Make Way for Fiber

habit1 writes: "It seems that the big telecoms have gone and run cable across property without paying the rightful owners. These owners, mostly private landowners, are now part of a class action lawsuit which might not only result in a cash settlement, but a jointly owned corporation that owns some of the fiber itself. If you live next to the rails, you may get that fiber optic line quicker than you thought ..."

Comments

Who did what

[Have Blue]

Why was the lawsuit filed against the telcos? From the article, it seems that the railways were more to blame, for lacking legal authority to grant permission for the telcos to dig in the first place.

Re:Who did what

[rde]

If I were to guess (and it is a guess), I'd say that the fault (apparently) lies with the telcos because they laid fibre on other people's property. It doesn't matter that they had permission from the railways; they railways didn't own the land, and the telcos didn't check that they asked the right people.
Of course, I imagine there's nothing to stop the railway companies being sued by the telcos for (what? negligence?)

disgusting

[crisco]

the uninformed opinions on Slashdot and the profiteering lawyers disgust me.

So many posters don't mention the entire concept of land use rights that is a well established part of US property law. I'm no expert, but I've seen the effects of mining industry lobbying, who pay miniscule 1870 era pricing for mining rights on public land.

I've always understood the same to hold true for property, that different rights can be bought and sold for multiple uses of the land. Farming or grazing rights above ground, separate water rights, mineral rights, etc. I bet there is a well established body of law on this that clearly spells out what can be done by who.

And a bunch of people have suggested that fiber be run an inch below the surface. Who on the face of this planet wants their fiber an INCH underground where I can sever it digging with those plastic sporks from KFC!?!? Isn't it bad enough when the idiot with the backhoe severs a line a few feet down? I'm sorry, but I want my fiber deep deep down where it stays connected a few years at a time and where some idi0t who reads a slashdot story about the CIA splicing undersea fibers can't get to it to try to splice in to get his pr0n faster.

Chris Cothrun
Curator of Chaos

Ownership

[macdaddy]

so let's see here... these people are willing to have a large, noise, huge moving metal mass move through their property at any time of night, but they think they should be compensated just to run a cable that does not move, does not look any worse than the tracks, does not make noise, does not stop traffic, and does not pollute? I can't believe how selfish these people are. What's the problem with laying a cable?

It's a simple matter of ownership. When a railroad company wants to run tracks across your property, they must purchase or rent it from you. When a cell or radio provider wants to put a fenced in tower and small shack on your property, they must purchase or rent it from you. When you lay an oil, water, or gas pipeline across my property, you must pay rent to me each month. This is the case just south of my home town. In the late '20s a gas line was laid across south-central/south-eastern Kansas. It crossed the family land of a friend of mine. The gas company gave the owners of the land two options. One was $100 in cash. The other was that the price of gas for whomever owns that piece of land will never go up higher than the cost of natural gas the year the line was laid. That's right. They still pay gas prices from the late '20s. Nice. :) Do you think that just because you want to lay a few strands of fiber in the ground that you are exempt from paying me some sort of restitution? I don't think so. What happens if I'm a farmer and you laid the fiber in the ground across one of my fields. I go out one weekend and rebuild a few terraces in that field and end up digging up that piece of fiber. Was it my fault? Unless I gave permission to put that line there (and believe you me I wouldn't do it unless I could have some compensation for baby-sitting it), it is trespassing on my property. You trespassed when you put it there. You dug a trench in my field. That's destruction of private property. Like I said at the beginning, it's a simple matter of ownership.

--

When the trains stop running....

[coyote-san]

What happens when the trains stop running? This is not an idle question - a lot of lines have been abandoned over the past few years. Some people have even claimed that the real value in many remaining rail lines is in the legal right-of-ways, not the rail itself. That's what makes this suit so ironic.

Right now, in many (most?) cases the landowner can rip out the track, plant a garden, dig a pool, whatever. He has full use of the land again.

But now, without any consideration offered, he's enjoined from any such use after the original contact lapses. He can't dig very deep - that would cut the cable. He can't build over the cable, since the fiber optic company would have the legal right to tear down his house to reach their cable. He might not even be able to farm it, depending on how deeply the cable is buried.

