Georgia Power Co. v. Leonard

• Citation: 1 S.E.2d 579,187 Ga. 608
• Decision Date: 18 February 1939
• Docket Number: 12533.
• Parties: GEORGIA POWER CO. v. LEONARD.
• Court: Georgia Supreme Court

1 S.E.2d 579

187 Ga. 608

GEORGIA POWER CO. v. LEONARD.

No. 12533.

Supreme Court of Georgia

February 18, 1939

Syllabus by the Court.

1. As to property embraced in a share cropper's contract the share cropper is entitled to the same use and enjoyment where the property is subject to an easement, which his landlord could claim. This plaintiff was therefore neither a trespasser nor a licensee.

2. Nothing passes as an incident to the grant of an easement but what is requisite to its fair enjoyment. An express reservation of certain rights by the grantor does not limit his rights to those enumerated unless such an intention clearly appears. His rights in the land remain simply because they are not granted.

3. Where an instrumentality is put to a use not intended, the court can not hold that the owner was under no duty to have anticipated that it would be diverted to such foreign use except in those extreme cases where a jury could not legally reach a different conclusion.

4. The court can not hold as matter of law that one having the right as share cropper to pass over the land of his landlord and who sat on the base of a tower supporting a high-tension power line, constructed across the land under an easement, assumed a position of danger so obvious that no person of ordinary prudence would have subjected himself thereto, and that having voluntarily assumed this risk of injury he can not recover for a severe shock caused by the defective insulation of the defendant's tower.

5. The plaintiff's petition stated a cause of action and was not subject to general demurrer.

Foley & Chappell, of Columbus, and Dykes & Dykes, of Americus, for plaintiff in error.

Fort, Fort & Fort and Hollis Fort, all of Americus, for defendant in error.

DORSEY Judge.

In this case Habakkuk Leonard sues through Lillie Leonard, his mother, as next friend. He alleges that they are share croppers on certain property over which the defendant company maintains and operates a high-tension power line. On February 4, 1937, a wet, rainy day, the plaintiff, Habakkuk, went to get some fire wood, and proceeded toward a tract of woods located beyond the defendant's power line, which ran about 300 yards from his home. On reaching one of the defendant's poles he sat down to rest for a few minutes on the concrete base in which it was anchored. As he attempted to rise, his arm came in contact with this metal pole, and he received an electric shock, suffering severe injuries. The plaintiff charges that the defendant was negligent in having broken insulators on the pole, and in failing to equip this tower with a suitable ground wire to protect those coming in contact with it. A copy of the easement agreement between the defendant and the plaintiff's landlord is attached, under which the privilege of erecting and maintaining a power line over this property is granted, and the grantor expressly reserves the right of cultivation and ingress and egress. The defendant demurred to this petition, and its demurrer was sustained by the trial court, whereupon, the case was carried to the Court of Appeals on exceptions to the order sustaining this demurrer. In its decision the Court of Appeals held that Habakkuk had the same right to use and occupy these premises as his landlord, the owner of the land; that he was not a trespasser merely because he sat upon the concrete base of the steel tower and touched it with his hand; and that the defendant was bound to know that persons are likely to sit upon this concrete base in which its pole was anchored. The court concluded that the judge of the superior court of Sumter County error in sustaining the defendant's general demurrer, and that a right of action was alleged.

The case is now before this court on certiorari to the Court of Appeals (197 S.E. 869), the defendant contending that that court has erred: (1) because the injured boy was at most a trespasser or licensee, and the petition fails to show that the defendant wilfully or wantonly injured him; (2) because the petition shows that the situation was such as to have caused a reasonably prudent person to apprehend the danger and to have avoided it, and, therefore, shows that this plaintiff is not entitled to recover; (3) because it held that 'an electric company is bound to know that persons are likely to sit down on the concrete base supporting the steel towers,' which adjudicates a fact; (4) because the petition, which shows that this base was not constructed to be sat upon, does not allege that it was so constructed as to be comfortable or desirable to sit on, or that people actually sat on it, or that this defendant knew that they were using it for this purpose, and therefore does not state a cause of action against this defendant.

1. The plaintiff and his mother were entitled to use, occupy, and enjoy the property of their landlord. They were croppers holding under him, and in relation to the defendant's easement were entitled to the same use and enjoyment which he could claim. Their rights are measured by those of their landlord.

2. The defendant insists, however, that the landlord's rights are fixed by the terms of the grant in which their easement is conveyed, and in which the rights of cultivation and of ingress and egress alone are reserved. They contend that the plaintiff was not in the prosecution of any of these reserved privileges at the time of his injury, and was therefore a trespasser, or at most a licensee, on the premises, and since the injuries were not wilfully or wantonly inflicted he would not be entitled to recover.

It is established law in this State, and generally, that nothing passes as an incident to the grant of an easement but what is requisite to its fair enjoyment. Notwithstanding such a grant, there remains in the grantor the right of full dominion and use of the land, except so far as a limitation thereof is essential to the reasonable enjoyment of the easement granted. Donalson v. Georgia Power & Light Co., 175 Ga. 462, 165 S.E. 440; Seaboard Air-Line Ry. Co. v. Greenfield, 160 Ga. 407(5), 419, 128 S.E. 430. It is not necessary that he should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him because they are not granted. 9 R.C.L. 797, § 54. No restrictions were stated in the conveyance of the defendant's easement, and unless the grantor, by expressly reserving certain rights, has limited his privileges to those enumerated under the principle 'expressio unius est exclusio alterius,' the rights of the parties are governed by the general rule stated above.

Can it be said that the grantor in conveying this easement intended to limit his rights on the property to those enumerated? We do not think so. A grant, whether of an easement or a fee, should be so construed as to carry out the intentions of the parties. Code, § 29-109; 9 R.C.L. 749, § 18. The reservation here made would seem to have been inserted from an abundance of caution. It reserved those privileges most essential to a full enjoyment of land of this character. It was inserted to insure those privileges, not to exclude others consistent with the easement granted. Nor would it be sound to enlarge the scope of an express grant by such construction. The full right to enjoy the land in any way not inconsistent with the defendant's easement remained with the plaintiff's landlord, the owner of the fee, simply because it was not granted. The plaintiff, then, was neither a licensee nor a trespasser at the time he was injured. He stood in the shoes of his landlord and was upon the property in the right of its owner, since his conduct was in no way inconsistent with the full enjoyment of the defendant's easement. Nor indeed can it be said, as a matter of law, that he was not in the exercise of the expressly reserved right of ingress and egress at the time of his injury. The defendant's construction of this right assumes a mechanical precision in human conduct which experience belies. The court can not accede to its contention that, as a matter of law, the plaintiff was without the reserved right of ingress and egress simply because of the fact that by reason of fatigue or heat he had stopped momentarily to rest before continuing on his way, and while doing so was injured.

3. The defendant cites the case of Knowles v Central of Georgia R. Co., 118 Ga. 795, 45 S.E. 605, and says that the Court of Appeals erred in holding that it was 'bound to know that persons are likely to sit down on the concrete base supporting the steel towers' and overlooked the rule announced in that case. In the Knowles case, the plaintiff sat on a wooden box enclosing a pipe which ran along one edge of a bridge, and, while resting, leaned back on the rail of the bridge which was rotten and gave way, precipitating him from the bridge and severely injuring him. This court held that the owner of the bridge was not liable because the plaintiff negligently put the bridge to a use for which it was not intended, and, but for this fact, would not have been injured. The fundamental principle announced in that case is sound, but can not, in the case now before this court, be carried to the lengths urged by this defendant. It seems clear that the decision of ...