Bibb County v. Georgia Power Co.
| Decision Date | 10 November 1999 |
| Docket Number | No. A99A1351., No. A99A1350 |
| Citation | 241 Ga. App. 131,525 S.E.2d 136 |
| Parties | BIBB COUNTY et al. v. GEORGIA POWER COMPANY (Two Cases). |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Sell & Melton, Joseph W. Popper, Jr., John D. Comer, Robert D. McCullers, Macon, for appellants.
Jones, Cork & Miller, H. Jerome Strickland, H.J. Strickland, Jr., Macon, for appellee.
James F. Grubiak, Atlanta, amicus curiae.
When Bibb County condemned neighboring properties to widen a road, it did not condemn any easements Georgia Power may have had for its poles located on the properties. At the first widening in 1967, Georgia Power relocated the poles at its own expense, with many being relocated within the alleged 30-foot-wide easements. At the second widening in 1996, Georgia Power insisted that the county pay for the costs of relocation, resulting in this suit. The court entered summary judgment for Georgia Power to recoup the relocation expenses for 37 of the poles at issue. Because numerous fact disputes on material issues preclude summary judgment, we affirm in part and reverse in part.
In the late 1940s and early 1950s, Georgia Power obtained and recorded easements from persons owning property adjacent to an approximately 20-foot-wide road that would later become known as Northside Drive. These indefinite easements allowed Georgia Power to place power poles and distribution lines across the properties, which it did (at least in part). From 1957 to 1965 Bibb County condemned or purchased title to a portion of those same properties, resulting in Bibb County owning fee simple title to an 80-foot right-of-way for the road. Because Bibb County did not condemn the Georgia Power easements, it took the property subject to those easements (to the extent they were valid).1
In 1965 Bibb County deeded title to the right-of-way to the Georgia Rural Roads Authority for road construction. In March through August 1967, Georgia Power, at its own expense, relocated its power poles to accommodate the road construction. Nineteen of those poles were moved, most from ten to thirteen feet, south of their former locations. Another 18 not shown on some plats also may have been moved. In 1990 the Georgia Highway Authority (successor to the Georgia Rural Roads Authority) deeded the property back to Bibb County. The City of Macon then annexed small portions of the road.
In 1995 and 1996 Bibb County requested that Georgia Power again relocate its poles (approximately 100) to accommodate another road widening. Georgia Power agreed to move the poles only if the county paid the expense. Bibb County and the City of Macon filed the present declaratory action to force Georgia Power to relocate the poles at its expense and also asserted claims for delay damages, trespass, breach of contract, punitive damages, and attorney fees. Bibb County later added a claim for damages for violating the anti-gratuity clause of the Georgia Constitution.2 Georgia Power counterclaimed for inverse condemnation. The trial court ordered Georgia Power to relocate the poles and reserved the expense issue for a later determination. On motions for partial summary judgment regarding thirty-seven of the poles, the trial court ruled in two separate orders (one concerning nineteen of the poles—Case No. A99A1350, and the other concerning eighteen—Case No. A99A1351) in favor of Georgia Power. The county and city appeal.
1. In arguing summary judgment, the parties focus first on the validity of a 1941 agreement between Bibb County and Georgia Power, in which Georgia Power agreed in part to relocate, at its expense, poles located in a county right-of-way. But this portion of the agreement (regardless of whether the agreement is enforceable) does not apply to the poles at issue and thus is irrelevant. The paragraph on the payment of relocation costs applies only to poles "placed under or prior to this agreement." None of the poles was placed prior to the execution of the agreement, and none was placed under the agreement, which pertains only to poles permissively constructed on county rights-of-way pursuant to an application process established in the agreement. Here Georgia Power placed the original poles at issue pursuant to easements Georgia Power had previously obtained from the private landowners. Even when Georgia Power relocated the poles in 1967 to accommodate road construction, at that time Bibb County had deeded its title to the right-of-way property to the Georgia Rural Roads Authority, and thus the 1941 agreement did not govern the relocation of those poles.
