Pickett v. California Pac. Utilities

• Decision Date: 15 October 1980
• Docket Number: No. 16627,16627
• Parties: Jess W. PICKETT, Plaintiff and Appellant, v. CALIFORNIA PACIFIC UTILITIES, a California Corporation, and County of Iron, a political subdivision of the State of Utah, Defendants and Respondents.
• Court: Utah Supreme Court

Page 325

619 P.2d 325

Jess W. PICKETT, Plaintiff and Appellant, v. CALIFORNIA PACIFIC UTILITIES, a California Corporation, and County of Iron, a political subdivision of the State of Utah, Defendants and Respondents.

No. 16627.

Supreme Court of Utah.

Oct. 15, 1980.

Jess W. Pickett, pro se.

Patrick H. Fenton, Cedar City, for Cal. Pac.

James L. Shumate, Iron County Atty., Cedar City, for Iron County.

MAUGHAN, Justice:

Plaintiff appeals a judgment of no cause of action, in which the trial court dismissed his complaint with prejudice after a trial on the merits. The judgment is affirmed. All statutory references are to Utah Code Annotated, 1953, as amended.

Plaintiff initiated this action seeking damages from California Pacific Utilities, hereinafter identified as Cal-Pac, for a permanent utility easement established across plaintiff's property. Plaintiff further challenged the authority of Iron County to grant a franchise to a public utility to use the public right-of-way in a highway, where the abutting property owner holds title to the underlying fee.

Plaintiff is the owner of a parcel of land located in a rural section of Iron County. His property abuts a highway established by user in accordance with Section 27-12-89. ¹ The boundaries of the public easements are marked by fences. The area within the public right-of-way (between the fences) has been used by the public for vehicular travel and the driving of cattle and sheep for a period in excess of fifty years. Under the law, in effect, at the time the highway was dedicated to the use of the public, only the right-of-way and incidents necessary to enjoying it was acquired by the public. ² The underlying fee remained in the plaintiff, subject to the public easement.

Pursuant to the authority granted in Section 17-5-39, ³ the Board of Commissioners of Iron County granted a franchise to Cal-Pac to construct a power line (power poles and transmission line) within the public easement. Under plaintiff's theory of this case, the power line constituted an additional servitude on his estate for which he must receive compensation, and Section 17-5-39 confers authority on the county to grant a franchise only when the governmental authority has a fee interest in the highway, e. g., the determinable fee vested in county, city, or town when a plat is filed in accordance with Section 57-5-4. ³

The trial court ruled the construction of the power line served the public and in no way further encumbered plaintiff's property.

The precise issue posed by this case is whether the erection of an electric power line on a public highway, the fee to which is not in the public but in the owner of the abutting property, is within the purview of the easement for highway purposes, or imposes an additional servitude for which the abutting owner is entitled to compensation. Although both parties cite and rely on White v. Salt Lake City, ⁴ that case is distinguishable ⁵ and leaves the issue herein one of first impression in this jurisdiction. However, this Court has enunciated the public policy of this State in regard to the multiple uses of the public streets in State Road Commission v. Utah Power & Light Company: ⁶

'. . . Public welfare demands that the people be served with water, sewer systems, electricity, gas, telephone and telegraph, as well as transportation and means of travel. These services are vital to the well-being of our various communities. It would be almost impossible to meet these urgent requirements without making use of the public property. The presence of the utility facilities on the streets constitutes a use in the public interest subject to public regulation, and an object within the purview of a public policy to be established by the legislature.'

There has been a great diversity of opinion in the different jurisdictions as to whether an electric power line constitutes a public use within the reasonable scope of the easement or imposes an additional servitude. If the line be deemed a proper highway use, then it is held to impose no additional servitude. ⁷

After carefully considering the divergent opinions, we agree with the reasoning of the cases, which rule that the construction and maintenance of an electric power or transmission line, within the boundaries of a public highway, are consistent with the permissible uses to be made of a public highway easement and do not constitute an additional burden or servitude. ⁸ To sustain this rule, the principle is applied that uses of a public highway are expansive and are not confined to uses either permitted or contemplated at the time of dedication but are extended to new uses, consistent and proper, as civilization advances.

'With the growth of population, advancement of commerce and new inventions, society must adjust itself from existing conditions to growing and changed conditions and specifically to new means of transportation. A dedication of land for highway purposes when made is deemed to comprehend not only specific uses in the minds of the parties at the time, but also those developed and invented, which fall into the category of transportation in the future. . . .' ⁹

The courts adhering to this rule further reason that the easement in a public highway, which the public acquires, includes every reasonable means for the transmission of intelligence, the conveyance of persons, and the transportation of commodities, which the advance of civilization may render suitable for a highway. Thus, the poles and wires for carrying electric current for heat, light, and power are deemed a customary incidental use of the highways and are not considered an encroachment upon the right of an abutting property owner so as to entitle one to a right to compensation for an additional servitude. ¹⁰

CROCKETT, C. J., and WILKINS, J., concur.

HALL, Justice (dissenting):

I respectfully dissent.

As pointed out in the main opinion, the easement that is the subject of this litigation consists of a public roadway only, the underlying fee remaining in the plaintiff. ¹ As further observed by the majority opinion, jurisdictions have split widely over the question of whether or not utility power lines erected along a roadway, the dedication of which granted an easement only in the public, constitute an additional servitude and entitle the underlying fee owner to additional compensation. The view adopted by a majority of the Court is shared by a handful of jurisdictions only. ² Another view holds that such power lines are permitted only where their purpose directly relates to the use of the roadway itself (i. e., lighting, streetcar power, etc.). ³ A few jurisdictions hold to the idea that power lines pose no additional servitude on a public easement by dedication where the roadway is located in an urban environment, but do pose such an additional servitude where the roadway is in a rural environment. ⁴ Tow jurisdictions combine the last two views, weighing both the location of the roadway and the purpose of the overhead lines in determining whether or not their installation constitutes an additional servitude. ⁵ Finally, some jurisdictions adopt the view that power lines are, by definition, an additional servitude upon a roadway in which the public has a right-of-way by easement only. ⁶

Under all but the first of the foregoing five tests, the placement of defendants' utility lines on the roadway in question constitutes an additional servitude upon the easement held by the public therein. The roadway lies in a rural section of Iron County. The purpose of the lines bears no relationship to the use of the roadway itself. Under such circumstances, the vague test applied by the main opinion, employing concepts of the advancement of civilization, and proper and consistent uses of highways in light of human progress, seems severely to compromise the rights of landowners willing to provide gratuitously for vehicular traffic over their property. Any private roadway dedicated for use as a public thoroughfare thus becomes a pathway for whatever use a county authority, in its sole discretion, deems fit to impose, regardless of the detriment to adjacent landowners. Little imagination is required to summon up possible uses which would be severely detrimental, if not completely destructive, of surrounding farm land; uses which, according to the majority view, could be imposed without the necessity of any compensation whatsoever.

The very nature of the dedication which took place in the instant case seems to dictate the adoption of a view contrary to that of the majority of the Court. The road was dedicated to the public use, not by an express assertion of intent on the part of adjacent landowners, but by user, in accordance with Utah statutory law. ⁷ While such abandonment and use creates, under Utah law, an implied dedication to the public, it is nonetheless, as recognized both by the parties and by the trial court, ⁸ in the nature of a prescriptive...