47 Mass. App. Ct. 133 | Mass. App. Ct. | 1999
Westchester Associates, Inc. (Westchester), is the owner of a six-story office building in Framingham immediately adjacent to electric power lines
Background. Acting under authority of the Department of Public Utilities, Edison, in 1956, took by eminent domain a one-hundred-foot wide easement for the construction and use of one or more transmission lines across land owned by Westchester’s predecessor in title.
Discussion. Westchester argues that the magnetic fields gen-
A nuisance may result from an overly intensive use or an overburdening of an easement. Compare Swensen v. Marino, 306 Mass. 582, 585 (1940). See Eno & Hovey, Real Estate Law § 8.15.2 (3d ed. 1995 & Supp. 1998). We begin by determining what use of the easement is authorized to Edison by the relevant documents. They provide in pertinent part: “the perpetual right and easement to erect, install, construct, reconstruct, . . . use [and] operate . . . one or more transmission lines for the transmission of high and low voltage electric current. . . over, across and upon [the easement land].” Because the language of the easement is “clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.” Panikowski v. Giroux, 272 Mass. 580, 583 (1930), quoting from Cook v. Babcock, 7 Cush. 526, 528 (1851).
Further, Westchester’s claim that the fields constitute a nuisance has no legal support.
A significant difficulty with Westchester’s attempt to characterize the magnetic fields as a nuisance is that their adverse effects would be experienced only by particular users of equipment sensitive to the fields. There is no contention that the fields are directly detectible by human senses. See note 8, supra. Thus, they do not constitute an annoyance to a plaintiff of “ordinary sensibility.” Malm v. Dubrey, 325 Mass. 63, 65 (1949), and cases cited. The inquiry to determine whether such fields constitute a nuisance will likely vary as computers and other electronic equipment may become more sophisticated and sensitive. There may come a time when increasing knowledge or changing uses may require, as matter of public policy, the modification of the use of electric power line easements, but this case does not call for such remediation. We conclude that
Other issues. There is no evidence that Edison knowingly induced any Westchester tenant to breach its lease, or that Edison did so with any improper motives or means. See United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812-817 (1990). Given our decision, the alleged failure of Edison to resolve the problems experienced by Westchester’s tenants does not constitute unfair or deceptive acts or practices under G. L. c. 93A, § 11. Finally, because Edison operates its power lines intentionally and not in violation of statutory and regulatory standards, its acts and operations are not negligent. See Sabatinelli v. Butler, 363 Mass. 565, 567 (1973); Waters v. Blackshear, 412 Mass. 589, 590 (1992).
Judgment affirmed.
We use the terms “power lines” and “transmission lines” interchangeably.
Westchester claims it has lost a tenant, been put to expense for necessary alterations, been unable to lease vacant space, and that Edison failed to respond to its requests to resolve those problems.
The complaint also alleges that emissions from the power lines pose a health threat to persons regularly exposed to them. Westchester concedes that health concerns are not at issue in this case.
The taking was made pursuant to G. L. c. 164, § 72, and G. L. c. 79. A subsequently recorded confirmatory easement executed by the predecessor in title indicates that $40,000 was paid to it by Edison.
Westchester’s expert concludes that the magnetic fields generated by the power lines caused the “jittery” images by disrupting the magnetic field generated internally by those devices which serves to direct and focus the images on the screens. He states that the resulting movement of the images on the screens is “most unpleasant to watch for any length of time whatsoever.” He also notes that, because magnetic fields from power lines are “present in most environments,” manufacturers of video screens provide shielding to protect them from interference that is effective for field strengths of “a few milliGauss.” He opines that, in the range of ten milliGauss and above, such shielding is not effective. Actual measurements made in the building by an expert for one of the tenants generally were well above that value in the office areas located along the wall of Westchester’s building nearest to Edison’s lines.
For a thorough discussion of the nature of electric and magnetic fields
Although “[t]he extent of an easement depends on the circumstances of its creation,” Mugar v. Massaachusetts Bay Transp. Authy., 28 Mass. App. Ct. 443, 444 (1990), “[t]he principles of interpretation designed to give effect to the express or implied intent of parties contracting for or acquiring an interest in land, however, are, in general, inapplicable to eminent domain proceedings. . . . The owner’s intent is irrelevant in determining the extent of an easement taken by eminent domain, and the intent of the governmental body is largely beyond the scope of judicial scrutiny.” Id. at 445.
