321 Ga. App. 297
Ga. Ct. App.2013Background
- Georgia Power holds two express easements across Wilann’s Floyd County property for a 100-foot right-of-way to transmit electricity.
- Original poles were installed in 1926; Georgia Power later upgraded to taller steel-reinforced concrete poles through 2010 within the same right-of-way.
- In 2009, Caffrey Construction trimmed vegetation along the Line as an independent contractor; boundaries were marked before clearing.
- Wilann blocked access to the Easements in Oct 2009, prompting suit for declaratory relief, injunction, and related claims; Georgia Power sought summary judgment.
- Trial court granted summary judgment for Georgia Power; project completed and reenergized by April 2010; Wilann appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Easement boundaries clearly established? | Wilann argues boundaries are vague; plat not attached to Easements. | Georgia Power’s centerline defined by original pole placement; longstanding use fixes boundaries. | No reversible error; boundaries effectively defined by pole placement over time. |
| Does the use of Easements constitute an inverse condemnation? | Upgrading lines beyond initial 38kV exceeds grant; constitutes taking. | Change in degree of use within easement is permissible; not a taking. | Change in degree of use allowed; not inverse condemnation. |
| Has the 100-foot Easement been abandoned? | Nonuse since 1926 and periodic maintenance imply abandonment. | Continuing operation and maintenance negate intent to abandon. | Easement not abandoned; continued operation supports ongoing rights. |
| Is Georgia Power liable for Caffrey as independent contractor? | Contractor’s actions outside boundaries could impose liability on Georgia Power. | Caffrey was independent contractor; no vicarious liability if employer did not direct time/manner. | Caffrey independent contractor; Georgia Power not liable for Caffrey’s actions within boundaries. |
Key Cases Cited
- Jackson Electric Membership Corp. v. Echols, 84 Ga. App. 610 (Ga. App. 1951) (fixed path of easement after construction)
- Parris Properties, LLC v. Nichols, 305 Ga. App. 734 (Ga. App. 2010) (change in degree of use within easement permissible)
- Kerlin v. Southern Bell Tel. & Telegraph Co., 191 Ga. 663 (Ga. 1941) (test for change in degree of use)
- Faulkner v. Ga. Power Co., 243 Ga. 649 (Ga. 1979) (new high-voltage line not a new servitude)
- Humphries v. Ga. Power Co., 224 Ga. 128 (Ga. 1968) (installation of taller poles with wider cross arms is change in degree of use)
- Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga. App. 862 (Ga. App. 2005) (easements permit fiber optic use as advancement in technology)
- Crystal Farms, Inc. v. Road Atlanta, LLC, 302 Ga. App. 494 (Ga. App. 2010) (abandonment requires clear unequivocal intent)
- Perry v. Ga. Power Co., 278 Ga. App. 759 (Ga. App. 2006) (employer liable for independent contractor’s negligence if control exists)
- Sorrow v. Hadaway, 269 Ga. App. 446 (Ga. App. 2004) (employer liability limitations; independent contractor doctrine)
- Bartlett v. Northside Realty Assoc., 191 Ga. App. 10 (Ga. App. 1989) (independent contractor presumption applies absent control)