What You Don't See Is What You Get

by: Daniel J. Kucera

While inspecting his property, an owner noticed a truck on his land. He discovered that the truck belonged to a contractor hired by the local sewer district to clean a 7ft 6in.-diameter sewer main that ran beneath the property. Investigation revealed that there was no recorded easement for the sewer and that there was no visible means to determine that the sewer was under the property. The owner did not become aware of the sewer until he saw the truck, several years after his acquisition of the land.

The owner filed suit to have the sewer main removed from his property. The court concluded that the complaint was barred because the sewer district had an easement by prescription. On appeal, the decision was affirmed. Katz v. Metropolitan Sewer District, 690 N.E. 2d 1357 (Ohio App. 1st Dist. 1997).

Under Ohio state law, as summarized by the court, to obtain a prescriptive easement, a person's use of another's property must be open and notorious, adverse, and in place for at least twenty-one years.

The court found that the sewer line had been in use on the property for approximately 150 years. The question became whether such use of the property was sufficiently open and notorious even though the owner did not know about it. The court held that it was, because the presence of the sewer was long established in public records, including an 1852 report by the city civil engineer.

In the end, the court may have applied a balancing test. It stated that if its conclusion "seems to ignore or to denigrate property rights, . . . . we point out the necessity of this large, functioning sewer to general welfare of the public." It then quoted from the 1852 engineer's report:

    "It is the experience of all cities that they must adopt some plan to get rid of the filth which accumulates in them; a disregard of this law of cleanliness is visited with malignant fevers, various contagious and epidemical diseases, and more virulent occasional periods of pestilence. The impurities which are necessarily generated in densely populated districts are so considerable, that a due regard to the pleasurable sensations of sight and smell, requires as an imperative necessity the removal of everything that injuriously affects them, and particularly, those which can be done by the force of their own gravitation, not only that they may be passed away so as not to injure the air we breathe, but that they may not be absorbed by the earth, poisoning the waters under it and exhaled in pestilential vapors: This is the legitimate province of a system of house drainage in connection with that of common sewers." Id. at 361-62.

So, what you see is not always what you get. What you don't see you may actually get.

Dan Kucera is a partner with the Chicago law firm of Chapman and Cutler, specializing in public utilities, water and wastewater and environmental law. Tel: (312) 845-3757; Fax: (312) 701-2361; e-mail: wimbush@chapman.com