by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
EASEMENTS; SCOPE; FUTURE DEVELOPMENT: The failure of an express utility easement to specify an exact location creates a "floating easement," whose location becomes fixed by the original placement of utility's lines and poles, and is expanded by the utility's subsequent use of additional land in accordance with the "normal development" of the utility's rights.
Edgcomb v. Lower Valley Power and Light, Inc., 922 P.2d 850 (Wyo. 1996).
The utility's 1954 easement form left blank portions of the property description which specified the easement's location. The original landowner, however, did not object to the placement of the utility's lines and poles, or to the use of additional land for more lines and poles when the carrying capacity was upgraded in the early 1970's. However, when the utility attempted to add fiber optic cable in 1992, the successor landowner refused permission to enter the land, claiming that the easement was invalid for lack of an adequate description. The utility sued for trespass, ejectment and declaratory and injunctive relief, and the landowner counterclaimed for trespass and nuisance.
The Wyoming Supreme Court affirmed summary judgment for the utility, finding that the lack of a specific description demonstrated an intent to create a "floating easement," meaning one not limited to any specific area on the servient tenement. The location of the easement became fixed when the utility erected its original lines and poles. The easement was expanded to encompass the subsequent upgrades because the "normal development of the respective rights and uses" of the easement "do not alter the scope of the easement," the dimensions of which are "those reasonably convenient or necessary under the circumstances." The landowner also argued that the easement provided to the court by the utility contained section numbers not present in the recorded easement, a point the court found "persuasive" because the recorded section numbers would not have created a functional easement. But the court rejected that argument because it was raised for the first time on appeal. Although a 1981 Wyoming statute voids easements without specific descriptions, the court refused to apply the statute retroactively, in accordance with earlier precedent. The conclusion that the easement was enforceable also disposed of landowner's trespass and nuisance claims.
Comment 1: The court may be correct in concluding that an easement for utility purposes ought to be expandable to comprehend future activities that are part of the basic function for which the easement was granted. But the precedents that it cites for this purpose approve growth in the scope of an easement, not growth in the physical dimensions of the easement beyond those originally established. Hence, they are not complete authority for the proposition established here, which is something of a new idea. But perhaps in this context it is particularly relevant that the original deed set no established boundaries, and the location of the easement had to be "set" by the utility in the first instance.
Comment 2: The concept that a utility can expand physically beyond the bounds originally set (or established following a "float" period) is particularly interesting one in this era in which owners of utility line rights are attempting to capitalize on those rights for all manner of additional applications - particularly telecommunications - that were inconceivable at the time the easement was granted. Does the right to carry lines for power purposes encompass the right also to carry lines for data transmission? A Missouri case holds that a power and telephone utility have the right to license the use of their poles by a cable television company, notwithstanding the objection of the servient owner. The case turns to a certain degree on the notion that the easement was "exclusive." Henley v. Continental Cablevision of St. Louis County, 692 S.W.2d 825 (Mo. Ct. App. 1985). Could they have expanded the physical dimension of their easement to the same extent for this "extra" use as they could have for the normal development of their original use? Is the case right in the first place?
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