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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