Villager Condominium Ass'n, Inc. v. Idaho Power Co.

• Decision Date: 24 March 1992
• Docket Number: No. 18377,18377
• Parties: , Util. L. Rep. P 26,254 The VILLAGER CONDOMINIUM ASSOCIATION, INC., a non-profit Idaho corporation; and the New Villager Condominium Association, Inc., a non-profit Idaho corporation, Plaintiffs-Appellants-Cross Respondents, v. IDAHO POWER COMPANY, a Maine corporation, Defendant-Respondent-Cross Appellant. Boise, November 1990 Term
• Court: Idaho Supreme Court

Page 1335

829 P.2d 1335

121 Idaho 986, Util. L. Rep. P 26,254

The VILLAGER CONDOMINIUM ASSOCIATION, INC., a non-profit Idaho corporation; and the New Villager Condominium Association, Inc., a non-profit Idaho corporation, Plaintiffs-Appellants-Cross Respondents, v. IDAHO POWER COMPANY, a Maine corporation, Defendant-Respondent-Cross Appellant.

No. 18377.

Supreme Court of Idaho,

Boise, November 1990 Term.

March 24, 1992.

Rehearing Denied June 1, 1992.

Hawley, Troxell, Ennis & Hawley, Boise, for plaintiffs-appellants-cross respondents. John F. Kurtz, Jr. argued.

Risch, Goss, Insinger & Salladay, Boise, for defendant-respondent-cross appellant. James E. Risch argued.

BISTLINE, Justice.

The issue presented to us is whether a public utility company has the authority to relocate equipment placed on an easement in gross. We hold that the public utility may not relocate its equipment, if the new location constitutes an expansion of the easement, and not merely an increased usage of the easement.

In 1967, the Janss Corporation entered into an agreement (the Janss agreement) with Idaho Power for the supply of power and distribution facilities to condominium developments planned for construction on land owned by the Janss Corporation. In the Janss agreement, the parties understood that the facilities to be supplied by Idaho Power "shall include the overhead primary distribution line at the Company's standard voltage, underground primary cable, when requested by Customer, installed in trenches to be prepared by Customer in accordance with Company's specifications, pole mounted transformers, transformers located in a vault or on a concrete pad, such vault or concrete pad to be constructed by Customer, and overhead service wires from pole mounted transformers to Customer's building." Those developments commonly known as the Villager and New Villager Condominiums were supplied with power through the use of underground cable and twelve transformers placed in underground concrete vaults.

The Janss agreement was never recorded; but recorded plat maps delineate utility easements serving the condominium developments. The two above-named plaintiff associations (hereinafter Villagers) are the representatives of the current owners of the property that was provided with electrical power through the Janss agreement. In 1985, after the Janss Corporation had sold its interest in the property, Idaho Power removed the underground vaulted transformers and relocated them above ground on concrete pads. The pad-mounted transformers are dark green in color, and in size are approximately 30 inches wide, by 30 inches deep, by 24 inches high.

The Villagers filed two separate complaints against Idaho Power, alleging encroachment, trespass, nuisance and misrepresentation. These actions were consolidated for a bench trial. After two days of trial, the court found that the change of use of the easement was reasonably foreseeable at the time the easement was established, the Villagers' request to modify the court's findings was denied and thereafter the court entered an order denying the Villagers all relief. The Villagers have appealed.

The general rule is that the use of an easement may not be enlarged to the injury of the servient estate. "An easement, of course, can be enlarged even to the extent that the servient land is injured, but the right to the enlarged use must also be established by prescription, ... or by agreement with the servient landowner." Merrill v. Penrod, 109 Idaho 46, 52, 704 P.2d 950, 956 (Ct.App.1985). The underlying issue here is whether the district court's finding that Idaho Power's placement of the transformers above ground was reasonably foreseeable when the easement was established entitling Idaho Power to do so. We conclude that the trial court incorrectly focused on reasonable foreseeability of increased use, rather than on the expansion of the easement.

"In construing an easement in a particular case, the instrument granting the easement is to be interpreted in connection with the intention of the parties, and the circumstances in existence at the time the easement was granted and utilized." Nelson v. Johnson, 106 Idaho 385, 387, 679 P.2d 662, 664 (1984); citing with approval to Quinn v. Stone, 75 Idaho 243, 270 P.2d 825 (1954). In this case, the recorded plat maps are the instruments which serve to delineate the easement acquired by the utility.

