JULIAN SACK v. FIRSTENERGY CORP.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0154-07T20154-07T2

JULIAN SACK,

Plaintiff-Appellant,

v.

FIRSTENERGY CORP., JERSEY

CENTRAL POWER AND LIGHT and

NELSON TREE SERVICE,

Defendants-Respondents.

______________________________________

 

Argued September 23, 2008 - Decided

Before Judges Skillman and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

Docket No. L-1114-05.

R.S. Gasiorowski argued the cause for

appellant (Gasiorowski & Holobinko,

attorneys; Mr. Gasiorowski, on the brief).

Florina A. Moldovan argued the cause for

respondents FirstEnergy Corp. and Jersey Central Power and Light (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Ms. Moldovan, of counsel; John P. Michalski,

on the brief).

Martin McGowan argued the cause for respondent Nelson Tree Service (Methfessel & Werbel, attorneys; Mr. McGowan, on the brief).

PER CURIAM

Plaintiff Julian Sack appeals from orders dismissing his complaint and granting summary judgment in favor of defendants Jersey Central Power & Light Company and FirstEnergy Corporation (collectively JCP&L), and defendant Nelson Tree Service (Nelson). Sack sought damages from JCP&L and its contractor, Nelson, alleging that JCP&L exceeded its right to clear trees in its right of way on Sack's property. Sack and Nelson settled a claim for damage to property outside the right of way.

JCP&L acquired the right of way by grant in 1964. Within the area of the right of way, JCP&L has the "right to construct, maintain and operate . . . one or more lines for the transmission or distribution of electric energy." JCP&L also has the right "to remove or clear and keep clear any or all trees, underbrush, structures and other obstructions upon said right of way, and such trees beyond the same as in the judgment of Grantee may interfere with or endanger said lines or appurtenances when erected." JCP&L has "the right of entry upon [the] right of way for" those purposes and the right to enter the property beyond the easement "for the purpose of removing endangering or interfering trees and limbs."

"Subject to" JCP&L's exercise of its rights, Sack's predecessors in interest retained for themselves and their successors the right to "farm, cultivate, or use the ground within the limits of said right of way without substantial change of grade, provided that such use shall not interfere with, limit or obstruct any subsequent exercise of the rights hereby granted . . . ." JCP&L is obligated to save the landowner harmless for damage to crops caused by JCP&L's use of "any insecticides or poisonous materials" within the right of way.

When Sack purchased the property in 1984, the towers and power lines had been installed. Between 1984 and 1996, JCP&L pruned trees in the easement area. In 1996, a dispute arose about JCP&L's plan to remove trees from the right of way, which was resolved when JCP&L agreed to replace some of the trees that it planned to remove. Between 1996 and March 2004, JCP&L did not remove any trees. On May 6, 2004, Nelson cleared all trees and shrubbery within the right of way and left seventy-one tree stumps.

Removal of the stumps will cost Sack $19 per stump. After the stumps are removed, he will incur additional expense for disposal and re-grading, filling and seeding the soil.

Sack alleged JCP&L exceeded its rights under the right of way because the trees and shrubs were not interfering with the power lines. The trial court rejected that claim on the ground that JCP&L has an unqualified right to remove trees and vegetation from the right of way.

The trial court's interpretation of JCP&L's rights under the terms of the right of way is unassailable. An "instrument granting or reserving a right of way must be read as a whole and construed to carry out the evident intent of the parties." Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957). When the terms are clear and unambiguous our courts apply them as written without further inquiry. Boss v. Rockland Elec. Co., 95 N.J. 33, 38 (1983).

The terms of this instrument are unambiguous. JCP&L has a right to cut trees within and beyond the right of way. Within the right of way JCP&L has unbridled discretion. Beyond the right of way JCP&L's right is limited to those trees that, in JCP&L's judgment, may interfere with its power lines or equipment. The instrument could not state the distinction more clearly: the "right from time to time to remove or clear and keep clear any or all trees, underbrush, structures and other obstructions upon said right of way, and such trees beyond the same as in the judgment of Grantee may interfere with or endanger said lines or appurtenances when erected."

