Williams Telecommunications Co. v. Gragg

• Decision Date: 19 February 1988
• Docket Number: No. 60667,60667
• Citation: 242 Kan. 675,750 P.2d 398
• Parties: WILLIAMS TELECOMMUNICATIONS COMPANY, Appellee, v. Larry C. GRAGG and Phyllis J. Gragg, Husband and Wife, Appellants. Larry C. GRAGG and Phyllis J. Gragg, Appellants, v. WILLIAMS PIPELINE COMPANY and Williams Telecommunications Company, Appellees.
• Court: Kansas Supreme Court

Page 398

750 P.2d 398

242 Kan. 675

WILLIAMS TELECOMMUNICATIONS COMPANY, Appellee, v. Larry C. GRAGG and Phyllis J. Gragg, Husband and Wife, Appellants.

Larry C. GRAGG and Phyllis J. Gragg, Appellants, v. WILLIAMS PIPELINE COMPANY and Williams Telecommunications

Company, Appellees.

No. 60667.

Supreme Court of Kansas.

Feb. 19, 1988.

Syllabus by the Court

1. The law relative to abandonment is discussed and a pipeline company is held not to have abandoned its pipeline or the right-of-way therefor under the facts herein.

2. The transmission of communications through a fiber-optic cable is discussed and held to be the transmission of communications by electrical current within the purview of K.S.A. 17-618.

3. A telecommunications interchange carrier providing interstate private line service is held to be a telephone corporation within the purview of K.S.A. 17-618 granting authority to a telephone corporation to exercise the right of eminent domain.

4. The taking of a right-of-way for the installation of a fiber-optic cable for transmission of telecommunications by a telecommunication interchange carrier is held to be a taking for a public purpose, all as is more fully set forth in the opinion.

Larry E. Gregg, of Gregg, Barker and Johnson, Topeka, argued the cause, and John R. Hamilton, Topeka, was with him on the brief, for appellants.

James D. Waugh, of Cosgrove, Webb & Oman, Topeka, argued the cause, and Michael D. Cooke of Hall, Estill, Hardwick, Gable, Golden & Nelson, Tulsa, Okl., was with him on the brief, for appellees.

Ruth A. Sears and Lawrence A. Dimmitt, Topeka, were on the amicus curiae brief, for Southwestern Bell Telephone Co.

McFARLAND, Justice:

Williams Telecommunications Company (WilTel) filed an eminent domain proceeding against appellants Gragg, and others, seeking a right-of-way for the installation of a fiber-optic telephone cable. Appellants Gragg filed an action challenging the right of WilTel to the power of eminent domain and seeking a determination that Williams Pipeline Company (WPL) had abandoned its pipeline on appellants' property. The actions were consolidated for trial. The district court held adversely to the Graggs and they appeal.

ABANDONMENT BY WPL

The district court held that WPL had not abandoned its pipeline and pipeline right-of-way.

The scope of appellate review is clear. Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. Moore v. R.Z. Sims Chevrolet-Subaru, Inc., 241 Kan. 542, Syl. p 3, 738 P.2d 852 (1987); Friedman v. Alliance Ins. Co., 240 Kan. 229, Syl. p 4, 729 P.2d 1160 (1986). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. p 2, 681 P.2d 1038, cert. denied 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984). Stated in another way, "substantial evidence" is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 172, 630 P.2d 1131 (1981).

A six-inch pipeline was installed across the property in question in 1936 for the transportation of oil and gas. WPL purchased the pipeline in 1983 for the transportation of oil and gas. WPL has never transported petroleum products in the pipeline. Employees of WPL have kept the brush trimmed across the right-of-way and have conducted regular aerial patrol thereof. WPL, further, continues to maintain the cathodic protection to preserve the pipe within the easement, and continues to have low voltage power in each of the pump stations along the pipeline to keep space heaters connected within the equipment and the prime movers to avoid damage. In 1986, WPL and its subsidiary WilTel entered into an agreement whereby WilTel would lease the pipeline from WPL for the purpose of running a fiber-optic telecommunications cable through it. The lease provides, inter alia, that during the first 15 years of the contract, if WPL desires to use the pipeline for the transportation of products, WilTel must either remove its fiber-optic cable from the pipe or reimburse WPL for the cost of constructing a new segment of its pipeline system to replace that being used by WilTel. After 15 years, if WPL desires to use the pipeline system, WilTel must remove the fiber-optic cable from the pipe.

