Western Massachusetts Electric Co. v. Sambo's of Massachusetts, Inc.
Western Massachusetts Electric Co. v. Sambo's of Massachusetts, Inc.
Opinion of the Court
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 the plaintiff’s predecessor in 1926 and, as set out in the margin,
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 (1974). Zuckerman v. Blakeley, 3 Mass. App. Ct. 685, 686-687 (1975). There is no conflict in the reported testimony, see Paone v. Gerrig, 362 Mass. 757, 760 (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 (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.
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
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 [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
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.
Other than the provisions requiring the easement owner to pay for crop damage, 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 (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. 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
It is not, however, clear that parking facilities will materially interfere with transmission lines, and indeed, the cases provide no uniform rule. No Massachusetts cases involving the right of the holder of an easement for electric transmission lines to preclude parking have been brought to our attention, although there is a case, Metropolitan Dist. Commn. v. Plotnick, 354 Mass. 1 (1968), where the holder of a pipeline easement obtained an injunction against filling and blacktopping of the servient estate. That case is, however, not controlling as the easement expressly required permission of the easement holder before any fill or other material could be deposited on the land. Id. at 2.
A case more apposite because the easement was silent as to the parking is Los Angeles v. Ingersoll-Rand Co.,
An analogy may also be drawn to the cases involving easements where a right of way over the surface is given. There, the question presented is often whether the servient owner may build over the surface or use the ground underneath it. The general rule in those cases is that absent the showing of a contrary intent, or other special circumstances, the owner of the servient land may build over it even if building renders the way less convenient by being covered or darkened, unless it is so darkened as to render it unfit for passage. Atkins v. Bordman, 2 Met. 457, 475 (1841). Healey v. Smith Carriage Co., 265 Mass. 203, 208-209 (1928). Sargeant v. Traverse Bldg. Trust, 267 Mass. 490, 494-495 (1929). Novello v. Caprigno, 276 Mass. 193,196-197 (1931). Cape Cod Hosp., Inc. v. Cape Cod Medical Center, Inc., 7 Mass. App. Ct. 873 (1979). The easement holder has the burden of showing that he has the right that the way shall be kept open to the sky for light and air. Duncan v. Goldthwait, 216 Mass. 402, 404 (1914). Similarly, where a drainage easement is given, the servient owner is not precluded from subterranean construction. Kendall v. Hardy, 208 Mass. 20, 28-29 (1911). New York Cent. R.R. v. Ayer, 239 Mass. 70, 78-79 (1921). The reason for this rule, as Chief Justice Shaw wrote in 1841, is that “[t]he law, carrying into effect the intention of the parties, does not intend to restrict the right of ownership of the real estate subjected, further than is necessary to give full effect to the easement; and public policy requires, as well in cities as elsewhere, that an owner of real estate should be allowed to make all the improvements upon it, which can be made consistently with the just rights of others.” Atkins v. Bordman, supra at 471.
The scope of the relief to be given the plaintiff still remains to be determined. Since the easement itself provides no additional guidelines, we think the relief granted should be governed by the principles expressed in the Restatement of Property § 486, Comment a, set forth in the margin supra at note 4. See also § 481 and Comment a; § 485 and Comment c. Those principles are consistent with the rules of construction applicable in other situations where the easement use is not clearly defined. In Pratt v. Sanger, 4 Gray 84, 88 (1855), where a grantee was given an easement over the defendant’s land to the latter’s well, but the way was not defined in the deed, the court said, “The rule of law in such cases is well settled. The grantee has a right to such way as is reasonably necessary and convenient for the purposes for which it is granted. He cannot claim, as a matter of right, to go in the most direct line to a given point, without regard to other circumstances affecting the rights and interest of the owner of the premises; nor can he be compelled by the mere caprice of the owner to go by a circuitous and indirect route.” Courts in such cases “will determine what is reasonable under the conditions disclosed, and locate the way accordingly.” McKenney v. McKenney, 216 Mass. 248, 251 (1913). Tidd v. Fifty Associates, 238 Mass. 421, 430 (1921). Highland Club of West Roxbury v. John Hancock Mut. Life Ins. Co., 327 Mass. 711, 715 (1951).