The principles applicable to the extent of use permitted under a grant of easement were recently reiterated in Abbott v. Nampa School Dist. No. 131, 119 Idaho 544, 808 P.2d 1289 (1991):

It is well established in this jurisdiction that an easement is the right to use the land of another for a specific purpose that is not inconsistent with the general use of the property by the owner. Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952 (1961). In Coulsen v. Aberdeen-Springfield Canal Co., 47 Idaho 619, 277 P. 542 (1929), this Court stated:

The use to which a right of way is devoted or for which it is created, determines the character of title with which the holder is invested. The character of the use or the necessity of complete dominion determines the extent to which [the holder] is entitled to possession. No greater title or right to possession passes under a general grant than reasonably necessary to enable the grantee to adequately and conveniently make the intended use of [the holder's] way. 47 Idaho at 626, 277 P. at 544.

Thus, the general rule concerning easements is that the right of an easement holder may not be enlarged and may not encompass more than is necessary to fulfill the easement....

The degree of change that will be allowed in the use of an easement differs with the manner in which the easement was conveyed, the language of conveyance, and the use of the servient estate before and after the conveyance. See 5 Restatement of Property § 483, p. 3010 (1944).

Abbott, 119 Idaho at 548, 808 P.2d at 1293.

We agree with the trial court that the Janss agreement has no bearing on the legal problem presented here. The agreement was not recorded. Additionally, the Villagers were not parties to the agreement.. Thus the issue presented here is decided without reference to the agreement.

The trial court also concluded that the facts presented did not establish a prescriptive easement. Idaho Power does not challenge this ruling.

The trial court stated that the easement was established by the plats "from which an exact legal description of the easement boundaries can be obtained" and ruled that the Villagers took title to the real property subject to constructive notice of Idaho Power's easement and its intended use implied either by the existence and location of the underground transformers or by the very fact that every condominium owner had obtained a connection with Idaho Power's electrical power.

The trial court acknowledged that allowable changes in Idaho Power's use of the easement could not result in an unreasonably increased burden on the Villagers' property, but that the changed use would be permissible where the changed use was a matter of degree rather than kind. The trial court stated that an increase in the use is allowable if the change is reasonably foreseeable at the time the easement was established and "that the change in use in this case was of a degree reasonably foreseeable by the parties at the time it was established."

In Gibbens v. Weisshaupt, 98 Idaho 633, 638, 570 P.2d 870, 875 (1977), the Court held that it was a question of law whether the increased use of a road amounted to an expansion of the original prescriptive easement or merely an increase in the degree of use. The Court emphasized "that any changes in the use of a prescriptive easement cannot result in an unreasonable increased burden on the servient estate and that the increase in use must be reasonably foreseeable at the time the easement is established." 98 Idaho at 639, 570 P.2d at 876. In Gibbens, the Court ruled that the increase in use amounted to an expansion of the original easement.

In Aztec Ltd. v. Creekside Inv. Co., 100 Idaho 566, 569, 602 P.2d 64, 67 (1979), the Court held there had been not only an expansion of the use of a prescriptive road easement, but also an increase in the width of the easement. The Court held that this increase in width "would constitute an impermissible expansion even if a contemporaneous increase in traffic over the easement would not." The Court also said, "[a]n increase in width does more than merely increase the burden upon the servient estate; it has the effect of enveloping additional land." Id. at 569, 602 P.2d at 67. Foreseeability is irrelevant to this determination.

To the extent that the Villagers had constructive notice of Idaho Power's easement by the existence and location of the underground transformers, the foreseeability of additional usage of the easement was an appropriate line of analysis pursuant to Gibbens. The question here, however, is not additional usage, but, as was the case in Aztec, an expansion of the easement, to wit, placing the transformers above ground. Although the placement of the transformers above ground may have benefitted Idaho Power by reasons of safety, maintenance, and repair as the trial court found, that finding did not suffice to permit Idaho Power's unauthorized expansion of an underground easement into an above ground easement.

The judgment of the district court is reversed and the cause remanded. Costs to appellant; no fees on appeal.

JOHNSON, J., concurs.

McDEVITT, Justice, specially concurring:

I concur in the opinion reached by the Court in this case, but must note that I would hold that the trial court erred in its determination that the Janss Agreement had no bearing on the legal issues before it. The Janss Agreement was binding between the parties, i.e., the Idaho Power Company and the Janss Corporation (the predecessor-in-interest to The Villager Condominium...