Daily Development for Thursday, October 23, 2008
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

EASEMENTS; SCOPE; TECHNOLOGICAL ADVANCEMENT DOCTRINE: With respect to wireless telephone equipment, the Technological Advance Doctrine, which permits specific easement uses not expressly provided in the easement, but for which technological developments have “further[ed] the particular purpose for which the easement is granted,” applies to easements granted with general language permitting “transmission and distributing lines consisting of variable numbers of wires and all necessary and desirable appurtenances.” 

Centerpoint v. Bluebonnet, ___ S.W.3d ___,  2008 WL 2930206 (Tex.App.-Hous. (1 Dist.) Jul 31, 2008)

In 1929, an express utility easement was granted to Houston Lighting & Power Company over property located in Houston.  The granting language provided for “a right-of-way or easement for electric transmission and distributing lines consisting of variable numbers of wires and all necessary and desirable appurtenances (including towers or poles made of wood, metal or other materials, telephone and telegraph wires, props and guys).” 

CenterPoint, as successor to Houston Lighting & Power, granted SprintCom, Inc. permission to install wireless telecommunications equipment within the easement.  Bluebonnet and Petro-Guard, as owners of the servient estate, filed suit against CenterPoint seeking damages, injunctive relief, and attorneys fees, arguing that the wireless equipment exceeded the scope of CenterPoint’s easement.  The trial court held that the easement foreclosed installation of Sprint’s wireless communications equipment.  The judgment: “(1) enjoined CenterPoint and Sprint from using CenterPoint’s easement for wireless communication; (2) required that Sprint remove its equipment from the property; and (3) awarded Bluebonnet and Petro-Guard damages, interest, and costs against both CenterPoint and Sprint and attorney’s fees against CenterPoint.”  CenterPoint and Sprint appealed.

When analyzing the scope of the easement, Texas Court of Appeals first outlined the general rule that the scope of a particular interest conveyed depends upon the intent of the parties.  Specifically, the court cited the Restatement (Third) of Property for the proposition that “an easement ‘should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created.’”  In addition, the “manner, frequency, and intensity of easement may change to take advantage of technological advances, but only for purposes for which [the] easement was created.”

In Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, the Texas Supreme Court “construed [a] utility easement as limited to the purpose of conveying electricity by demonstrating that settled law had interpreted the terms ‘electric transmission’ and ‘electric distribution’ as referring exclusively to conveyances of electricity,” and therefore declined to permit a use that went beyond conveying electricity.  However, in the case at bar, the court distinguished Marcus Cable in that the language in the easement in that case was much narrower. 

Analyzing the plain terms of the easement in this case, the court held that the terms were “amply sufficient to encompass use of CenterPoint’s easement for Sprint’s cellular transmission lines and equipment.”  Specifically, the easement granted a right-of-way for “all necessary and desirable appurtenances,” which included (i) towers, (ii) poles made of wood, metal, or other materials, (iii) telephone and telegraph wires, and (iv) props and guys.  In addition, only in cases where ambiguity exists will a court consider terms not present in the easement, which was not applicable here.

With respect to CenterPoint and Sprint’s argument that the technological advancement doctrine applies to permit the installations of wireless telephone transmission and equipment, despite the easement’s language only addressing “telephone and telegraph wires,” the court noted that the plain terms of the easement “reflect[ed] not only electrical transmission as a purpose of the easement, but also telephone and telegraph transmission as a purpose of the easement.”  Because an easement properly encompasses technological developments that “further the particular purpose for which the easement is granted,” the court took the opportunity in this case to provide “an appropriate application of the doctrine of technological advancement or development,” in holding that “a holder of an easement granted in 1940 for the purpose of telephone transmission could properly attach transmitters to its poles for cellular telephone transmissions unless that use would interfere unreasonably with the ser
vient estate.”

Based on the foregoing analysis, the court reversed the judgment of the trial court, holding “that the express terms of the CenterPoint easement encompass installation and use of cellular transmission within the easement, and that CenterPoint did not exceed the scope of the easement in assigning those rights to Sprint.”

Comment 1: Although the editor has never seen the “technological advancement doctrine” described with that title, it certainly is the case that scope *express* easements can grow to fit changes in the social and technological conditions in which the property exists in the decades following the easement.  The parties to the original easement, if asked, almost certainly would have agreed that this was their intent when they created a permanent easement in a changing world.  If they wouldn’t have agreed, they should have. 

Comment 2: The editor checked for any mention of “technological advancement doctrine” in his favorite source for easement law, Bruce and Ely, The Law of Easements and Licenses in Land, now published by West.  He found footnote 7 in section 8.3 that catalogues the cases involving changes to accommodate new technology.  Clearly the concept is well established, but no mention of a specific “doctrine.”  Maybe it’s time for one.

Comment 3: But coining terms like “technological advancement doctrine” can be very misleading.  The fundamental question has to be: is this the deal that the parties originally made?  In other words, did the party acquiring the easement acquire this right, which of course may have considerable value?  As indicated, the editor is of the view that the dominant tenant in the instant case bought the right to transfer telecommunications data within the easement area, and this would include wireless transmission facilities.  But the editor would strictly construe the technological advancement to changes consistent with the original nature of the right.

For this reason, the editor is critical of cases, outlined in Section 8.5 of Bruce and Ely, that appear to take the position that laying of fiber optic cable for general telecommunications purposes in railroad rights of way is not a surcharge of the original easements because there is no injury to the servient tenement.  The question of “injury,” - interference with the servient use - is really beside the point.  In the editor’s view, telecommunications transmission ain’t the same as driving a train.  The original dominant tenants - the railroads - didn’t buy such rights, and they didn’t acquire the fee, and shouldn’t be able to profit at the expense of the servient owners by transferring them to a telecom company.  If there’s a public purpose here, let the government clothe the telecom companies with eminent domain rights (as it did the railroads) and let the companies go out and get their line rights from the property owners.  But that view is just the editors (and a few courts)
.  Progress often washes over the editor like waves over granite.  He doesn’t even own a Blackberry and rarely sends a text message. 

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