Senate Bill No. 326

(By Senators Sypolt, Unger, Wells, Browning and Beach)

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[Introduced January 27, 2011; referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.]

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A BILL to amend and reenact §36-3-5a of the Code of West Virginia, 1931, as amended, relating to estates and property; form and effect of deeds and contracts; and requiring easements and right-of-way instruments for roads, pipelines, power lines, telephone lines or other manners of communications or public uses to allow inclusion of the use and installation of a fiber-optics communication conduit, or whatever current or state-of-the-art communication conduit that is being employed at the time of the creation of the easement or right-of-way.

Be it enacted by the Legislature of West Virginia:

    That §36-3-5a of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 3. FORM AND EFFECT OF DEEDS AND CONTRACTS.

§36-3-5a. Easement and right-of-way; description of property; exception for certain public utility facilities and mineral leases.

    (a) Any deed or instrument that initially grants or reserves an easement or right-of-way shall describe the easement or right-of-way by metes and bounds, or by specification of the centerline of the

 easement or right-of-way, or by station and offset, or by reference to an attached drawing or plat which may not require a survey, or instrument based on the use of the global positioning system which may not require a survey: Provided, That oil and gas, gas storage and mineral leases shall not be required to describe the easement, but shall describe the land on which the easement or right-of-way will be situate by source of title or reference to a tax map and parcel, recorded deed, recorded lease, plat or survey sufficient to reasonably identify and locate the property on which the easement or right-of-way is situate: Provided, however, That the easement or right-of-way is not invalid because of the failure of the easement or right-of-way to meet the requirements of this subsection.

    (b) Notwithstanding any other provision of this code or law to the contrary, when an easement or right-of-way is created for a road, pipeline, power line, telephone line or other manner of communications or public use, the instrument creating the easement or right-of-way shall contain a requirement to allow inclusion of the use and installation of a fiber-optics communication conduit, or whatever current or “state of the art” communication conduit that is being employed at the time of the creation of the easement or right-of-way.

    (b) (c) This section does not apply to the construction of a service extension from a main distribution system of a public utility when such service extension is located entirely on, below, or above the property to which the utility service is to be provided.

    (c) (d) The clerk of the county commission of any county in which an easement or right-of-way is recorded pursuant to this section shall only accept for recordation any document that complies with this section and that otherwise complies with the requirements of article one, chapter thirty-nine of this code, without need for a survey or certification under section twelve, article thirteen-a, chapter thirty of this code.

    NOTE: The purpose of this bill is to require easements and right-of-way instruments for roads, pipelines, power lines, telephone lines or other manners of communications or public uses to allow inclusion of the use and installation of a fiber-optics communication conduit, or whatever current or “state of the art” communication conduit that is being employed at the time of the creation of the easement or right-of-way.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.