Case of the Day – Friday, February 4, 2022


Referees make mistakes. Look at last Sunday night. How about that pass interference that kept Tee Higgin from catching the pass in the end zone?  And how about the uncalled helmet-to-helmet that laid out 49ers punter Mitch Wishnowsky?  Don’t get me started…

Judges make mistake, too. If that weren’t so, there’d hardly be a need for courts of appeal or even the Supreme Court.

In today’s case, an electric utility sued back in the 1960s to force a landowner to give it an easement for building and maintaining power lines. The court granted the easement — which consisted of four separate rights — but somehow left out the part where it got an easement of 25 feet on either side of a right-of-way to keep trees trimmed. Some 45 years later, the utility wanted to assign its right to the City of Jackson, Missouri, so the City could build its own power line.

The case ended up in court, where the utility argued that just because the 1969 court forgot to mention the 25-foot easement, that didn’t mean it wasn’t there. After all, the utility asked for it and the court never said it couldn’t have it. And when the damages were assessed so the landowner could get fair compensation for the condemnation, the commissioner charged with assessing the cost included the 25-foot easement. Just an oversight, the utility argued.

There’s an old adage in the law that a court speaks through its record. And in this case, while the 1969 Order probably did omit the 25-foot easement through oversight, that didn’t matter. The Order was clear and unambiguous in how it described the easement. Where the language is clear, a reviewing court won’t second-guess.

The 25-foot wide strips were not covered by the prior easement, no matter what the parties may have meant at the time. Like the Dramatics’ old song went, “Whatcha see is whatcha get.”

dramatics150923City of Jackson v. Bettilee Emmendorfer Revocable Trust, 260 S.W.3d 913 (Mo.App., 2008). The Bettilee Emmendorfer Revocable Trust owned land in Jackson, Missouri, which had been subject of a condemnation action 40 years before when the property was owned by others. Back then, Union Electric petitioned for rights over four portions of the land: a 100-foot easement, for the purpose of installing electric transmission lines, 25-foot sections on either side of the 100-foot easement for maintaining trees, overhanging branches and obstructions, two smaller for use in connection with the transmission lines, and an easement for ingress and egress.

The court’s order in that prior case granted Union Electric the 100-foot easement, easements to the two separate parcels, and an easement for ingress and egress. However, the court failed to mention Union Electric’s request for an easement on the 25-foot strips on either side of the 100-foot easement. A report of commissioners filed in the case indicated the commissioners viewed the 25-foot sections on either side of the 100-foot easement as well as the 100-foot portion itself to be within the easement, and it set damages at $22,224.

In October 2006, Union Electric entered into an agreement with the City of Jackson to allow Jackson to build a new electric line on the eastern edge of the 100-foot easement. Jackson and Union Electric entered into a partial assignment of the easement in accordance with that agreement. But noticing the old trial court order had a hole in it, the City sought a declaration of rights as to whether the 1969 condemnation action awarded Union Electric the 25-foot sections on either side of the 100-foot easement, whether Union Electric has the right to assign to Respondent the right to construct an electric transmission line on the 100-foot easement, and whether the construction of an additional electric transmission line amounts to an additional taking of property from the Trust. The Trust asserted the 1969 Order made no mention of an easement or other rights condemned or established on either side of the 100-foot easement. The Trust also argued that construction of an additional electric transmission line would increase the burden on the property “beyond the scope of the intended and authorized use of the easement,” the grant of the easement would be “inconsistent with the original use of the easement,” and the additional utility poles and electric transmission lines would interfere with reasonable use and enjoyment of the property.

The trial court held that Union Electric’s easement included the right, permission and authority to trim, cut and remove trees, overhanging branches and obstructions on 25 feet on each side of the 100 feet right of way which may endanger the safety of or interfere with the transmission lines, and it had the power to assign the right to the City. The Trust appealed.

What the court's actual order says is what goes ...

What the court’s actual order says is what goes …

Held: The 25-foot strips are not covered by the easement. The 1969 order establishing the easements made no mention of and contained no reference to the 25-foot sections on either side of the 100-foot easement, and thus, those portions are not part of the easement. When interpreting easements, courts ascertain the intention of the grantor from the instrument itself. Only when the language of the deed is “unclear and ambiguous” should a court resort to the rules of construction and consider extrinsic evidence. A contract is not ambiguous simply because parties disagree about its meaning. Rather, an ambiguity arises only “when the terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms.

Here, the Court said, nothing in the lower court language was unclear or ambiguous in the documents creating the easement, thus leaving a court to judge the easement only by the plain language of those documents without the need to refer to extrinsic evidence. The report of the commissioners, while it apparently valued the 25-foot sections in determining damages, does not supersede the court’s unambiguous order.

As for the right to assign, the Court held, it was equally clear and unambiguous that the order granted the easement holder the ability to construct a “line or lines,” permitted the holder to “add to and relocate” the electric transmission lines, and referenced “successors and assigns,” thus indicating that assignments are permitted.

– Tom Root


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