Daily Development for Tuesday, July 16, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; SCOPE. Digging a trench to bury telephone lines is a reasonable use of the telephone company's access easement.

Holmes v. Sprint United Telephone of Kansas, 35 P.2d 928 (Kan. App. 2001).

By virtue of a municipal ordinance, Sprint had an easement to build and construct telephone lines along public rights of way. Sprint built an aerial telephone line in an alley adjacent to Holmes' property. In

1988, the City of Melvern vacated the alley but retained "exclusive rights to existing utilities." The language apparently tracked the language of a state statute that provided that on order vacating an alley must reserve the rights for utility facilities "then in existence."

Later, the city adopted an ordinance authorizing utilities to bury their lines. Sprint dug a trench in Holmes' property along the vacated alley to bury the telephone line. Holmes sued Sprint for trespass, and the trial court granted summary judgment to Sprint.

The Kansas Court of Appeals affirmed. The court ruled, first, that it would interpret the reservation in the vacation ordinance as broader than the state statute required, but indicated that there was nothing wrong with the City's reserving a broader right. Thus, it didn't matter that the Sprint lines were not underground when the City vacated the alley, as the City could authorize additional activity with respect to "existing utilities" pursuant to its reserved easement. In any event, the court ruled, the right to put utilities underground is perfectly consistent with a reserved right for utilities "then in existence." In short, the right to maintain wires on poles also includes the right to put them underground at some future time.

Thus, Sprint had a right to bury telephone cable at the time the City vacated the alley but retained the utility easement. Because burying cable was a reasonable use of the easement, Sprint did not commit a trespass.

Comment 1: Is this going to catch some servient landowners by surprise? Remember that the right to maintain underground pipes basically restricts any use of the surface of the property by the servient owner. One builds over those pipes at one's peril, and generally speaking the dominant tenant is free to dig through your parking lot, driveway, or even your basement to get at them, and to leave the hole.

Do we have the same situation here? Can a utility with overhead lines announce simply that it now plans to go underground and rip up whatever is in the way, leaving the servient tenant with the duty to patch things up?

It is true that most servient tenants would view this as a desirable trade- off, since they'd prefer to be rid of the overhanging lines. But the cost will be high for some, and overwhelming for others, particularly those with very extensive developments on the ground.

The editor suspects that the court did not think through the implications of its ruling in this regard. Maybe we'll learn more later.

Comment 2: Note that the alley that had been vacated apparently was owned outright by the City, so we don't have the issue of a possible taking. If the City had only a right of way easement, there may be some question as to whether it can unilaterally declare that utilities can use the easement area, particularly when the right of way is abandoned.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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