Georgia Power Company (“Georgia Power”) operates an electrical transmission line over the property of Wilann Properties I, LLC (“Wilann”) in Floyd County. Georgia Power filed this action seeking a declaration that it had the right to construct, operate, and maintain new poles and new electrical lines within its two easements across Wilann’s property and seeking to enjoin Wilann from interfering with its construction and maintenance activities. Wilann, who contended that the easements were too vague to make a determination of their boundaries, counterclaimed for a declaration that Georgia Power had no right to expand its electric lines and asserted claims for inverse condemnation, trespass, and injunctive relief. After the superior court granted interlocutory relief to Georgia Power and Wilann’s associated appeal was dismissed by this Court, Georgia Power moved for summary judgment on its claims and on Wilann’s counterclaim. The trial court granted summary judgment to Georgia Power, and Wilann appeals. Wilann claims that the trial court erred in finding that (i) the easements’ boundaries were clearly established, (ii) the change in use of the easements was a change in degree of use and did not amount to an inverse condemnation, (iii) Georgia Power had not abandoned the easements’ 100-foot right-of-way, and (iv) a construction company employed by Georgia Power was an independent contractor for whose actions Georgia Power could not be held liable. For the reasons set forth below, we find that Wilann’s claims of error have no merit. Accordingly, we affirm.
“Summary judgment is appropriate if the pleadings and the undisputed evidence show that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).” Bank of North Ga. v. Windermere Dev., Inc.,
So viewed, the evidence shows that in 1926, for consideration of $74 and $249, respectively, Wilann’s predecessor granted Georgia Power’s predecessor two express easements (the “Easements”) establishing a 100-foot right-of-way across Wilann’s property. The Easements provide Georgia Power with the right to go on the lands and “at any time now or hereafter, construct, operate and maintain perpetually upon said right-of-way,... lines for transmitting electric current with towers, frames, poles, wires and other necessary apparatus and appliances ... .’’As further provided therein, Georgia Power may “at any and all times . . . enter upon said premises for the purpose of inspecting said lines and making repairs, renewals and alterations thereon.” In addition, among other things, Georgia Power has “the right to cut away and keep clear of said transmission line or lines all trees and other like obstructions that may now or hereafter interfere or be likely to interfere” with the lines’ proper operation.
Also during 1926, Georgia Power’s predecessor constructed an electric transmission line consisting of wooden poles with a copper conductor across the right-of-way as part of what was designated the Lindale-Cave Spring Line (the “Line”). The conductor lost its efficiency over time, and in 2009 Georgia Power decided to upgrade the Line. The project consisted of replacing the old conductor with more effective materials and replacing the wooden poles with steel-reinforced concrete poles. According to Georgia Power’s manager, the new poles would be, on average, 20 feet higher than the existing poles.
In conjunction with the planned construction, Georgia Power contracted with Caffrey Construction Company to trim and clear trees and vegetation along the Line within Georgia Power’s right-of-way. The boundaries of Georgia Power’s easements along the Line were marked before Caffrey began its clearing activities. Georgia Power’s contract with Caffrey provided that Caffrey was to act as an independent contractor, and a Georgia Power supervisor averred that Georgia Power
Caffrey entered Wilann’s property on and around October 23, 2009, and cut trees in what is described as a “stream buffer/wetland area.” Several large trees were cut down on an earthen embankment dam, and the stumps left to deteriorate. Later that month, Wilann blocked access to the Easements and only allowed access by a third-party inspector. From late October 2009 through late March 2010, Georgia Power crews and contractors conducted no land disturbing activities on that portion of Georgia Power’s right-of-way located on Wilann’s property, and they worked on other areas of the Line.
On March 10, 2010, Georgia Power filed a complaint against Wilann for declaratory judgment and an injunction precluding Wilann from interfering with Georgia Power’s survey, assessment, construction, and maintenance activities within the Easements. Wilann filed an answer and a counterclaim for inverse condemnation, for declaratory judgment that the Easements do not include the right to expand the electrical transmission line to a higher voltage, and to enjoin the construction on its property, among other things. Following a hearing solely on the question of injunctive relief, the trial court granted Georgia Power’s request for an interlocutory injunction and denied Wilann’s request for an injunction.
