Hayes v. City of Loveland, 82CA0059

• Decision Date: 02 September 1982
• Docket Number: No. 82CA0059,82CA0059
• Citation: 651 P.2d 466
• Parties: George L. HAYES and Dorothea M. Hayes, Petitioners-Appellants, v. CITY OF LOVELAND, Colorado, a Municipal corporation, Respondent-Appellee. . III
• Court: Colorado Court of Appeals

Page 466

651 P.2d 466

George L. HAYES and Dorothea M. Hayes, Petitioners-Appellants, v. CITY OF LOVELAND, Colorado, a Municipal corporation Respondent-Appellee.

No. 82CA0059.

Colorado Court of Appeals Div. III.

Sept. 2, 1982.

Chilson & Stanton, P. C., John H. Chilson, Loveland, for petitioners-appellants.

Randy L. Williams, Loveland, for respondent-appellee.

KELLY, Judge.

In this inverse condemnation suit against the City of Loveland, George L. Hayes and Dorothea M. Hayes seek damages based on the City's reconstruction of a power line running across an easement on the Hayes' property acquired by the City by prescription. The trial court granted the City's motion for summary judgment. On appeal by petitioners, we affirm.

The petitioners first argue that the new power line constitutes an increased and therefore compensable burden upon their land, and that they are entitled to damages to the remainder of their property. The petitioners concede that their property is subject to the City's easement, and they make no claim for compensation in connection with the original construction of the power line or use of the easement within its scope. See Rogers v. Lower Clear Creek Ditch Co., 63 Colo. 216, 165 P. 248 (1917); Enke v. City of Greeley, 31 Colo.App. 337, 504 P.2d 1112 (1972).

The following facts are undisputed. At the time petitioners acquired the property in question, two power lines owned by the City were in place and in operation and use upon the property. One of these lines carried 115 kilovolts of electricity, and consisted of three conductors placed on wood pole H-frame structures. In 1980, the City reconstructed the power line, removing the wood H-frame pole structure and installing a replacement steel pole. The steel structure is taller than the wood H-frame structure, and, although the voltage carried by the power line was not changed, three additional conductors were affixed to the steel pole. The steel pole occupies less physical space on the ground than the pole it replaced, and requires no additional land for its safe operation and maintenance.

To establish a de facto taking of their land, the owners of the servient estate must demonstrate that exceptional circumstances have substantially deprived them of the beneficial use and enjoyment of their property beyond the limits of the easement. West Penn Power Co. v. Bruni, 36 Pa. Commw. Ct. 116, 387 A.2d 1316 (1978). The owner of the dominant estate may do whatever is reasonably necessary for the enjoyment of the easement, including repairs, ingress and egress, with space therefor as exigency may show, provided the owner of the dominant estate does not unnecessarily inconvenience the owner of the servient estate and provided use of the easement is not expanded. Shrull v. Rapasardi, 33 Colo.App. 148, 517 P.2d 860 (1973); see also Westland Nursing Home, Inc. v. Benson, 33 Colo.App. 245, 517 P.2d 862 (1974).

In determining whether an additional use is permissible under an easement acquired by prescription, it is necessary to compare the use acquired with the additional use with respect to their physical character, their purpose, and the relative burden to the servient tenement. In addition, the needs arising from...