Wilann Props. I, LLC v. Ga. Power Co.

• Citation: 321 Ga.App. 297,740 S.E.2d 386
• Decision Date: 10 April 2013
• Docket Number: No. A12A2198.,A12A2198.
• Parties: WILANN PROPERTIES I, LLC v. GEORGIA POWER COMPANY.
• Court: United States Court of Appeals (Georgia)

321 Ga.App. 297
740 S.E.2d 386

WILANN PROPERTIES I, LLC
v.
GEORGIA POWER COMPANY.

No. A12A2198.

Court of Appeals of Georgia.

March 25, 2013.
Reconsideration Denied April 10, 2013.

[740 S.E.2d 387]

Chamberlain, Hrdlicka, White, Williams & Aughtry, Richard N. Hubert, Atlanta, for Appellant.

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Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, Rome, Alison Semmes Warren, for Appellee.

McMILLIAN, Judge.

[321 Ga.App. 297]Georgia Power Company (“Georgia Power”) operates an electrical transmission line over the property of Wilann Properties I, LLC (“Wilann”) in Floyd County. Georgia Power filed this action seeking a declaration that it had the right to construct, operate, and maintain new poles and new electrical lines within its two easements across Wilann's property and seeking to enjoin Wilann from interfering with its construction and maintenance activities. Wilann, who contended that the easements were too vague to make a determination of their boundaries, counterclaimed for a declaration that Georgia Power had no right to expand its electric lines and asserted claims for inverse condemnation, trespass, and injunctive relief. After the superior court granted interlocutory relief to Georgia Power and Wilann's associated appeal was dismissed by this Court, Georgia Power moved for summary judgment on its claims and on Wilann's counterclaim. [321 Ga.App. 298]The trial court granted summary judgment to Georgia Power, and Wilann appeals. Wilann claims that the trial court erred in finding that (i) the easements' boundaries were clearly established, (ii) the change in use of the easements was a change in degree of use and did not amount to an inverse condemnation, (iii) Georgia Power had not abandoned the easements' 100–foot right-of-way, and (iv) a construction company employed by Georgia Power was an independent contractor for whose actions Georgia Power could not be held liable. For the reasons set forth below, we find that Wilann's claims of error have no merit. Accordingly, we affirm.

“Summary judgment is appropriate if the pleadings and the undisputed evidence show that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. OCGA § 9–11–56(c).” Bank of North Ga. v. Windermere Dev., Inc., 316 Ga.App. 33, 34, 728 S.E.2d 714 (2012). “On appeal from the grant or denial of summary judgment, the appellate courts conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.” (Citation omitted.) Id.

So viewed, the evidence shows that in 1926, for consideration of $74 and $249, respectively, Wilann's predecessor granted Georgia Power's predecessor two express easements (the “Easements”) establishing a 100 foot right-of-way across Wilann's property. The Easements provide Georgia Power with the right to go on the lands and “at any time now or hereafter, construct, operate and maintain perpetually upon said right-of-way, ... lines for transmitting electric current with towers, frames, poles, wires and other necessary apparatus and appliances....” As further provided therein, Georgia Power may “at any and all times ... enter upon said premises for the purpose of inspecting said lines and making repairs, renewals and alterations thereon.” In addition, among other things, Georgia Power has “the right to cut away and keep clear of said transmission line or lines all trees and other like obstructions that may now or hereafter interfere or be likely to interfere” with the lines' proper operation.

Also during 1926, Georgia Power's predecessor constructed an electric transmission line consisting of wooden poles with a copper conductor across the right-of-way as part of what was designated the Lindale–Cave Spring Line (the “Line”). The conductor lost its efficiency over time, and in 2009 Georgia Power decided to upgrade the Line. The project consisted of replacing the old conductor with more effective materials and replacing the wooden poles with steel-reinforced concrete poles. According to Georgia Power's manager, the new poles would be, on average, 20 feet higher than the existing poles.

In conjunction with the planned construction, Georgia Power contracted with Caffrey Construction Company to trim and clear [321 Ga.App. 299]trees and vegetation along the Line within Georgia Power's right-of-way. The boundaries of Georgia Power's easements along the Line were marked before Caffrey began its clearing activities. Georgia Power's contract with Caffrey provided that Caffrey was to act as an independent contractor, and a Georgia Power supervisor averred that Georgia Power

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did not in any way control the time, manner, or method of Caffrey's work.