He can also anticipate ongoing access. It's unlikely that this was the last fiber optic cable that will ever be laid along this route. The digs might be mildly disruptive when there's an active rail line there, they'll be major disruptions once the rail is gone.

That's why I think the question of surface vs. subsurface misses the point. The real issue is a fundamental change in the nature of this commitment. It's not hard to imagine many (even most) rail lines being abandoned during my lifetime, but not a fiber-optic line. In a city, anticipating possible uses decades away is crazy. But in rural areas that have been farmed or ranched for generations, it's a real loss.

Jeez, where should I start ranting?

[cr0sh]

These people want to be paid because the fiber was laid alongside of tracks, in ditches - "subsurface" - which is not stated as part of the rights originally sold to the railroad companies by the owners, only "surface" rights.

Had the railroads and telcos thought of this originally, they could have laid the fiber in pipes along the track, or up on poles, or something similar - and been in the clear, legally.

But what constitutes "surface" vs. "subsurface"? Is an inch below the ground on the surface, or the subsurface? A foot? Three feet? Since the railroads laid the tracks, and needed to install telegraph/switching equipment, which meant putting in poles - they had to dig down several feet for those poles - is that "subsurface" use, and thus the owners of the land should be paid for poles put in the ground? Sure, the poles are many feet apart - but what if they were only a couple of feet apart - is that a "subsurface" ditch, or just many "holes"?

These people are just money hungry - the ditches are generally dug in the surface or between the service road for the railway and the track itself - and not very deep, either (2-4 feet, IIRC). If these property owners were smart, they would just do the "fiber to my house" plan in exchange for the new use of the property.

Plus, as a mind exercise, couldn't you just think of the fiber as a high speed mail train, with the packets of information being cars on the train and... Ah, nevermind...

Worldcom - Generation Duh!

Re:Hypocrisy

[Cramer]

This is about surface vs. subsurface rights. It doesn't matter weither it's an actual lease or easement or whatever. The terms of the agreement are what's at issue. In the case of the "20,000" mentioned, the terms may have explicitly precluded burying or "sub-leasing" anything.

In all cases I am aware of (and there haven't been many new rails laid across North Carolina in recent years; in fact, some have been removed), the rail lines purchase right-of-way identical to that of the DOT -- with the exception that you can refuse to sell to a railroad.

The DOT certainly does not own the land overwhich they place roads. My property line actually extends to the center of the road beside the house. And that is on the deed. So, when they move a road, do I have to purchase "my" land back from the state? (No, because they don't own it. That's one of the reasons you cannot refuse to grant/sell right-of-way.)

The "contract" (100 year lease as I recall) allowing Duke Power to run a transmittion line across my family's property specifically states aerial deployment. They are not allowed to bury cable across the acres of pastures. (And they did surprisingly little damage in the process, btw.)

I stand by my original "lawyer bullshit" comment. The lawyers jump up and down on behalf of the issue because they stand to make a substantial fortune. The actual people "wronged" will walk away with next to nothing. (Remember the Iomega suit? After years, all the complaintants get is a rebate for more useless Iomega crap, and the lawyers get millions.) The detemination of how much they've been wronged (if at all) is something only a lawyer would quible over -- is six feet "subsurface" (are we counting the foot or more of dirt, sand, and gravel put there by the railroad?)

I repeat my original concern... if you can sue the railroad for "subsurface" use of your land, what's to stop people from suing any number of other utilities who bury things within the state's right-of-way? To quote a conversation between an NCDOT District Engineer and the Iredale County Water System Manager, "as I recall, your water lines are on DOT right-of-way. It'd be an aweful shame to make you move them."

Re:there goes the naybahhood margie

[KahunaBurger]

There are cables layed underground near every modern RR as part of the control and monitoring system.

probes memory.... me seems to recal riding trains and seeing such lines either on the ground, on poles or on metal walls againt steep embankments. Not to say that they aren't underground (where I would not remember seeing them) in many other areas, but I would not jump to the conclusion that all railroad tracks already have cable buried beside them.

Kahuna Burger

Hypocrisy

[YIAAL]

Funny how when things like Intellectual Property stand in the way of individual creativity, big companies talk about the majesty of the law. But when things like, well, Real Property stand in the way of big companies, they become mere technicalities.

