THE CAMEL’S NOSE
Prescriptive easements – easements across someone’s land acquired, usually by public utilities, because of a lapse of time – are fairly common. That’s usually because no one thinks twice about utility poles and overhead lines, or buried gas lines, until an issue arises and the landowner discovers to his or her chagrin that the utility never obtained an easement for the overhead or underground facilities, but too much time has passed to do anything about it.
In today’s case, a prickly landowner with the unlikely name of Lindburgh Jackson didn’t much like the overhead power lines and the utility pole on the land he bought in 1978. But somehow, for all of his complaining, he never bothered to check to see that Alabama Power had an easement to be there. It didn’t.
Unfortunately, for Unlucky Lindy, it took him nearly 25 years to challenge APCo, and only then because – as is increasingly common in our wired world – some new fiber optic system named Lightwave wanted to use the APCo poles and easement for its cable.
APCo easily proved that it had a prescriptive easement over Jackson’s land. After all, it had been trespassing with its poles for over 21 years. But the Alabama Supreme Court held that just because APCo had snagged an easement from Jackson for free to maintain electric lines didn’t mean Lightwave could cross the land with impunity, even on the APCo poles. The camel’s nose might be in the tent, but that didn’t mean that the whole camel could necessarily follow. APCo could use the easement for electricity transmission, but not for anything else it cared to.
The Supreme Court’s ruling suggests that Alabama at least takes a very strict view of how much a landowner has given up when he or she loses an easement by prescription — and that’s probably a good thing.
Ex parte Lightwave Technologies, L.L.C., 971 So.2d 712 (Sup.Ct. Ala. Apr. 27, 2007). Lindburgh Jackson owned property in Auburn, Alabama. Alabama Power Company has maintained power lines across his land and a utility pole on the property since he bought the place in 1978. Mr. Jackson never much cared for APCo, and has complained continually about APCo’s use and maintenance of the lines and the pole, but he did nothing about them.
Sometime in 2001, Lightwave Technologies – pursuant to a “pole-sharing” agreement with APCo – installed fiber-optic cable on the utility pole on the Jackson property. The City of Auburn had authorized Lightwave to install its cable and had established the route for such placement. Jackson sued everyone, APCo, Lightwave, and the City of Auburn, alleging among other claims that APCo had conspired with Lightwave to commit trespass on his property. The trial court entered a summary judgment in favor of all the defendants.
The Court of Civil Appeals concluded that because APCo had maintained the power lines in opposition to Jackson’s objections from April 1983 until September 2003, it had obtained an easement by prescription over his the portion of his land it used. The Court of Civil Appeals upheld judgment for APCo with respect to the trespass claim against it, and found for APCo and Lightwave on the conspiracy claim.
Undaunted, Jackson appealed to the Supreme Court of Alabama.
Held: APCo could not give Lightwave the right to use its prescriptive easement over Jackson’s land.
In order to determine whether APCo had the right to permit Lightwave to use the easement, the Court considered first whether APCo has the right to apportion its prescriptive easement and whether its apportionment to Lightwave was within the scope of the prescriptive easement. The Court said that the term “apportionability” in reference to easements refers to the easement owner’s right to divide the easement to produce independent uses or operations.
In general, the Court observed, an exclusive easement in gross is apportionable to the extent the additional use is authorized by the manner or terms of the easement’s creation. An easement in gross is an easement that benefits an easement holder personally whether rather than the benefit of the easement accruing to another piece of land. An exclusive easement grants unfettered rights to the owner of the easement to use the easement for purposes specified in the grant to the exclusion of all others, including the servient owner. Here, the Court held, APCo’s prescriptive easement was an exclusive easement in gross because it permits APCo to use the easement for the construction and maintenance of power lines and precludes, by its nature, Jackson and Matthews from using the easement for that purpose.
Prior decisions held that easements and easements acquired by condemnation may be apportioned, when the language in the document or condemnation order creating the easement indicates an intention to convey or to grant the right to apportion and when the apportionment does not constitute an additional servitude. But, the Court said, the decisions cannot stand for the proposition that a prescriptive easement – like the one in this case – is apportionable as a matter of law. Although the Court agreed that APCo’s prescriptive easement could be apportioned, the question to be resolved is exactly what rights APCo possessed that it could apportion.
In Alabama, the scope of an easement established by prescription is determined by the extent of the use. An easement holder is not entitled to materially alter the scope of its easement. Here, Jackson allowed APCo to gain a prescriptive easement over the disputed property. However, while Lightwave may have affixed its line to the power pole nearly 3 years before Jackson filed this action, one can hardly conclude that a relatively short 3-year delay amounts to acquiescence by Jackson of the apportionment. The Supreme Court ruled that APCo acquired the right to string power lines across the disputed property, but it did not acquire a right to string any line or cable providing something other than, or related to, electrical power over the easement.
Because APCo’s prescriptive easement is limited in scope to the extent of the use that created it, APCo’s apportionment of the prescriptive easement does not serve to insulate it from the conspiracy claim, nor does APCo’s attempt to apportion its prescriptive easement insulate Lightwave from either the trespass claim or the conspiracy claim against Lightwave.
– Tom Root