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HomeMy WebLinkAbout2009-4647 Civil PPL ELECTRIC UTILITIES : IN THE COURT OF COMMON PLEAS OF CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : CIVIL ACTION – LAW vs. : NO. 09-4647 CIVIL : JASON W. and REBECCA L. : BERGEY, : Defendants : IN RE: PRELIMINARY INJUNCTION BEFORE HESS, J. OPINION AND ORDER PPL (“Plaintiff”) is in the middle of a major rebuilding project of the Cumberland- Wertzville transmission line, necessitated by increased electrical demand by the approximately 7,000 homes this line serves. Part of the transmission line passes over a 70-foot wide easement 1 on the property of Jason and Rebecca Bergey (“Defendants”). Similar easements exist on the neighboring parcels of land, as they were subdivided from the same tract. To accommodate the increased demand, Plaintiff is installing a heavier electrical cable, as well as additional poles to support the extra weight. The construction project is estimated to end by November 2009. Without the heavier cable, the 7,000 homes served by this transmission line will suffer rolling blackouts. James Blass, a right-of-way agent for Plaintiff, provided extensive testimony to the company’s procedures vis-à-vis property damage caused in the process of accessing its utility 1 The 1966 easement at issue here reads, in relevant part: “That I, Elva M. Mumma… irrevocably grant and convey unto the said Pennsylvania Power & Light Company, its successors and assigns, the right to construct, operate and maintain, and from time to time to reconstruct its electric lines, including such poles, towers, cables and wires above and under the surface of the ground, fixtures and apparatus as may be from time to time necessary for the convenient transaction of the business of the said Company… including the right of ingress and egress to and from the said lines at all times for any of the purposes aforesaid.” NO. 09-4647 CIVIL easements. Before any of Plaintiff’s heavy equipment crosses over the land of another, it is preceded by a small pickup truck with a camera mounted on board. The purpose of the camera is to record video documenting the condition of the land prior to entry by Plaintiff’s employees and equipment. At the conclusion of construction, the video will enable Plaintiff to provide land owners with adequate compensation to restore their land to pre-construction condition. Defendants do not challenge the existence or validity of Plaintiff’s 70 foot wide easement passing along the edge their property. They do challenge Plaintiff’s planned route of access over their property, citing a number of concerns. These include the safety of Defendants’ children, crop damage, separating Defendants’ horse riding ring from their barn, and soil impaction caused by Plaintiff’s heavy equipment passing over their land. As a result, Defendants argue that other viable means of accessing the transmission line exist, and they refuse to give Plaintiff access to its easement. Defendants allege that at two viable alternatives exist, one of which Mr. Blass admitted that Plaintiff has yet to examine. As a consequence of Defendants’ refusal to allow Plaintiff to access the easement, Plaintiff’s reconstruction project is at a complete standstill. Plaintiff, through its employees’ testimony, has indicated that the alternative means of access suggested by Defendants are either too costly to use and restore, or they are physically unsuitable. The Plaintiff’s testimony in this regard is flawed for reasons we will review later. In order to obtain a preliminary injunction, the moving party must demonstrate the existence of the following factors: 1)that the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages; 2 NO. 09-4647 CIVIL 2)that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings; 3)that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct; 4)that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits; 5)that the injunction it seeks is reasonably suited to abate the offending activity; and 6)that a preliminary injunction will not adversely affect the public interest. Warehime v. Warehime, 580 Pa. 201, 209-10, 860 A.2d 41, 46-47 (2004). These factors are each discussed below. With respect to the necessity of granting the injunction and on the question of the relative injury to the parties, it is clear that Plaintiff’s interests are paramount. First, the transmission line being rebuilt by Plaintiff serves 7,000 customers. Plaintiff’s employees have provided uncontradicted testimony that these 7,000 customers will experience rolling blackouts in the event that the reconstruction project cannot proceed. On the other hand, Defendants have legitimate concerns about crop damage, soil compaction, and the safety of their children. While their concerns are reasonable, the predicted service interruptions to 7,000 of Plaintiff’s customers far outweigh the three-month inconvenience to Defendants. The touchstone for interpretation of arguably ambiguous grant terms – such as the “right to ingress and egress” at issue here – is reasonableness. Taylor v. Heffner, 359 Pa. 157, 162-63, 58 A.2d 450, 453 (1948). “A grant is to be construed in favor of the grantee, and includes whatever is reasonably necessary to an enjoyment of the thing granted.” Hammond v. Hammond, 258 Pa. 51, 56, 101 A. 855, 856 (1917). Additionally, owners of the servient 3 NO. 09-4647 CIVIL tenement are not permitted to prevent reasonable use of an easement by the holders of an easement. Kushner v. Butler County Airport Authority, 764 A.2d 600, 603 (Pa.Super. 