Carroll Elec. Co-op. Corp. v. Benson, 94-593
| Decision Date | 19 December 1994 |
| Docket Number | No. 94-593,94-593 |
| Parties | , Util. L. Rep. P 26,502 CARROLL ELECTRIC COOPERATIVE CORPORATION, Appellant, v. Joe BENSON and Amelia Benson, Appellees. |
| Court | Arkansas Supreme Court |
David D. Stills, John C. Everett, Fayetteville, for appellant.
James N. McCord, Fayetteville, for appellees.
This is the second appeal regarding whether appellant Carroll Electric Cooperative Corporation (Carroll Electric) had a right pursuant to a 1962 easement to extend existing power lines across property of the appellees Joe and Amelia Benson (Bensons). In Carroll Elec. Coop. Corp. v. Benson, 312 Ark. 183, 848 S.W.2d 413 (1993), we held the trial court erred in determining that Carroll Electric could not extend its power line under a 1962 easement but remanded to the trial court for a determination of the reasonableness of the route chosen for the line as well as for further proceedings consistent with the opinion. On remand, the chancellor concluded the overhead power line in its present location was not reasonable and directed the power line be placed underground. We find the chancellor erred in directing the power line be placed underground.
The facts, as outlined in Carroll I, supra, are as follows:
On May 12, 1962, the appellees' predecessor in title, Arrow Land Company, Inc., granted Carroll Electric the following described right-of-way easement:
KNOW ALL MEN BY THESE PRESENTS, that we Arrow Land Company, Inc....do hereby grant unto the Carroll Electric Cooperative Corporation ... the right to enter upon the lands of the undersigned ... and to place, construct, operate, repair, maintain, convert to higher or lower voltage, to extend lines for other service upon the above lands and to extend lines from services on this land to and for service to other property and services beyond the above described lands, [and replace thereon, in, under or upon all streets, roads, highways abutting said lands] 1 and overhead or underground electric transmission or distribution line or cable, such overhead lines or underground cable to serve as distribution or transmission line or both and to excavate, to cut, and trim trees and shrubbery to the extent necessary to lay cable and to keep clean said electric lines or cable, and to cut down from time to time all dead, weak or dangerous trees that are tall enough to strike wires in falling.
The undersigned agree that all poles, wires, and other facilities, including any main service entrance equipment, installed on the above described lands at the Cooperative's expense shall remain the property of the Cooperative, removable at the option of the Cooperative upon termination of service to or on said lands.
In granting this easement, it is understood that all pole locations, only a single pole and appurtenances will be used, and that the location of the poles will be such as to form the least possible interference to farm operations, so long as it does not materially increase the cost of construction. [Emphasis added.]
Three years later, in 1965, this property, Pointe Clear Heights Subdivision, was platted. In 1967, in accordance with this right-of-way easement, Carroll Electric constructed an overhead electric line into the center of the Bensons' property to serve the residence now owned by the Bensons.
The Bensons filed this lawsuit on June 29, 1992 after Carroll Electric entered their land and cut down numerous large trees to clearcut a path for the construction of an overhead electric transmission line on the west side of their property to provide electric power to a residence on property in Pointe Clear Heights Subdivision owned by Mr. Larry Cox. Carroll Electric placed several tall poles within the clearcut path in preparation for stringing the overhead transmission line across the Bensons' property. Carroll Electric did not confer with the Bensons prior to cutting the path or placing poles nor did it give the Bensons an opportunity to "delimit" (lay out the boundary of) the easement. The Bensons approached the electric company and offered to permit underground wiring but the company refused.
The Bensons filed a complaint in Benton County Chancery Court requesting a preliminary as well as a permanent injunction enjoining Carroll Electric from further constructing overhead transmission lines across their property. The chancery court granted the preliminary injunction. Thereafter, the Bensons amended their complaint to ask for a mandatory injunction ordering Carroll Electric to remove all new poles and new overhead electric lines placed on the clearcut path across their property. Both sides filed motions for summary judgment, and the matter was submitted to the court. After considering the stipulated exhibits and facts, the chancellor granted the Bensons' countermotion for summary judgment.
On remand, the chancellor concluded the question for the court is: "Is the location of the right-of-way selected by Carroll reasonable to both the dominant and servient estates, considering the condition of the place, the purpose for which it was intended and the acts of the grantee." The chancellor found when all the facts are considered "equity demands I must come to the conclusion that the overhead powerline in its present location is not reasonable." However, he concluded the present route is a reasonable route for an underground power line.
Appellant Carroll Electric contends this Court remanded the case solely for a "determination of the reasonableness of the route chosen for the line." Consequently, Carroll Electric submits the trial court erred when it balanced the equities between the parties and ruled on the rights of the Bensons to delimit the easement. Specifically, the appellant focuses on a sentence in the chancellor's order where he states: "[t]he real argument between the parties is whether Carroll Electric should be required to place the powerline underground and pay for it."
It is well established that, upon remand, a chancery court has no power to enter any decree except that directed by the Supreme Court, and it has no power to change or extend the mandate of the Supreme Court. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). The directions of the Supreme Court upon reversal and remand in an equity case are the law of the case and the guide for the lower court in entering the decree. Id.
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...including the right to bring an action in order to direct placement of a structure within the easement. See Carroll Elec. Coop. Corp. v. Benson, 319 Ark. 68, 889 S.W.2d 756 (1994). Defendant's third assignment is that the chancellor erred in refusing to make a requested finding on "whether ......
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