Applying the standard of reasonableness to the exercise of the respective privileges of both the dominant and servient owners, and taking into account the evidence that many of the difficulties raised by the plaintiff can be mitigated by appropriate measures, we hold that while the plaintiff is not entitled to a blanket injunction against the use of the property as a parking lot, it is entitled to a judgment, to be framed in the Superior Court, which limits the proposed uses, mitigates the effect of paving, and provides for conditional relief as more fully described in part 3 below. See Tehan v. Security Natl. Bank, 340 Mass. at 184, 186, 187; United States v. Sea Gate, Inc., 397 F. Supp. 1351, 1358, 1359 (D.N.C. 1975);
2. The plaintiff also claims that Sambo’s should be enjoined from constructing a building within fifty feet of the boundary line of the easement. The grant gave the power company the right to erect and maintain two pole lines and one tower line on a strip of land 100 feet wide. The grantor also covenanted that he would not erect a building “within fifty feet of either side of said lines.” See note 1, supra.
In 1931 or 1932 a line of towers was constructed in an easterly direction along the center of the easement, which remained in place until 1975 (line A on the diagram accompanying this opinion), when a steel pole line (line B on the diagram) was constructed about fifteen feet to the north of the center line. Only one pole line has been erected although the easement specifically allows two lines, and only one pole is located on the servient land. In 1978, Sambo’s purchased a parcel of real estate which includes the area subject to the easement. It intends to construct a restaurant on the land north of the easement in a location 61.2 feet from the presently existing pole line and 26.2 feet from the boundary line of the easement, as indicated on the diagram.
The plaintiff claims that the covenant of the grantor not to build “within fifty feet of either side of said lines” means within fifty feet of the boundary lines of the easement. It argues that it may, although it has no present plans to do so, build a second line on the northerly boundary line of the easement, and that Sambo’s proposed restaurant would be less than fifty feet from that line and hence would violate the easement. We agree with the trial judge that the proposed building is not proscribed.
We reject the plaintiff’s definition of the term “Unes.” The provision imposing the restriction on the grantor
3. The case is remanded to the Superior Court for the framing of a judgment in accordance with the considerations expressed in parts 1 and 2 hereof as more fully described below.
We leave to the trial judge the question whether any evidence should be taken in connection with the judgment and also whether any additional matters not herein covered but consistent with the relief mandated should also be heard.
(a) In view of the limited rights of the plaintiff over the surface of the servient land, we have indicated our unwillingness to preclude all paving of the area subject to the easement by the defendant. Although there was evidence that paving would increase the probability of the pole being hit by lightning, the testimony also indicated that the risk would be considerably reduced if a twenty-five foot radius around the pole remained unpaved. The judgment should permit paving except for such twenty-five foot radius.
(b) There was evidence that the paving of the lot would cause the plaintiff additional expense. The judgment should, so far as practical, condition paving of the lot on the defendant’s assuming the cost of these expenses. See New York Cent. R.R. v. Ayer, 242 Mass.
(c) The judgment should condition the defendant’s use of the premises as a parking lot on the defendant’s taking precautions so as to ensure, in so far as practical, that emergency repairs can be made at all times. This right is included within the easement grant, if not expressly, by reasonable implication. Sullivan v. Donohoe, 287 Mass. 265, 267 (1934). Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513, 514 (1937). Whether the defendant is required to maintain facilities for the removal of all cars located on the lot as provided in Los Angeles v. Ingersoll-Rand Co., supra at 895, or whether access for such repairs can be provided by leaving certain lanes of traffic free, or by some other method, can best be determined by the trial judge. While we recognize that the plaintiff has an increased potential liability to persons and property by reason of the defendant’s use of the area as a parking lot, we determine such use to be permissible despite its effect in light of the correlative rights of both parties, subject to such restrictions, if any, deemed appropriate by the trial judge.