After the trial court entered its order, a crew began to replace the existing lines and poles within the Easements. Georgia Power completed all construction and reenergized the transmission lines on April 22, 2010. The 14 existing wooden poles were replaced with 13 steel-reinforced concrete poles. The replacement poles were placed along the pre-existing centerline within inches, longitudinally, of the poles originally placed within the Easements.
The original plan sheet for the Line describes it as a 38,000-volt (38kV) transmission line. As replaced, the transmission line cannot support a higher voltage transmission than 46kV. Georgia Power’s line supervisor averred that a 38kVline “has the same characteristics and the same through capacity as a [dOjkV[
Shortly after the trial court entered the interlocutory injunction, the Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources inspected the construction activities along the Line. Georgia Power and the EPD subsequently entered into a consent order requiring, among other things, that Georgia Power file a revised notice of intent accurately describing disturbed acreage and pay appropriate land disturbing fees.
Also following the trial court’s interlocutory injunction, Wilann filed a notice of appeal to this Court from the trial court’s order. Wilann filed another appeal from the trial court’s subsequent order denying its request for supersedeas and injunction pending appeal. In view of Georgia Power’s completion of the project to upgrade and re-energize the transmission lines, we dismissed the first appeal as moot in Case No. A10A1687. By our order in Case No. A10A2131, we allowed Wilann to withdraw the second appeal.
Following remittitur, Wilann amended its counterclaim to allege, among other things, that Georgia Power had cut trees on a dam located on Wilann’s property, leaving the stumps in the ground to deteriorate and thereby causing erosion. Georgia Power moved for summary judgment as to its claims and as to Wilann’s counterclaim. Upon finding that Caffrey was an independent contractor, that Georgia Power did not abandon the Easements, that the description and boundaries of the Easements are clearly established, and that Georgia Power’s change of its degree of use of the Easements did not
1. Wilann claims that the trial court erred in finding that the description and boundaries of the Easements are clearly established. We disagree.
The Easements each provide: “The center line of said right-of-way being shown on plat made by the Georgia Utilities Company, its successors and assigns, and filed or to be filed in the office of the Clerk of the Superior Court of the County in which said lands are situated.” Notwithstanding this provision, no plat was attached to the Easements when they were recorded, and a search of the record by a Wilann representative failed to identify any other plat that described the centerline of the Easements. Georgia Power’s position is that the Easements’ centerline corresponds to the placement of the original poles. Wilann contends that Georgia Power’s interests remain vague and undefined such that it had no legal right to install new poles and electrical lines on its property. The trial court held that because Georgia Power’s power lines have been erected and used over several decades, the centerline is defined thereby and no issue of material fact remains.
Wilann points out that a power company in providing a notice to condemn an easement for a right-of-way for purposes of erecting an electrical transmission line, “shall describe the property with the same definiteness as is required in a deed of conveyance of land.” (Citations and punctuation omitted.) Gunn v. Ga. Power Co.,
2. Wilann claims that the trial court erred in finding that the use of the Easements is a change in the degree of use and does not amount to inverse condemnation. We disagree.
“The normal rules of contract construction govern review of the meaning of an express easement, which generally presents a question of law for the court.” Kammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC,
Wilann contends that the type of lines and voltage contemplated by the parties was nevertheless limited by the plan sheets for the Line. It also points out that this Court has found that where an easement for construction of an electric power transmission line did not specify the location or extent of the line, the grant became fixed once constructed and could not be extended absent a new grant of easement by the property owner or proper condemnation. Jackson Electric Membership Corp.,
Wilann’s reliance on Jackson is misplaced inasmuch as we concluded therein that the electric company could not enter upon the defendant’s land and take “additional portions thereof” for erection of a line extension without compensation. Jackson Electric Membership Corp.,
In light of the foregoing, we find that the general rule applies here.
[A] change in the manner, frequency, and intensity of use of the easement within the physical boundaries of the existing easement is permitted without the consent of the other party, so long as the change is not so substantial as to cause unreasonable damage to the servient estate or unreasonably interfere with its enjoyment.
