Crigger v. Florida Power Corp., 82-1156

• Decision Date: 30 June 1983
• Docket Number: No. 82-1156,82-1156
• Citation: 436 So.2d 937
• Parties: Donald CRIGGER and Elaine Crigger, Appellants, v. FLORIDA POWER CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 937

436 So.2d 937

Donald CRIGGER and Elaine Crigger, Appellants, v. FLORIDA POWER CORPORATION, Appellee.

No. 82-1156.

District Court of Appeal of Florida Fifth District.

June 30, 1983.

Rehearings Denied Aug. 24, 1983.

Leslie R. Gardieff, Crystal River, for appellants.

James F. Stanfield, St. Petersburg, for appellee.

COWART, Judge.

This case involves the allegations and proof essential to establish a prescriptive right to an easement and whether an express easement given by one of several co-owners of land renders user under the authority of the easement permissive rather than adverse.

Appellants, Donald and Elaine Crigger, as plaintiffs and present landowners, filed an action for inverse condemnation against the appellee, Florida Power Corporation, alleging that the power company, an entity with the power of eminent domain, had appropriated and was claiming and using a right-of-way 100 feet wide across their land as a power transmission line without permission or payment. The owners alleged that when they acquired the land in 1974, the power company had one set of poles and wires across the land and that in 1979 the power company erected a second and different power line and thereafter removed the older line.

The power company admitted use of the electrical transmission line without permission of, or payment to, the present owners but made the following two affirmative defenses:

FIRST AFFIRMATIVE DEFENSE

As its First Affirmative Defense the Defendant states that all facilities on or over the subject property and being used by Defendant for the transmission or distribution of electricity are on or over that said property under authorization of an easement filed in the Public Records of Citrus County, Florida. A copy of said Public Records is attached hereto as Exhibit "A". Said easement is further reflected in the said Public Records at Book 267 Page 354 a copy of which is attached hereto as Exhibit "B". Said easement authorizes Defendant's use of the subject property in the manner complained of by Plaintiff's.

SECOND AFFIRMATIVE DEFENSE

As its Second Affirmative Defense the Defendant states that it has acquired an easement on and over the subject property by prescription in that said easement is used and has been actually used for the transmission of electrical energy and that such actual use is well defined and specific and has been continuous and uninterrupted for a period not less than twenty (20) years and further, that such use, has been open, notorious and visible during the entire period. Said prescriptive easement is superior to any claim of Plaintiff's for inverse condemnation.

At trial by stipulation the owners introduced into evidence an abstract of 13 recorded instruments deraigning title from sovereignty into the present owners. The owners admitted the power line was on and over their property when they purchased it in 1974. They also testified without contradiction that in about 1976 representatives of the power company twice approached them and asked them to sign two documents which were put into evidence. The first document, dated October 29, 1976, was for an easement for a new Beverly Hills-Inverness 115 KV transmission line proposed to be 100 feet wide centered on the center line of the existing Ingles-Brooksville 69 KV transmission line as constructed. The second document, dated November 30, 1976, was a supplemental easement which recited that the power company had one transmission line on a 100 foot right-of-way, specifically and explicitly referring to and describing the Lilly easement set forth below, and that the power company desired to be granted the right to erect an additional transmission line within the same 100 foot wide right-of-way. The owners testified they declined to execute these proposed easements although offered $400 as consideration. The owners further testified that the power company advised them in 1979 that it intended to rebuild the existing power line under the authority of easement rights previously granted and the owners objected saying that they did not recognize that the power company had any easement or authority.

