Jakobsen v. Colonial Pipeline Co.

Hunt, Justice,

dissenting.

The first rule of construction in examining the scope of an easement is to look to the intent of the parties. Kiser v. Warner Robins &c. Estates, 237 Ga. 385, 386 (1) (228 SE2d 795) (1976). It is uncontroverted that at the time the easements were created the parties’ predecessors in title did not intend that the pipeline easements would include the right to side-trim trees outside the easement. Aerial inspection of the easements did not begin until some years after the easements were created. However, the majority affirms the trial court’s findings that the easements in question imply the right to *568side-trim vegetation outside the easement. Grants by implication are not favored in the law. Pindar, § 8-14 Georgia Real Estate Law & Procedure, 3d ed., p. 367. Thus, the pipeline companies can only be said to have an easement which includes rights outside the express terms of the easement, including, in this case, the right to side-trim trees and vegetation outside the easement, only if those rights can be deemed necessary to the enjoyment of the easement.

“It is established law in this State, and generally, that nothing passes as an incident to the grant of an easement but what is requisite to its fair enjoyment. Notwithstanding such a grant, there remains in the grantor the right of full dominion and use of the land, and except so far as the limitation thereof is essential to the reasonable enjoyment of the easement granted.” [Cit.] (Emphasis supplied.)

Folk v. Meyerhardt Lodge, 218 Ga. 248, 249 (127 SE2d 298) (1962). This is consistent with the language of the easements in this case which allow the companies to “do whatever may be requisite for the enjoyment of the rights” contained in the easements, but different from the majority’s standard of “reasonable necessity,” taken from Brooke v. Dellinger, 193 Ga. 66 (17 SE2d 178) (1941). The “reasonably necessary” language as used in that case was derived from the particular easements under consideration. Our law allows implied rights only as to what is absolutely necessary for the enjoyment of an express easement. “This rule is based upon the principle that when one grants a thing, he is deemed also to grant that within his ownership without which the grant itself will be of no effect.” (Emphasis supplied.) Jones v. Mauldin, 208 Ga. 14, 16 (1a) (64 SE2d 452) (1951).

The record reflects, and the trial court found, that it is more efficient for the pipeline companies to inspect, and, accordingly, to maintain, the thousands of miles of their rights-of-way by air, rather than by other means. This finding does not amount to an absolute necessity for the enjoyment of the express rights contained in the easements and does not justify the irreparable destruction of vegetation outside the boundaries of the easements, on property located in an urban area where vegetation is at a premium. (The trial court’s finding was made notwithstanding Colonial Pipeline’s own policy authorizing inspections in highly congested areas by air or ground, within the discretion of the company’s management.)

Accordingly, I dissent. I am authorized to state that Justice Ben-ham and Justice Fletcher join in this dissent.

*569Decided November 8, 1990 — Reconsideration denied November 28, 1990. Bedford, Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, for appellant. Hurt, Richardson, Garner, Todd & Cadenhead, Robert L. Todd, Henry D. Fellows, Jr., Edward T. Floyd, Ross Arnold, Gary L. Glancz, for appellees.