It is well settled in Kansas that an easement is not abandoned by mere nonuse. See Edgerton v. McMullan, 55 Kan. 90, 92, 39 Pac. 1021 (1895). We reviewed the law regarding abandonment in Botkin v. Kickapoo, Inc., 211 Kan. 107, 109-10, 505 P.2d 749 (1973), wherein we said:

"Generally, abandonment is the act of intentionally relinquishing a known right absolutely and without reference to any particular person or for any particular purpose. Abandoned property is that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting it in any other person and with the intention of not reclaiming future possession or resuming its ownership, possession or enjoyment. In order to establish an abandonment of property, actual relinquishment accompanied by intention to abandon must be shown. The primary elements are the intention to abandon and the external act by which that intention is carried into effect. Although an abandonment may arise from a single act or from a series of acts the intent to abandon and the act of abandonment must conjoin and operate together, or in the very nature of things there can be no abandonment. The intention to abandon is considered the first and paramount inquiry, and actual intent to abandon must be shown; it is not enough that the owner's acts give reasonable cause to others to believe that the property has been abandoned. Mere relinquishment of the possession of a thing is not an abandonment in a legal sense, for such an act is not wholly inconsistent with the idea of continuing ownership; the act of abandonment must be an overt act or some failure to act which carries the implication that the owner neither claims nor retains any interest in the subject matter of the abandonment. It is not necessary to prove intention to abandon by express declarations or by other direct evidence; intent to abandon property or rights in property is to be determined from all the surrounding facts and circumstances. It may be inferred from the acts and conduct of the owner and from the nature and situation of the property. Mere nonuse of property, lapse of time without claiming or using property, or the temporary absence of the owner, unaccompanied by any other evidence showing intention, generally are not enough to constitute an abandonment."

Applying the standards set forth in Botkin to the facts relative to WPL's action in regard to the pipeline since its 1983 acquisition, all as previously set forth herein it is clear that there is substantial competent evidence supporting the district court's determination that WPL has not abandoned the pipeline or its right-of-way.

WILTEL'S RIGHT TO EMINENT DOMAIN

K.S.A. 17-618 grants the power of eminent domain to telephone corporations desiring to "transmit ... communications ... by electrical current." Appellants contend that transmission of communications by a fiber-optic cable is not the transmission of communications by electrical current since light rather than electricity passes through the cable. Fiber-optics is a technology which uses glass wire to transmit simultaneously thousands of conversations from point A to point B without mix-up. Fiber-optic technology may not use electric current to transmit its communications but it does use electric energy to convert electric communications signals into light energy which travels through the fiber-optic cable, and electricity is used to reconvert the light energy into a signal for delivery to the telephone at the other end of the system. WilTel showed that without the electric energy necessary to convert the electric communications signal into a transmissible light beam and reconvert the signal at the other end, a fiber-optic communications system would not function. The evidence showed that the use of electricity through copper wires is on the wane in the industry and that long-distance communication is accomplished now primarily through radio frequency waves, satellite or crystal microwave, or by fiber-optics.

The controlling statute, K.S.A. 17-618, grants the power of eminent domain to "transmit ... communications by ... electrical current...." WilTel offers a persuasive argument in the interpretation of this phrase, as follows:

"Appellants urge that the only thing the Legislature could have intended by this language is that electrical current must flow through the cable. However, that is not what the statute says; the Legislature chose language which is not so narrow and...