Hise v. BARC Electric Cooperative

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice

BURLEY E. HISE AND
DARLENE S. HISE
OPINION BY
V. Record No. 961577 SENIOR JUSTICE HENRY H. WHITING
September 12, 1997
BARC ELECTRIC COOPERATIVE, ET AL.

FROM THE CIRCUIT COURT OF BATH COUNTY
Duncan M. Byrd, Jr., Judge

In this appeal, we consider the scope of an electric power

company's rights in an easement in gross for the construction and

operation of its electric power line acquired (1) by prescription

and (2) by eminent domain. Specifically, we decide whether the

power company can permit a telephone company and a cable

television company to attach their lines to the power company's

poles without the consent of the owners of the servient estate.
For a number of years, BARC Electric Cooperative (the power

company) operated a 7,000 volt electric power line pursuant to an

alleged 30-foot prescriptive right of way across the property of

Burley E. Hise and Darlene S. Hise in Bath County. In an eminent

domain proceeding, the power company acquired the rights (1) to

"relocate" its pole line by erecting single pole structures at a

height not to exceed 60 feet at locations shown on a plat

attached to its "petition for condemnation" and (2) to widen its

prescriptive right of way by 50 feet in order to construct and

operate a new 46,000 volt electric power line over the Hise

property. Following that proceeding, the power company installed

new poles and lines within the original 30-foot easement and

transferred its original lines to the new poles.
 Since the power company had permitted Virginia Telephone

Company and Bath Cable TV, Inc., to attach their respective lines

to the original poles, and the three companies planned to move

those lines to the power company's new poles, the power company

did not comply with the Hise request to remove the original poles

and the telephone and cable lines attached thereto. Whereupon,

the Hises brought this action against all three companies to

compel the removal of the original poles and to enjoin the

telephone and cable companies from transferring their lines to

the new poles.
After hearing evidence on the issue of the width of the

prescriptive easement, the court found it to be 30 feet wide.

Thereafter, in sustaining motions for summary judgment filed by

the telephone and cable companies, the court held that they could

transfer their lines to the power company's new poles pursuant to

their agreements with the power company. The court also ordered

the power company to remove the old poles after such transfer.

The Hises appeal the first two rulings.

While conceding that the power company had established its

prescriptive easement over their property, the Hises contend that

the power company failed to carry its burden of establishing the

width of its prescriptive easement by clear and convincing

evidence as required in Pettus v. Keeling, 232 Va. 483, 486, 352

S.E.2d 321, 324 (1987). The power company contends that it has

carried that burden.

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 In accordance with well-settled appellate principles, we

view the evidence in the light most favorable to the power

company, the prevailing party on this issue of fact. Such

evidence indicates that for a period of more than 20 years prior

to the filing of this suit, the power company periodically

sprayed and cleared the foliage and undergrowth along its pole

line, including the Hise property, for a width of at least 30

feet. The evidence also discloses that during this period it was

the usual and customary practice of all power companies,

including this one, to "make all rural lines thirty feet [wide]."
In our opinion, this evidence sufficiently supports the

court's finding that the prescriptive right of way was 30 feet

wide. Accordingly, we reject this contention of the Hises.

Next, the Hises claim that neither the prescriptive rights

nor the rights taken in the eminent domain proceeding are

exclusive or apportionable and therefore the power company had no

right to authorize the attachment of the telephone and cable

lines to its new pole lines. The utility companies disagree.

All parties describe these easements as easements in gross,

which are "easement[s] with a servient estate but no dominant

estate." Corbett v. Ruben, 223 Va. 468, 472, 290 S.E.2d 847, 849

(1982). Although personal to the grantee, the easement is

transferable by the grantee. Code § 55-6; Corbett, 223 Va. at

472 n.2, 290 S.E.2d at 849 n.2.

Exclusivity

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 "An exclusive easement in gross is one which gives the owner

the sole privilege of making the uses authorized by it." 5

Restatement of Property § 493 cmt. c (1944). If the easement in

gross is exclusive, the owner of the easement may have the right

of apportionment which is described as one of "so dividing [an

easement in gross] as to produce independent uses or operations."

Id. at § 493 cmt. a.