Re:Hypocrisy

[MrBogus]

This is about surface vs. subsurface rights. It doesn't matter weither it's an actual lease or easement or whatever.

That's what the article implied, but it's ZDNet, not a law journal. Some railroads were built on an easement to run a railroad (much as with your arrangement with the power co). Since neither of us know, and some companies have actually settled, I think the safe assumption is that there's a case.

No, because they don't own it. That's one of the reasons you cannot refuse to grant/sell right-of-way.)

The reason you can't stop the government from building a road has nothing to do with ROW versus outright purchase - it's because the state uses eminent domain. I can tell you that there's 1000s of miles of highway land owned outright by the government, and my guess is that a ROW grant is the more unusual of the situations, but it probably depends on the state.

And if the DOT is selling ROW access on your land for things other than roads, you probably have a case, unless the easement allows it.

The actual people "wronged" will walk away with next to nothing. (Remember the Iomega suit? After years, all the complaintants get is a rebate for more useless Iomega crap, and the lawyers get millions.)

True, but in the case referenced, they got 75%. Not bad for a contingency case.

the difference...

[TotallyUseless]

This isn't the government doing it. It is the big telecommunications companies and the railroads. If it was the government implementing this we wouldn't have heard a peep about it. Apparently we still have a few rights when big corps. try to run over us, at least if you are a property owner. Hopefully this will help set a precedence. Hopefully next time big telcos will think twice before purchasing land rights from someone that has no rights to them. If they don't learn, then hey... I have a bridge they might want to buy also...

selfish people

[laserjet]

"In the modern age, it's not oil underneath farmland that gives those underground rights a price tag--it's fiber optics. And Ackerson says hundreds of thousands of property owners who have seen data cables laid along railroad tracks just the other side of their backyard fence should have been paid for use of their property, whether they knew it or not. "

so let's see here... these people are willing to have a large, noise, huge moving metal mass move through their property at any time of night, but they think they should be compensated just to run a cable that does not move, does not look any worse than the tracks, does not make noise, does not stop traffic, and does not pollute? I can't believe how selfish these people are. What's the problem with laying a cable?

pretty depressing.

Possession is 9/10 th's of the law

[jeffy210]

So if possession is 9/10 th's of the law, would i possess 9/10 th's of their bandwidth?
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Re:Put 'em on the surface then.

[Bonker]

So the solution is apparent: The telcos should donate the existing fiber to the landowners and lay new fiber in a surface conduit. Which I think they should make nice and big and paint fluorescent lime green with orange polka dots :P

Hmmm... In the year 2080, an elementary school class is taking a field trip in a shuttle-bus powered by corn oil:

Teacher: Okay, students. If you'll look out the left window, you'll see the length of the 'FiberTrain'. It's that lime-green thing with the orange dots all over it.

Student: My sister's hair looks like that!

Teacher: It used to be a track for a horrible device that we now refer to as 'Environmentally Incorrect'. Back in the twentieth century, people referred to them as 'locomotives' or 'steam engines'.

Student: They were used to transport homeless people across the country, right?

Teacher: That's right, Billy! Now what are they used for?

Student: They transmit data feeds to homeless people?

Teacher: Billy gets a star! After the corporate wars of the 2030's, anyone who had property that conflicted with existing intellectual ownership had to forfeit the property. Luckily something like that could never happen today in the good ol' United States of America Online-Time-Warner-Ford-Sony-Gates Co.

Re:Ownership - Deconstructed

[Art_XIV]

It's a simple matter of ownership. When a railroad company wants to run tracks across your property, they must purchase or rent it from you. When a cell or radio provider wants to put a fenced in tower and small shack on your property, they must purchase or rent it from you. When you lay an oil, water, or gas pipeline across my property, you must pay rent to me each month. This is the case just south of my home town. In the late '20s a gas line was laid across south-central/south-eastern Kansas. It crossed the family land of a friend of mine. The gas company gave the owners of the land two options. One was $100 in cash. The other was that the price of gas for whomever owns that piece of land will never go up higher than the cost of natural gas the year the line was laid. That's right. They still pay gas prices from the late '20s. Nice. :) Do you think that just because you want to lay a few strands of fiber in the ground that you are exempt from paying me some sort of restitution? I don't think so. What happens if I'm a farmer and you laid the fiber in the ground across one of my fields. I go out one weekend and rebuild a few terraces in that field and end up digging up that piece of fiber. Was it my fault? Unless I gave permission to put that line there (and believe you me I wouldn't do it unless I could have some compensation for baby-sitting it), it is trespassing on my property. You trespassed when you put it there. You dug a trench in my field. That's destruction of private property. Like I said at the beginning, it's a simple matter of ownership.

