EAST KENTUCKY POWER COOPERATIVE, INC. v. PAUL F. HILPP AND KATHERINE M. HILPP, HIS WIFE EAST KENTUCKY POWER COOPERATIVE, INC. v. CARL BRADSHAW AND MARGARET BRADSHAW, HIS WIFE
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RENDERED: May 28, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-003250-MR
EAST KENTUCKY POWER COOPERATIVE, INC.
v.
APPEAL FROM MARION CIRCUIT COURT
HONORABLE WILLIAM HALL, JUDGE
ACTION NO. 97-CI-00114
PAUL F. HILPP AND
KATHERINE M. HILPP, HIS WIFE
AND:
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE WILLIAM HALL, JUDGE
ACTION NO. 97-CI-00116
CARL BRADSHAW AND
MARGARET BRADSHAW, HIS WIFE
AND:
APPELLEES
NO. 1997-CA-003252-MR
EAST KENTUCKY POWER COOPERATIVE, INC.
v.
APPELLANT
APPELLEES
NO. 1997-CA-003253-MR
EAST KENTUCKY POWER COOPERATIVE, INC.
APPELLANT
v.
APPEAL FROM MARION CIRCUIT COURT
HONORABLE WILLIAM HALL, JUDGE
ACTION NO. 97-CI-00117
JAMES W. MATTINGLY, JR.,
AND DIANE MATTINGLY, HIS WIFE
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, GARDNER, AND MILLER, JUDGES.
MILLER, JUDGE: East Kentucky Power Cooperative, Inc. (EKPC),
brings these consolidated appeals from October 25, 1997,
interlocutory judgments of the Marion Circuit Court.
We reverse
and remand.
The facts are these: In June 1997, EKPC filed petitions
in the Marion Circuit Court seeking to condemn portions of
appellees' properties located in Marion County, Kentucky.
EKPC,
a rural electric cooperative corporation, is statutorily endowed
with the power of eminent domain.
KRS 279.110(4); see Craddock
v. University of Louisville, Ky., 303 S.W.2d 548 (1957).
The
actions were, thus, practiced in accordance with the Eminent
Domain Act of Kentucky, codified as Ky. Rev. Stat. (KRS) 416.540.670.
EKPC specifically sought right-of-way easements upon
appellees' respective lands in order to “construct, inspect,
operate, repair, rebuild and maintain its electric transmission
line . . . .”
The easements would span appellees' properties and
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be 100 feet wide.
In addition, EKPC sought “access rights” of
ingress and egress
. . . over said property of . . . [appellees]
while in the exercise of the rights and
privileges granted herein, provided, however,
that in exercising said right of ingress and
egress . . . [EKPC] will, if reasonably
accessible, confine said right of ingress and
egress to the easement itself, and if not,
then, whenever practicable to do so, use
regularly established highways or farm roads.
In its petitions, EKPC also sought “the right to locate necessary
guying facilities adjacent to said right of way as required . . .
.”
[Emphasis added.]
EKPC identified same as “guying rights.”
Appellees filed answers challenging EKPC's
condemnations of the properties.
KRS 416.600.
The circuit court
entered interlocutory judgments pursuant to KRS 416.610(4).
Therein the court concluded that EKPC was entitled to condemn 100
ft. right-of-way easements together with the above-described
access and guying rights.
Appellees filed exceptions thereto,
and on October 25, 1997, the circuit court entered amended
interlocutory judgments.
The court decided that EKPC acted
arbitrarily in seeking to condemn
. . . collateral privileges including the
privilege of locating guying facilities off
of the right-of-way, and the further
reservation onto . . . [EKPC] of the
utilization, at its discretion, of any part
of the property of . . . [appellees] as a
means of access from public highways to the
defined right-of-way condemned herein . . . .
The court held that EKPC was entitled to condemn 100 ft. rightof-way easements specifically described in its petitions.
Specifically, the court concluded that EKPC
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. . . shall not travel upon or otherwise
utilize portions of . . . [appellees']
property other than that right-of-way
referred to and described . . . for purposes
of accessing or otherwise utilizing that
described right-of-way . . . .
In effect, the court determined that the petitions did not
sufficiently describe access and guying rights so as to justify
acquisitions of those interests.
Dissatisfied with the amended
interlocutory judgments, EKPC pursued these appeals.1
Resolution of this case focuses upon the crucial
question of whether the taking of properties as set forth in
EKPC's petitions are sufficiently definite and accurate to comply
with our law of eminent domain.
It is well established that the
petitions must sufficiently describe the taken property interests
so as to permit evaluations of just compensation to the
condemnees.
Appellees believe, as does the circuit court, that
the access and guying rights were not sufficiently described in
EKPC's petitions so as to permit such evaluations.
We first
consider the issue of “access rights.”
EKPC sought general and unlocated rights of ingress and
egress over appellees' properties for the purpose of accessing
its primary 100 ft. right-of-way easements.
Appellees objected
to such access rights as being too indefinite and uncertain.
If
EKPC required ingress and egress to its right-of-way easements,
appellees contend that EKPC should have specifically defined and
condemned such access routes.
We think appellees' contention is
erroneous.
1
These appeals were consolidated by order of this Court
entered July 27, 1998.
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It is axiomatic that a right-of-way easement for an
electrical transmission line necessarily includes the right to
maintain and service that line.
27 Am. Jur. 2d Eminent Domain
§914 (1996); see Virginia Electric and Power Company v. Webb, 196
Va. 555, 84 S.E.2d 735 (1954); and Otter Tail Power Company v.
