September 12, 2010
What's In Your Yard?
Teaching the law of servitudes, and in particular the ubiquitous case of Van Sandt v. Royster, often brings both my students and myself to the startlingly abrupt realization that we have no idea what's buried in our yards -- although we know there must be pipes down there, we don't exactly where they are, or what kinds of pipe they are, or even who's supposed to be taking care of them. That's an issue in Van Sandt because the court holds that a sewage pipe running through the plaintiff's yard -- which the plaintiff himself was unwittingly using -- created an implied easement, and that the plaintiff was on constructive notice about its existence when he purchased the property.
I think I can say with a high degree of confidence that most of us connected to municipal systems don't know exactly where our sewage goes during it's journey through our yards; we really only care that it goes away (permanently) when we flush. Similarly, I don't know where the water that comes into my house comes from on its journey from the local tower; I only care that it arrives when I turn the faucet. I also have no idea where, exactly, the natural gas that comes into my home travels through my yard or neighborhood I know enough not to dig without calling the local utility company, but that's it. And let me add -- I practiced utility law.
The horrific fire in San Bruno reminded me again how little most of us know about what we are living on top of. The unimaginable inferno that suddenly erupted literally underneath an entire neighborhood killed at least four people, but five are still missing and authorities are struggling to identify anything that may be human remains in the pile of ash. Dozens more were injured and about 40 homes completely destroyed. All as a result of a rupture in one of those pipes we never think about, that had been buried beneath the neighborhood for the past 54 years.
As the utility infrastructure put in place in the post World War II suburban boom continues to age, we may find that, like the plaintiff in Van Sandt, it behooves us to know more about what, exactly, is in our yards. Utilities will want to recover the high cost of replacing those pipes through rates -- and the relative willingness of ratepayers to pay for infrastructure improvements will undoubtedly have a great deal of impact on whether and how quickly those improvements are made. Tough choices ahead, and tough times for the people of San Bruno now.
Mark A. Edwards
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