Section 5: Preparation of Access, Bisection, and Special Clauses for Easements
Anchor: #i1008299Overview
For acquisitions by condemnation, in addition to the property descriptions submitted per Chapter 3, Instructions for Completing ROW-E-49, it will often be necessary to include additional special clauses to adapt the acquisition for the specifics of the project and the parcel. Control of Access and Bisection Clauses are to be prepared in accordance with the following samples and should be included on the Special Clause Exhibit made a part of the form ROW-E-49 Request for ED Proceedings and prescribed in the Special Clauses For Conveyance Instruments. While OAG may eventually use additional clauses to facilitate settlement of a case, the only special clauses that should be included with the form ROW-E-49 Request for ED Proceedings are for access or bisected improvements.
Anchor: #i1008314Control of Access
Control of access clauses for condemnation are similar to those used for negotiated acquisitions, which are described in Special Clauses For Conveyance Instruments; however, the format used to describe the specifics of the access rights involved is varied to accommodate the legal concerns associated with an acquisition by ED. Generally, control of access clauses will be required for each partial taking fee acquisition on designated controlled access facilities. Control of access clauses may also be necessary on non-controlled access highway facilities, but which are designed in such a way as to preclude practical physical access. Such occurrences are usually the result of design requirements calling for elevated structures, embankments or some similar physical restriction.
The following examples are intended to represent sample control of access clauses. Control of access clauses are to be incorporated into the metes and bounds survey description.
- Anchor: #LPBUTPBR
- Where access
is permitted to the entire remainder(s), use;
Access will be permitted to the north remainder abutting the highway facility along Call 1 of the foregoing property description.
- Anchor: #YASGANOY
- Where access
is to be denied to the entire remainder(s), use;
Access will not be permitted to the north remainder abutting the highway facility along Call 1 and 2 of the foregoing property description.
- Anchor: #YSTGKHWQ
- Where a property
owner has two remainders and access is to be fully permitted to
one and fully denied to the other, use;
Access will be permitted to the south remainder abutting the highway facility along Call 1 of the foregoing property description for Part 1.
Access will be denied to the north remainder abutting the highway facility along Call 1 of the foregoing property description for Part 2.
- Anchor: #JJVVXJIN
- Where access
is to be partially permitted and partially denied to a single remainder,
use;
Access will be permitted to the north remainder abutting the highway facility along Call 1 of the foregoing property description.
AND,
Access will be denied to the north remainder abutting the highway facility along Call 2 of the foregoing property description.
- Anchor: #SDWJRPGK
- Where access
is permitted to part of one remainder and denied in part to that
same remainder (as in the preceding example) but where the limits
of access are not coincident with the beginning and ending points
of the property description calls, use;
Access will be permitted to the north remainder abutting the highway facility from a point being the beginning of Call 1 of the foregoing property description to a point being North 25E 15' 10" East a distance of 25 feet from the beginning of said Call 1; and also from a point being located northeasterly on a curve to the left (said curve having a radial bearing of North 75E 10' 15" West, a central angle of 32E 20" and a chord bearing/distance of North 01E 25' 15" East/75.00 feet) an arc distance of 50 feet from the beginning of Call 2 of said description to the end of said Call 2.
AND,
Access will be denied to the remainder abutting the highway facility for a distance of 150 feet from a point being North 25E 15' 10" East 25 feet from the beginning of Call 1 of the foregoing property description to a point located northeasterly on a curve to the left (said curve having a radial bearing North 70E 10' 15" West, a central angle of 32E 20" and a chord bearing/distance of North 01E 25' 15" East/75.00 feet) an arc distance of 50 feet from the beginning of Call 2 of said description.
- Anchor: #XXVIPOGI
- Where access
is to be denied at locations other than along the new ROW line as
it abuts the applicable taking, the following is to be added after
and independent from the access clause(s) being used to describe
access abutting the taking.
AND IN ADDITION THERETO:
Access will be denied to and from tract of land described in Volume 123, Page 456 of the Real Property Records of Jones County along the existing north right of way line of Interstate Highway 123 for a distance of 300 feet. Said distance of 50 feet from the end of Call 1 of the foregoing property description and continues along the said existing north right of way line North 20E 10' 00" East for a distance of 100 feet to the end of this additional access denial.
- Anchor: #EFMGWLXH
- Care should be taken to insure that the parent tract recording noted in the preamble to the property description applies not only to the area described by the metes and bounds, but also is relevant to the tract abutting the additional access denial. If necessary, additional recording data can be included in the additional access denial provision as has been previously noted.
Bisection Clauses
Bisection clauses for condemnation are similar to those used for negotiated acquisitions, which are described in Special Clauses For Conveyance Instruments; however, the format used to describe the specifics involved is varied to accommodate the legal concerns associated with a forced taking. Generally, while OAG may choose to alter the final version of the bisection clauses in order to accommodate a judicial settlement, for the purpose of completing the Special Clause Exhibit as made a part of the form ROW-E-49 Request for ED Proceedings and prescribed in Special Clauses For Conveyance Instruments, an owner who does not accept the State's final offer will not be permitted the opportunity to retain either a “Category I” bisected improvement or that portion of a “Category II” bisected improvement lying between the cut line and the highway facility.
