Farrell v. Vt. Elec. Power Co.

• Decision Date: 01 March 2013
• Docket Number: No. 11–377.,11–377.
• Citation: 2012 VT 96,68 A.3d 1111
• Court: Vermont Supreme Court
• Parties: David M. FARRELL, Trustee of the David M. Farrell Trust v. VERMONT ELECTRIC POWER COMPANY, INC. and Vermont Transco, LLC.

68 A.3d 1111

2012 VT 96

David M. FARRELL, Trustee of the David M. Farrell Trust

v.VERMONT ELECTRIC POWER COMPANY, INC. and Vermont Transco, LLC.

No. 11–377.

Supreme Court of Vermont.

Dec. 7, 2012.

Motion for Reargument Denied March 1, 2013.

Peter F. Langrock, Middlebury and Hobart F. Popick, Burlington, of Langrock Sperry & Wool, LLP, for Plaintiff–Appellant.

Gary F. Karnedy and Kevin M. Henry of Primmer Piper Eggleston & Cramer PC, Burlington, for Defendants–Appellees.

Present: REIBER, C.J., DOOLEY, SKOGLUND and BURGESS, JJ., and HOWARD, Supr. J., Specially Assigned.

BURGESS, J.

¶ 1. Plaintiff David Farrell, Trustee of the David Farrell Trust, appeals the Chittenden Civil Division's grant of summary judgment for defendants Vermont Electric Power Company and Vermont Transco (together, VELCO), the holders of an easement for the construction and operation of electrical transmission lines on plaintiff's property. Plaintiff claims that VELCO's easement is limited to the installation and operation of transmission lines necessary for the so-called Queen City Tap Project. As such, he argues that VELCO exceeded the scope of its easement by installing a second transmission line on plaintiff's property in connection with an unrelated transmission-line project. He further argues that, even if VELCO's easement authorizes its construction of transmission lines for unrelated projects, a genuine issue of material fact exists as to whether the new line overburdens plaintiff's property. The trial court held that the easement's express terms authorize VELCO to install transmission lines unrelated to the Queen City Tap Project, and that any increased impact on plaintiff's property caused by the new line does not amount to overburdening. We affirm.

¶ 2. The facts may be summarized as follows. Plaintiff owns a parcel of land in South Burlington (the Property). In 1972, VELCO obtained a certificate of public good for the Queen City Tap Project, a venture to erect electrical transmission lines in Chittenden County. In December 1976, the Public Service Board issued an order (the 1976 Order) in a condemnation proceeding relating to the Property. The 1976 Order explained that VELCO was “condemning a permanent easement” on the Property, and described the easement as:

A perpetual right and easement to construct, inspect, operate, maintain, reconstruct, relocate and remove lines of poles or towers or both with wires and/or cable thereon for transmission of intelligence by electricity and all necessary foundations, anchors, guys, braces, fittings, equipment and appurtenances including buried ground wires or cables over and upon [a right of way] hereinafter described ....

The 1976 Order further described the easement as including a “permanent right” to cut, trim and remove trees “outside the limits of said right of way strip” that may “interfere with or be likely to interfere with, the successful operation of said line or lines now or hereafter to be constructed on said right of way strip hereinbefore described.” Finally, on the question of compensation for VELCO's use of the Property, the 1976 Order explained that “the total compensation ... for the permanent easement being acquired is $38,850.00, allocated entirely to the value of the property being taken,” and that the Board found no further “impairment to the value of the remaining property or consequential damages.”

¶ 3. In 1977, as part of the Queen City Tap Project, VELCO installed a three-wire electric transmission line (the QCT line) within the right of way described in the 1976 Order. The QCT line had ten wooden structures consisting of twenty-one poles—nine two-pole structures and one three-pole structure. The structures were strung along the center of the right of way and supported three wires, arrayed horizontally.

¶ 4. In 2005, VELCO obtained a certificate of public good for the so-called Northwest Reliability Project, which included the erection of an electrical transmission line from New Haven to South Burlington, passing through various towns in Addison and Chittenden Counties. In 2008, as part of the Northwest Reliability Project, VELCO installed a second transmission line (the NRP line) within the right of way located on the Property. The NRP line has ten single-pole structures that range from sixty-five to eighty-seven feet in height, which support three transmission wires, arrayed vertically. The NRP line also supports a static wire with fiber optic capacity. At the same time that it built the NRP line, VELCO modified the QCT line, replacing the original two-pole structures with ten single-pole structures, ranging in height from sixty-five to eighty-two feet, which support three wires, now arrayed vertically. The QCT line and NRP line are now situated parallel to each other about thirty-one feet apart.