(d) Although the defendant has the right to lay underground utilities, Perley v. Cambridge, 220 Mass. at 513, such laying should not unreasonably interfere with the right of the plaintiff to lay its second line or its own cables, wires or other permitted items in the future. The plaintiff testified that its objections would be reduced if
(e) The judgment should deny the plaintiff relief in so far as it seeks to enjoin the defendant from building in a location north of the right of way which is more than fifty feet from the plaintiff’s power line.
4. In view of our analysis of the scope of the easement, we do not find it necessary to discuss the question of nuisance.
The judgment is reversed and the case is remanded to the Superior Court for further proceedings and the entry of judgment consistent with this opinion.
So ordered.
The grantee is given “the perpetual right, privilege and easement to erect, maintain, inspect, operate, remove, repair and patrol lines for the transmission of electricity, intelligence and energy, said lines to consist of two lines of either wood or steel poles and one line of towers and underground cables and other supporting structures, including the necessary wires, guys, shores, and fixtures, also the right to enter for the purpose of making surveys, maintaining, inspecting, operating, removing, repairing and renewing said poles, towers, cables, lines, supports, wires and fixtures and of cutting and trimming the brush and trees along the hereinafter described location of said lines, one hundred (100) feet in width, upon the following described parcel of land situated in Chicopee, Hampden County, Massachusetts [description of land is omitted]. Said lines to extend across said premises in an easterly direction from the place where said lines shall enter said premises from right of way granted Amherst Power Company, Nov. 25,1912 and the exact location of each pole Une, tower Une and underground cable, aU of which shaU be erected, laid or instaUed within the limits of the one hundred feet right of way or easement above referred to, shaU be selected by the grantee after its final surveys have been made and when such location has been fixed by the erection, laying or instaUation of each pole Une, tower Une and underground cables it shaU be deemed to be the permanent location of each Une or cable. And I, for myself, my heirs and assigns, covenant and agree with the grantee, its successors and assigns, that no building shall be erected or maintained under or within fifty feet of either side of said lines. Said company agrees by the acceptance of this grant to pay aU damages to crops which may be done in the course of the original erection of each Une of poles or towers and underground cables.”
Our conclusion that the record is sufficient for us to bring this controversy nearer to an end (see Butler v. East Bridgewater, 330 Mass.
See n.l.
“Uses not inconsistent with conveyance. So far as the language of the conveyance creating an easement precisely defines the privileges of the owner of it, the privileges of use of the owner of the servient tenement are also precisely defined. As the precision of definition decreases, the application of the principle that the owner of the easement and the possessor of the servient tenement must be reasonable in the exercise of their respective privileges becomes more pronounced. Under this principle, the privilege of use of the possessor of the servient tenement may vary as the respective needs of himself and the owner of the easement vary.”
Two other California cases, each relying on findings of the trial court, involved similar questions. One, Los Angeles v. Howard, 244 Cal. App. 2d 538 (1966), denied an injunction against parking to the holder of an easement for electrical transmission lines and the other, Los Angeles v. Igna, 208 Cal. App. 2d 338 (1962), granted such an injunction.
See note 1, supra.
In reaching this conclusion we do not consider the effect of G. L. c. 184, §§ 26-30, as the parties have made no reference to these provisions. See also Labounty v. Vickers, 352 Mass. 337, 347-348 (1967). These provisions presumably operate as a statute of limitations. Opinion of the Justices, 369 Mass. 979,987 (1975). See Mass.R.Civ.P. 8(c), 365 Mass. 750 (1974). However, we note that the result reached is consistent with the legislative policy expressed in those provisions. See Berman & Sons, Inc. v. Jefferson, 379.Mass. 196, 203-205 (1979).
Although the trial judge found that the proposed plan provides for an unpaved section, the plaintiff is entitled to the protection of a judgment to this effect.
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