McDonald v. Mississippi Power Co.

• Citation: 732 So.2d 893
• Decision Date: 14 January 1999
• Docket Number: No. 97-CA-01336-SCT.,97-CA-01336-SCT.
• Parties: Otis G. McDONALD, Flora McDonald, Robert Mordica, Von Kyle Modica, Robert R. Royals, Judy W. Royals, Vencie Pruitt, Ruthie Mae Pruitt, W.D. Young, William Paul Rowell, Bertie Flowers, Sarah E. Life, Mrs. A.W. Livingston, David Livingston, Elizabeth D. Livingston, Audrey McClellan, Tom McClellan, Cecil McClellan, Jr., E.H. Morgan, John A. Ashley, Jane Carol Ashley, Edna M. Shepard, Janis M. Sumrall, James Thigpen, Katheryn Wheeler, Texana McFarland, Sam Simmons, Helen Naylor, Nancy Carter, Corrine Simmons, Willie Mae Raines, Herman Deas, Ira W. Stringer, Onita S. Stringer, Robert E. Bell, Sr., Charles Henry Bell, Lovella Henry, Martha C. Henry, Bobby Ray Kidd, Jonie Kidd, James C. McKibbon, Anna Trotter, Augustus F. Ball, Connie Ball, Eula Hickson, Leland L. Stokes, Diane R. Stokes, Michael R. Stokes, And Kimberle D. Stokes v. MISSISSIPPI POWER COMPANY, A Mississippi Corporation and Southern Company, A Delaware Corporation.
• Court: United States State Supreme Court of Mississippi

732 So.2d 893

Otis G. McDONALD, Flora McDonald, Robert Mordica, Von Kyle Modica, Robert R. Royals, Judy W. Royals, Vencie Pruitt, Ruthie Mae Pruitt, W.D. Young, William Paul Rowell, Bertie Flowers, Sarah E. Life, Mrs. A.W. Livingston, David Livingston, Elizabeth D. Livingston, Audrey McClellan, Tom McClellan, Cecil McClellan, Jr., E.H. Morgan, John A. Ashley, Jane Carol Ashley, Edna M. Shepard, Janis M. Sumrall, James Thigpen, Katheryn Wheeler, Texana McFarland, Sam Simmons, Helen Naylor, Nancy Carter, Corrine Simmons, Willie Mae Raines, Herman Deas, Ira W. Stringer, Onita S. Stringer, Robert E. Bell, Sr., Charles Henry Bell, Lovella Henry, Martha C. Henry, Bobby Ray Kidd, Jonie Kidd, James C. McKibbon, Anna Trotter, Augustus F. Ball, Connie Ball, Eula Hickson, Leland L. Stokes, Diane R. Stokes, Michael R. Stokes, And Kimberle D. Stokes v. MISSISSIPPI POWER COMPANY, A Mississippi Corporation and Southern Company, A Delaware Corporation.

No. 97-CA-01336-SCT.

Supreme Court of Mississippi.

January 14, 1999.

Rehearing Denied April 15, 1999.

John M. Deakle, Hattiesburg, John Michael Sims, Eugene C. Thach, Jr., Heidelberg, William R. Couch, Curtis R. Hussey, Hattiesburg, Attorneys for Appellants.

S. Robert Hammond, Jr., Hattiesburg, Richard L. Yoder, Laurel, H.R. Wilder, Gulfport, Donovan McComb, Laurel, Attorneys for Appellees.

Before PRATHER, C.J., and McRAE and WALLER, JJ.

WALLER, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Otis G. McDonald, et al. appeals from the entry of an order of the Chancery Court of the First Judicial District of Jasper County granting summary judgment to Mississippi Power Company. McDonald raises the following issues on appeal.

I. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI POWER IS NOT REQUIRED TO ESTABLISH THAT FIBER OPTIC CABLE IS NECESSARY FOR THE PRODUCTION AND DISTRIBUTION OF ELECTRIC POWER BEFORE ENTERING INTO A PRIVATE CONTRACT FOR LAYING FIBER OPTIC COMMUNICATION CABLE ON THE RIGHTS-OF-WAY.

II. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI POWER HAD THE RIGHT TO UTILIZE ITS POWER LINE EASEMENTS FOR THE PURPOSES OF MAKING A PROFIT FROM ACTIVITIES OTHER THAN THE SELLING OF ELECTRIC POWER AND THAT SUCH USE WAS NOT AN ADDITIONAL SERVITUDE ON APPELLANTS' PROPERTY.

III. WHETHER THE COURT BLOW ERRED IN HOLDING THAT NO AMBIGUITY EXISTED IN THE LANGUAGE OF

THE EASEMENTS WHICH FORM THE BASIS OF THIS DISPUTE.

IV. WHETHER THE LOWER COURT ERRED IN DENYING THE APPELLANTS' REQUEST FOR INJUNCTIVE RELIEF.

STATEMENT OF THE FACTS

¶ 2. Otis G. McDonald and the other Plaintiffs (referred to collectively as "McDonald" hereinafter) are owners in fee simple of certain tracts of real property located in Jones, Clark and Jasper Counties, Mississippi. Mississippi Power Company ("MPC") obtained easements through the Plaintiffs' property by way of condemnation, eminent domain proceedings or voluntary easements executed by the Plaintiffs some thirty years prior to the filing of this action. Those easements gave MPC the right to "construct, operate and maintain electric lines and all telegraph and telephone lines, towers, poles, wires, and appliances and equipment necessary or convenient in connection therewith from time to time and counterpoise wire and other counterpoise conductors, upon, over, under, and across a strip of land ..."

