Sustainable Forests, LLC v. Alabama Power Company

• Decision Date: 01 June 2001
• Citation: 805 So.2d 681
• Parties: SUSTAINABLE FORESTS, L.L.C. v. ALABAMA POWER COMPANY.
• Court: Alabama Supreme Court

805 So.2d 681

SUSTAINABLE FORESTS, L.L.C. v. ALABAMA POWER COMPANY.

1000060.

Supreme Court of Alabama.

June 1, 2001.

Lee E. Bains, Jr., Jeffrey M. Grantham, Stephen C. Jackson, Alexander J. Marshall III, and David P. Donahue of Maynard, Cooper & Gale, P.C., Birmingham, for plaintiff.

Edward S. Allen of Balch & Bingham, L.L.P., Birmingham; James A. Byram, Jr., of Balch & Bingham, L.L.P., Montgomery; and John N. Leach and Warren C. Herlong, Jr., of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for defendant.

James H. McLemore and J. Lister Hubbard of Capell & Howard, P.C., Montgomery, for amicus curiae Alabama Forestry Association, in support of the plaintiff.

Thomas J. Saunders, Alabama Industry and Manufacturers Association, Montgomery; and Michael M. Partain, USX Corp., Fairfield, for amici curiae Alabama Industry and Manufacturers Association and USX Corporation.

HARWOOD, Justice.

Judge William M. Acker, Jr., of the United States District Court for the Northern District of Alabama, certified to this Court two questions, pursuant to Rule 18, Ala. R.App. P. Those questions relate to a declaratory-judgment action in the federal court brought by Sustainable Forests, L.L.C. (hereinafter referred to as "Sustainable"). Sustainable filed this action after Alabama Power Company (hereinafter referred to as "APCo") filed condemnation proceedings in Escambia County and Chilton County by which it seeks to acquire rights-of-way across Sustainable's property. Sustainable seeks a judgment declaring that APCo's statutory power of eminent domain, which allows APCo to condemn land for the purpose of constructing and maintaining electric power transmission lines, does not authorize APCo to condemn land for the purpose of installing fiber-optic communication lines either for its own use or for lease by APCo to third-parties. Each party has filed in the federal court a motion for a summary judgment. The questions certified to this Court are:

"1. Under Alabama Code [1975], §§ 10-5-1 and 37-4-130, does [APCo] have the power and authority to acquire a right-of-way for its use for internal communication lines in addition to its use for the transmission of electric power?

"2. Under Alabama Code [1975], §§ 10-5-1 and 37-4-130, does [APCo] have the power and authority to acquire a right-of-way for the installation of communication lines to be leased to or used by a third party or parties?"

The federal court has set out the relevant and undisputed facts it believes to provide the basis on which this controversy can be resolved:

"1. [APCo] is proceeding under the authority granted it by Alabama Code [1975], §§ 10-5-1 and 37-4-130. In attempting to negotiate the acquisition of a right-of-way across Sustainable['s] lands located in Alabama, the draft deed, prepared by [APCo] and submitted to Sustainable during the failed negotiations leading up to condemnation proceedings, contained the following provision:

"`There is also granted to the GRANTEE the rights and privileges necessary and convenient for the full enjoyment and use thereof, including the right of ingress and egress to the right-of-way together with the right to enter on the right-of-way and to place, construct, operate, repair, maintain, relocate and replace on and along said right-of-way electric transmission lines, together with poles, towers, guy wires and anchors, communication lines and other necessary appurtenances thereto.'

"(emphasis supplied).

"2. The condemnation petitions filed by [APCo] and pending in Escambia County and Chilton County contain the following enumeration of the `uses and purposes' for which the property interests in Sustainable's property are being acquired:

"`That the uses and purposes for which the said land, rights and interests hereinafter described are to be condemned and taken are in connection with the construction, operation and maintenance of towers, poles and wire lines, for the transmission, distribution, supply, and sale of electric power, and plaintiff therefore seeks to acquire ways and right-of-way 162 feet in width on, across, under and over the said land hereinafter described in Par. 1 of Article Fourth hereof, and the right to construct and erect on, across, under and over said land such towers, poles and wire lines, and all appliances necessary, convenient and useful in connection therewith for such purposes, together with all the rights conferred by law and all that are necessary, useful and convenient to the enjoyment of said right-of-way for such uses and purposes...'

"(emphasis supplied).

"3. [APCo] has refused to accede to Sustainable's request for a written preclusion of [APCo's] future use of the proposed right-of-way for communication lines or for fiber-optic cables, either for [APCo's] internal use, or for lease to third parties. In other words, [APCo] will not disclaim the intent to do what Sustainable is afraid it will do."

APCo has stated in its brief to this Court that it has no plans to place fiber-optic communication lines on the rights-of-way it is currently seeking through the pending condemnation proceeding in the Probate Court of Chilton County and the proceeding that Sustainable has appealed to the Circuit Court of Escambia County from the probate court of that county. While Sustainable's apprehension that APCo will attempt to place communication lines and/or fiber-optic cables on its rights-of-way at some point in the future has some basis, given the materials presented to this Court, we do not believe so speculative an eventuality presents a justiciable controversy in the context of which we can definitively answer the questions certified to us by the federal court.

The certified questions require us to interpret the broad term "communication lines." Whether this term might encompass means and materials for the purpose of communication other than "lines" is speculative, especially in light of evolving communication technology. It appears that the placement of "communication lines" within the rights-of-way, whether above or below ground, is the point of contention. Finally, the questions call for this Court to speculate on the purpose for which those "communication lines" will...