THIRD DIVISION
BARNES, P. J.,
MCFADDEN, P. J., and MCMILLIAN, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 17, 2017
In the Court of Appeals of Georgia
A16A1537. CLAYTON COUNTY, GEORGIA v. GEORGIA
POWER COMPANY.
MCMILLIAN, Judge.
The sole issue presented by this appeal is whether the Georgia Power Company
(“Georgia Power”) was entitled to compensation from appellant Clayton County,
Georgia (“County”) for the expenses Georgia Power incurred in relocating electrical
lines and supporting structures, which was made necessary by a County road
widening project. The trial court found that a 1929 franchise agreement did not apply
and ordered compensation for the taking. As more fully set forth below, we now
affirm.
The facts are essentially undisputed. In 1947 and 1950, Georgia Power
acquired certain easements from private property owners along what are now known
as Stagecoach Road and Panola Road in Clayton County (“easement area”), for the
purpose of installing and operating electrical distribution lines and supporting
structures. The electrical lines were in place and operational by April 1955, and
Georgia Power has continuously maintained the lines since that time. Subsequently,
in October 1955 and June 1958, the Georgia Rural Roads Authority acquired an 80-
foot right-of-way along Stagecoach and Panola Roads, which it in turn deeded the
rights to Clayton County. The parties have stipulated that Georgia Power acquired its
easements for its electrical poles and lines from private individuals before Clayton
County acquired the right-of-way along Panola Road.
In June 2012, the County filed a Petition and Declaration of Taking to condemn
certain property as part of the Panola Road Widening Project (“widening project”),
including Georgia Power’s easement area. Georgia Power filed an answer, a petition
to set aside the condemnation as unauthorized, and a notice of appeal challenging the
amount stated in the declaration as just and adequate compensation for the
condemned property. The County ultimately opposed Georgia Power’s claim for
compensation, contending that under the terms of a franchise agreement entered into
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by the parties in 1929, Georgia Power had to bear the cost of removing and relocating
the power lines. Georgia Power argued that because the electrical poles, lines, and
supporting structures had been placed under the authority of private easements
granted by private property owners, the franchise agreement did not apply here, and
the County was required to compensate it for loss of use of the preexisting private
easements under the authority of Bibb County v. Ga. Power Co., 241 Ga. App. 131
(525 SE2d 136) (1999). The trial court agreed and granted Georgia Power’s claim for
compensation, which would include the costs necessary to relocate the poles and
lines. Following the entry of the final judgment setting the amount of compensation,
the County filed this appeal.
We start with an overview of the statutory scheme governing who bears the
cost of relocating a utility’s structures in connection with a public road improvement
project before turning to the terms of the franchise agreement.1 Generally, expenses
1
As used in this context,
[a] franchise is a method developed by governments to grant use of
public land to private companies for purposes benefitting the general
public. Franchises are common law creations dating back to fourteenth-
century England, where the sovereign granted private parties use of
public property under certain conditions. A franchise allowed a private
party to provide a service that was both a public necessity and a natural
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incurred for relocating utility poles on or adjacent to public roads are paid for by the
utility. See OCGA §§ 32-4-42, 32-6-171 & 32-6-173. However, both OCGA §§ 32-6-
171 and 32-6-173 also explicitly provide that “nothing in this article shall be
construed so as to deprive any utility, relocated from a location in which it owned a
property interest, of compensation for such property interest.” Thus, as we explained
in Bibb County, 241 Ga. App. at 138 (5), while under the above statutes the county
may require a utility to relocate its equipment, even if equipment is located on pre-
existing private easements, the county cannot substantially impair such an easement
without paying compensation and, accordingly, the utility in turn may seek just and
adequate compensation for the loss of its old easement, including the costs to
monopoly. In the United States, local governments use franchises to
give right-of-way access to companies providing services that require
intensive infrastructure, such as electrical and telephone utilities.
Jennifer Amanda Krebs, Notes & Comments, Fair and Reasonable Compensation
Means Just That: How § 253 of the Telecommunications Act Preserves Local
Government Authority Over Public Rights-of-Way, 78 Wash. L. Rev. 901, 906 (2003).
See generally City of Summerville v. Ga. Power Co., 205 Ga. 843 (55 SE2d 540)
(1949) (in the context of a city, explaining generally the power to grant franchises to
public service corporations).
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relocate. Id. (“The county cannot substantially impair an easement without paying
compensation.”).
