Grantee shall pay reasonable compensation to the
Grantor for such damage to the extent provided by law.
The Easement includes all rights necessary to the lawful occupation of the
Easement Premises by an existing Telecommunications Cable System, and by any
additional Telecommunications Cable System that is constructed and installed by
or on behalf of Grantee in the Easement Premises and that is owned or operated by
either (a) Grantee or (b) any person or entity to which Grantee sold, granted,
leased, or otherwise transferred or may hereafter sell, grant, lease, assign, or
otherwise transfer, all or any part of the rights in or use of such
Telecommunications Cable System.
The Easement, however, does not apply to any Telecommunications Cable
System that existed on September 20, 2011, but that was acquired by Grantee after
that date (unless such Telecommunications Cable System or component thereof
was acquired from any of Sprint Communications Company L.P.; Qwest
Communications Company, LLC, f/k/a Qwest Communications Corporation;
Level 3 Communications, LLC, Level 3 Communications, Inc., and Level 3
Telecom Holdings, Inc.; WilTel Communications, Inc.; WilTel Communications,
LLC; and Williams Communications, LLC, f/k/a Williams Communications, Inc.,
f/k/a Vyvx, Inc.).
No oil, gas, or other mineral rights are granted and no existing oil, gas, or
other mineral rights are expanded, limited, or affected by this instrument, provided,
however, that Grantor shall not use a method of extraction that interferes with or
impairs in any way the Easement, the Telecommunications Cable System, or the
exercise of Grantee’s rights herein.
Grantor shall not, nor shall Grantor authorize others to, construct or create
any road, reservoir, excavation, obstruction, structure, or building or change the
land grade on, in, over, under, through, or across the Easement Premises without
the prior written consent of Grantee, provided that nothing herein shall be
construed to affect the rights and obligations of any railroad with respect to the use,
improvement, or alteration of its Railroad Right of Way, as provided in any
agreement between the railroad and the Grantee, by applicable law, or otherwise.
It is understood and agreed that the Easement is not exclusive and is subject
to all pre-existing uses and pre-existing rights to use the Easement Premises,
whether such uses are by Grantor or others and whether for surface uses, crossings,
or encroachments by communication companies or utilities.
It is further
understood and agreed that Grantor retains all of its existing rights, if any, to grant,
convey, assign, and restrict any and all rights (including future rights and uses) on
the Easement Premises, provided, however, and notwithstanding the foregoing,
that Grantor shall not use or authorize others to use the Easement Premises in a
manner that interferes with or impairs in any way Grantee’s Telecommunications
Cable System or the exercise by Grantee of the rights granted herein.
Subject to the terms hereof, Grantee shall have all other rights and benefits
necessary or useful to the full and complete enjoyment and use of the Easement for
the purposes stated herein, including the right to sell, grant, lease, or otherwise
transfer all or any part of the rights in or use of the Telecommunications Cable
Grantor conveys the Easement without warranty of title to any property
interest in the Easement Premises. This instrument does not address and shall not
affect any real property rights, including the priority of interests, between Grantor
and any railroad or between Grantee and any railroad, or any of their predecessors,
successors, past or present predecessors in interest, successors in interest,
successors in title, members, partners, parents, subsidiaries, affiliates, lessees,
assigns, and past, current, or future licensees or assignees. This Easement is not
intended to impact or diminish any railroad’s existing rights or property interests in
the Right of Way. This Easement shall not be construed to permit Grantee to
interfere with railroad operations.
This Easement also shall not permit any
component of a Telecommunications Cable System to remain in a Railroad Right
of Way except (a) under existing or future agreements with the railroad or (b) in
any Railroad Right of Way in which no railroad operates and no railroad retains
any right, title, or interest.
This Easement also shall not permit any new
components to be installed to connect the existing Telecommunications Cable
System to the edge of the Right of Way in any Railroad Right of Way as to which
the Interstate Commerce Commission or the Surface Transportation Board has
entered an order, pursuant to 49 U.S.C. § 10903, that the railroad is authorized to
cease to provide or maintain rail service over that right of way and the railroad no
longer provides or maintains rail service over that line, provided that if the railroad
does not cease such rail service or later reactivates such service, then this limitation
shall not apply.
This Telecommunications Cable System Easement Deed is executed and
delivered on behalf of Grantor for the purpose of granting the Easement to Grantee
in, on, over, under, through and/or across the Easement Premises to the full extent
of Grantor’s right, title or interest, if any, in or to the Easement Premises, and the
Easement granted hereby shall affect the Easement Premises only to the extent of
Grantor’s right, title, and interest therein. Grantor and Grantee agree that this
Telecommunications Cable System Easement Deed shall not grant any rights to the
Easement Premises, or any portion thereof, in which Grantor holds no right, title or
No rights reserved to Grantor herein shall be deemed to expand rights
reserved to Grantor under any other easement, right of way, license, lease, or any
similar instrument or court order. No limitation herein on the rights of Grantee
shall be deemed to limit rights heretofore granted by Grantor or its predecessors in
interest under any other easement, right of way, license, lease, or any similar
instrument or court order.
The terms and provisions of this instrument shall constitute covenants
running with the land and shall be binding upon and inure to the benefit of the
representatives, and heirs.
This instrument fully sets forth the terms and conditions of the Easement.
There are no oral or other written agreements between Grantor and Grantee that
modify, alter, or amend this instrument.
TO HAVE AND TO HOLD the Easement, rights and privileges unto
Grantee, its successors and assigns in perpetuity or until such time as Grantee shall
cause the Easement to be released of record.
Settling Defendants may record this Easement under the terms and
conditions set forth in the Settlement Agreements.
Date: February 10, 2012
/S/ Carolyn S. Ostby
United States Magistrate Judge