Western Massachusetts Elec. Co. v. Sambo's of Massachusetts, Inc.

• Decision Date: 21 December 1979
• Parties: WESTERN MASSACHUSETTS ELECTRIC CO. v. SAMBO'S OF MASSACHUSETTS, INC.
• Court: Appeals Court of Massachusetts

Page 729

398 N.E.2d 729

8 Mass.App.Ct. 815

WESTERN MASSACHUSETTS ELECTRIC CO. v. SAMBO'S OF MASSACHUSETTS, INC.

Appeals Court of Massachusetts, Hampden.

Argued Oct. 11, 1979.

Decided Dec. 21, 1979.

Douglas R. Peterson, Springfield, for plaintiff.

Frederick S. Pillsbury, Springfield, for defendant.

Before HALE, C. J., and GREANEY and DREBEN, JJ.

DREBEN, Justice.

The questions before us relate to the right of the holder of an easement for electric transmission lines to enjoin the installation of a parking lot and the laying of underground utilities on the land subject to the easement (servient land) and also the right of such easement holder to enjoin construction of a building within fifty feet of the boundaries of the easement. The trial judge dismissed the complaint of the easement holder. We reverse.

The easement was granted to plaintiff's predecessor in 1926 and, as set out in the margin, ¹ gave the grantee the right to erect and maintain two lines of poles and one line of towers the location of which would become permanent upon installation. The grantor also agreed not to erect any building "within fifty feet of either side of said lines." At the time of the grant, the land was used for agricultural purposes but it now is in an area devoted primarily to industrial and commercial uses.

1. The plaintiff argues that the construction of the parking lot and the laying of underground utilities are inconsistent with its easement. The resolution of these issues has been made more difficult for us because the findings of fact of the trial judge are very sparse and consist primarily of a conclusion that the "proposed construction of a paved parking area and the parking of vehicles on defendant's land is not inconsistent and does not interfere with the plaintiff's express and implied rights under the easement." The only other finding relating to the parking lot was that "(t) he proposed paved parking area provides for an unpaved section immediately surrounding the plaintiff's pole, giving the plaintiff access to said pole for the purpose of maintenance." No findings were made as to the underground utilities.

Fortunately, in this case the record is sufficiently complete to enable us to find facts not expressly found by the judge. All Stainless, Inc. v. Colby, 364 Mass. 773, 776, 308 N.E.2d 481 (1974). Zuckerman v. Blakeley, 3 Mass.App.Ct. 685, 686-687, 338 N.E.2d 836 (1975). There is no conflict in the reported testimony, see Paone v. Gerrig, 362 Mass. 757, 760, 291 N.E.2d 426 (1973), and the evidence relating to the extent of the interference with the plaintiff's easement was undisputed. The testimony on this matter came almost exclusively from one of the plaintiff's witnesses, an engineer named Ashton, and he was extensively cross-examined by counsel for the defendant (Sambo's). Although we have not taken a view, as did the trial judge, see Keeney v. Ciborowski, 304 Mass. 371, 374, 24 N.E.2d 17 (1939), the evidence includes plans of the proposed site and pictures of the locus in its present condition. Under these circumstances we deem the record sufficient to obviate the need for remanding the matter for additional findings. ²

The general rule in determining whether a given proposed use falls within the activities forbidden to the owner of a servient estate is that such an owner is entitled to make such use of the estate as is consistent with the easement, J. S. Lang Engr. Co. v. Wilkins Potter Press, 246 Mass. 529, 531, 141 N.E. 501 (1923), and cases cited; Hodgkins v. Bianchini, 323 Mass. 169, 174, 80 N.E.2d 464 (1948), or, as sometimes stated, such an owner may use the land for all purposes which are not inconsistent with the easement, Ampagoomian v. Atamian, 323 Mass. 319, 322, 81 N.E.2d 843 (1948), or which do not materially interfere with its use. Merry v. Priest, 276 Mass. 592, 600, 177 N.E. 673 (1931). Carter v. Sullivan, 281 Mass. 217, 225, 183 N.E. 343 (1932). As we have recently said, "The owner of the servient estate may not use the property subject to the easement in a way that would lead to a material increase in the cost or inconvenience to the easement holder's exercise of his rights." Texon, Inc. v. Holyoke Mach. Co., --- Mass.App.Ct. ---, --- ^A, 394 N.E.2d 976, 978 (1979).