Although the County acknowledges that, generally, it would bear the costs of
relocating the utility poles when, like here, the County is forcing the utility to relocate
power poles and lines constructed on pre-existing private property easements, the
County argues that in this case the determination of who has to pay for the relocation
expenses should be determined under the parties’ 1929 one-page Franchise
Agreement (“Agreement”). The Agreement provides in pertinent part:
3. For the purposes herein set out [Georgia Power] desires for
itself, its successors or assigns, the right and privilege to erect from time
to time, operate, maintain, renew and extend its electric transmission and
distribution lines, on, along, over and across the public roads, highways,
streets and alleys of said County, together with transformers,
appurtenances, fixtures and appliances necessary or desirable for
efficient operation, subject to the following terms and conditions:
(a) Said electric transmission and distribution lines, on, along,
over, and across said roads, highways, streets or alleys shall be erected
subject to the approval and supervision of the authorities of said County
having charge of the laying out, building and maintenance of said roads,
highways, streets or alleys.
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(b) In event of change in the grade or width of any of the roads,
highways, streets or alleys by the County authorities, on, along, over and
across which any such transmission or distribution line or lines may
have been or may hereafter be erected, Petitioner agrees, at its own cost
and expense and without any cost or expense to said County, to move its
transmission or distribution lines to such other location on said roads,
highways, streets or alleys as may be designated by said County
authorities.
(c) [Georgia Power] further agrees to indemnify, protect and save
harmless the said County from the payment of any sum or sums of
money which may be demanded of said County by any person or
persons whomsoever on account of injury to person or damage to
property, of any and every nature or character caused or occasioned by,
or in any way traceable to the erection, operation, renewal extension and
maintenance of said electric transmission and distribution lines so
erected, operated, renewed, maintained or extended by Petitioner on,
over, along and across such roads, highways, streets or alleys.
...
WHEREFORE, [Georgia Power] respectfully requests that said
County grant it, its successors or assigns, permission to so erect from
time to time, operate, renew, maintain and extend its electric
transmission and distribution lines for the transmission, distribution and
utilization of electric current and energy with all necessary wires, cables,
transformers, fixtures, appliances, appurtenances, poles, frames and
other supports, together with its telephone and telegraph lines on, along,
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over and across the public roads, highways, streets and alleys of said
County under the terms and conditions herein set out and stipulated.
The trial court found the Agreement inapplicable here because the electric lines
and poles at issue were erected on private property easements prior to the time the
County acquired right-of-way rights or built Panola Road and were not erected under
the supervision and approval of any County road authority. But the County argues
that subsection (b) contains no such limiting language, and on its face applies anytime
removal and movement of Georgia Power poles is necessitated by a road widening
or other specified change along what is at the time of the removal a County-owned
road or highway.
Contract construction is generally a question of law for the court, see OCGA
§ 13-2-1, and we conduct a de novo review of the trial court’s determination. Unified
Govt. of Athens-Clarke County v. Stiles Apartments, Inc., 295 Ga. 829, 832 (1) (764
SE2d 403) (2014). The cardinal principle that guides our construction of a contract
is to effectuate the intent of the parties as set out in the language of the contract. Id.;
OCGA § 13-2-3. “[T]he construction which will uphold a contract in whole and in
every part is to be preferred, and the whole contract should be looked to in arriving
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at the construction of any part.” Shepherd v. Greer, Klosic & Daugherty, 325 Ga.
App. 188, 190 (750 SE2d 463) (2013).
Here, the Agreement explicitly sets out its purpose – to permit Georgia Power
“to erect from time to time, operate, maintain, renew and extend” power transmission
lines “on, along, over and across the public roads, highways, streets and alleys of said
County.” Such right or permission is granted subject to the terms and conditions
stated in section 3, as set out in subsections (a), (b), and (c). Subsection (a) provides
that such lines would be “erected” subject to the “approval and supervision” of the
County authority charged with laying out, building and maintenance of said roads,
clearly referring back to the public roads of the County mentioned in section 3. Under
subsection (b), the specific provision at issue here, Georgia Power agrees to bear the
expense of moving “any such transmission or distribution line or lines [which] may
have been or may hereafter be erected.” (Emphasis supplied.) This obligation does
not extend to any power lines that may have been or may be erected along county
roads, but to “any such” power lines that may have been or may be erected, appearing
to refer back to the power lines in subsection (a) that have been erected with county
approval or under county supervision.
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Accordingly, looking to the structure and language of the Agreement, i.e., by
placing subsection (b) in the context of the Agreement as a whole, and properly
reading it in relation to the other subsections under section 3, we agree with the trial
court that under the plain language of the Agreement, subsection (b) does not apply
to those situations where Georgia Power is forced by the County to relocate power
transmission lines and poles that it originally erected on private property easements
on or along a non-County owned road or highway. As the trial court found, “[t]o
interpret the agreement otherwise would be to find that it provides that any easement
rights that Georgia Power has anywhere in the county may be taken without
compensation if necessary to widen a road or change its grade, regardless of the
circumstances surrounding the acquisition of the easement and erection of the
equipment.” Based on the authority set out above, the trial court properly found that
Georgia Power was entitled to compensation for the taking of its private property
easements, including the costs of relocating its electrical power and distribution
poles.
Judgment affirmed. Barnes, P. J., and McFadden, P. J., concur.
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