In support of its first affirmative defense the power company introduced into evidence the following recorded document which is herein called the Lilly easement:

EASEMENT AND RIGHT-OF-WAY

KNOW ALL MEN BY THESE PRESENTS, That the undersigned in consideration of the sum of One Dollar and other valuable considerations, the receipt of which is hereby acknowledged, grant and convey to FLORIDA POWER CORPORATION, its successors and assignees, the right, privilege and easement to construct, operate and maintain for such period of time as it may use the same or until the use thereof is abandoned, a single pole, line for the transmission and distribution of electricity, including necessary communication and other wires, poles, guys, anchors, ground connections, attachments, fixtures, equipment and accessories desirable in connection therewith over, upon and across the following described land in Citrus County, State of Florida, to-wit:

NE 1/4 of SE 1/4, Section 27, Township 18S, Range 19E SW 1/4 of SW 1/4, Section 12, Township 19S, Range 19E less five (5) acres in northwest corner provided that clearing of trees is limited to fifty (50) feet on each side of power line and danger timber.

together with the right to patrol, inspect, alter, improve, repair, rebuild or remove such lines, equipment and accessories, including the right to increase or decrease the number of wires and voltage, together will all rights and privileges reasonably necessary or convenient for the enjoyment or use thereof for the purposes above described, including the right to trim, cut and keep clear such trees, limbs and undergrowth along said lines, and all trees adjacent thereto that may endanger the proper operation of the same, and including the reasonable right to enter upon adjoining lands of the grantors for the purpose of exercising the rights herein granted.

The grantors covenant that they have the right to convey the said easement and that the grantee, its successors and assignees shall have quiet and peaceable possession, use and enjoyment of said easement.

IN WITNESS WHEREOF, the grantors have hereunto affixed their hands and seals this 2nd day of January, A.D., 1951.

Signed, sealed and delivered in presence of:

Mrs. Eloise L. Tillman Mrs. Paul R. Lilly (LS)

J.H. Tillman Paul R. Lilly (LS)

The defendant power company also presented the testimony of five witnesses, all employed by the power company, none of whom had or claimed any personal knowledge about the acquisition of the Lilly easement or about the facts or circumstances under which the power company originally entered into the use of the land in question. The witness Hitson testified that the power line had been on the property in question from about 1970. The witness Anderson had only recently photographed the property. The witness Worley personally knew the line had been used the last seven years and was familiar with the power company's records including two documents introduced into evidence. One of the documents was a construction survey and plan dated May 16, 1951, for the Inglis-Brooksville 69 KV line (which shows pole IB-133 about 19 feet south of a fence). The second document was an aerial photograph-based construction survey dated March 28, 1979 for the Holder-Brooksville 69 KV line which shows pole IB-133 to be removed and pole HB-95 to be located near the center of plaintiff's property. The witness Roth was a technician who explained the meaning of the lines and symbols on the construction surveys and plans and the company's construction methods. The witness Harris was another company technician who explained the difference between the insulators on the pre-1979 line and those on the 1979 line. The witness Worley, who was in the power company's real property permitting department and had formerly been one of its land agents, corroborated the plaintiffs' testimony that the power company approached the plaintiffs in 1976 seeking an easement and supplemental easement and he testified, as alleged in the First Affirmative Defense, that the Lilly easement was the authority under which the power company was acting and using the power line in question.

The trial court entered judgment for the power company and against the landowners on the basis that the power company had perfected a prescriptive easement for an electrical transmission line 100 feet in width centered on the existing line and that the 1979 rebuilding of the line imposed no additional burden on the property. The owners appeal.

Viewing the evidence presented and all inferences that can possibly be drawn from the evidence in a light most favorable to the power company it can be conceded that the power company proved the well-pleaded factual allegations ¹ in both of its affirmative defenses, to-wit: (1) All use by the power company of electrical transmission facilities on or over the plaintiff's land was under the authority of the Lilly easement, and (2) the power company's actual use of its electrical transmission facilities had been open, notorious, visible, continuous and uninterrupted for not less than 20 years. ² However, this concession does not dictate a proper conclusion in this case.

In Florida an easement is an incorporeal hereditament ³ and, as such, is an interest in land. ⁴ An easement is not title to, ownership of, or a lien upon, land but is an intangible right to make a certain use of the lands of another. Easements may be created by express grant; by implication; or by prescription.

The strength of the common law resulted from its comprehension of human nature and accommodation of the practical limitations of the times, but its wisdom resulted from the assumption that persons had done, were doing, or would do, that which was morally right, and from an objective to benefit rightful acts and to not...