2000). Speaking more directly to the issue presented here, the North Dakota Supreme Court noted: One of the cardinal principles of the law of easements is that the dominant owner has the right of access to make repairs and that he may enter upon the servient estate for this purpose at all reasonable inflict unnecessary injury times. He may not, however, . The right to maintain and repair an easement is based upon the principle that a grant of the use of a thing carries with it everything by which the grantee may reasonably enjoy the use thereof. Otter Tail Power Co. v. Malme, 92 N.W.2d 514, 523 (N.D. 1958) (citing 17A Am.Jur. §§ 129- 130); see also Am.Jur. Easements § 83. The principles set forth by the court in Malme also appear in Restatement (Third) of Property: Servitudes, section 4.10, which reads: Except as limited by the terms of the servitude determined under § 4.1, the holder of an easement or profit as defined in § 1.2 is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude. The manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude. Unless authorized by the terms of the servitude, the holder is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment . Restatement (Third) of Property: Servitudes § 4.10 (2000). The Pennsylvania Superior Court has also cited this authority favorably in PARC Holdings, Inc. v. Killian, 785 A.2d 106 (Pa.Super. 2001) (finding that installation of utilities is within the scope of an easement for ingress and egress). Comment g, which underscores the central role reasonableness has with regard to easement access, is especially illustrative: 4 NO. 09-4647 CIVIL Unless the parties have agreed otherwise, the holder of an easement is not entitled to cause unreasonable damage to the servient estate. Because the holder of an easement is generally entitled to enter the servient estate to make improvements and construct improvements, a certain amount of damage or inconvenience to the servient estate may be within the contemplation of the parties. However, under the rule stated in this section, the servitude owner is not entitled to cause any greater damage than that contemplated by the parties, or reasonably necessary to accomplish the purposes of the servitude. Restatement (Third) of Property: Servitudes § 4.10 cmt. g (2000). We are satisfied that the grant at issue gives the Plaintiff a 70-foot wide easement across Defendants’ land as well as the right of ingress and egress to the easement itself. It can be safely assumed that the original parties to the easement agreement at issue contemplated the entry of some kind of construction equipment onto the farm now owned by the Defendants. As noted above, however, the Plaintiff is not at liberty to cause unreasonable damage to the Defendants’ property. A corollary of this principle is that, when faced with two alternatives in gaining access to its easement, the easement holder is bound to select the more reasonable of the two. Here, the Defendants have presented evidence that the Plaintiff is already within feet of the southwestern boundary of Defendants’ property and that it is more reasonable for the Plaintiff to simply continue across the existing easement. Surprisingly, the Plaintiff has offered no testimony on the question of whether or not entry can be gained in the manner proposed by the Defendants. Mr. Blass presented a topographical map indicating that there is a seasonal stream in the area. He also purportedly received information from a local farmer that the stream is difficult to cross. Mr. Blass, however, candidly admits that he has not performed his own inspection and cannot provide a meaningful response to the Defendants’ contention that access through the southwest corner is more reasonable. For this reason, we cannot be satisfied that the Plaintiff is likely to 5 NO. 09-4647 CIVIL ultimately prevail on the merits of this case and therefore a preliminary injunction is not warranted at this stage. However, we will deny the preliminary injunction without prejudice. The urgency of this project is such that we believe it only proper to permit PPL to supplement the record with suitable proof that the access they seek to their easement is the most reasonable course. Neither party is estopped from requesting a view as part of a subsequent proceeding in this case though they should be forewarned that the undersigned has never driven a large truck let alone over a small stream. ORDER th AND NOW, this 17 day of August, 2009, the motion of the Plaintiff for preliminary injunction is DENIED without prejudice to request further hearing following the Plaintiff’s study of alternatives to their proposed access to their 70-foot wide easement. BY THE COURT, _______________________________ Kevin A. Hess, J. James H. Thomas, Esquire For the Plaintiff Douglas G. Miller, Esquire For the Defendants :rlm 6 PPL ELECTRIC UTILITIES : IN THE COURT OF COMMON PLEAS OF CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : CIVIL ACTION – LAW vs. : NO. 09-4647 CIVIL : JASON W. and REBECCA L. : BERGEY, : Defendants : IN RE: PRELIMINARY INJUNCTION BEFORE HESS, J. ORDER th AND NOW, this 17day of August, 2009, the motion of the Plaintiff for preliminary injunction is DENIED without prejudice to request further hearing following the Plaintiff’s study of alternatives to their proposed access to their 70-foot wide easement. BY THE COURT, _______________________________ Kevin A. Hess, J. James H. Thomas, Esquire For the Plaintiff Douglas G. Miller, Esquire For the Defendants :rlm