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Under Texas law, a blanket easement is “[a]n easement without a metes and bounds description of its location on the property.”<a href="#ftnref1">[1]</a> It is also considered an easement that covers the entire servient estate.<a href="#ftnref2">[2]</a> Although some states require that the easement area be smaller than the entire servient estate, Texas does not.<a href="#ftnref3">[3]</a> For that reason, blanket easements are used in Texas because they grant the easement holder the ability to modify the location of pipelines on the property, and as a result, provide more flexibility to the easement holder in choosing the manner in which it may exploit or transport resources.<a href="#ftnref4">[4]</a>



Blanket easements can be problematic for the landowner of the burdened property because if he or she has improvements on or other uses for the burdened property, those improvements or other uses of the landowner will likely be subject to the rights held by the holder of the right-of-way. To avoid this issue, landowners would be wise to define a fixed easement area and have the company survey it, along with any temporary work spaces or construction areas. This type of easement, which is more commonly used today, is known as a specific easement.



In creating a specific easement, it is very important that the parties include a survey of the pipeline in an exhibit to the easement so that the pipeline is properly identified on the encumbered property and within the easement area. Prudent easement holders who are unable to obtain blanket easements may, as a fallback position, try to negotiate for larger easement areas or for more flexibility with amendments to surveys in order to accommodate changes made during the construction process. For example, an easement holder may desire that the following language (or something substantially similar) be included in the easement agreement:



“During any period of construction, Grantee may determine, in its sole discretion, to make variations to the route of the Pipeline (in contravention to what is set forth in Exhibit A) in order to better accommodate its commercial needs. If any such variations are made, Grantee agrees to record an amended Exhibit A following completion of the construction of the Pipeline to reflect the actual survey of the centerline of any Pipeline as-built, and any such amended easement description shall be included within and constitute the Easement granted by Grantor herein.”



Obviously, nothing can offer the easement holder as much flexibility or protection as a blanket easement; however, provisions like the one above can help the operator avoid rigid construction requirements and allow for some added flexibility in the event the acquisition of a blanket easement becomes unrealistic.



<a href="#ftnref1">[1]</a> First Am. Title Ins. Co. of Tex. v. Willard, 949 S.W.2d 342, 344 n.2 (Tex. App.—Tyler 1997, writ denied) (op. on reh’g).



<a href="#ftnref1">[2]</a> 2 Tex. Prac. Guide Real Estate Trans. § 15:19.



<a href="#ftnref1">[3]</a> Id.



<a href="#ftnref1">[4]</a> Id.

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Zachary E. Bernard

The Importance of Knowing The Right Way to Prepare Legal Descriptions in a Right-of-Way Transaction in Texas

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