The city's franchise agreement with Georgia Power is also inapplicable. Nowhere in that agreement is the subject of relocation or associated expenses addressed. Thus, both agreements are irrelevant to the 37 poles at issue, and the court did not err in granting Georgia Power summary judgment on the county's and city's claims for breach of these contracts with regard to these poles.
2. Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.3 Applying the de novo standard of review to an appeal from a grant of summary judgment, we must view the evidence, and all reasonable inferences and conclusions drawn from it, in the light most favorable to the nonmoving party.4 Various disputed facts preclude summary judgment on Georgia Power's claims for reimbursement for the relocation of the 37 poles. The first dispute is whether Georgia Power had an established easement at the time Bibb County asked it to relocate its poles in 1996. The written easements obtained from the private landowners prior to the 1967 relocation were indefinite easements that became definite by the actual placement of the poles.5 Once so established, the easements could not be changed without Georgia Power first obtaining from the landowners a further or additional easement, whether by condemnation or otherwise.6Jackson Elec. Membership Corp. v. Echols7 explained the consequences of a contrary holding:
To construe the original easement in any other manner would be to authorize the [utility] to eventually take all the [landowners'] land if the necessities of their business dictated, without requiring the payment of any additional damages or compensation to the [landowners] no matter how great the [landowners'] losses might be as a result thereof. This was clearly not the intention of the parties to the instrument. Certainly the [landowners] did not intend to convey to the [utility] blanket authority to take any and all their land whenever it might suit the convenience or necessity of the [utility], without requiring the [utility] to pay such damages as might accrue as a result of such taking.
Once fixed by actual placement of the poles, indefinite easements do not "float" according to the business necessities of the utility.
The disputed facts regarding the establishment of these Georgia Power easements are fourfold.
(a) The evidence is disputed whether prior to the county obtaining the 80-foot right-of-way Georgia Power had indeed placed poles along all of the easements and where exactly those poles (and how many) were placed. Georgia Power did not retain records showing the placement of poles from the early time periods; the earliest documents showing any use are the county's road paving plans for Northside Drive created in 1957 and revised in 1965, which reflect only 15 poles on the south side of the road. To counter Georgia Power's evidence (consisting of extrapolations from those plans and the vague recollections of various individuals about the location of some of the poles), the county submitted (i) the affidavit of an expert who, based on an analysis of aerial photographs of the area from 1960, disputed the placement, number, and maintenance of the poles; (ii) the 1957/1965 plat showing only some of the poles in place and gaps in other places (along with other expert testimony that such gaps would indicate an absence of poles); and (iii) a 1968 plat (accompanied by expert testimony) showing the poles apparently ended before reaching one of the areas in question as they were not shown to continue on property farther west. The weaknesses of the experts' testimonies, as pointed out during their depositions, go to the weight of their testimony, which on summary judgment a court must construe in favor of the nonmovants.8
(b) The county's expert disputed the width of the easements. Georgia Power claimed the easements were 30 feet wide based on its historical practice of maintaining a 15-foot brush/tree clearance around poles located in rural areas like those at issue here.9 But the county's aerial photograph expert saw no such clearance in the 1960 photographs taken a few years before the county condemned the land (but many years after the poles had been allegedly placed and maintained). (c) In 1967 (after the county had condemned the property and obtained its right-of-way, but also after the county had deeded the property to the Rural Roads Authority to construct the project), Georgia Power relocated at least some of the poles at issue to the south (many as much as ten to thirteen feet) to accommodate the first widening of the road. Georgia Power contends that since it stayed within the thirty feet it had kept clear of trees and brush (which argument does not even apply to three of the poles that indisputably were located outside the thirty-foot width), it was not changing or abandoning its easement but was simply relocating the poles within the allowed general area of the easement.10
But it is a jury question whether the relocating of a power pole several feet to one side was within the "general area" of the easement, since (i) moving a pole thirteen feet to the south would necessarily require, by Georgia Power's own evidence, that...
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