Ragland v. Alabama Power Co.

• Decision Date: 16 June 1978
• Citation: 366 So.2d 1097
• Parties: Sam E. RAGLAND et al. v. ALABAMA POWER COMPANY, a corporation, et al. 77-59.
• Court: Alabama Supreme Court

Page 1097

366 So.2d 1097

Sam E. RAGLAND et al. v. ALABAMA POWER COMPANY, a corporation, et al.

77-59.

Supreme Court of Alabama.

June 16, 1978.

As Corrected On Denial of Rehearing Sept. 22, 1978.

James B. Kierce, Jr., Stone, Patton & Kierce, Bessemer, for appellants.

Edward S. Allen, Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellees.

PER CURIAM.

This appeal by plaintiffs, Sam E. and Annette J. Ragland, is from summary judgments for defendants Alabama Power Company and Asplundh Tree Expert Company holding that defendants had the right to enter on the lands of the plaintiffs and cut fifteen trees and top three others grounded on the right under an easement to cut "danger trees adjacent thereto where necessary." We consider the grant of summary judgment to have been inappropriate and reverse and remand.

Asplundh Tree Expert Company, under contract with Alabama Power Company, entered on plaintiffs' lands and cut 15 trees and topped three others, which trees were located near an electric transmission line right-of-way easement of the Alabama Power Company. The easement granted, inter alia, "the right to cut and keep clear all trees and undergrowth and other obstruction on the (right-of-way), and danger trees adjacent thereto where necessary."

The issue presented for review is, "Whether the cut and topped trees fell within the easement right to cut 'danger trees adjacent thereto where necessary' so that summary judgment was appropriate in this case?" We would answer "no" to this issue.

We do not disagree that the law of the case is enunciated in Collins v. Alabama Power Company, 214 Ala. 643, 108 So. 868 (1926). There, Mr. Justice Sayre, writing for the Court, construed "danger trees" (within the meaning of a clause identical to the one in the case at bar) "to mean trees which, by reason of size or condition, and contiguity to complainant's right of way, involve a concrete threat of injury to complainant's transmission or telephone lines, * * *".

There is at least one question of fact, or mixed question of law and fact, under the Collins definition. "Were these 'danger trees'?" That is, "Were they, by reason of their Size or condition, and Contiguity to the right of way, A concrete threat of injury to the transmission lines?"

It is uncontroverted that the trees cut and topped were healthy, disease free and varied from three to fourteen inches in diameter.

Examining the affidavits filed by Alabama Power Company in support of summary judgment, we find the affidavits showed, "It is most important * * * that all transmission lines be kept free of hazards * * * a major hazard being the location of trees within falling distance * * * on these transmission lines"; it is Alabama Power Company's practice to cut as "danger trees" those which "in falling they would come within five feet of the nearest current carrying wire"; that three electric transmission lines of high voltage abut the property of the plaintiffs; that "every tree which was cut or trimmed would have actually struck the nearest electric conductor on the transmission line right of way in falling, without regard to the usual five foot clearance * * *."

Examining the counter affidavits filed by plaintiffs, we find the trees were cut "after (defendants were) warned" not to do so; the youngest of the trees was approximately fifteen years old and the oldest no older than thirty years and they "were strong and sturdy, alive and healthy, and free from disease"; that None of the "said trees cut down or topped by defendants Involved a concrete threat of injury to the transmission lines"; based upon an examination of the stumps, other trees in the vicinity, "the stacks of the trees that were cut down," photographs, and topography of the land, the trees cut Did not "involve a concrete threat of injury to the" transmission lines nor would such trees "have fallen or been blown down except by winds of 80 miles per hour" and even with such "winds of 80 miles per hour * * * there is Considerable doubt that the Trees that were Cut would be blown down in The Direction of the Conductors because of their location on the downslope of a hill or ridge and because of the fact that the trees which were cut were protected from the West by numerous other healthy trees" and the fact that the "conductors are located to the East of the trees which were cut." (Emphasis added.)

These conflicting statements of the Alabama Power Company's employees and those of the plaintiff and his forester lead us to conclude that summary judgment was inappropriate in this case.

We have said many times that summary judgment should be rendered only if the pleadings, depositions and affidavits on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56 A.R.C.P.; Folmar v. Montgomery Fair Co., Inc., 293 Ala. 686, 309 So.2d 818 (1975).

The moving party must clearly show that the other party could not recover under any discernible set of circumstances and must show the absence of a genuine issue as to any material fact. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

The factual allegations in pleadings and affidavits of the party opposing the motion for summary judgment (here the plaintiff) must be taken as true in ruling on the motion. Rainey v. Ford Motor Credit Co., 294 Ala. 139, 313 So.2d 179 (1975).

We have no difficulty at all finding that there are genuine issues of fact in this case and summary judgment was therefore inappropriate.

REVERSED AND REMANDED.

BLOODWORTH, MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., dissent.

EMBRY, Justice (dissenting):

I respectfully dissent.

What this appeal actually involves is a determination of what, as a matter of law, is a "danger" tree.

The Raglands filed their action for damages against the Power Company and Asplundh complaining of trespass upon their real estate and conversion of trees thereon.

The essential facts, as shown by the pleadings, affidavits, admissions, and exhibits upon which the motions of the Power Company and Asplundh for summary judgments were submitted, disclose that:

Asplundh, under hire by the Power Company, entered on the lands of the plaintiffs and cut 15 trees and topped three others; the trees were located adjacent to an electric transmission line right-of-way easement of the Power Company; the granted easement included "the right to cut and keep clear all trees and undergrowth and other obstruction on the right-of-way and danger trees adjacent thereto where necessary"; the trees cut and topped were healthy, disease free, and varied from three to fourteen inches in diameter; the trees were of such size and so located that, if they were caused to fall, they would have actually struck the nearest electric conductor wire of the transmission line.

There is no dispute in the Facts presented by the affidavits filed in behalf of the parties to this action; only the conclusions drawn by the various affiants. The conclusion drawn by affiants whose affidavits support the position of the Raglands is that the cut and topped trees presented no concrete threat to the power lines because they were not likely to fall or be blown down.

To Illustrate

From the affidavit of the Power Company's Birmingham Division Transmission Line Superintendent:

"* * * It is most important to the maintenance of electric service that all transmission lines be kept free of hazards to service interruptions, a major hazard being the location of trees within falling distance of electric conductors on these transmission lines. In spite of Alabama Power Company's program of periodically reclearing such trees, called 'danger trees,' approximately 15% Of the permanent line interruptions to Alabama Power Company's transmission system over the past ten years have been due to such trees. By 'permanent,' I mean that the lines remained out of service until they could be repaired by a transmission line crew. It is also appropriate to mention that of these outages caused by falling danger trees, 4% Were caused by trees which were dead or dying, and 96% Were caused by green or live trees.

"Because of these operating experiences, Alabama Power Company must continually reclear danger trees adjacent to transmission lines, * * *"

From the affidavit of the Power Company's Supervisor of Line Clearing Large:

"* * * On December 19, 1975, Alabama...