Herren v. Mitchell Elec. Membership Corp.
| Decision Date | 12 July 2013 |
| Docket Number | No. A13A0782.,A13A0782. |
| Citation | 747 S.E.2d 63,323 Ga.App. 517 |
| Parties | HERREN, et al. v. MITCHELL ELECTRIC MEMBERSHIP CORPORATION, et al. |
| Court | Georgia Court of Appeals |
Alfred N. Corriere, Albany, for Herren, et al.
William A. Erwin, Camilla, Hugh Brown McNatt, Atlanta, William T. Casey Jr., Lisa K. Whitfield, Marietta, for Mitchell Electric Membership Corporation, et al.
An electric service provider hired a tree service to clear some of its easements using herbicide, and the tree service applied the herbicide to an overgrown hedge planted directly under the electric company's power lines, killing most of the bushes. The owners of the property on which the hedge was located sued the electric company and the tree services for damages and injunctive relief. The trial court denied the injunction and granted summary judgment to both defendants. The property owners appeal, and we affirm.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245(1), 577 S.E.2d 564 (2003).
So construed, the evidence shows that appellants Vince H. Herren and John R. Stewart own and operate a mobile home park in Dougherty County. In 1938, the predecessor to Mitchell Electric Membership Corporation (“the electric company”) entered into a one-page easement agreement with the property owners' predecessor in title. The agreement provides that the property owners granted to the electric company the right to enter their land
and to place, construct, operate, repair, maintain, relocate and replace thereon and in or upon all streets, roads or highways abutting said lands, an electric transmission or distribution line or system, including the right to cut and trim trees to the extent necessary to keep them clear of said electric line or system and to cut down from time to time all dead, weak, leaning or dangerous trees that are tall enough to strike the wires in falling.
The electric company placed two electrical transmission lines across the property, one at the western boundary and one at the eastern boundary. The western electrical line is 1200 feet long and located approximately 10 feet inside the property line. The line is composed of seven wires. The top wire carries 14,400 volts, and under that is a “neutral wire,” two “hook and wire secondary lines,” two uninsulated 120–volt wires, and two communication lines. The bottom lines are roughly 20 feet off the ground. Wires split from the 120–volt wires and run down the pole, then run underground to supply electricity to each mobile home. A similar transmission line is located on the property's eastern boundary.
The power company employs an “integrated vegetative management plan” to keep its 4,500 miles of power line rights of way clear so crews can safely and efficiently maintain and repair the poles and lines. Repair crews need access to the poles and lines to effect repairs at any time under all weather conditions. Maintenance crews operate on a regular schedule to clear the rights of way using a variety of tools, including bucket trucks with hydraulic pole saws, hand saws, mower, and herbicides. The power company's forestry coordinator testified that time and money constraints did not allow the company to hand-prune much of the right of way, and herbicides were a cost-effective way to permanently solve certain potential problems.
The property owners bought the mobile home park in 1999. They experienced problems with trespassers, so first they installed razor wire along a fence on the property's western boundary. The problems continued, so after consulting a landscaper the property owners planted hedges of elaeagnus bushes along the eastern and western edges of the property in 2005. The owners understood that the elaeagnus bushes would “intertwine ... and create a barrier which would be virtually impenetrable by persons that wanted to come into the property.” The eastern hedge was planted several feet from the middle of the power line easement, but the western hedge was planted directly below the lines and ran the entire length of the easement. To further deter people from coming into the park on the western boundary, the property owners dug a two- to three-foot ditch parallel to and between the razor wire fence and the middle of the power line.
Over the years, the bushes on both sides of the property grew together and formed formidable hedges. The property owners maintained the eastern hedge at six or seven feet but did not prune the western hedge, which grew tall and wide. It eventually grew over the ditch to reach the razor wire and in some places grew as high as 26 feet The bushes grew up and around the poles and into volunteer trees that had sprouted within the hedge, past the communication wires and very close to the live wires. The hedge was so thick that workers could not see through it.
The western hedge made it more difficult to maintain the power lines, affecting the workers' ability to communicate with each other, to move about under the power lines, and to see what they were doing, especially at night and during storms when the lines went down. Additionally, while the eastern hedge was adjacent to a road from which electric company trucks could access the poles and line, no similar access was available along the western line, which was blocked on one side by the razor wire and ditch and in places on the other side by the location of the mobile homes.
A construction foreman for the power company testified that even if the hedge were trimmed to six or seven feet high, workers would still have to either climb into the middle of the bushes, drive over the hedge with a truck, destroy parts of the hedge to maintain underground wires, and dig out the plant from around poles where work needed to be performed. He had been called on to repair the power lines over this easement and had to wade through the bush at night in a storm and stand in the ditch to raise his stick 35 feet in the air, bring down a blown fuse, change it, run it back up to the line, and close the fuse. He testified that a trimmed hedge is no easier for a person to penetrate than an untrimmed one. Further, if a power line broke, workers would have to clear any obstructions from the pole closest to the break, cut the wire, “sleeve it together where it broke,” and then pull the line back up onto the pole, which was more difficult with a thick hedge below the line. Finally, the only way trucks could access certain points of the line within this easement was along the easement itself, but the bushes blocked that access also.
The growth of the elaeagnus hedge also increased the danger associated with power lines. The bush grows quickly and requires repeated pruning to maintain a reasonable height. It can grow more than 30 feet if it has something to anchor itself on. Vegetation that grows to contact a power line can cause power outages and possibly energize the vegetation itself, creating a danger to people and animals. The power company's forestry coordinator testified that an elaeagnus bush at another location had wrapped itself around a live wire and burned down the lines. He testified that this particular hedge was unmanaged, heading toward the power lines, and was going to create problems if it was not removed. It was killed with herbicide because it could not be removed with equipment, given the proximity of the mobile home and the danger of mowers or bush hogs slinging material sideways.
The power company hired co-defendant Townsend Tree Service Company, LLC in February 2010 to apply herbicide along some of the company's easements, including those located on the mobile home property. In October 2010, pursuant to this contract, the tree service applied herbicide to the western elaeagnus hedge and killed most of it. While the contract between the tree service and the power company provided that the tree service should notify landowners before beginning this work, the tree service failed to do so in this case.
The property owners filed suit and sought injunctive relief. Following a hearing, the trial court denied the request for an interlocutory...
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