Wednesday, February 27, 2013

Easement Rider

Farrell v. Vermont Electric Power Co., 2012 VT 96
Welcome to our new regular feature, Ask the SCOV.  Today’s letter comes from a property owner in South Burlington.  He asks:

Dear SCOV,

Does a permanent easement ordered in the context of one project apply to future projects when there is no mention of the first project in the easement? 



Well, it seems our letter writer sent his question straight to the Court and got the following response:

Dear Plaintiff-Appellant,


Yours truly,


Thank you for reading, Ask the SCOV.  We now return to our regularly scheduled summary already in progress.

Plaintiff in this case owns a South-Burlington parcel of land.  In the early 1970s, Vermont Electric Power Company and Vermont Transco (VELCO) obtained a certificate of public good for the Queen City Tap Project, an electrical-transmission-line-construction project.  In ’76, the Public Service Board issued an order “condemning a permanent easement” on Plaintiff’s property for the installation of power-transmission lines and equipment.  The easement, by its terms, was broad.  Plaintiff was paid for the taking; VELCO installed a three-line-transmission setup on Plaintiff’s property in connection with the Queen City Project in ’77 and all was apparently well for the rest of the Carter administration and the succeeding three decades.

VELCO got another certificate of public good for a different project in 2005.  And then, in 2008, VELCO installed a ten-line-transmission setup on Plaintiff’s property.  In 2010, Plaintiff filed suit alleging that the new line was a material overburdening of the property and that he was entitled to damages for the increased use and taking.  VELCO moved for summary judgment.

Plaintiff argued that there was a genuine issue of material fact as to whether the new towers overburdened the property.  He pointed out that the new towers were taller, gave the property a much different look, and if they fell, they might land on his adjoining property.  He also argued that the scope of the easement was limited to the Queen City project. 

The trial court granted summary judgment for VELCO because the easement’s plain language placed no limitations on VELCO’s easement, and some of the language was actually forward-looking as to new lines (“now or hereafter”).  Plaintiff appealed.

At the SCOV, it’s a yell-into-the-canyon appeal: Plaintiff echoes his arguments, and the SCOV echoes the trial court. 

On appeal the SCOV applies the same standard as the trial court.  If there are no genuine issues of material fact, and VELCO is entitled to judgment as a matter of law, then the SCOV will affirm.  Plaintiff gets the standard “benefit of the doubt” on disputes about factual issues.

The SCOV first explains that obtaining a public-utility condemnation easement is a two-step process.  First, the utility must obtain a certificate of public good.  Second, the utility must petition the Board.  Following hearing, the Board must find, among other things, that the proposed use is necessary for the utility to provide adequate service to the public.  VELCO got a certificate of public good for the new project.

Should condemnation easements be interpreted the same way as easement deeds?  The SCOV answers in the affirmative, relying on cases from Alabama and Kentucky.   Having concluded that condemnation easements should follow the same rules of construction as easement deeds, the SCOV notes that the plain terms of the easement will control.

The SCOV concludes that “the easement unambiguously authorized VELCO to construct other lines on the Property.”  The SCOV, like the trial court, notes the condemnation order’s “now or hereafter” language.  VELCO can certainly install new lines on Plaintiff’s property under the plain language of the easement.  So, the SCOV reasons, even though the original easement was obtained in the context of the Queen City project, the easement is broader than its roots, so to speak.  The SCOV concludes that installation of the new lines was authorized.

The SCOV next considers whether the new lines overburden the easement.   Because the SCOV concludes that the condemnation easement’s express language authorizes “installation and maintenance of towers, poles, lines, and other infrastructure on the Property” the new lines do not overburden the property.  Again, the Queen City project doesn’t serve to limit the easement by its express terms. 

The SCOV concludes that the new lines do not impose an additional burden on the Property.  The SCOV dismisses Plaintiff’s argument that the new towers are taller and could fall on adjoining land as speculative.  Finally, the SCOV notes that the 1976 Order recited compensation for the full value of the land.    And so, the SCOV concludes that the trial court properly ruled in favor of VELCO on its motion for summary judgment. 

Chief Justice Reiber concurs and dissents because he believes a question of fact remains as to whether the new lines impose an additional burden, warranting compensation.  The primary issue the Chief Justice takes with the majority’s reasoning is its focus on the language of the easement in isolation from the proceeding in which it was obtained. 

He explains: “In focusing exclusively on the language of the Farrell easement in isolation, the majority here overlooks relevant provisions of the petition and order in which it appears.”  The Chief Justice notes that the underlying proceeding was based on a request to install a singular line on Plaintiff’s Property, not several lines. 

The purpose of a taking defines its scope.  The Chief Justice asserts that the easement language in isolation misses the purpose of the original taking.  And though the Chief Justice agrees that the new lines are consistent with the general nature of the easement, he notes that the burdened estate may be entitled to further compensation if the new use is more onerous than originally expected. 

And so, the Chief Justice concludes that the Plaintiff should be allowed to demonstrate damages from the additional burden on his property. 

Justice Skoglund joins the concurrence and dissent.

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