Coghlan et al v. Sprint Communications Company L.P. et al
Filing
42
EASEMENT DEED BY COURT ORDER in Settlement of Landowner Action. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES COGHLAN, et al.,
Plaintiffs,
v.
Case No. 11-11563
SPRINT COMMUNICATIONS COMPANY
L.P., et al.,
Defendants.
/
EASEMENT DEED BY COURT ORDER IN SETTLEMENT OF LANDOWNER ACTION
WHEREAS, the parties to the above-captioned class action (the “Action”) entered
into a Michigan Class Settlement Agreement, as of March 1, 2012, (the “Settlement
Agreement”) (terms capitalized herein and not otherwise defined shall have the
meanings ascribed to them in the Settlement Agreement); and
WHEREAS, on November 5, 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-ofWay 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;
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 ORDERED AND ADJUDGED THAT:
1.
To the extent that each Class Member owns rights in the Easement
Premises (as hereafter defined), the Class Member (the “Grantor”) hereby grants to
whichever of Sprint Communications Company L.P., Qwest Communications Company,
LLC, Level 3 Communications, LLC, and WilTel Communications, LLC, has Designated
for inclusion under a Settlement Agreement the Right of Way which adjoins, underlies,
or includes Covered Property owned by the Class Member, 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.
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2.
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 a parcel of
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
April 27, 2012 (B) where the actively used components of the Grantee’s
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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. The 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 April
27, 2012. 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
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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 November 5, 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
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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 April 27, 2012, 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.).
The Easement includes all rights granted herein that are necessary to authorize
MCI Communications Services, Inc. (“MCI”), a Delaware corporation, lawfully to own,
operate, use, permit others to use, and maintain the Telecommunications Cable System
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described in that certain Amended and Restated System Use and Service Agreement,
dated September 1, 1991, between WTG-East, Inc., predecessor in interest to MCI and
US Sprint Communications Company Limited Partnership, predecessor in interest to
Sprint, and used by both MCI and Sprint (“the LightNet System”), provided, however,
that nothing in this Easement shall be construed to convey rights to MCI, except through
Grantee, in any telecommunications cable system other than the LightNet System.
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
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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 System.
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
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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
interest.
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 Settling
Defendants, the Grantor, their successors, assigns, personal representatives, and heirs.
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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.
3.
Settling Defendants may record this Easement under the terms and
conditions set forth in the Settlement Agreements.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: November 15, 2012
I hereby certify that a copy of the foregoing document was mailed to counsel of record on
this date, November 15, 2012, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
S:\Cleland\JUDGE'S DESK\C1 ORDERS\11-11563.COGHLAN.Easement.Deed.wpd
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