Henley v. Continental Cablevision of St. Louis County, Inc.

692 S.W.2d 825 (1985)

(Easements in Gross)

 

Key Takeaway

Courts interpret easements in gross broadly to serve the primary goal of the easement.

The easements granted to utility companies were exclusive, and therefore apportionable by the utilities to respondent. The addition of single coaxial cables to the subdivision's existing telephone poles didn't increase the burden on the servient tenement beyond the scope of the easements' intended and authorized use.

Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (1985)

Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (1985)


Facts:

Pursuant to an indenture recorded on April 8, 1922, plaintiffs' predecessors as trustees, were expressly granted the right to construct and maintain electric, telephone and telegraphic service on or over the rear five feet of all lots in the subdivision, and to grant easements to other parties for the purposes of creating and maintaining such systems. In July, 1922 and August, 1922, respectively, the trustees conveyed an easement to Southwestern Bell Telephone Company to "construct, reconstruct, repair, operate and maintain its lines for telephone and electric light purposes" and similarly to Union Electric to "keep, operate and maintain its lines consisting of cables, manholes, wires, fixtures and appurtenances thereto." Subsequently, in 1981 and 1982, defendant exercised licenses acquired from both utilities to enter upon these easements, and erected cables, wires and conduits for the purpose of transmitting television programs.

Plaintiffs filed an action for an injunction on December 29, 1983, seeking not only to enjoin a continuing trespass and compel the removal of defendant's wires and cables, but also seeking $300,000 in damages and the reasonable value of the use of plaintiffs' property for defendant's profit based upon quantum meruit. Defendants then filed a motion to dismiss for failure to state a cause of action, which was supported by both the affidavit of defendant's chief executive officer and copies of the easements granted by plaintiffs' predecessors to Southwestern Bell Telephone Company and Union Electric.

Issue:

Plaintiffs, as trustees of University Park subdivision, appeal from an order dismissing their petition for failure to state a claim in an action against defendant Continental Cablevision of St. Louis County, Inc.

Whether or not these easements are exclusive and therefore apportionable by the utilities to, in this case, defendant Continental Cablevision.

Reasoning:

Both parties agree that the subject easements are easements in gross, i.e. easements which belong to the owner independently of his ownership or possession of other land, and thus lacking a dominant tenement. 

We believe the very nature of the 1922 easements obtained by both utilities indicates that they were intended to be exclusive and therefore apportionable. It is well settled that where the servient owner retains the privilege of sharing the benefit conferred by the easement, it is said to be "common" or non-exclusive and therefore not subject to apportionment by the easement owner. Conversely, if the rights granted are exclusive of the servient owners' participation therein, divided utilization of the rights granted are presumptively allowable. This principle stems from the concept that one who grants to another the right to use the grantor's land in a particular manner for a specified purpose but who retains no interest in exercising a similar right himself, sustains no loss if, within the specifications expressed in the grant, the use is shared by the grantee with others. On the other hand, if the grantor intends to participate in the use or privilege granted, then his retained right may be diminished if the grantee shares his right with others. Thus, insofar as it relates to the apportionability of an easement in gross, the term "exclusive" refers to the exclusion of the owner and possessor of the servient tenement from participation in the rights granted, not to the number of different easements in and over the same land. 

Here, there is no claim that plaintiffs' predecessors had at the time the easements were granted, any intention to seek authority for, or any interest whatsoever in using the five-foot strips for the construction and maintenance of either an electric power system or telephone and telegraphic service. Moreover, at no time during the ensuing sixty-three years have the trustees been authorized to furnish such services by any certificate of convenience and necessity issued by the Public Service Commission pursuant to §§ 392.260 and 393.170, RSMo. 1978. Accordingly, the easements granted to Southwestern Bell and Union Electric were exclusive as to the grantors thereof and therefore apportionable.

Plaintiffs also argue defendant could acquire no rights from the utilities since their easements did not mention television cables, and that the cable attachments themselves constituted an extra burden on the property. We disagree. The owner of an easement may license or authorize third persons to use its right of way for purposes not inconsistent with the principal use granted. The 1922 easements granted to Union Electric expressly provided the right of ingress and egress by Union Electric, it successors and assigns, to "add to the number of and relocate all wires, cables, conduits, manholes, adding thereto from time-to-time . . .." Similarly, the easement conveyed to Southwestern Bell expressly contemplated the construction and maintenance of "all poles, cables, wires, conduits, lateral pipes, anchor guys and all other fixtures and appurtenances deemed necessary at any time by [Southwestern Bell], its successors and assigns . . .." It can hardly be said that the addition of a single coaxial cable to the existing poles for the purpose of transmitting television images and sound by electric impulse increases the burden on the servient tenement beyond the scope of the intended and authorized use.

Although this is a case of first impression in Missouri, courts in other jurisdictions have addressed the legal effect of adding coaxial cables for television transmission to existing electric and telephone poles erected on easements without the consent of the owners of the fees. These courts have uniformly rejected arguments identical to those made by plaintiffs herein and have reached a conclusion similar to ours.

The unsurprising fact that the drafters of the 1922 easements did not envision cable television does not mandate the narrow interpretation of the purposes of the conveyance of rights and privileges urged by plaintiffs. The expressed intention of the predecessors of plaintiff trustees was to obtain for the homeowners in the subdivision the benefits of electric power and telephonic communications. Scientific and technological progress over the ensuing years have added an unforeseen dimension to such contemplated benefits, the transmission by electric impulse of visual and audio communication over coaxial cable. It is an inescapable conclusion that the intention of plaintiffs' predecessors was the acquisition and continued maintenance of available means of bringing electrical power and communication into the homes of the subdivision. Clearly, it is in the public interest to use the facilities already installed for the purpose of carrying out this intention to provide the most economically feasible and least environmentally damaging vehicle for installing cable systems.

Accordingly, the judgment of the trial court dismissing plaintiffs' petition for failure to state a claim is affirmed.

Holding:

It is an inescapable conclusion that the intention of plaintiffs' predecessors was the acquisition and continued maintenance of available means of bringing electrical power and communication into the homes of the subdivision. Clearly, it is in the public interest to use the facilities already installed for the purpose of carrying out this intention to provide the most economically feasible and least environmentally damaging vehicle for installing cable systems.

Accordingly, the judgment of the trial court dismissing plaintiffs' petition for failure to state a claim is affirmed.