Caffrey entered Wilann's property on and around October 23, 2009, and cut trees in what is described as a “stream buffer/wetland area.” Several large trees were cut down on an earthen embankment dam, and the stumps left to deteriorate. Later that month, Wilann blocked access to the Easements and only allowed access by a third party inspector. From late October 2009 through late March 2010, Georgia Power crews and contractors conducted no land disturbing activities on that portion of Georgia Power's right-of-way located on Wilann's property, and they worked on other areas of the Line.

On March 10, 2010, Georgia Power filed a complaint against Wilann for declaratory judgment and an injunction precluding Wilann from interfering with Georgia Power's survey, assessment, construction, and maintenance activities within the Easements. Wilann filed an answer and a counterclaim for inverse condemnation, for declaratory judgment that the Easements do not include the right to expand the electrical transmission line to a higher voltage, and to enjoin the construction on its property, among other things. Following a hearing solely on the question of injunctive relief, the trial court granted Georgia Power's request for an interlocutory injunction and denied Wilann's request for an injunction.

After the trial court entered its order, a crew began to replace the existing lines and poles within the Easements. Georgia Power completed all construction and re-energized the transmission lines on April 22, 2010. The fourteen existing wooden poles were replaced with thirteen steel-reinforced concrete poles. The replacement poles were placed along the pre-existing centerline within inches, longitudinally, of the poles originally placed within the Easements.

The original plan sheet for the Line describes it as a 38,000 volt (38kV) transmission line. As replaced, the transmission line cannot support a higher voltage transmission than 46kV. Georgia Power's line supervisor averred that a 38kV line “has the same characteristics and the same through capacity as a [46]kV ¹ line. 38kV is no longer [321 Ga.App. 300]used as a voltage level by Georgia Power—[46]kV is the modern equivalent.” Although Wilann suggests that the replacement poles can support a 115kV line or a 230kV line, the testimony showed that such an upgrade would require even bigger poles.

Shortly after the trial court entered the interlocutory injunction, the Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources inspected the construction activities along the Line. Georgia Power and the EPD subsequently entered into a consent order requiring, among other things, that Georgia Power file a revised notice of intent accurately describing disturbed acreage and pay appropriate land disturbing fees.

Also following the trial court's interlocutory injunction, Wilann filed a notice of appeal to this Court from the trial court's order. Wilann filed another appeal from the trial court's subsequent order denying its request for supersedeas and injunction pending appeal. In view of Georgia Power's completion of the project to upgrade and re-energize the transmission lines, we dismissed the first appeal as moot in Case No. A10A1687. By our order in Case No. A10A2131, we allowed Wilann to withdraw the second appeal.

Following remittitur, Wilann amended its counterclaim to allege, among other things, that Georgia Power had cut trees on a dam located on Wilann's property, leaving the stumps in the ground to deteriorate and thereby causing erosion. Georgia Power moved for summary judgment as to its claims and as to Wilann's counterclaim. Upon finding that Caffrey was an independent contractor, that Georgia Power did not abandon the Easements, that the description and boundaries of the Easements are clearly established, and that Georgia Power's change of its degree of use of the Easements did not

[740 S.E.2d 390]

amount to an inverse condemnation, the trial court granted summary judgment to Georgia Power. The trial court found that Georgia Power had the right to construct the new transmission line over the Easements and that the new transmission line is within the scope of the rights granted to Georgia Power. The trial court also permanently enjoined Wilann from interfering with Georgia Power's use of the Easements, and it denied all relief sought by Wilann in its counterclaim, including Wilann's claim for an injunction, a declaratory judgment, and monetary awards based upon a taking and trespass. Wilann appeals.

1. Wilann claims that the trial court erred in finding that the description and boundaries of the Easements are clearly established. We disagree.

The Easements each provide: “The center line of said right-of-way being shown on plat made by the Georgia Utilities Company, its [321 Ga.App. 301]successors and assigns, and filed or to be filed in the office of the Clerk of the Superior Court of the County in which said lands are situated.” Notwithstanding this provision, no plat was attached to the Easements when they were recorded, and a search of the record by a Wilann representative failed to identify any other plat that described the center line of the Easements....