Cooke v. WAKE ELECTRIC MEMBERSHIP CORPORATION

DeNNY, J. The sole question presented on this appeal is whether or not the court below committed error in sustaining the defendant’s motion for judgment as of nonsuit and in entering judgment accordingly. As we interpret plaintiff’s evidence, before the Highway and Public Works Commission built the southbound lane of the dual highway to the west of what is now the northbound lane of U. S. Highway No. 1, the defendant’s power line occupied space west of the right of way of U. S. Highway No. 1 and approximately the same distance therefrom as the present power line does from the western edge of the present right of way of the new dual-lane highway. However, in constructing the southbound lane of the new dual highway, the Highway Commission left a strip of land approximately 30 feet wide between the north and south lanes of the new highway and extended its right of way, according to plaintiff’s Exhibit A, approximately 50 feet west of the western edge of the pavement of the southbound lane of the dual highway. Therefore, since the plaintiff’s land slopes toward the highway at a grade of about forty-five per cent, the Highway Commission, in grad *458 ing for the new highway, necessarily left a high bank west of the new southbound lane through the plaintiff’s farm. Consequently, there is no room between the southbound lane of the dual highway and the highway bank to the west of said lane for the location of the defendant’s power line. Hence, the defendant cut its right of way through the woods near the top of the embankment. In light of these facts, we think this appeal may be disposed of by the consideration and determination of these questions: (1) Is the defendant entitled to relocate its power line on the premises of the plaintiff under the terms of the easement held by it, without paying additional compensation therefor? (2) Did the plaintiff have the right to determine where the new right of way should be located, and if so, did he waive such right by his failure to object to the location chosen by the defendant until the work in connection with the relocation of the line was approximately two-thirds finished? Ordinarily, when an easement is granted in general terms which do not fix its location, “the owner of the servient estate has the right in the first instance, to designate the location of such easement. This right, however, must be exercised in a reasonable manner, with due regard to the rights of the owner of the easement. In this situation, if the owner of the servient estate does not designate the location, the person entitled to an easement may select a suitable route, taking into consideration the interest and convenience of the owner of the land over which the easement passes. (Harper v. Jones, 35 Ohio Ops. 524, 49 Ohio L. Abs. 289, 74 N.E. 2d 397.) ... It has also been declared that if a deed so authorizes, the grantee of an easement may shift the location of an easement, but a right in a deed to 'alter, repair, or renew’ does not convey such authority.” 17 Am. Jur., Easements, sections 86 and 87, page 987, et seq., and cited cases. Ford v. White, 179 Ore. 490, 172 P. 2d 822; Quatchita Rural Electric Co-Operative Corp. v. Bowen, 203 Ark. 799, 158 S.W. 2d 691. Unless there is an express grant which provides otherwise, ordinarily, when the location of an easement is once selected it cannot be changed by either the landowner or the owner of the easement without the other’s consent. 17 Am. Jur., Easements, section 87, page 988, et seq.; 28 C.J.S., Easements, section 84, page 763; Drainage Dist. v. Holly, 213 Ark. 889, 214 S.W. 2d 224. The easement held by the defendant not only gave it the right to locate but to relocate its power line on the premises of the plaintiff. However, the poles were to be so located as “to form the least possible interference to farm operations,” and such restriction was to prevail only “so long as it does not materially increase the cost of construction.” The easement further expressly provides that the line may be *459 located, relocated or replaced thereon in or upon all streets, roads or highways abutting the lands described in the right of way agreement. In Quatchita Rural Electric Co-Ooperative Corp. v. Bowen, supra, the landowner signed a right of way agreement in pertinent terms identical with the right of way agreement involved in this appeal. At the time the agreement was signed, however, the Co-Operative’s agent exhibited a plat showing that the power line would cross only a corner of the owner’s land and only two poles would be located thereon. Later it developed that the corporation had difficulty in obtaining some other rights of way and built its line for a distance of one-half mile on the defendant’s land. The Court held that the right of way agreement permitted the change in the route but upheld damages assessed for the timber cut on the substituted route, there having been no timber on the route shown on the map. It would seem that in this case damages should have been assessed for the additional length of the right of way. The Court said, however, no additional damages were assessed, and there was no appeal from the failure to do so. In the case before us, the present right of way has no greater length or width than the original one. Certainly, a power line is more easily serviced when it is near the highway. Furthermore, when