Barfield v. Cooperative
| Decision Date | 31 March 2014 |
| Docket Number | Case No. 2:11–cv–04321–NKL. |
| Citation | 10 F.Supp.3d 997 |
| Court | U.S. District Court — Western District of Missouri |
| Parties | Chase BARFIELD, et al., Plaintiffs, v. SHO–ME POWER ELECTRIC COOPERATIVE, et al., Defendants. |
OPINION TEXT STARTS HERE
Motions granted in part and denied in part. Cecilia Fex, Kathleen C. Kauffman, Ackerson Kauffman Fex, PC, Michael Amberg, Washington, DC, Brad A. Catlin, Henry J. Price, Ronald J. Waicukauski, Price Waicukauski & Riley, LLC, Indianapolis, IN, Matthew A. Clement, Heidi Doerhoff Vollet, Cook, Vetter, Doerhoff & Landwehr, P.C., Jefferson City, MO, F. Alexander O'Neill, Myrtle, MO, for Plaintiffs.
Christopher M. Hohn, Robert Joseph Wagner, Thompson Coburn, LLP, W. Stanley Walch, Stephen A. D'Aunoy, St. Louis, MO, Dana L. Kollar, Andereck, Evans, Widger, Johnson & Lewis LLC, Jefferson City, MO, Terry M. Evans, Andereck, Evans, Widger, Johnson & Lewis, LLC, Smithville, MO, Clinton D. Russell, Darrell W. Downs, R. Stratton Taylor, Taylor, Burrage, Foster, Mallett, Downs, Ramsey & Russell, Claremore, OK, Jean Paul Bradshaw, David T.M. Powell, Rachel E. Stephens, Lathrop & Gage LLP, Kansas City, MO, for Defendants.
This class action is brought on behalf of several thousand Missouri landowners for claims arising out of Defendants' use of electric transmission line easements for commercial telecommunications instead of the generation and sale of electricity.
It is undisputed that Sho–Me Power Electric Cooperative and KAMO Electric Cooperative (Electric Cooperative Defendants) created Sho–Me Technologies and K-Powernet, respectively, to operate commercial telecommunication companies. The Electric Cooperative Defendants did this because Missouri law does not permit electric cooperatives to operate commercial telecommunication companies. The Electric Cooperative Defendants then leased to Sho–Me Tech and K–Powernet excess space on fiber optic cables that had been laid on the Electric Cooperative's respective electric transmission easements. Sho–Me Tech and K–Powernet then used their space to transmit commercial telecommunications, returning the profits from their enterprise to their electric cooperative parent.
The Plaintiffs argue that this use of the Defendants' easements for the generation of commercial telecommunications, instead of electricity, exceeds the scope of the easements which were granted to the Defendants and this deprived the Plaintiffs and the class of a valuable property right—the right to benefit from the use of their land as an information highway.1 In short, the dispute is about whether Missouri law requires third parties to compensate land owners when they operate this information highway under the landowners' real property for a purpose not permitted by a valid easement. Plaintiffs bring this suit claiming trespass and unjust enrichment. To resolve the dispute, the Court must consider how changing technologies should be harmonized with historic real property principles.2
Judgment Against the Biffle and Robertson Plaintiffs [Doc. 239]; (3) Plaintiffs' Motion for Summary Judgment on the Issue of Defendants' Liability [Doc. 245]; (4) the KAMO Defendants' Motion for Summary Judgment on the Issue of Liability [Doc. 293]; (5) the Sho–Me Defendants' Motion for Summary Judgment Against All Members of the Class Who Have Unadjudicated Claims Against the Sho–Me Defendants [Doc. 296]; (6) the Sho–Me Defendants' Motion for Summary Judgment Against the KAMO Class Members [Doc. 297]; (7) the Sho–Me Defendants' Motion for Partial Summary Judgment Based on the Statute of Limitations [Doc. 298]; and (8) the Sho–Me Defendants' Motion for Summary Judgment Based on Class Members' Consent [Doc. 299].
Dwight Robertson owns property in Miller County, Missouri. His properties are subject to easements in favor of Sho–Me Power Corporation. These easements, titled “Transmission Line Easements,” state that Sho–Me Power Corporation and its successors and assigns are granted the right to enter the property and to
construct, reconstruct, patrol, replace, repair, operate, and maintain on the above described lands and in and upon all streets, roads or highways abutting said lands, an electric transmission line and all appurtenances thereto; to cut and trim trees, bush and shrubbery located within fifty feet of the center line of said line or that may interfere with or threaten to endanger the operation and maintenance of said line; to clear all structures, improvements and fire hazards located within fifty feet of the center line of said line ...; and to have the right of ingress and egress to, from and over the above described lands, for doing anything necessary or useful for the enjoyment of the easement herein granted ... [and] the right at anytime after said electric transmission line has been constructed to add additional poles, wires, anchors, guys, crossarms and other appurtenances; the right to change a single pole line to a double pole line (H frame construction) and the right to increase or decrease the voltage of the line, all as [Sho–Me Power Corporation] may deem necessary or advisable. (emphasis added).
