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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5746 July 25, 1980 EASEMENTS: Right-of-way for highway HIGHWAYS AND ROADS: Easement for highway purposes Placement of 'For Sale' sign within the right-of-way TRANSPORTATION, DEPARTMENT OF: Permission to a public utility to install lines or mains over or under right-of-way Where an easement for highway purposes is granted to the State, the State may permit a telephone company to bury lines or a gas company to install gas mains on the easement without first obtaining permission from the grantor of the easement. The grantor of the easement may display a 'For Sale' sign within the right-of-way on the property that is for sale as long as the sign does not obstruct the right-of-way so as to either interfere with the highway purposes easement granted to the State or cause safety problems for the traveling public. Honorable Ernest Nash State Representative The Capitol Lansing, Michigan 48909 You have requested my opinion on the following questions: 1. Does the granting of an easement for highway purposes to the State give the State license to grant a telephone company permission to bury lines on the easement or a gas company permission to install gas mains on the easement with complete disregard to the owner? 2. May an owner of property or a house adjacent to the highway display a 'For Sale' sign, exclusively for that property or house, within the right of way? In People v Eaton, 100 Mich 208, 212-213; 59 NW 145 (1894), the Court held that land taken or granted for public highways could be used for poles erected for the use of telegraph or telephone companies inasmuch as the placing of telegraph or telephone poles along a public highway is not an additional servitude upon the land of the adjacent proprietor. In reaching that conclusion, the Court stated: 'When these lands were taken or granted for public highways, they were not taken or granted for such uses only as might then be expected to be made of them, by the common methods of travel then known, or for the transmission of intelligence by the only methods then in use, but for such methods as the improvement of the country, or the discoveries of future times, might demand. The parties setting these poles were acting under color of legal right. The statute under which they acted is not in conflict with the provision of the Constitution above cited. It would be a great calamity to the State if, in the development of the means of rapid travel, and the transmission of intelligence by telegraph or telephone communication, parties engaged in such enterprises were compelled to take condemnation proceedings before a single track could be laid or a pole set.' The Michigan Supreme Court, in Governale v City of Owosso, 387 Mich 626; 198 NW2d 412 (1972), applied the reasoning of People v Eaton, supra, to the installation of a water main. In Governale, supra, the Court held that the installation of a water main within a highway right-of-way did not increase the burden of servitude upon the property abutting the highway and therefore the abutting property owners were not entitled to just compensation for the water main's installation. It is necessary to consider 1925 PA 368; Sec. 13; MCLA 247.183; MSA 9.263 which provides the following: 'Telegraph, telephone, power and other public utility companies, and cable television companies and municipalities are authorized to enter upon, construct and maintain telegraph, telephone or power lines, pipe lines, wires, cables, poles, conduits, sewers and like structures upon, over, across, or under any public road, bridge, street or public place and across or under any of the waters in this state, with all necessary erections and fixtures therefor. Every such telegraph, telephone, power, and other public utility company, cable television company and municipality, before any of the work of such construction and erection shall be commenced, shall first obtain the consent of the duly constituted authorities of the city, village, or township or along which said lines and poles are to be constructed and erected. 1925 PA 368, Sec. 14; MCLA 247.184; MSA 9.264 further provides that: 'In case it is proposed to construct a telegraph, telephone, power line or cable television line, pipe lines, wires, cables, poles, conduits, sewers, or like structures upon, over or under a county road or bridge, the consent of the board of county road commissioners shall be obtained before the work of such construction shall be commenced; and in case it is proposed to construct a telegraph, telephone, power line, cable television line, pipe line, wires, cables, poles, conduits, sewers or like structures, upon, over or under a state trunk line highway, or upon, over or under any bridge that the state has participated in constructing, the consent of the state highway commissioner (1) shall be obtained before the work of such construction shall be commenced.' Accordingly, the State has the authority to grant permission to both a telephone company to bury telephone lines and to a gas company to install gas mains on State trunklines, public roads, bridges, streets, or public places. It makes no difference whether the State's interest in the land is one of fee or easement, for the State is still entitled to use the land for highway purposes and the State is not required to obtain permission from the grantor of the easement before a gas main may be installed or telephone line buried. However, this does not mean that the telephone company or gas company is given free reign over the use of the easement. 