Ex Parte Lightwave Technologies, L.L.C.

• Decision Date: 27 April 2007
• Docket Number: 1050996.
• Citation: 971 So.2d 712
• Parties: Ex parte LIGHTWAVE TECHNOLOGIES, L.L.C. (In re Lindburgh Jackson and Kathy Matthews v. City of Auburn, Alabama Power Company, and Lightwave Technologies, L.L.C.).
• Court: Alabama Supreme Court

971 So.2d 712

Ex parte LIGHTWAVE TECHNOLOGIES, L.L.C. (In re Lindburgh Jackson and Kathy Matthews v. City of Auburn, Alabama Power Company, and Lightwave Technologies, L.L.C.).

1050996.

Supreme Court of Alabama.

April 27, 2007.

Steven K. Herndon and Andrew W. Christman of Gidiere, Hinton, Herndon & Christman, Montgomery, for petitioner.

Robert D. Drummond, Jr., Fairhope, for respondents Lindburgh Jackson and Kathy Matthews.

James A. Byram, Jr., and Louis M. Calligas of Balch & Bingham, LLP, Montgomery; and Edward S. Allen and Ed R. Haden of Balch & Bingham, LLP, Birmingham, for respondent Alabama Power Company.

BOLIN, Justice.

Lightwave Technologies, L.L.C., petitioned this Court for a writ of certiorari to review the decision of the Court of Civil Appeals, in a plurality opinion, affirming the trial court's summary judgment in part, reversing it in part, and remanding the cause. Jackson v. City of Auburn, 971 So.2d 696 (Ala.Civ.App.2006) (opinion on application for rehearing). We granted the petition specifically to consider the Court of Civil Appeals' resolution of the issue whether, and to what extent, the holder of an easement obtained by prescription might "apportion" that easement for some additional use by another party.

Lindburgh Jackson owned property in Auburn, Alabama; Alabama Power Company (hereinafter "APCo") has maintained power lines across the property and a utility pole on the property. Over the years since he first obtained an interest in the property in 1978, Jackson occasionally complained of APCo's use and maintenance of the lines and the pole and threatened legal action against APCo. In October 1999, Jackson conveyed the property to his daughter, Kathy Matthews, although he continued to use the property for his business, and APCo's lines and pole remained on the property. Sometime between November 2000 and March 2001, Lightwave, pursuant to a "pole-sharing" agreement with APCo, installed fiber-optic cable on the utility pole on the property.¹ The City of Auburn had authorized Lightwave to install its cable in Auburn and by ordinance had established the route for such placement.

In September 2003, Jackson sued various parties, including APCo, Lightwave, and the City of Auburn asserting, among other things, that APCo had conspired with Lightwave to commit trespass on the property. In 2004, Matthews was added as a plaintiff.² After considerable litigation, the trial court entered a summary judgment in favor of all the defendants. Jackson and Matthews appealed to this Court, which transferred the case to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975.

After resolving a number of issues not relevant to the present petition with respect to the City of Auburn, the Court of Civil Appeals engaged in a detailed analysis of the plaintiffs' claims against APCo and concluded that APCo, in light of undisputed evidence that it had maintained the power lines in opposition to Jackson's objections from April 1983 until September 2003, had obtained an easement by prescription over the property in question under the requirements for establishing such easements set out in Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983). The Court of Civil Appeals affirmed the summary judgment for APCo with respect to the plaintiffs' trespass claim against it. The Court of Civil Appeals then addressed the trespass claim against Lightwave and the conspiracy-to-commit-trespass claim against both APCo and Lightwave. We conclude that the rationale in the plurality opinion of the Court of Civil Appeals in this regard was well reasoned and correct, and we adopt that court's analysis as set out below as the opinion of this Court:

"In order to determine whether the summary judgment in favor of Lightwave on the trespass and conspiracy claims against it and the summary judgment in favor of APCo on the conspiracy claim against it were proper ..., we must ... consider whether APCo has the right to apportion its prescriptive easement and whether its apportionment to Lightwave was within the scope of the prescriptive easement. If APCo has the right to apportion the easement and the apportionment was within the scope of the easement, then Lightwave could not have committed a trespass and APCo and Lightwave could not have conspired to commit a trespass. If, however, APCo cannot apportion its prescriptive easement, or if the apportionment to Lightwave exceeds the scope of the easement, Lightwave's actions could amount to trespassing on the property and APCo could, depending on facts that would be developed on remand, be shown to have conspired with Lightwave to commit a trespass.