Michael and Gina Biffle own land in Oregon County, Missouri. The property is subject to a “Transmission Line Easement” in favor of Howell Oregon Electric Cooperative, which was subsequently assigned to Sho–Me Power. The easement contains similar language to the Robertson easement and states that the grantee has the right to enter the property and to
construct, reconstruct, patrol, replace, repair, operate and maintain on the above described lands and in and upon all streets, roads and highways abutting such lands, an electric transmission line and all appurtenances thereto, to cut and trim trees, bush and shrubbery located within fifty feet of the center line or that may interfere with or threaten to endanger the operation and maintenance of said line; to clear all structures, improvements and fire hazards located within fifty feet of the center line of said line ... and to have the right of ingress and egress to, from and over the above described lands with the option given Cooperative to construct all gates, if any, Cooperative deems necessary for such purpose; for doing anything necessary or useful for the enjoyment of the easement herein granted. (emphasis added).
Chase Barfield owns land in Hickory County, Missouri. The property is subject to an easement in favor of Defendant KAMO Electric Cooperative. The easement, titled “Transmission Line Easement,” states that KAMO Electric and its lessees, licensees, successors and assigns are granted “the perpetual easement and right to enter” the property to
erect, operate, survey, maintain, repair, rebuild and patrol on or over said lands and in and upon all streets, roads, or highways abutting said lands, one or more electric power transmission lines and appurtenant signal lines, telephone and telegraph wires, poles, towers, wires, cables, anchors, guy wires, and appliances necessary in connection therewith, and to license, permit, or otherwise agree to the joint use or occupancy of the line or system by any other person, association or corporation for electrification or telephone purposes together with the right of ingress and egress to, from, and over said lands for doing anything necessary or useful to the enjoyment of the easement herein granted. (emphasis added).
Plaintiffs have grouped the more than 6,000 easements at issue in this case into three broad categories, each of which are further divided into subparts based on differences in the language in the easements. The easement language in the various categories is described in more detail below where necessary to resolve the pending motions. See infra Part IV.A.2.
Sho–Me Power Corporation was incorporated in 1947 as a public utility under the General and Business Corporation Law of Missouri, Chapter 351 RSMo. In 1993, the Missouri Public Service Commission granted Sho–Me Power Corporation's application to convert to a rural electric cooperative governed by the Rural Electric Cooperative Act, Chapter 394 RSMo. Its name was then changed to Sho–Me Power Electric Cooperative.
For many years, Sho–Me Power used either microwave radios or power line carriers to communicate with its unmanned power substations. In 1995, the Federal Communications Commission ordered the sale of the radio frequencies previously assigned to utility microwave radios so that the frequencies could be sold to cellular telephone providers. Sho–Me Power then converted to fiber optic cables for its electric transmission system, constructing a sixty-fiber, 550–mile communications system through the easements it had on Plaintiffs' land.3
The fiber optic communication system was developed to have far more capacity than Sho–Me Power needed to meet its current, internal communication needs. Sho–Me Power sought to use this excess capacity for the operation of a commercial telecommunications network. However, as a rural electric cooperative governed by Chapter 394 RSMo., Sho–Me Power can only supply electric energy; it is not authorized to provide commercial telecommunications services. Consequently, Sho–Me Power formed Sho–Me Technologies, LLC as a wholly owned subsidiary. Sho–Me Tech serves as the telecommunications provider and uses Sho–Me Power's electric transmission fiber optic capacity to market Sho–Me Tech's telecommunication services.
Shortly after the implementation of the Telecommunications Act of 1996, Sho–Me Power assigned to Sho–Me Tech the right to use or sell any excess capacity on Sho–Me Power's fiber optic network. The same fiber optic cable is used for Sho–Me Power's internal...
To continue reading
Request your trial
-
Barfield v. Sho-Me Power Elec. Coop.
...10 F.Supp.3d 997Chase BARFIELD, et al., Plaintiffsv.SHO–ME POWER ELECTRIC COOPERATIVE, et al., Defendants.Case No. 2:11–cv–04321–NKL.United States District Court, W.D. Missouri, Central Division.Signed March 31, 2014.10 F.Supp.3d 1002Cecilia Fex, Kathleen C. Kauffman, Ackerson Kauffman Fex,......