1925 PA 368, Sec. 15; MCLA 247.185; MSA 9.265 provides protection to the property owner and the general public by requiring that: 'The construction and maintenance of all such telegraph, telephone and power lines, cable television lines, pipe lines, wires, cables, poles, conduits, sewers and like structures shall be subject to the paramount right of the public to use such public places, roads bridges and waters, and shall not interfere with other public uses thereof and nothing herein contained shall be construed to authorize any telegraph, telephone, power, or other public utility company, cable television company or municipality to cut, destroy, or in anywise injure any tree or shrub planted within any highway right of way or along the margin thereof, or purposely left there for shade or ornament or to bridge across any of the waters of this state. Nor shall anything in this section or sections 13 and 14 be construed to grant any rights whatsoever to any public utilities or cable television companies whatsoever, nor to impair anywise any existing rights granted in accordance with the constitution or laws of this state, but shall be construed as a regulation of the exercise of all such rights.' It is, therefore, my opinion, in answer to your first question, that the granting of an easement for highway purposes to the State allows the State to permit a telephone company to bury lines on the easement or a gas company to install gas mains on the easement, without first obtaining permission from the grantor of the easement. In response to your second question, attention must be first directed to the last paragraph of the Release of Right-of-Way which provides the following: 'The grantors covenant and agree for themselves, their heirs, executors, administrators, successors and assigns, that no billboard, sign board or advertising device, other than those advertising articles produced and sold on the premises, shall be erected, permitted, or maintained in or upon the remaining lands and premises now owned by the grantors immediately adjoining the lands herein conveyed, and within a distance of three hundred feet from the highway centerline, measured at right angles to said line. This covenant is hereby declared to be a perpetual covenant and shall be construed as a real covenant attached to and running with the land.' The identical paragraph was the subject of the Court's review in O'Brien v State Highway Commissioner, 375 Mich 545, 554; 134 NW2d 700, 704 (1965), which involved a conveyance offered by the State obtained from the O'Briens, granting the State an easement for highway purposes, in, over and upon the parcels of land owned by the O'Briens. The Court stated: 'Since it is not claimed that the Birch Creek Motel sign, which, the defendant commissioner would remove, is one which advertises articles produced or sold on the premises, and since the sign is and has been maintained by the O'Briens within the prohibited 300 foot limit, we are obliged to hold that plaintiffs O'Brien by the foregoing conveyance have effectively destroyed whatever right may have been theirs to object to such removal. Their case fails on that account.' (Emphasis added.) It should be noted that O'Brien, supra, dealt with the commercial advertising of a motel, which advertising was clearly prohibited by the conveyance the State obtained from the O'Briens. This differs from the fact situation presented in your letter which dealt with the displaying of a 'For Sale' sign on a parcel of property which is for sale. The Release of Right-of-Way discussed above prohibits the owners of the domicile tenement from erecting, permitting or maintaining billboards, sign boards or advertising devices other than those advertising 'articles produced and sold on the premises.' Although a 'For Sale' sign does not explicitly fall within the exception for a sign board or advertising device 'advertising articles produced and sold on the permises,' it is clear that the Release of Right-of-Way contemplated the prohibition of advertising devices involving activity of a commercial nature other than the sale of one's own property on which the 'For Sale' sign is displayed. It is also significant that when the Legislature enacted the Highway Advertising Act of 1972, 1972 PA 106; MCLA 252.301 et seq, MSA 9.391(101) et seq, Sec. 2 to regulate outdoor advertising in areas adjacent to highways, it adopted the following exception: 'Signs advertising the sale or lease of real property upon which they are located.' 1972 PA 106, supra, Sec. 13(1)(b). It is, therefore, my opinion that a property owner would be entitled to display a 'For Sale' sign within right-of-way on the property that is for sale, as long as the sign does not obstruct the right-of-way so as to either interfere with the highway purposes easement granted to the State or cause safety problems for the traveling public. Frank J. Kelley Attorney General (1)
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