Other provisions of the instrument cannot be read, as Sack suggests, to require a showing of necessity to permit removal of trees within the right of way. The description of the purposes for which JCP&L may enter the right of way is consistent with JCP&L's unqualified right to remove "any or all" trees and shrubbery within the right of way. It provides JCP&L "the right of entry upon [the] right of way for all of the purposes" authorized. It is JCP&L's "right of entry upon Grantor's lands adjacent to said right of way" that is limited to "the purpose of removing endangering or interfering trees and limbs." While the grantor reserved the right to farm within the area of the right of way, that right is "subject to" JCP&L's right to remove trees and underbrush from the right of way. Thus, nothing in the instrument read as a whole suggests any limitation on JCP&L's right to remove "any or all" trees from the right of way.

JCP&L's reliance on principles that apply when "'the language of the instrument . . . does not settle the matter completely'" is misplaced. Ibid. (quoting Tide-Water Pipe Co. v. Blair Holding Co., Inc., 42 N.J. 591, 604 (1964)). Fundamental principles give the holder of an easement "an implied right to do what is reasonably necessary for its complete enjoyment" provided that it acts "in [a] reasonable manner to avoid unnecessary increases in the burden upon the landowner." Ibid.; see Grammas v. Colasurdo, 48 N.J. Super. 543, 552 (App. Div. 1958) (considering scope of rights implied in an easement granting continued access to stream water). JCP&L, however, has no need to resort to rights implied, it has the express right to remove "any or all" trees and underbrush from the right of way. Cf. Lidgerwood Estates, Inc. v. Pub. Serv. Elec. & Gas Co., 113 N.J. Eq. 403 (Ch. Div. 1933) (construing an easement permitting "necessary appurtenances").

Sack claims JCP&L's prior efforts to accommodate his interests in the right of way and its adoption of "Vegetation Management Specifications" prevent JCP&L from exercising an unqualified right to remove trees and shrubs. But that evidence is not sufficient to raise a genuine question about whether JCP&L relinquished its clear right to remove "any or all" trees and underbrush from the right of way. The holder of an easement may abandon rights by acquiescing in conduct of the landowner adverse to the holder's rights. Fairclough v. Baumgartner, 8 N.J. 187, 190 (1951). Cooperation is not acquiescence in adverse action.

The trial court did not err by rejecting Sack's request to transfer this matter to the Board of Public Utilities (BPU) in order to permit the BPU to determine whether his trees were endangering JCP&L's power lines. A transfer to BPU is appropriate only when the language of the easement raises a factual question within the expertise and jurisdiction of the BPU. Boss, supra, 95 N.J. at 39-41 (construction of easement allowing the utility to do what is "necessary for the proper operation and maintenance of" its system). The terms at issue here, "any or all," do not raise any issue of that sort.

For all of the foregoing reasons, we affirm the grant of summary judgment in favor of JCP&L and Nelson on Sack's claim that JCP&L exceeded it rights under the easement by removing trees and shrubbery from the right of way.

The trial court, however, erred by failing to consider whether Sack is entitled to damages based on the condition in which JCP&L and Nelson left the right of way after removing the trees and shrubs. It is "well recognized . . . that [the holder of an easement must exercise its rights] in such reasonable manner as to avoid unnecessary increases in the burden upon the landowner." Id. at 38 (citations omitted); see Lake Lookover Prop. Owner's Ass'n v. Olsen, 348 N.J. Super. 53, 67 (App. Div. 2002); Island Improvement Ass'n of Upper Greenwood Lake v. Ford, 155 N.J. Super. 571, 574-75 (App. Div. 1978); Restatement (Third) of Property: Servitudes 4.13 (2000). Accordingly, we reverse and remand that claim for further proceedings.

 
Reversed in part and remanded for further proceedings; affirmed in part.

(continued)

(continued)

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A-0154-07T2

November 19, 2008