More typically - When a railroad company, or anybody else, wants to run tracks, roads, pipes, etc across your property, they will bribe local, state, and federal authorities to use "emminent domain" to seize the land from you, claiming that their operation is acting in "the public interest". You may or may not be compensated with money that will come from the treasury, rather than the party that is trying to get your land.

Parties that don't have the lawyers or cash to engage in the more common scenario may have to compensate you.

If I accidentally dig up a cable or pipe on "my" property, more than likely I will be in trouble. I should have consulted with local and county authorities ($$$) and checked with all imaginable utility companies in order to make sure that I wouldn't be causing any problems for them. I could be held liable for the costs of repairs and be fined for such audacity.

Property ownership has been greatly abstracted into mineral rights, water rights, drilling rights, right of way, etc. Property "ownership" really only "guarantees" an individual the "right" to dwell upon, perform minor construction, and possibly farm the property in question, subject to the tender mercies of zoning boards, property taxes, the EPA, etc.

The concept of property ownership is a social convenience that is becoming terribly inconvenient.

Works for "everyone"

[hyrdra]

Out of this whole sick, sick story of lawyers at their best, I especially like the following quote:

"I think similar gains can be achieved by realizing that working together...works for everyone."

You bet it does. With 25% of a telecommunications company created especially for this case and unnamed liquid assests, I'd sure think it would work for me and my deep pockets.

First of all, the rights which are being referred to are called geological rights. These are the rights to mine the land. Most people own structure rights, which include the rights to attach structures to the land -- to build on it. The regular Joe Blow homeowner doesn't own the geological rights to his two story home, which also happens to have a basement underground.

Geological rights were created to solve the problem of finding some rich resource on land which the seller didn't know was there. This way, people could still technically sell the land, but not the minerals (like gold, oil, etc.) which lay under the soil waiting to be discovered. These rights were originally bought from The State, along with the property, and cost extra. A geological survey is (I think) required and if you live in a state park or other natural reserve, or anywhere you cannot mine the land, the State still owns these rights. For this reason, most people didn't and don't buy so-called mineral rights when they build a home, etc.

General rights to use the land include the right to build zone structures. Of course, you can dig into the ground and put whatever you want there. DIRT is free. As long as you own the property, you can license others to use it on any type of legal ability, transfer rights (sell), or give other forms of use. These all must be legal, however. You can't invent rights just to monopolize the land (e.g. air/land/ground rights are not legal).

In this case, as far as I can see, the cable companies aren't doing anything wrong legally at all. They aren't mining the land unless you consider dirt a natural resource. They're placing cable a few feet down in the ground, also similar to the depth at which many rail road ties extend, incidentally..

I'm not a lawyer and I don't claim to be, but I have purchased land before and worked with commercial real estate. I know there is no such thing as above and below ground restrictions. That's just plain silly. I imagine why any of this lawyer Ackerson's cases have never gone to trial is because they are some warped interpretation of mineral rights and trying to manipulate that into somehow being "ground" rights. This isn't so, it's just lawyers trying to fatten their pockets, delay and interfere with the progress of the Internet, and create new backdoor companies which they're quarter partners in.

In the long run, I see broadband prices going up, property near railroad tracks being monopolized and as a result infrastructure deployment being delayed, and the people who actually did own the property getting screwed, taken for a ride by lawyers who can get whatever they can out of the next legal loophole.

Re:My Cable Company Does This Too

[hubrisboy]

Great!

We have a few thousand drums of PCB-contaminated coolant from old electrical transformers. Can we bury them in your back yard?

Since we won't have to pay expensive incineration fees, it'll help keep your energy costs down! We promise to topsoil and reseed over the pit when we're finished.

Love,
The Electric Company

p.s.-
We gave your address to our friends at the Infectious Medical Waste Disposal Company. They'll probably be in touch with you too. Hope you don't mind!


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