Henley v. Continental Cablevision of St. Louis County, Inc.

• Decision Date: 11 June 1985
• Docket Number: No. 48990,48990
• Parties: Leon HENLEY, et al., Plaintiffs-Appellants, v. CONTINENTAL CABLEVISION OF ST. LOUIS COUNTY, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 825

692 S.W.2d 825

Leon HENLEY, et al., Plaintiffs-Appellants, v. CONTINENTAL CABLEVISION OF ST. LOUIS COUNTY, INC.,

Defendant-Respondent.

No. 48990.

Missouri Court of Appeals,

Eastern District,

Division One.

June 11, 1985.

Stuart M. Haw, Norman Bierman, St. Louis, for plaintiffs-appellants.

Nathan B. Kaufman, Shelley Weinhaus, S. Sheldon Weinhaus, St. Louis, for defendant-respondent.

CARL R. GAERTNER, Judge.

Plaintiffs, as trustees of University Park subdivision, appeal from an order dismissing their petition for failure to state a claim in an action against defendant Continental Cablevision of St. Louis County, Inc. We affirm.

The facts essential to a resolution of this matter are not in dispute. ¹ Pursuant to an indenture recorded on April 8, 1922, plaintiffs' predecessors as trustees, were expressly granted the right to construct and maintain electric, telephone and telegraphic service on or over the rear five feet of all lots in the subdivision, and to grant easements to other parties for the purposes of creating and maintaining such systems. In July, 1922 and August, 1922, respectively, the trustees conveyed an easement to Southwestern Bell Telephone Company to "construct, reconstruct, repair, operate and maintain its lines for telephone and electric light purposes" and similarly to Union Electric to "keep, operate and maintain its lines consisting of cables, manholes, wires, fixtures and appurtenances thereto." Subsequently, in 1981 and 1982, defendant exercised licenses acquired from both utilities to enter upon these easements, and erected cables, wires and conduits for the purpose of transmitting television programs.

Plaintiffs filed an action for an injunction on December 29, 1983, seeking not only to enjoin a continuing trespass and compel the removal of defendant's wires and cables, but also seeking $300,000 in damages and the reasonable value of the use of plaintiffs' property for defendant's profit based upon quantum meruit. Defendants then filed a motion to dismiss for failure to state a cause of action, which was supported by both the affidavit of defendant's chief executive officer and copies of the easements granted by plaintiffs' predecessors to Southwestern Bell Telephone Company and Union Electric. ² Said motion was sustained by the trial court on July 30, 1984 and this appeal ensued with plaintiffs contending in effect that the easements granted the utilities were not apportionable and did not authorize the right to run television cables over the property in question.

Both parties agree that the subject easements are easements in gross, i.e. easements which belong to the owner independently of his ownership or possession of other land, and thus lacking a dominant tenement. See Three-o-Three Investments, Inc. v. Moffitt, 622 S.W.2d 736 (Mo.App.1981); 3 Powell, the Law of Real Property; 34-22 (1984). The dispositive issue here is whether or not these easements are exclusive and therefore apportionable by the utilities to, in this case, defendant Continental Cablevision.

We believe the very nature of the 1922 easements obtained by both utilities indicates that they were intended to be exclusive and therefore apportionable. It is well settled that where the servient owner retains the privilege of sharing the benefit conferred by the easement, it is said to be "common" or non-exclusive and therefore not subject to apportionment by the easement owner. Conversely, if the rights granted are exclusive of the servient owners' participation therein, divided utilization of the rights granted are presumptively allowable. This principle stems from the concept that one who grants to another the right to use the grantor's land in a particular manner for a specified purpose but who retains no interest in exercising a similar right himself, sustains no loss if, within the specifications expressed in the grant, the use is shared by the grantee with others. On the other hand, if the grantor intends to participate in the use or privilege granted, then his retained right may be diminished if the grantee shares his right with others. Thus, insofar as it relates to the apportionability of an easement in gross, the term "exclusive" refers to the exclusion of the owner and possessor of the servient tenement from participation in the rights granted, not to the number of different easements in and over the same land. Powell at 344-224-25. ³

Here, there is no claim that plaintiffs' predecessors had at the time the easements were granted, any intention to seek authority for, or any interest whatsoever in using the five foot strips for the construction and maintenance of either an electric power system or telephone and telegraphic service. Moreover, at no time during the ensuing sixty-three years have the trustees been authorized to furnish such services by any certificate of convenience and necessity issued by the Public Service Commission pursuant to §§ 392.260 and 393.170, RSMo.1978. Accordingly, the easements granted to Southwestern Bell and Union Electric were exclusive as to the grantors thereof and therefore apportionable.

Plaintiffs also argue defendant could acquire no rights from the utilities since their easements did not mention television cables, and that the cable attachments themselves constituted an extra burden on the property. We disagree. The owner of an easement may license or authorize third persons to use its right of way for purposes not inconsistent with the principal use granted. Eureka Real Estate and Investment Company v. Southern Real E. and F. Company, 355 Mo. 1199, 200 S.W.2d 328, 332 (1947). The 1922 easements granted to Union Electric expressly provided the right of ingress and egress by Union Electric, it successors and assigns, to "add to the number of and relocate all wires, cables, conduits, manholes, adding thereto from time-to-time...." Similarly, the easement conveyed to Southwestern Bell expressly contemplated the construction and maintenance of "all poles, cables, wires, conduits, lateral pipes, anchor guys and all other fixtures and appurtenances deemed necessary at anytime by [Southwestern Bell], its successors and assigns...." It can hardly be said that the addition of a single coaxial cable to the existing poles for the purpose of transmitting television images and sound by electric impulse increases the burden on the servient tenement beyond the scope of the intended and authorized use.

Plaintiffs' reliance on Consolidated Cable Utilities, Inc. v. City of Aurora, 108 Ill.App.3d 1035, 64 Ill.Dec. 464, 439 N.E.2d 1272 (1982) is misplaced. Basing their decision upon the undisputed principle that the owner of property subject to an easement burden is entitled to prevent such burden from being increased, the Illinois court held that landowners were necessary parties...