(Citations, punctuation and emphasis omitted.) Parris Properties,
3. Wilann further claims that the trial court erred in finding that the entire 100-foot right-of-way of the Easements had not been abandoned as a result of nonuse since 1926. Again, we disagree.
Wilann contends that “the original taking area” of 100 feet in width has been abandoned. Generally, “an express easement may be abandoned when nonuse is accompanied by acts manifesting a clear intent to abandon, and which destroy the object for which the easements were created or the means of their enjoyment.” (Citation and punctuation omitted.) Crystal Farms, Inc. v. Road Atlanta, LLC,
4. Lastly, we consider Wilann’s claim that the trial court erred in finding that Caffrey was an independent contractor and that Georgia Power cannot be held liable for Caffrey’s actions. “An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” OCGA § 51-2-4. As we have explained, the rationale for the general rule is ‘because the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk.” (Citation and punctuation omitted.) Ga. Messenger Svc., Inc. v. Bradley,
(a) We agree with the trial court that there remain no issues of genuine fact as to whether Caffrey was an independent contractor. The inquiry as to the “independent business” requirement of OCGA § 51-2-4 turns upon “whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter ego.” (Citation and punctuation omitted.) Slater v. Canal Wood Corp.,
Here, the contract between Caffrey and Georgia Power specifies that Caffrey is an independent contractor. See Bartlett v. Northside Realty Assoc.,
(b) Wilann nevertheless contends that, other than the allegation Caffrey left stumps in the ground of the dam which has resulted in unsafe conditions, “all the issues in this case turn on the boundaries of the areas described in the . . . Easements.” Thus, Wilann argues, because Georgia Power accepted Caffrey’s work and was responsible for marking the lines of its right-of-way, Caffrey was not responsible for clear cutting Wilann’s property outside the boundaries of the Easements. We agree with Wilann that if Georgia Power had incorrectly marked the Easements’ boundaries and then directed Caffrey to clear cut therein, with the result that Caffrey went outside Georgia Power’s right-of-way and trespassed upon Wilann’s property, Georgia Power would not be relieved of liability by Caffrey’s status as an independent contractor. “[I]f it appears that the contractor has followed the plans and directions of his employer and injury has resulted, the employer, and not the contractor, is to be held liable. For unskillful or negligent execution of the work the contractor (and usually not the employer) is liable.” (Citation omitted.) Lee v. Southern Telecom Co.,
The remaining issue, as framed by Wilann, is whether Georgia Power is liable as “Caffrey improperly left stumps in the ground of the eastern dam which has resulted in unsafe conditions.” The undisputed evidence is that Caffrey controlled the time, manner, and method of executing the removal of trees, and Wilann does not show that the alleged impropriety in leaving the stumps was pursuant to the plan and direction of Georgia Power. Because Georgia Power “did not retain the right to direct or control the time and manner of executing the work or interfere and assume control so as to create the relation of master and servant,” the trial court correctly concluded that Caffrey was an independent contractor and Georgia Power could not be held liable for Caffrey’s work. Perry v. Ga. Power Co.,
(c) Wilann
the basis for allowing recovery directly from a public utility whose independent contractor damages property in the exercise of a taking under eminent domain but prohibiting such direct recovery in other cases [is based on] the fact that one injury arises from a constitutional taking and the other injury arises from a traditional tort.
Bell South Telecommunications v. Widner,
In light of the foregoing, Wilann shows no error, and the trial court’s grant of summary judgment to Georgia Power is affirmed.
Judgment affirmed.
Notes
The affidavit sometimes refers to “46kV” and at other times to “48kV,” although the intent, it appears, is to refer to 46kV. According to testimony at the preliminary injunction hearing, the voltage of the new transmission line would he “[t]he same thing, 46 kV.”
Pretermitting whether, if otherwise, it would have any impact on our analysis, there is no evidence that the Easements were acquired in a condemnation proceeding.
Wilann also suggests that Caffrey was engaged in a "public works proj ect,” and its actions should be viewed accordingly. The evidence does not show that Caffrey was “a contractor engaged in public work under contract with the State or one of its political subdivisions.” Abercrombie v. Ledbetter-Johnson Co.,