2020 Code of Alabama
Title 37 - Public Utilities and Public Transportation.
Chapter 16 - Broadband Using Electric Easements Accessibility Act.
Section 37-16-7 - Civil Action by Owner of Interest in Real Property Subject to Easement; Damages; Condemnation; Receipt of Rights by Grant or Agreement; Motice of Installation; Liability.

Universal Citation: AL Code § 37-16-7 (2020)

Section 37-16-7

Civil action by owner of interest in real property subject to easement; damages; condemnation; receipt of rights by grant or agreement; motice of installation; liability.

(a) If the owner of an interest in real property subject to an electric easement contends that the owner's property has been taken, injured, or destroyed by the construction, installation, use, or enlargement of broadband systems within the electric easement on the owner's property and the electric easement does not expressly provide for such, the owner may file a civil action in the circuit court for the county in which the property is located to recover damages as specified by this section. All such actions must be brought within three years after the later of: (1) August 1, 2019; or (2) the date broadband systems are first constructed or installed within the electric easement on the owner's real property. Nothing in this chapter shall revive any right or remedy which may have become barred by lapse of time, or by any law of this state, prior to August 1, 2019.

(b)(1) In any action under subsection (a), the measure of damages shall be an amount equal to the difference, if any, between the following:

a. The fair market value of the owner's real property immediately before the construction or installation of broadband systems within the electric easement on the owner's real property.

b. The fair market value of the owner's real property immediately after the construction or installation of broadband systems within the electric easement on the owner's real property.

(2) The damages, if any, shall be fixed and shall not be deemed to continue, accumulate, or accrue. The judgment in any such action for the plaintiff shall include the plaintiff's costs and litigation expenses. Costs and litigation expenses authorized by this section may be claimed, taxed, and awarded under the same procedures that apply to costs in other civil actions. Payment of the judgment in any such action shall vest in the electric provider all property rights necessary to construct, use, install, operate, replace, and maintain, from time to time, the broadband systems within the electric easement on the owner's real property and the electric easement shall be thereafter permanently expanded to include the right to construct, use, install, operate, replace, and maintain the broadband system and broadband services. The judgment shall have the same effect as a conveyance executed by the owner in due form under applicable law and shall run with the land. A certified copy of the judgment may be filed by the electric provider, a broadband affiliate, or other broadband operator in the land records of the county in which the subject property is located, but is not required to make such broadening of the electric easement effective. The expansion for the broadband system shall include the broadband system within the maintenance, egress, and ingress provisions of the electric easement.

(c) The civil action and measure of damages authorized by this section shall be the exclusive remedy for any and all claims that the owner's property has been taken, or the scope of the electric easement exceeded, by the construction, installation, use, or enlargement of broadband systems within the electric easement on the owner's property, and the owner may not assert any other theory, claim, or cause of action, either at law or in equity, nor recover any other damages, including, without limitation, consequential, compensatory, and punitive damages, or equitable relief.

(d) An owner bringing an action under this section may not bring an action on behalf of a class. The limitation in this subsection is a substantive limitation and allowing an owner to bring a class action or other representative action for a violation of this chapter would abridge, enlarge, or modify the substantive rights created by this section.

(e) An electric provider may acquire by condemnation ways, rights-of-way, and easements, without limitation as to width, on, over, under, or across the lands or easements of others, to erect, construct, replace, use, install, operate, and maintain advanced communications capabilities. Such condemnation is to be conducted in accordance with the procedures of Chapter 1A of Title 18, except as otherwise provided in this chapter.

(f) An electric provider, broadband affiliate, or unaffiliated broadband operator or broadband service provider may receive such rights from an owner of real property by service agreement or service regulation, membership agreement, license agreement, or other agreement to serve the property with advanced communications capabilities without granting an easement or right-of-way. The grant or agreement may permit the construction, installation, replacement, operation, use, and maintenance of the advanced communications capabilities on the property without the requirement of further consent of any other tenant, concessionaire, or occupant of that property.

(g) With respect to the installation of broadband systems within an electric easement in effect prior to August 1, 2019, the electric provider shall provide the same notice as is required by the express terms of the electric easement, if any, or as required by other applicable law for the construction or installation of the electric delivery system within the electric easement. With respect to the installation of broadband systems within an electric easement that is acquired other than by condemnation after August 1, 2019, the electric provider shall provide such notice as is required by the express terms of the document creating the electric easement, if any; or if there is no written document creating the electric easement or no express terms in the document, the electric provider shall provide notice to the owner of the real property subject to the electric easement by informing such owner of the installation of the broadband system within the electric easement prior to installation. Notice shall be sufficient if mailed to the name and address of the owner or owners listed in the real property ad valorem tax records for the county where the real property is located. Nothing in this section shall require the notice from the electric provider when the electric easement is acquired by condemnation or pursuant to an expansion of the electric easement by civil action commenced by the owner.

(h) Nothing in this chapter shall be deemed to relieve the broadband operator, broadband service provider, or electric provider from liability for bodily injury or physical damage to real or personal property located adjacent to the electric easement.

(Act 2019-326, §1.)

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