Generally, bisection clauses are to be included for each bisected improvement owned by the condemnee. Improvements located upon the land to be acquired but owned by a party other than the condemnee usually do not need to be referenced on the form ROW-E-49 Request for ED Proceedings or Special Clause Exhibit; however, it is best to discuss the merits of such an inclusion with the ROW Program Office prior to the submission of the ED request.
The following examples are intended to represent sample bisected improvements clauses. These bisection clauses are to be included on the Special Clause Exhibit.
Category I Bisection. Where an improvement has been classified as a “Category I” bisected improvement and it will be the intention of the State to acquire title to the whole improvement, including the portion lying outside the area of the land acquisition, as well as the right to enter the remainder for the purpose of removing the improvement, use
AND IN ADDITION THERETO:
Title to all of that (describe improvement as noted on Form ROW-A-10) located partially on the remainder of the herein described parcel, said improvement being bisected by the proposed north right of way line, with the result that the portion of the said improvement lying adjacent to the said right of way line would be in such a condition that it could not be adequately reconstructed at such location, plus the temporary right to enter upon the said remaining property for the sole purpose of removing all of the said improvements.
Category II Bisection (on ROW only). Where an improvement has been classified as a “Category II” bisected improvement and it will be necessary for the State to acquire title to only that portion of the improvement located on the new ROW, there is no need to include any bisection clause. However, as it will be the State's responsibility to cut the subject improvement at the line of bisection, it is very likely that the State will need to secure the right to enter upon the acquired parcels remainder for the purpose of making the necessary cut and removal operations. For such occurrences, use;
AND IN ADDITION THERETO:
The temporary right to enter upon the remainder of the herein described parcel for the sole purpose of cutting that (described improvement as noted on the Form ROW-A-10) along the line of bisection, same being coincident with the proposed north right of way line.
Category II Bisection (beyond ROW line). Where an improvement has been classified as a “Category II” bisected improvement and it will be necessary for the State to acquire not only title to the portion of the improvement located within the new ROW but also to a portion located on the remainder, it will be necessary to establish the cut line based on structural engineering and appraisal standards. The method for defining the cut line location in the bisection clause will vary depending upon the type of structure and the actual location of the cut. Using reference to either the existing or proposed ROW lines or to definitive and readily identifiable structural monumentation is recommended. For occurrences of bisections of this nature, use;
AND IN ADDITION THERETO:
Title to a portion of that (described improvement as noted on Form ROW-A-10) located on the remainder of the herein described parcel, said improvement being bisected by the proposed north right of way line, with the result that the portion of the said improvement lying between the hereinafter described cut line and the new north right of way line would be in such a condition that it could not be adequately reconstructed at such location, said cut line lying between a point being located on the eastern exterior wall of the said improvement 35 feet north of the most southeast corner of the said improvement, said cut line running coincident with a line running approximately one foot south of the common wall between the storage room and the main office portions of the said improvement, plus the temporary right of enter upon the said remaining property for the sole purpose of making the necessary cut along said cut line and removing all of the described portion of the said improvement.
Anchor: #i1008484Clauses for Highway, Drainage, or Temporary Easement Purposes
When an easement is acquired or condemned, the purpose(s) of the easement must be described either in the preface to the easement property description or in a clause attached to the easement property description. This is also true concerning the intended duration of a temporary easement. The following examples are offered for use in describing the purpose of a general highway, drainage or temporary easement, and the duration of the latter. Note that it may be necessary to adapt the description to the specifics of the project and the parcel.
- Anchor: #BEINOMOX
- Permanent Easement
for Highway Drainage Purposes
“An easement for the purpose of opening, constructing and maintaining a permanent channel or drainage easement in, along, upon and across the premises described in the following property description, together with the right and privilege at all times of ingress and egress to and from said premises for the purpose of making any additions, improvements, modifications or repairs which the State deems necessary, and the right to remove from said premises and use, for highway purposes, any stone, earth, gravel or caliche or other road building material which may be excavated in the opening, construction or maintenance of said channel or drainage easement.”
- Anchor: #UVFRFNMV
- Permanent Easement
for General Highway Purposes
(Note: While there is a strong preference for acquiring fee title, except where the parcel is to be used solely for drainage purposes, there may be circumstances where the acquisition of an easement for general highway purposes may be appropriate): “An easement for highway purposes, for the purposes of laying out, opening, constructing, operating, maintaining and reconstructing a highway facility thereon, together with necessary incidentals and appurtenances thereto, in, along, upon and across the tract or parcel of land in ____________ County, Texas, more particularly described in the following property description.”
- Anchor: #THXQUOOX
- Temporary Easement
“A TEMPORARY EASEMENT for the duration of (insert number of months/years) from the date of possession of said easement (or, in the alternative, specify a duration following a specific date certain) for the purpose of (insert purpose for temporary easement), in, along, upon, and across the premises described in the following property description, with the temporary right and privilege of having ingress, egress, and regress in, along, upon, and across said tract of land for the purpose of (insert same purpose stated above).”