United States v. Lacy, Civ. A. No. 805.

• Court: United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
• Citation: 116 F. Supp. 15
• Docket Number: Civ. A. No. 805.
• Parties: UNITED STATES ex rel. and for use of TENNESSEE VALLEY AUTHORITY v. LACY.
• Decision Date: 21 October 1953

116 F. Supp. 15

UNITED STATES ex rel. and for use of TENNESSEE VALLEY AUTHORITY
v.
LACY.

Civ. A. No. 805.

United States District Court N. D. Alabama, M. D.

October 21, 1953.

116 F. Supp. 16

COPYRIGHT MATERIAL OMITTED

116 F. Supp. 17

Joseph C. Swidler, Gen. Counsel, Charles J. McCarthy, Asst. Gen. Counsel, and Lee C. White, Atty., Tennessee Valley Authority, Knoxville, Tenn., for plaintiff

Jackson, Rives, Pettus & Peterson, Birmingham, Ala., for defendant.

LYNNE, Chief Judge.

The complaint in this action seeks an injunction requiring the defendant to remove a garage, a chicken house, and stacks of lumber from within the limits of a right of way claimed by the plaintiff. The complaint alleges that on July 10, 1946, J. W. Turner, who was then the owner of the property crossed by the transmission line, executed an option contract granting to the Tennessee Valley Authority the right to purchase, in the name of and as agent for the United States of America, a transmission line easement 100 feet in width over the property involved in this action and some adjoining property, and that on May 8, 1947, J. W. Turner and his wife executed a formal grant of the transmission line easement to the United States of America. The complaint further alleges that in July 1946 TVA entered upon the property and began construction of the transmission line. At the time the formal grant of transmission line easement was executed, Turner no longer had title to a portion of the property covered by the grant, having deeded it to the defendant on October 26, 1946.

The complaint alleges that the defendant has built a garage and a chicken house and has placed stacks of lumber within the limits of the right of way and has refused to remove them. It also alleges that the encroachments constitute dangerous fire hazards and are a serious menace to human life and an interference with the operation of the transmission line. The answer of the defendant asserts that the plaintiff has no title to the transmission line easement involved in the complaint, that there was nothing of record at the time he purchased the property to give notice of the easement, and that he was an innocent purchaser for value without notice. Jurisdiction of the action is conferred on this Court by the provisions of section 1345 of Title 28, United States Code (Supp. V, 1952), 62 Stat. 933 (1948).

The defendant has filed a counterclaim and a further counterclaim in which he asserts that the plaintiff unlawfully and wrongfully entered upon the defendant's land and committed a trespass by so doing, and that the plaintiff

116 F. Supp. 18

seized the defendant's property without warrant of law. The relief sought by the defendant is a mandatory injunction compelling the plaintiff to remove the transmission line from the defendant's property and damages

Under rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C., the plaintiff has filed a motion for summary judgment, supported by an affidavit, on the ground that the pleadings on file, together with the affidavit, show that there is no genuine issue as to any material fact and that plaintiff is entitled to judgment as a matter of law. Plaintiff has also moved to dismiss the counterclaim and the further counterclaim on the ground that they fail to state a claim against the plaintiff on which relief can be granted, to strike the jury demand in the defendant's answer and in the counterclaim, and for a more definite statement of the counterclaim and further counterclaim. In the view which the Court takes of the case, it is not necessary to pass upon the motions to strike the jury demands and for a more definite statement.

The Motion for Summary Judgment

The plaintiff's motion for summary judgment is supported by the affidavit of B. O. Chaney, the District Engineer for the Alabama District of the TVA power system. His affidavit asserts that TVA began construction of the transmission line across the property in July 1946 and completed construction in December 1946. Attached to the affidavit is a map showing the location of the various structures referred to in the complaint. These include a frame garage located directly under the transmission line and only 14 feet 10 inches from the nearest conductor. The affidavit asserts that if the garage building were to burn completely, the conductor would melt and the line would break, with the possibility of injury to persons or property, and with adverse effects upon the operation of the TVA power system. All of the buildings and stacks of lumber are inflammable and, in the opinion of the affiant, are serious hazards to the transmission line. The defendant filed five counter affidavits which assert that construction of the transmission line was not commenced until May 1947 and was not completed until the late summer of 1947, that nothing was said to the defendant as to the existence of the easement at the time he purchased the property, and that he did not know of the existence of the easement until construction work was begun in May 1947. The defendant's affidavits do not dispute the facts alleged in plaintiff's affidavit as to the existence and location of the buildings and stacks of lumber and that they constitute a hazard to the transmission line.

The undisputed facts established by the affidavits are that the TVA has constructed a transmission line across the property owned by the defendant and has maintained such line continuously since at least the late summer of 1947; that the defendant has constructed and is maintaining a garage, a chicken house, and several stacks of lumber, all of which are inflammable structures, and are in such close proximity to the line that the line would be damaged if they should take fire, with possible injury to persons or property, and a serious disruption of TVA power operations. These facts are established by the plaintiff's affidavit and are not controverted by the affidavits filed by the defendant. The defendant's affidavits raise a question of fact as to whether the transmission line was built in 1946 or 1947 and as to whether the defendant was charged with notice of the rights claimed by the plaintiff. It is my opinion that the facts which are in dispute are not material to the decision of the present action and that the plaintiff is entitled to judgment on the basis of the undisputed facts.¹

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The Tennessee Valley Authority has undoubted statutory authority to construct transmission lines and to acquire the easements necessary for such construction. Section 4(j) of the Tennessee Valley Authority Act² expressly authorizes the corporation "to acquire or construct power houses, power structures, transmission lines, navigation projects, and incidental works in the Tennessee River and its tributaries, and to unite the various power installations into one or more systems by transmission lines." Section 12 of the act authorizes the corporation "to construct, lease, purchase, or authorize the...