Date: Wed, 15 Dec 1999

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

EMINENT DOMAIN; INVERSE CONDEMNATION; RIGHTS OF WAY; UTILITIES: Installation of a pipeline in a public right of way, with permission of public agency holding the right of way, is an extension of the highway servitude and a taking of the rights of the servient owners of the right of way, justifying compensation.

Barrilleaux v. NPC, Inc., 730 So.2d 1062 (La.App. 1 Cir. 1999).

The bulk of the case deals with an interpretation of a Louisiana statute, which the pipeline owner claimed permitted the installation of pipelines and utility wires in public rights of way without further compensation of servient owners. The court held that the statute did not confer such authority, but also state, moreover, that the installation of such facilities would constitute an extension of the original easement rights and constitute a taking of the servient owners' property in any event.

Comment 1: The case obviously has great import with regard to the question of installation of various kinds of new telecommunications transmission facilities in existing rights of way for various purposes.

Comment 2: Intrigued by the issue, the editor actually undertook a little legal research to learn the state of the law in other jurisdictions. He found an ALR2d annotation dating from 1958 (58 ALR2d 525), identifying as many as five separate positions taken by various American jurisdictions on the issue.

As of that time, the ALR reporter identified Alabama, Indiana, Kansas, Kentucky, Massachusetts, Oklahoma, Washington, and West Virginia as holding that all manner of public utility activities necessarily fall within the scope of a public right of way easement, and there is no right of a servient owner to complain of the installation of such additional improvements. The ALR author identified California, Illinois, Iowa, Maryland, Michigan, Mississippi, New Jersey, Tennessee, and Wisconsin as holding that the public right of way easement necessarily comprehended a right to install electric lines for street railways and street lighting, but not for other electrical transmission purposes unrelated to the street usage.

The author identified Arkansas and Pennsylvania as states differentiating between rural and city environments, identifying the city environment as one in which it was likely that the servient owners expected that the stret use would include general utility installation, but differentiating rural areas, where landowners likely were justified in expecting that rights of way were for transportation purposes only. Your editor has identified authority in Indiana (since rejected) and Maryland that also follow this line of reasoning.

Ohio and Montana, as of 1958, had cases that held that urban rights of way could carry electrical lines, but only if *one* use of those lines, but not necessarily the exclusive use, was for transportation related activities such as lighting or street railways.

The author identified Georgia, Louisiana, Nebraska, North Carolina and Texas as states in which any electrical transmission activity would be deemed outside the scope of the original right of way easement and separately compensable.

Undoubtedly there have been many developments since this time, but since the concept has to do in part with the definition of the property rights of servient owners, there are important state constitutional implications here. Most likely the most common "fix" would be a state statute defining such rights of way as necessarily inclusive of the additional uses. This would solve the problem for subsequently acquired rights of way, but not for rights of way acquired earlier. That's why the old cases discussed above might still be quite relevant.

Comment 3: Of course, where the public agency lawfully licenses the utility installation in its right of way, the servient owner cannot object to the presence of the utility, but still can demand just compensation.

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

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