Ford, Paul et al v. Sprint Communications Company, L.P. et al

Filing 39

EASEMENT DEED by Court Order in Settlement of Landowner Action (Abandoned Lines). Signed by Magistrate Judge Stephen L. Crocker on 1/14/2013. (arw)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

PAUL FORD and DOLORES FORD, RUTH E.
BOBZIEN, AMY DICKERSON and BRUCE
DICKERSON, EVERETT CHAMBERS and
JOANNE CHAMBERS, and RAY VINNEY, for
themselves and all others similarly situated,
Plaintiffs,
vs.
SPRINT COMMUNICATIONS COMPANY
L.P., QWEST COMMUNICATIONS
COMPANY, LLC, and WILTEL
COMMUNICATIONS, LLC,
Defendants.
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EASEMENT DEED BY COURT ORDER
IN SETTLEMENT OF LANDOWNER ACTION
WHEREAS, the parties to the above-captioned class action (the "Action") entered into a
Wisconsin Class Settlement Agreement, as of May 16, 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 December 13, 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: (l) 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;
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:
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, and WilTel
Communications, Inc. 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

telecommunications easement in the Easement Premises.

(the

"Grantee"),

For each county

a permanent
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.
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,

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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 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 (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").
The Easement granted herein shall pertain only to an area bounded by parallel lines 8Y4
(eight and one-quarter) feet on either side of the Telecommunications Cable System as it
existed on June 5, 2012 (the "Easement Premises"), provided, however, that the width of the
Easement Area 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
the side of the centerline of the Railroad Right of Way where Grantee's Telecommunications
Cable System is currently located (the "Cable Side").
The Easement shall not include the right to construct regenerator huts and similar
structures ("Buildings") in addition to those existing on June 5, 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

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height of any Building, by more than twenty-five percent (25%). 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 Easement Premises 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, by the use
of gates and existing roads if available, where access from public roads is not reasonably
practical. 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 structures, such as houses,
garages, shops, or sheds, which are within the Easement Premises, Grantee shall pay reasonable
compensation to the Grantor for such damage as provided by law.
From and after December 13, 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

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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 structures, such
as houses, garages, shops, or sheds, which are within the Easement Premises, Grantee shall pay
reasonable compensation to the Grantor for such damage as 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 June 5, 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, :lJk/a Qwest
Communications Corporation, Level 3 Communications, LLC, Level 3 Communications, Inc.,
Level 3 Telecom Holdings, Inc., WilTel Communications, Inc., and Williams Communications,
LLC, f/k/a Williams Communications, Inc., f/k/a Vyvx, Inc.).

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No oil, gas, or other mineral rights are granted 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.
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 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 oftheir predecessors, successors, past or present predecessors in interest,

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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 Telecommunications Cable System Easement Deed is executed and delivered by
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 parties hereto, 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.
Date: - - - - - - ' - - - - -

Honorable Stephen L. Crocker
United States Magistrate Judge

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