it is a line from which customers are to be served on both sides of the highway, it is more practical to locate the power line as near as feasible to the highway. Ordinarily, a power line when located near the highway interferes less with farming operations than it does when it runs across a farm several hundred feet from the highway. Consequently, in our opinion, since the defendant chose to locate its right of way originally along U. S. Highway No. 1, when the State Highway and Public Works Commission took that right of way for highway purposes, the defendant had the right, under the terms of its right of way agreement, to relocate its line adjacent to or as near as practicable to the new highway without paying any additional compensation therefor. However, if the plaintiff, prior to the relocation of the line, had so developed the area selected by the defendant as to make the location of the defendant’s line thereon a dangerous hazard to the occupants thereof, in our opinion the plaintiff would have had the right to designate another suitable route, taking into consideration the rights and convenience of the respective parties, but which'would, as near as practicable, eliminate the hazard involved to the occupant or occupants of the involved area. We do not think, however, in relocating its right of way under the conditions disclosed on the record in this case, the defendant would have had the right to locate its line substantially farther away from the new highway than it was previously located from the old highway, without the consent of the plaintiff, since it appears to have been rea *460 sonable and practicable to locate the line substantially the same distance from the new highway. The mere fact that the plaintiff decided he wanted the line to be 250 or 300 feet from the highway, and according to his testimony, offered to pay the extra cost which would be involved in so locating the line, in our opinion, imposed no legal obligation on the defendant to so locate the line. Certainly the defendant under the terms of the right of way agreement would have had no right without the consent of the plaintiff-to place its power line on his premises some 250 or 300 feet from the highway. Neither would it seem to have the right to erect an extension or extensions across the premises of the plaintiff to serve other customers without additional compensation therefor. Jackson Electric Membership Corp. v. Echols, 84 Ga. App. 610, 66 S.E. 2d 770. Since the plaintiff did not see fit to go upon the premises and agree upon a new location for the defendant's power line, as he was invited to do, the defendant had the right to select the site for the relocation, provided, the site selected did not violate the provisions of its right of way agreement, and in our opinion it did not. Smith v. Jackson, 180 N.C. 115, 104 S.E. 169. In the last cited case, the plaintiff claimed an easement by prescription which entitled him to use a road over the defendant’s land. The defendant was permitted to testify, over the objection of plaintiff, as to why he closed the road in controversy and that he had built a new road which was more beneficial to his farm and over which the plaintiff could reach the public highway. This Court said: “The evidence offered was plainly irrelevant and incompetent, and calculated to mislead and prejudice the jury. It was the title to the easement which was the issue to be decided, and not whether it was injurious to the defendant’s farm. It matters not how detrimental the lane was to the defendant’s land, if the plaintiff had acquired title to the use of that lane by prescription it is as effective as if he had acquired title by deed. The defendant could not deprive him of his easement by providing another outlet.” The plaintiff does not challenge the right of the defendant to relocate its power line. Even so, he does not concede that the defendant had the right to run its line .across the back of his farm. His own testimony in this respect was to the .effect that if the defendant would move its power line back 250 or 300 feet he would pay for the additional cost involved and give the right of way. Furthermore, the plaintiff in his testimony limits the cause for the decrease in the value of his farm not to the location of the defendant’s right of way, but to the decreased “value of my land between the right of way easement and the highway.” It is clear from the evidence in this case that the construction *461 of the southbound lane of the present dual highway on the property of the plaintiff has greatly lessened the accessibility of the plaintiff from his premises to the highway, but there is no evidence that the present right of way of the defendant interferes with the plaintiff’s accessibility to the present highway any more than the original line did to the old highway. Moreover, this defendant is in no way responsible for the physical condition in which the plaintiff’s premises were left as a result of the construction of the southbound lane of the present U. S. Highway No. 1. A careful consideration of the evidence disclosed by the record herein is insufficient to show that the plaintiff has sustained any loss by reason of the relocation of the defendant’s power line for which he is entitled to recover from the defendant. For the reasons stated, the judgment of the court below is Affirmed. JOHNSON, J., not sitting.