Malme, 92 N.W.2d 514 (N.D. 1958).
The general right of ingress
and egress to access a primary easement for maintenance and
service has been identified as a secondary or unlocated easement.
3 Julius L. Sackman, NICHOLS
ed. 1998).
ON
EMINENT DOMAIN §9.03[3][e] (Rev. 3d
Such secondary easement has been expressly recognized
as naturally flowing from the primary right-of-way easement for
construction of electrical transmission lines:
. . . A utility which acquires a right of
way to construct a high voltage transmission
line also has the right to acquire a
secondary easement of ingress and egress to
construct, operate and maintain the
transmission line. [Footnote omitted.] The
right to enter is an incident of the
easement, and the utility is not required to
specify in its notice of taking the specific
location of points of ingress and egress
because each would depend on the exigencies
then existing. [Footnote omitted.]
Id.
The acquisition of an easement or right
of way for an electric powerline carries with
it a reasonable right of access to enable the
utility to construct and service the
facility, even though the right of access is
not expressly defined in the condemnation
proceedings. [Footnote omitted.] Thus, a
transmission company may acquire by
condemnation an unlocated or secondary
easement of ingress or egress over land for
the purposes of construction and maintenance
of its transmission lines on such land.
[Footnote omitted.]
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27 Am. Jur. 2d Eminent Domain, §914 (1996).
This Commonwealth
has recognized, by judicial fiat, the existence of a “secondary”
or “unlocated” easement.
See Farmer v. Kentucky Utilities
Company, Ky., 642 S.W.2d 579 (1982) (recognizing secondary
easement as is necessary and reasonable for the use of a primary
easement).
As a secondary ingress and egress easement is incident
to the enjoyment of a primary easement, we view the secondary
easement as passing automatically, by operation of law, upon
conveyance of the primary easement.
Company, 92 N.W.2d 514.
the primary easement.
See Otter Tail Power
It exists as an implied concomitant to
We additionally observe that the location
of such secondary ingress and egress easement defies specific
designation.
The location is dependent upon various factors
including: season, time, and existing exigencies.
It is, thus,
unnecessary that the secondary easement of ingress and egress be
mentioned in a condemnation petition, as the secondary easement
passes upon the description of the primary easement.
Upon the foregoing, we view EKPC's petitions as
sufficient in the descriptions of access rights.
We note that
said rights, as secondary ingress and egress easements, are
incident to the primary easements and are elements of
consideration in fixing just compensation.
See Tennessee Gas
Transmission Company v. Million, 314 Ky. 137, 234 S.W.2d 152
(1950) (holding that a general right of ingress and egress over
an entire tract of land for purposes of accessing an easement
thereon constituted an encroachment upon the dominion which
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reduced the land's market value and constituted compensatory
damage in a condemnation action.)
We now turn to the matter of
“guying rights.”
EKPC sought to condemn the rights to locate and anchor
guy wires adjacent to the primary right-of-way easements.
In its
petitions, EKPC did not describe the location, size, or number of
said guy wires.
EKPC simply sought “the right to locate
necessary guying facilities adjacent to said right of way as
required . . . .”
EKPC argues that the exact number and location
of the guy wires cannot be determined with specificity until
erection of the transmission line.
The appellees perceive EKPC's
descriptions of guying rights insufficient so as to permit just
evaluations of the properties taken.
We disagree.
Upon this issue, we are inclined to agree with and
adopt herein the reasoning of United States v. 39.20 Acres of
Land, 143 F. Supp. 623 (N.D. 1955).
Therein, the United States
sought to condemn the right to place and maintain guy wires off
the primary easement “where reasonably necessary to support
line.”
The complaint was challenged as being insufficient in its
description of property to be condemned.
In an erudite opinion,
the Court held that the petition was sufficient and reasoned as
follows:
. . . The right to locate guys and anchors
“where reasonably necessary” seems as
susceptible of definition as does the right
to cut trees “now or hereafter growing” which
might constitute a danger. No one can
determine with absolute certainty at the
present time just what trees might constitute
a danger ten years hence, or what guys or
anchors might be “reasonably necessary” ten
years hence. Each situation involves a
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certain amount of speculation, but . . . the
uncertainty or vagueness is “largely
illusory.” In both situations the Government
seeks an easement in a definite strip of land
for the installation of transmission lines.
In both instances they seek additional rights
outside the defined strips which might be
necessary for the proper protection and
maintenance of the lines. The rights sought
in both instances are subject to definition,
and are defined in the declarations as
definitely as the circumstances will allow.
Id. at 626.
We are thus of the opinion that EKPC's petitions
sufficiently described guying rights under our eminent domain
law.
In sum, we are of the opinion that EKPC's petitions
sufficiently described access and guying rights so as to enable
just compensation therefor.
appellees' properties.
EKPC may thus condemn such rights in
We hold that the circuit court erred in
amending the September 17, 1997, interlocutory judgments and in
entering the amended interlocutory judgments from which these
appeals spring.
For the foregoing reasons, the October 25, 1997,
judgments of the Marion Circuit Court are reversed, and these
causes are remanded for proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES/HILPPS and
MATTINGLYS:
Sherman Goodpaster III
Foster J. Collis
Winchester, KY
Robert Spragens Jr.
Lebanon, KY
BRIEF FOR APPELLEES/BRADSHAW:
Joseph H. Mattingly
Lebanon, KY
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