Daily Development for Friday, July 16, 1999

Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EASEMENTS; TELECOMMUNICATIONS; ELECTRIC UTILITIES: Easements that give an electric utility the right to run "electric lines and all telephone and telegraph lines . . . appliances and equipment necessary or convenient therewith . . . upon, over, under and across" certain land authorized the installation of underground telecommunications cable, but only for purposes ancillary to the provision of electrical services, and the electric utility cannot make the ables available to other parties for other purposes.

McDonald v. Mississippi Power Co., 732 So.2d 893 (Miss. 1999)

The court had no difficult with the proposition that underground telecommunications cable was simply a refinement of telephone and telegraph capacity, and fell within the scope of the original easement. Although the easement talks about "lines" and (in another part) "towers, poles, and wires," the specific inclusion of the right to install the facilities "under" the property authorized underground cables.

But the victory is a hollow one for the electric company. It is unlikely to invest in the installation of underground telecommunications cable as an ancillary part of providing electrical service. It clearly has in mind leasing capacity on the cable to telecommunications providers, and this, according to the court, it cannot do. Reversing the chancellor below, the court noted that the utility drafted the language of the easements, and any ambiguity must be construed in favor of the servient landowner. Consequently, the easement "limits the use of [communications lines to] that incident to providing electrical service.

Comment 1: The court does not go on to define "electrical service" as limited to electrical power. It is possible that at some future time the electric utility will attempt to offer comprehensive telecommunications services as part of its electric service. The present opinion may have implied that such services are not "electric service," but does so hold outright. Such a development is probably a number of years and a greater number of public utility commission hearings and intercorporate mergers in the future.

Comment 2: In Meighan v. U.S. Sprint Comms. Co., 924 S.W.2d 632 (Tenn. 1996), reh'g denied, 1996 Tenn. LEXIS 435 (Tenn. July 1, 1996), a telecommunications laid fibre optic cable beneath a railroad right of way with permission of the railroad, but without the permission of the servient owners beneath the right of way, and the court upheld a class action in inverse condemnation and trespass brought by the servient owners. The Supreme Court of Tennessee permitted the case and further uphold the notion that punitive damages could be collected in connection with the trespass action. Sounds like things are hotter than normal down South for telecommunications companies.

Comment 3: In their fine treatise, The Law of Easements and Licenses in Land, Jon Bruce and James Ely have a section on cable television easements, section 12.07, that covers the issue in some detail, including the Cable Communications Policy Act, which authorizes cable operators to use dedicated public easements compatible with their needs, but which the courts have interpreted in various ways on the question of whether this authorization permits electric power easements to be used by cable companies without compensation.

Comment 4: A number of cases, cited by Bruce and Ely, simply find that the easement in question is a general easement for wires, and not for electric power or telephone lines per se and further conclude that it is an exclusive easement (sometimes even by implication), thus permitting additional wires for additional parties for additional purposes, so long as the overall physical burden on the servient parcel is not increased. For the grandaddy of all such cases (not cited in Bruce & Ely), see Henly v. Continental Cablevision, 692 S.W. 2d 825 (Mo. App. 1985).

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