¶ 5. In 2010, plaintiff sued VELCO for damages in Chittenden Superior Court, alleging that VELCO's use of the Property, specifically its installation of the NRP line, was “a material overburdening” of the easement granted by the 1976 Order. Plaintiff further alleged that VELCO failed to provide compensation for its expanded use of the Property, and for the resulting diminution in the Property's value. VELCO moved for summary judgment, arguing that the language of the easement unambiguously gave it the right to construct transmission lines on the Property unrelated to the QCT line.

¶ 6. Plaintiff responded that the 1976 Order confined VELCO's authority to the construction of transmission lines relating to the Queen City Tap Project. He further asserted that there was a genuine issue of material fact as to the extent to which VELCO's installation of the NRP line and the changes to the QCT line overburdened the Property, claiming that towers erected for the NRP line were anywhere from twenty-five to sixty-seven percent taller than those for the original QCT line. If they fell in a westerly direction, plaintiff added, the newly constructed towers would land outside the perimeter of the right of way and onto plaintiff's adjoining property. Plaintiff also alleged overburdening due to the vertically arrayed wires appearing as six distinct wires to an observer on the Property, instead of the “one cluster” of wires formerly viewable with the original QCT line.

¶ 7. The trial court granted summary judgment for VELCO. The court concluded that the easement's terms limit neither “the number of lines of poles or towers, their height, [n]or the orientation of the wires or cables attached to them,” nor the use of the right of way to the QCT line. The court emphasized that the easement's language permitting VELCO the right to remove vegetation that might impede operation of the “line or lines now or hereafter to be constructed” supported VELCO's right to construct new lines on the right of way. Finally, the court rejected plaintiff's argument that a new finding of public necessity was required for any new line. Plaintiff appealed.

¶ 8. Reiterating his arguments below, plaintiff first claims that the scope of VELCO's use of plaintiff's property is defined by the 1976 Order, in which the Board determined that the QCT line, but no other project, was necessary for the public good. Plaintiff argues, therefore, that VELCO lacked the authority to expand its use to the unrelated NRP line. Plaintiff also argues that, even if the 1976 Order permits its installation, the NRP line magnified the burden on the Property, and a genuine issue of material fact remains as to the extent that the Property has been overburdened. Plaintiff again raises the greater height of the NRP line's towers, and the risk of their falling, and points to the additional, vertically-arrayed wires installed for the NRP line. Echoing the trial court, we hold, pursuant to the easement's unambiguous terms, that VELCO had the authority to erect the NRP line on the Property. We further hold that, again, in light of its broad grant of authority, VELCO did not exceed the easement's scope, and thus did not overburden the Property by constructing the NRP line. Accordingly, we affirm the court's grant of summary judgment for VELCO.

¶ 9. We review decisions for summary judgment using the same standard as the trial court. Lamay v. State, 2012 VT 49, ¶ 6, 191 Vt. 635, 49 A.3d 559(mem). We will affirm the court's ruling if there is no genuine issue of material fact and the party seeking summary judgment is entitled to judgment as a matter of law. Id. The party opposing summary judgment is given the benefit of all reasonable doubts and inferences. Id.

¶ 10. We first address plaintiff's argument that VELCO lacked the authority to construct the NRP line on the Property and begin by explaining how condemnation easements are obtained under Vermont law.¹ As a public utility, VELCO's authority to use the Property rests in 30 V.S.A. § 110, which permits a public service corporation to condemn an easement over private property when “necessary ... [to] render adequate service to the public in the conduct of its business.” Pursuant to Vermont statutory law, a public utility's condemnation of an easement is a two step process. The utility must first obtain a certificate of public good for the project for which the easement is needed. See 30 V.S.A. § 248(a)(2)(B) (providing that no public utility “may exercise the right of eminent domain in connection with ... construction of any such [electric] transmission or generation facility, unless the public service board first finds that the same will promote the general good of the state and issues a certificate to that effect”). Having obtained the certificate of public good, the utility must then petition the Board, which, following a hearing, must find, among other requirements, that the proposed use “is necessary ... [to] render adequate service to the public.” 30 V.S.A. §§ 111, 112(2)- (4); see also Auclair v. Vermont Elec. Power Co., 133 Vt. 22, 24–25, 329 A.2d 641, 643 (1974) (...