We do not consider Westchester’s assertion that the Legislature has not expressly authorized Boston Edison to emit magnetic fields beyond the scope of its easement and, in any event, could not have intended to sanction the harm Westchester has suffered. There is no record indication that the Legislature has addressed the issue of the generation of electromagnetic fields by electric power lines. Compare Hub Theatres, Inc. v. Massachusetts Port Authy., 370 Mass. 153, 155-156, cert, denied, 429 U.S. 891 (1976).
Westchester’s claim that Edison does not have a certificate of public convenience and necessity required for its lower voltage 13.8 kv line is without merit. The original determination of public convenience and necessity
Westchester mistakenly relies on Western Mass. Elec. Co. v. Sambo’s of Mass., Inc., 8 Mass. App. Ct. 815 (1979), to support its assertion that its land is not burdened by Edison’s easement. That case concerned the extent to which the owner of servient land could use that land in a manner not inconsistent with the easement, and which would not materially increase cost or inconvenience to the easement holder in the exercise of its rights. In the present case we do not reach any consideration of whether the construction of Westchester’s building was inconsistent with Edison’s rights. Compare Richmond Bros. v. Hagemann, 359 Mass. 265, 268 (1971).
Massachusetts cases have not yet considered the effects of electromagnetic fields generated by electric power lines. The present case does not require that we rely on decisional law in other jurisdictions. We cite some authorities, however, which offer guidance. See San Diego Gas & Elec. Co. v. Superior Ct., 13 Cal. 4th 893, 936 (1996) (intangible phenomena such as electric and magnetic fields, not directly perceived by the senses, not actionable intrusions); Borenkind v. Consolidated Edison Co., 164 Misc. 2d 808, 810 (N.Y. Sup. Ct. 1995) (no duty owed to owners of land near high voltage power lines when publicly sanctioned use is carried out in a legally authorized manner; invasive quality of electric and magnetic fields, imperceptible to ordinary senses, and lacking scientific evidence of harmful effects, not a nuisance); Edgcomb v. Lower Valley Power & Light, 922 P.2d 850, 858-860 (Wyo. 1996) (summary judgment for defendant affirmed, the court holding that electromagnetic fields from power lines operated in easement area are neither a trespass nor an “unreasonable, unwarranted, or unlawful” use, and “do not constitute a nuisance”). See generally Bruce & Ely, The Law of Easements and Licenses in Land §§ 6.04[1] & 8.07[1] (rev. ed. 1995 & 1999 Cum. Supp. No. 1).
Westchester claims that the reasonableness of the use of an easement is a question of fact, and not appropriate for a summary judgment determination. The plaintiff’s reliance on cases such as Doody v. Spurr, 315 Mass. 129, 133-134 (1943), and Tindley v. Department of Envtl. Quality Engr., 10 Mass. App. Ct. 623, 628 (1980), is misplaced. Such cases involve the interpretation, on a reasonableness standard, of rights not explicitly granted. They stand in sharp contrast with the detailed rights expressed in the easement in the present case. Where, as here, we are presented with the relevant facts in a summary judgment record, it is open to us to rule “what facts are sufficient in law to constitute a nuisance.” Kasper v. H.P. Hood & Sons, Inc., 291 Mass. 24, 25 (1935). See Escobar v. Continental Baking Co., 33 Mass. App. Ct. 104, 106 (1992); Edgcomb v. Lower Valley Power & Light, 922 P.2d 850, 859-860 (Wyo. 1996).
There is no evidence that the permitted use has substantially disturbed the servient land or unreasonably diminished its value after Edison acquired the easement. In any event, Edison compensated Westchester’s predecessor in title in taking the easement. The present record does not indicate more than the consideration paid, $40,000, nor whether that valuation was based on any special incidents related to the proposed construction of electric power lines. Compare Richmond Bros. v. Hagemann, 359 Mass. 265, 268 (1971); Roman Catholic Bishop of Springfield v. Commonwealth, 378 Mass. 381, 382-383 (1979). Whatever compensation was required for the servitude imposed appears to have been paid.