"Lightwave argues that the Alabama Supreme Court has already determined the issue of the apportionability of power-line easements in Cousins v. Alabama Power Co., 597 So.2d 683 (Ala. 1992). Jackson and Matthews, however, argue that Cousins is distinguishable in that it involved two express easements and an easement acquired by condemnation and not a prescriptive easement. Discussions of Cousins and of the law regarding both the apportionability of easements and the scope of prescriptive easements will be necessary to decide whether APCo has the right to apportion the prescriptive easement in the present case and whether the apportionment to Lightwave is within the scope of APCo's prescriptive easement.

"The term `apportionability' in reference to easements refers to the easement owner's right to divide the easement `to produce independent uses or operations.' See Restatement of Property § 493 cmt. a. (1944). In general, an exclusive easement in gross is apportionable to the extent the additional use is `authorized by the manner or terms of [the easement's] creation.' Id. at cmt. c. An easement in gross is an easement that `benefits a particular person or persons (or business or organization) whether or not they own another piece of land'; that is, the person or entity owning the easement is benefited personally rather than the benefit of the easement accruing to another piece of land. 7 Thompson on Real Property § 60.02(f)(2) (Thomas ed.1994); 4 Powell on Real Property § 34.02[2][d] (2000). `An exclusive easement grants unfettered rights to the owner of the easement to use the easement for purposes specified in the grant "to the exclusion of all others,"' including the servient owner. Thompson on Real Property, supra, § 60.04(b)(2). APCo's prescriptive easement in the present case is an exclusive easement in gross because it permits APCo to use the easement for the construction and maintenance of power lines and precludes, by its nature, Jackson and Matthews from using the easement for that purpose.

"Cousins involved whether APCo could apportion three exclusive easements in gross⁴—two created by express grant and one created by condemnation. The express easements stated that APCo had the right to construct, operate, and maintain electric transmission lines and telegraph and telephone lines. Cousins, 597 So.2d at 686. The condemnation order granted APCo `"the right to construct and erect over said lands such tower, pole and wire lines, and all appliances necessary, convenient and useful in connection therewith ...."' Id. at 687. APCo desired to replace its existing ground wire cable across the easements at issue with a new ground wire cable containing some fiber-optic communication line. Id. at 685. A portion of the fiber-optic communication line was to be used for APCo's internal communications network; however, APCo intended to share the other portion of the fiber-optic communication line with American Telephone and Telegraph Company (`AT & T'). Id.

"The servient owners conceded that APCo had the right to string the new ground wire cable containing the fiber-optic communication line because, in the case of the express easements, such lines were equivalent to telephone lines, which were expressly permitted by the easement, and in the case of the condemnation order, the communication line would be permitted under its language insofar as the line was used for communication in connection with the distribution of power to the public. Id. However, the servient owners objected to APCo's sharing its easements with AT & T without first obtaining the consent of or compensating the servient owners. Id. at 686. The trial court entered a summary judgment for APCo, stating that `"under the prevailing authorities and the facts of this case, [APCo] can lawfully share the use of its communication lines with another entity such as AT & T, regardless of whether its rights-of-way [were] obtained by deed or by condemnation proceedings."' Id.

"In deciding that the trial court had properly determined that APCo was entitled to judgment as a matter of law on the issue whether it had the right to apportion its easements, the Cousins court stated that `[m]any courts have found that utility companies are authorized to share or apportion their easement rights with a third party, without obtaining the permission of, or compensating the owner of, the servient estate.' Cousins, 597 So.2d at 687 (citing in a footnote Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 269 N.E.2d 588 (1971); Hoffman v. Capitol Cablevision System, Inc., 52 A.D.2d 313, 383 N.Y.S.2d 674 (1976), app. den., 40 N.Y.2d 806, 390 N.Y.S.2d 1025, 359 N.E.2d 438 (1976); Faulkner v. Kingston Cablevision, Inc., 53 A.D.2d 948, 386 N.Y.S.2d 358 (1976), app. den., 40 N.Y.2d 805, 388 N.Y.S.2d 1025, 356 N.E.2d 1233 (1976); and Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (Mo.Ct.App. 1985)). The Cousins court also commented that the language contained in the deeds and the condemnation order at issue in Cousins was similar to the language contained in easements in other cases in which courts had determined that the language indicated the grantor's intent to convey the right to apportion.<sup>5</sup> Cousins, 597 So.2d at 687. The court further stated that `[a]n...