Here, the evidence introduced by the plaintiff through its engineer, Ashton, establishes that the proposed use by Sambo's of the servient land as a parking lot would increase the hazards and costs to the plaintiff of its operations. There was testimony showing that the paving of the surface around the plaintiff's pole would, by drying the ground and increasing ground resistance, tend to cause the pole, one of the highest structures in the region, to attract lightning. If the pole were hit by lightning, certain porcelain disc insulators might shatter causing debris to fall to the ground, and the line itself, which carries 115 kilovolts, might drop. Lightning also might lead to more service outages, which might necessitate the installation of an underground counterpoise (ground) wire throughout the length of the transmission lines. While Mr. Ashton was unable to quantify the higher risk of lightning, he was confident that ground resistance would be increased. On cross-examination he testified that the risk would be reduced if a twenty- five foot radius around the pole remained unpaved. He also testified that there were very few instances in the past when the facilities on the servient land needed repairs.

Mr. Ashton also testified that the parking of cars within the easement area would not only increase the risk of injury, but would also directly interfere with the operation of equipment and crews needed to make repairs. If the area were paved, the costs of installing future underground lines would be higher because the pavement would have to be ripped up. He pointed out that the installation of underground water, sewer, gas and electric conduits at random depths and locations within the right of way would seriously limit the plaintiff's ability in the future to lay underground cables and wires. However, on cross-examination, he indicated that the plaintiff's objections would be significantly less if the underground utility conduits were grouped together. Sambo's construction manager testified that the defendant would be willing to consolidate the utility conduits into two groups so that utilities within each group would be at the same depth in the ground.

It is apparent from this evidence that the use of the land as a parking lot and the installation of underground utilities by Sambo's will render the plaintiff's operation less convenient and more costly. Its potential liability to third persons for personal and property damage will be greater (see Dunn v. Pacific Gas & Elec. Co., 43 Cal.2d 265, 272, 275, 272 P.2d 745 (1954)); any future underground installation will be more expensive because of the paving; its access to its pole and wires for maintenance will be limited by the parking of cars and by vehicular and pedestrian traffic; it may be required to lay a counterpoise wire; and its ability to lay underground wires will be made more difficult if Sambo's is permitted to lay its underground utilities in a random uncontrolled manner. Under these circumstances we believe that the trial judge's finding that the defendant's proposed use does not interfere with the plaintiff's rights is clearly erroneous, and that the judge erred in dismissing the plaintiff's action.

Although we conclude that the defendant's proposed activities, if unlimited, would materially interfere with the easement, the plaintiff is not necessarily entitled to a blanket injunction precluding all such activities. The scope of relief to be granted requires a closer examination of the rights held by the plaintiff under its easement and how those rights are to be ascertained. These rights also establish the correlative rights of the owner of the servient estate and hence determine whether a particular use by the servient owner is an inconsistent or materially interfering one.

Here, the easement is limited in purpose and scope. ³ It is for transmission lines and the right to repair and maintain them. The easement does not authorize the plaintiff to install as many structures as it chooses, but permits only a specific number of lines or towers, and once the locations of these are fixed they become permanent. The power company is also obligated to pay for damage to crops caused by the original installation of poles or cables.

Other than the provision requiring the easement owner to pay for crop damages, which is, of course, a recognition that the rights in the surface are to remain in the servient owner at least for agricultural purposes, the easement is silent as to other rights of the parties in the surface of the property. Compare Hartford Elec. Light Co. v. Levitz, 173 Conn. 15, 17-18, 376 A.2d 381 (1977) (parking specifically excluded without written permission from the holder of the easement); J. S. Lang Engr. Co. v. Wilkins Potter Press, 246 Mass. at 532, 141 N.E. 501. In some cases where an easement is silent as to a particular use, the use itself is so clearly inconsistent with the easement that a general proscription evolves. Thus, courts have usually held, regardless of the particular language of the grant, that constructing or placing a building under high voltage electric lines is inconsistent with the easement of a power company because of increased danger, increased difficulty of repair, or both. Collins v. Alabama Power Co., 214 Ala. 643, 645, 108 So. 868 (1926); Snider v. Alabama Power Co., 346 So.2d 946, 949-950 (Ala.1977). Pacific Gas & Elec. Co. v. Minnette, 115 Cal.App.2d 698, 706, 252 P.2d 642 (1953). Georgia Power Co. v. Sullivan, 217 Ga. 699, 702-703, 124 S.E.2d 634 (1962); Central Ky. Natural Gas Co. v. Huls, 241 S.W.2d 986, 987 (Ky.1951); Horky v. Kentucky Util. Co., 336 S.W.2d 588, 589-590 (Ky.1960); Missouri...