Ramsey et al v. Sprint Communications Company, L.P. et al

Filing 44

EASEMENT DEED BY COURT ORDER IN SETTLEMENT OF LANDOWNER ACTIONS pursuant Memorandum and Order filing 43 . Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN RAMSEY, et al.,
Plaintiffs,
vs.
SPRINT COMMUNICATIONS
COMPANY, L.P., et al.,

4:11-CV-3211
EASEMENT DEED BY COURT
ORDER IN SETTLEMENT OF
LANDOWNER ACTION

Defendants.
The Court has, on this date, entered a Memorandum and Order
approving the parties' class action settlement agreement and ordering that
this action may be settled as a class action on behalf of a settlement class
defined in the settlement agreement as
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.
Filing 20-1 at 8. 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 the 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.1
IT IS ORDERED:
1.

To the extent that each class member owns rights in the
easement premises (as hereafter defined), the class member

Terms that are expressly defined in the settlement agreement are, unless otherwise
defined, intended to have the same meaning as in the settlement agreement.
1

2.

(the "grantor") hereby grants to whichever of Sprint
Communications Company L.P., Qwest Communications
Company, LLC, and Level 3 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.
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
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(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 nonnavigable 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 March 15, 2012 (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. 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
March 15, 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
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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 December 3, 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
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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 March 15,
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.).
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
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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 preexisting 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 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
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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 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.
Dated this 3rd day of December, 2012.
BY THE COURT:

John M. Gerrard
United States District Judge

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