323 Ga. App. 517
Ga. Ct. App.2013Background
- Easement grants power company the right to enter land to place, operate, repair, maintain, relocate and replace electric lines, including the right to cut and trim trees to keep them clear and to remove dangerous trees.
- Hedge of elaeagnus bushes grew along the western and eastern edges of the property, with the western hedge planted directly under the power lines and the eastern hedge near an access road.
- Over years, hedges grew thick, obstructing access, visibility, and maintenance of the power lines within the easement; western hedge impeded maintenance and access to poles and lines.
- In Feb 2010, Townsend Tree Service was hired to apply herbicide along some rights-of-way, including the western hedge; in Oct 2010 the hedge was largely killed by herbicide, with no advance notice to landowners.
- Property owners sued for damages and injunction; trial court denied injunction and granted summary judgment to power company and tree service.
- On appeal, court affirmed summary judgment for defendants, holding easement authorized vegetation clearance, including herbicide, and that notice and contract beneficiary issues did not create liability for the owners.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the easement authorize clearing vegetation beyond trees and use of herbicide? | Herren/Stewart contend easement limits to trees, not hedges or chemical clearing. | Power company argues easement authorizes clearance and use of herbicide as reasonably necessary to maintain lines. | Yes; easement scope includes vegetation clearance and herbicide as reasonably necessary. |
| Was destruction of the hedge reasonably necessary to maintain the easement? | Destruction was not absolutely necessary; trimming could suffice and alternatives existed. | Destruction was reasonably necessary to maintain access, safety, and reliability of lines. | Yes; destruction reasonably necessary to fulfill easement purposes. |
| Does the term 'includes' in the easement expand authority beyond trimming within the easement? | Includes limits authority; cannot extend beyond the easement to clear outside vegetation. | Includes broad authority to do what is reasonably necessary, including vegetation outside the exact easement area if dangerous. | Includes is expansionary; authority extends to necessary vegetation clearance, including outside the exact line if needed. |
| Was notice to landowners required for herbicide treatment under the contract between power company and tree service? | Notice was required by contract; failure to notify breached the agreement and harmed owners. | Under easement, the power company could destroy hedge and notice was not required in advance. | No; notice requirement did not govern liability under the easement authority. |
| Are property owners third-party beneficiaries with standing to enforce the tree service contract? | Owners rely on contract; could have damages as third-party beneficiaries. | Owners were not parties to the contract and lack standing as third-party beneficiaries. | No; owners lack standing as third-party beneficiaries. |
Key Cases Cited
- Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga. App. 862 (Ga. App. 2005) (contractual interpretation of easements)
- Richardson v. Ga. Power Co., 308 Ga. App. 341 (Ga. App. 2011) (intent and ambiguity in easement construction)
- Jakobsen v. Colonial Pipeline Co., 260 Ga. 565 (Ga. 1990) (implied authority within easements)
- Parris Properties, LLC v. Nichols, 305 Ga. App. 734 (Ga. App. 2010) (scope of easement and rights outside property boundaries)
- Ga. Power Co. v. Sullivan, 217 Ga. 699 (Ga. 1962) (easement rights and interference with power company operations)
- Givins v. Ga. Power Co., 240 Ga. 465 (Ga. 1978) (access and repair rights under power line easements)
- Berryhill v. Ga. Community Support and Solutions, 281 Ga. 439 (Ga. 2006) (meaning of includes/includes in contract interpretation)