¶ 3. MPC and the Southern Company ("Southern") filed a complaint for declaratory relief in the Chancery Court of the Second Judicial District of Jones County, Mississippi. This action was later transferred to the Chancery Court of the First Judicial District of Jasper County. MPC and Southern sought declaration that they had the right to use the existing easements to install and utilize fiber optic cables. McDonald filed a counter-claim seeking injunctive relief and damages resulting from MPC's installation of the fiber optic cable.

¶ 4. The Chancery Court of the First Judicial District of Jasper County, Honorable H. David Clark, II, presiding, entered an order of summary judgment and final judgment in favor of MPC. The record before this Court contains detailed conclusions of law, as well as findings of fact, made by Chancellor Clark. Many of the findings made by the chancellor are relevant here and are paraphrased below. As a matter of law, the chancellor found:

1. The easements to be "clear and unambiguous."

2. The language in the easements which states, "appliances and equipment convenient and necessary... included not only telephone and telegraph lines, but also fiber optic cable."

3. The fact that MPC profits from the fiber optic lines is irrelevant, since the easements were private contracts.

4. The right to install and operate fiber optic cable is a legal issue to be determined from the four corners of the instrument.

5. "Necessary and convenient" is utilized in its common usage, rather than "ascribing to those terms any special meanings used by the Public Service Commission."

6. MPC has the right to "utilize its assets as it sees fit" as long as it complies with the four corners of the easements.

7. Omission of "telephone and telegraph" in some of easements is immaterial, since "appliances and equipment necessary and convenient therewith, or other similarly broad language is broad enough to encompass the fiber optic cable."

8. MPC's successors and assigns have no greater rights than MPC originally had under the easements.

9. Laying of fiber optic cable is well within the express or implied language of the easements. Further, MPC has the right to enter the land for purposes of "installing, operating, and maintaining the subject communication line." MPC has "an unfettered right ... including but limited to, leasing or selling excess capacity on said lines, without further compensation to the landowners."

10. Southern is not responsible in any way for the actions of MPC.

11. There is no genuine issue as to any material fact in controversy, and MPC and Southern are entitled to prevail as a matter of law.

STANDARD OF REVIEW

¶ 5. This Court's standard of review for summary judgment is well-settled and was recently restated in Aetna Casualty & Sur. Co. v. Berry, 669 So.2d 56 (Miss.1996). In Berry, this Court stated:

The standard for reviewing the granting or denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to a judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt.

Berry, 669 So.2d at 70 (quoting Mantachie Natural Gas v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992)

); Caldwell v. Alfa Ins. Co., 686 So.2d 1092, 1095 (Miss.1996).

¶ 6. Moreover, a motion for summary judgment should be denied unless the trial court finds beyond any reasonable doubt that the plaintiff would be unable to prove any facts to support his/her claim. Yowell v. James Harkins Builder, Inc., 645 So.2d 1340, 1343 (Miss.1994); McFadden v. State, 580 So.2d 1210, 1214 (Miss.1991). The trial court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. Yowell, 645 So.2d at 1343-44; Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983).

¶ 7. In considering a motion for summary judgment, the trial court must view all the evidence (admissions in pleadings, depositions, affidavits, answers to interrogatories, etc.) in the light most favorable to the non-moving party; and, upon this consideration, if the moving party is entitled to judgment as a matter of law, the motion should be granted; otherwise, it should be denied. Sanford v. Federated Guar. Ins. Co., 522 So.2d 214, 217 (Miss.1988); Southern Farm Bureau Cas. Ins. Co. v. Brewer, 507 So.2d 369, 370 (Miss.1987); Brown, 444 So.2d at 363.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Brown, 444 So.2d at 364 (quoting M.R.C.P. 56(e)).

DISCUSSION OF THE LAW

I. WHETHER THE COURT BLOW ERRED IN HOLDING THAT MISSISSIPPI POWER IS NOT REQUIRED TO ESTABLISH THAT FIBER OPTIC CABLE IS NECESSARY FOR THE PRODUCTION AND DISTRIBUTION OF ELECTRIC POWER BEFORE ENTERING INTO A PRIVATE CONTRACT FOR LAYING FIBER OPTIC COMMUNICATION

CABLE ON THE RIGHTS-OF-WAY.

II. WHETHER THE COURT BLOW ERRED IN HOLDING THAT MISSISSIPPI POWER HAD THE RIGHT TO UTILIZE ITS POWER LINE EASEMENTS FOR THE PURPOSES OF MAKING A PROFIT FROM ACTIVITIES OTHER THAN THE SELLING OF ELECTRIC POWER AND THAT SUCH USE WAS NOT AN ADDITIONAL SERVITUDE ON APPELLANTS' PROPERTY.¹

¶ 8. MPC obtained its easements through a certificate of public necessity obtained from the Public Service Commission ("PSC"). McDonald argues that in order for MPC to lay fiber optic cable it must obtain new easements. The large majority of the easements² in dispute contain the following language:

... do hereby grant to said Mississippi Power Company, its successors and assigns the right, without limitation as to duration of

...