The EC had the power of condemnation of the property over which the easement ran even though the easement had been granted to the City for public purposes, assuming that a court would have found that the condemnation of the property probably would not “obstruct, prevent, burden, interfere with, or unduly inconvenience the continued use of such property for the public use to which it [was] devoted at the time it [was] sought to be condemned.”
While I undoubtedly do not have a detailed knowledge of the facts behind the city’s acquisition of the permanent easement, and EC’s construction of its infrastructure inside the easement without permission from the city, I have learned that the only utility the city has in the easement are water lines, and that the transmission towers are sufficiently separated from the transmission towers so that they do not interfere with the city‘s use of the easement. For that reason, it sounds doubtful to me that it would have been reasonable for the city to withhold its agreement from the EC to use the easement to install the transmission towers, or that a court would have found that the use of the easement for power transmission lines would burden the city’s use of the easement for its water lines.
The question of whether the easement granted the city contemplated electric power lines, appears to be answered by Cello Partnership v. Shelby County, 172 S.W.3d 574 (Tenn. Ct. App. 2004). That case says,
As with other instruments, “in the construction of instruments creating easement, it is the duty of the court to ascertain and give effect to the intention of the parties.” 28A C.J.S. Easements § 57 (1966). Generally “[w]here the language is unambiguous, other matters may not be considered, as an easement specific in its terms is decisive of its limits.” 18A C.J.S. Easements § 57 (1996); see also Foshee v. Brigham, 174 Tenn. 564, 129 S.W.2d 207, 208 (1939). (“If the easement is claimed under a grant, the extent of the easement is determined by the language in the grant.”). [At 594-95]
In the same case, a property owner had granted an easement to Shelby County for the purpose of the county building a water tower on the property. A question in that case was whether Shelby County could grant a telecommunications company the right to attach telecommunications equipment on the water tower. The court, citing Black’s Law Dictionary 1544 (7th Ed. 1999) declared that, “A utility has been defined as a company that provides necessary services to the public, such as telephones, electricity, and water.” That definition of utility fit the telecommunications equipment Shelby County allowed to be placed on the water tower. Surely, in the case of the easement presently at issue, the term “utilities” contemplates the electric power transmission lines and facilities, it containing no restrictions on what utilities are allowed in the easement.
With respect to the unhappiness of the property owners who granted the city the easement over what they apparently claim is the higher level of electric in the easement on their property, the unreported case of Rollins v. Electric Power Board of Metropolitan Government of Nashville and Davidson County, 2004 WL268431 (Tenn. Ct. App.) involves a case where NES failed to give notice to the plaintiff of its intent to cut trees in the utility easement on their property that were literally interfering with the transmission of electricity as required by its own policies, and that NES cut down the trees rather than using one of several alternatives the plaintiffs would have suggested, that would have required taking down two electrical conductors, moving a transformer and meter, and running underground service (the latter of which the plaintiffs claimed they would have paid). The plaintiffs sued the city under the Tennessee Governmental Tort Liability Act.
The court’s response was that, “Under the circumstances of this case, the only choices which the Rollins claim they would have presented to NES involve its [NES’s] adjustment of its own easement rights in order to preserve three trees located directly within the prescriptive easement and interfering therewith.” [At 4] That essentially turned easement law on its head, continued the court. Citing among various authorities, including 25 Am.Jur.2d Easement and Licenses, § 101:
In balancing the rights of the servient estate to the use of his land against the rights of the dominant tenant holding easement rights in this case, overriding consideration must be given to the nature of the use or which the easement exists. The very nature of electricity dwarfs other considerations. It is the supplier of electricity who is charged with the heightened duties for public safety not the servient estate…. [At 6]
Finally, said the court about the failure of NES to notify the Rollins about the cutting of the trees in Ned’s easement:
Second, in recognition of the ability of any utility easement holder to secure the safe exercise of its right, whether those rights are obtained by prescription or grant, the Rollins must present proof that the failure of NES to inform, rather than the danger posed by the trees to the safe use of the easement, was the cause of the removal. The Rollins present no such proof. The only showing in the record is a speculation on the part of the landowner as to options which they might have taken had NES agreed to change the nature of its easement. This Court cannot disregard the elementary provisions of our common law regarding easements and apply a theory of negligence which lacks the key elements: the breach of a recognized duty which causes injury to the plaintiff. See McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991). The trial court found that NES reasonably maintained its easement, and the proof of the record does not preponderate against that fact. [At 6]
Rollins, above, says to me that NES owned the easement at issue, and that NES was not obligated to consult with the plaintiffs about the best facilities or ways to provide electricity inside the easement; to have held otherwise would have been to give the rights to the servient estate which under easement law belonged to the dominant estate [the easement holder]. Rollins also said that NES’s failure to notify the Rollins that it intended to cut the trees in the easement was not negligence on its part. It had done what needed to be done in the easement to safely provide electricity.
Although the facts in Rollins are not precisely the same as in the City’s situation, that case is instructive on the nature of easements. It seems to point to the propositions that the City owns the easement at issue, and that nothing it did in the easement interfered with any rights of the property owners in which the easement lay, or caused them damage under the Tennessee Governmental Tort Liability Act. EC did not have permission from the city to use the easement, but had EC asked for such permission, neither the city (nor probably EC) would have been required to notify the property owners that such permission had been granted. Although they certainly could have done so, it is highly unlikely that either of those parties would have been legally required to bargain with the property owners about how the easement should be used to provide electricity.
Presumably, the city could refuse to grant EC permission to use the easement, but if the construction of the power transmission facilities is an accomplished fact, that would probably be ultimately a futile gesture, especially given the limitation on the right of the city to refuse electric cooperatives permission to use public ways and places for electric power transmission facilities, and the right of electric cooperatives to condemn property already owned by the public and used for public purposes.
Sidney D. Hemsley
Senior Legal Consultant