In our opinion, the power company's prescriptive right was

an exclusive right. The evidence indicates that no use was made

of the easement by any person or entity other than the power

company and its permittees, the telephone and cable companies.
We determine the exclusivity of the power company's later

easement by a consideration of the following pertinent

descriptions of the rights acquired in the eminent domain

proceeding:
"(3) The public uses for which the perpetual rights,
privileges and easement of right of way described in
this Petition are to be acquired are the construction,
operation, maintenance and relocation of the Company's
transmission and distribution line . . . ."

* * * *

"(6) The estate, interest or rights sought to be
acquired are the perpetual right, privilege and
easement of right of way . . . over, under, upon and
across lands described herein . . . .

The facilities installed on the easement of right
of way shall remain the property of the Company. The
Company shall have the right to inspect, rebuild,
remove, repair, improve, relocate such facilities on
such right of way, and make such changes, alterations,
substitutions, additions to or extensions of its
facilities as the Company may from time to time deem
advisable."

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 * * * *

"The owners, their successors and assigns, may use
the right of way for any purpose not inconsistent with
the rights herein sought to be condemned including, but
not limited to, the right to construct, operate and
maintain . . . telephone, electric or other utility
lines across the right of way, in such manner that the
angle between the center line thereof and the center
line of the right of way shall not be less than forty-
five degrees, provided that such use does not interfere
with or endanger the construction, operation or
maintenance of the Company's facilities . . . . The
Company shall at all times have the paramount right to
cross or cut through such . . . telephone, electric or
other utility lines and to interrupt the use thereof,
for the purpose of constructing, maintaining,
operating, repairing, altering or replacing its
facilities . . . "

The Hises claim that their right to "use the right of way

for any purpose not inconsistent with the rights sought to be

condemned," creates a nonexclusive easement in gross. We

disagree.

Nothing in the description of the Hises' rights permits them

to share the electric company's poles or lines. Further, any

utility lines constructed by the Hises or their grantees that

cross the power company's easement (1) must be at angles of not

less than 45 degrees with the power company's easement, (2)

cannot interfere with or endanger the power company's use of the

easement, and (3) are subject to the power company's paramount

rights. In our opinion, none of the Hises' retained rights

deprived the power company of its "sole privilege of making the

uses authorized by [the eminent domain proceeding]." Restatement

of Property § 493 cmt. c. Accordingly, we conclude that the

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power company acquired an exclusive easement in gross in the

eminent domain proceeding.

Apportionability

"When an easement in gross is created by prescription, the

question of its apportionability is decided in the light of the

reasonable expectation of the parties concerned in its creation

as inferred from the nature of the use by which it was created."

Id. at § 493 cmt. b. During the prescriptive period in which the

power company maintained its pole line across the Hise property,

it permitted the telephone and cable companies to attach their

lines to its poles. Such attachments had been made without

objection from the Hises for more than 16 years before this

controversy arose and the Hises have used the cable line for

television reception to their property since 1979.
We think the attachment of the telephone and cable lines

demonstrates that the power company construed its prescriptive

easement as an exclusive one with a right of apportionment.

Moreover, the Hises apparently acquiesced in that construction

both by failing to object to the additional lines and by making

use of one of those lines. Accordingly, the evidence supports a

conclusion that the 30-foot prescriptive easement was

apportionable, thereby giving the power company the right to

permit the attachment of the telephone and cable lines to its

poles within that area.

In determining the apportionability of the easement acquired

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in the eminent domain proceeding, we note that "the fact that

[the servient tenant] is excluded from making the use authorized

by the easement, plus the fact that apportionability increases

the value of the easement to its owner, tends to the inference in

the usual case that the easement was intended in its creation to

be apportionable." Restatement of Property § 493 cmt. c.

The Hises observe that the instrument describing the rights

acquired in the eminent domain proceeding does not contain the

broad language contained in the cases relied upon by the utility

companies in which power company easements in gross were held to

be apportionable. However, as pointed out by the utility

companies, the power company's express power to "improve" and to

make "additions to or extensions of its facilities" as acquired

in the eminent domain proceedings sufficiently supports the trial

court's inference of apportionability in this case. Accordingly,

we hold that the power company could permit the television and

cable companies to attach their lines to the new poles.
For all these reasons, we will affirm the judgment of the

trial court.

Affirmed.

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