Jakobsen v. Colonial Pipeline Co.

Clarke, Chief Justice.

In 1988, appellant Jakobsen acquired real property in DeKalb County which was subject to four partially overlapping petroleum pipeline easements of appellees Colonial Pipeline Company (Colonial) and Plantation Pipeline Company (Plantation). In the latter part of 1989, Colonial and Plantation cut the timber on these easements under the authority of a court order. After the trial court entered this order, the United States Department of Transportation notified appellees that they were in “probable violation” of pipeline safety regulations, 49 CFR Part 195 et seq., in that 12 miles of right-of-way, including that over the subject property, is overgrown with “trees and brush [which] obscure the right of way to the extent that [appellees’] aerial patrolling is ineffective in determining the surface conditions on or adjacent to the right of way.”

Subsequently appellees gave notice to Jakobsen of their intention to “side-cut” trees and brush adjacent to the easements so that the easements would be clearly visible from the air. Jakobsen then brought this action for declaratory judgment, seeking a permanent injunction against the side-cutting, or alternatively, monetary damages. Thereafter appellees filed an application for interlocutory injunction, seeking to prevent Jakobsen from interfering with the side-cutting.

The trial court found that appellees have used aerial patrols to inspect their pipelines, including those on Jakobsen’s property, since 1949. The trial court found that together the appellees operate more than 8,000 miles of pipeline, and that ground inspection would therefore not be practical, and would also interfere with the property rights of the owners of the land. The trial court further found that federal regulations require appellees to inspect the surface conditions of their pipeline easements at least 26 times per year, making ground inspection virtually impossible.

The easements in question give appellees the right to “maintain, operate, alter, repair, remove and replace” the pipes, the right to “cut *566timber,” and the “right to do whatever may be requisite for the enjoyment of the rights” contained in the easements. The trial court concluded that these rights include “side-cutting” of timber so that an aerial inspection of the property may be made. The trial court then entered an order granting the appellees the permanent right to side-cut timber along the easements. The issue of monetary damages is not before us.

1. Jakobsen first argues that the trial court erred in awarding permanent relief in an order granting the interlocutory injunction. However, because Jakobsen had notice of the possible effects of the interlocutory injunction and did not object, the trial court did not err in determining the issues on the merits. Georgia Kraft Co. v. Rhodes, 257 Ga. 469 (1) (360 SE2d 595) (1987). Further, Jakobsen requested the grant of permanent relief in his complaint, and was the only party who failed to submit proposed findings of fact and conclusions of law as advised by the trial court.

2. Jakobsen next argues that the trial court erred in determining that the easements grant the right to side-cut trees.

The construction, interpretation and legal effect of a contract such as an easement are issues for the court to decide. Id. at 472. The grant of an easement impliedly includes the authority to do those things which are reasonably necessary for the enjoyment of the things granted. Brooke v. Dellinger, 193 Ga. 66 (17 SE2d 178) (1941). The easements in this case authorize the appellees to “maintain, operate, alter and repair” the pipelines, “cut timber,” and to “do whatever may be requisite for the enjoyment of the rights” contained in the easements. The trial court concluded that the easements impliedly include the right to side-trim trees so that the appellees might aerially inspect the pipelines to determine whether they are in need of maintenance, repair, or are otherwise a public hazard. We agree.

We do not construe the trial court’s order to authorize the removal of trees growing outside the easement area. It only allows the trimming of the portions of the trees extending over the easement area.

The right to inspect the pipelines is so tied to the rights under the easements to operate and maintain the pipelines that it cannot be severed from them. Where an easement is granted without limitations on its use, the grantee is entitled to avail himself of other reasonable uses which develop over time if such uses significantly relate to the object for which the easement was granted. 28 CJS 767, Easements, § 87.

Additionally, the right to patrol and inspect easements in the most expeditious manner possible has been recognized. 61 AmJur2d 600, Pipelines, § 31; Restatement of Property, § 484. We conclude, therefore, that the trial court did not err in determining that appel*567lees have the right to side-cut the trees in question.

3. Contrary to Jakobsen’s assertions, the evidence does not support a conclusion that appellees have abandoned their rights in the easements.

The owner of an easement arising from a grant, express or implied, does not lose his easement by mere nonuser, and nonuser without other evidence of intent to abandon will not constitute abandonment.

Smith v. Gwinnett County, 248 Ga. 882, 884 (286 SE2d 739) (1982). The trial court found, and the record shows, that the easements have been continuously used from the time of their grant, and that appellees have inspected the pipelines by aerial patrol since 1949. The mere delay in exercising the right of side-cutting under the easements did not amount to an abandonment of the right. Westbrook v. Comer, 197 Ga. 433 (5) (29 SE2d 574) (1944).

4. Last, Jakobsen argues that the trial court erred in excluding from evidence a memorandum which an attorney in the employ of Colonial sent to another Colonial employee. Jakobsen argues that this memorandum was offered to show that Colonial believes it has waived its right to side-cut older trees under the easements, and also indicates Colonial believes that it may be subject to laches in this action.

All parties have extensively argued the issue of whether this memorandum is protected by the attorney-client privilege. However, we find it unnecessary to reach the issue of whether the privilege applies because we find that as a matter of law Colonial has not waived the right to side-cut trees under the easements, nor is it subject to laches for failing to side-cut trees before now. See Division 3, supra. As such, any error in refusing to admit this document in evidence would be harmless.

Judgment affirmed.

Clarke, C. J., Smith, P. J., Bell, J., and Judge Watson L. White concur; Hunt, Benham and Fletcher, JJ., dissent; Weltner, J., not participating.