Carroll Electric Cooperative Corp. v. Benson

848 S.W.2d 413, 312 Ark. 183, 1993 Ark. LEXIS 135
CourtSupreme Court of Arkansas
DecidedMarch 1, 1993
Docket92-1122
StatusPublished
Cited by8 cases

This text of 848 S.W.2d 413 (Carroll Electric Cooperative Corp. v. Benson) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carroll Electric Cooperative Corp. v. Benson, 848 S.W.2d 413, 312 Ark. 183, 1993 Ark. LEXIS 135 (Ark. 1993).

Opinion

Jack Holt, Jr., Justice.

The issue presented is whether the appellant, Carroll Electric Cooperative Corporation (hereafter “Carroll Electric”), had a right pursuant to a 1962 easement to extend certain existing power lines across the western portion of appellees’, Joe and Amelia Benson (hereafter “the Bensons”), property or was required to acquire a new easement. We hold that the trial court erred in determining that Carroll Electric could not extend this power line under a 1962 easement but remand to the trial court for its determination of the reasonableness of the route chosen for the line.

On May 12,1962, the appellees’ predecessor in title, Arrow Land Company, Inc., granted Carroll Electric the following described right-of-way easement:

KNOW ALL MEN BY THESE PRESENTS, that we Arrow Land Company, Inc. . . .do hereby grant unto the Carroll Electric Cooperative Corporation. . .the right to enter upon the lands of the undersigned. . .and to place, construct, operate, repair, maintain, convert to higher or lower voltage, to extend lines for other service upon the above lands and to extend lines from services on this land to and for service to other property and services beyond the above described lands, and overhead or underground electric transmission or distribution line or cable, such overhead lines or underground cable to serve as distribution or transmission line or both and to excavate, to cut, and trim trees and shrubbery to the extent necessary to lay cable and to keep clean said electric lines or cable, and to cut down from time to time all dead, weak or dangerous trees that are tall enough to strike wires in falling.
The undersigned agree that all poles, wires, and other facilities, including any main service entrance equipment, installed on the above described lands at the Cooperative’s expense shall remain the property of the Cooperative, removable at the option of the Cooperative upon termination of service to or on said lands.
In granting this easement, it is understood that all pole locations, only a single pole and appurtenances will be used, and that the location of the poles will be such as to form the least possible interference to farm operations, so long as it does not materially increase the cost of construction.

(Emphasis added.)

Three years later, in 1965, this property, Pointe Clear Heights Subdivision, was platted. In 1967, in accordance with this right-of-way easement, Carroll Electric constructed an overhead electric line into the center of the Bensons’ property to serve the residence now owned by the Bensons.

The Bensons filed this lawsuit on June 29,1992 after Carroll Electric entered their land and cut down numerous large trees to clearcut a path for the construction of an overhead electric transmission line on the west side of their property to provide electric power to a residence on property in Pointe Clear Heights Subdivision owned by Mr. Larry Cox. Carroll Electric placed several tall poles within the clearcut path in preparation for stringing the overhead transmission line across the Bensons’ property. Carroll Electric did not confer with the Bensons prior to cutting the path or placing poles nor did it give the Bensons an opportunity to “delimit” (lay out the boundary of) the easement. The Bensons approached the electric company and offered to permit underground wiring but the company refused.

The Bensons filed a complaint in Benton County Chancery Court requesting a preliminary as well as a permanent injunction enjoining Carroll Electric from further constructing overhead transmission lines across their property. The chancery court granted the preliminary injunction. Thereafter, the Bensons amended their complaint to ask for a mandatory injunction ordering Carroll Electric to remove all new poles and new overhead electric lines placed on the clearcut path across their property. Both sides filed motions for summary judgment, and the matter was submitted to the court. After considering the stipulated exhibits and facts, the chancellor granted the Bensons’ countermotion for summary judgment. In reaching this decision, the chancellor made the following findings of fact and conclusions of law:

6. On May 12, 1962 plaintiffs’ predecessor in title, Arrow Land Company, Inc., granted Defendant, Carroll Electric Cooperative Corporation, a “floating” (not described by metes and bounds) right-of-way easement across plaintiffs’ land and adjoining land. The legal description of said right of way easement includes all of the land within Pointe Clear Heights Subdivision, Benton County, Arkansas.
7. The plat of Pointe Clear Heights Subdivision was filed of record in 1965.
8. In 1967, defendant constructed an overhead transmission line across the Benson’s property to provide electric power to the residence on the property. Defendant has constructed other overhead electric lines throughout Pointe Clear Heights Subdivision to provide electric power to approximately 15 other residences in the subdivision. . . .Defendant has utilized said electric lines for many years to provide electric power to said residences.
9. Defendant proposes to construct a new overhead electric line across plaintiffs’ property to provide electric power to a new residence under construction on property owned by Larry Cox, which adjoins Lot 13, Block 7 of the Bensons’ property. The proposed new electric line would be an extension of an existing electric line. Defendant is legally obligated to provide electric service to the Cox property.
10. Employees of defendant recently entered upon the plaintiffs’ property and cut down numerous large trees to clearcut a path across plaintiffs’ lands for construction of the proposed new overhead electric line. The new electric line was partially constructed prior to entry of the Preliminary Injunction in this case. One additional pole would be installed on the Bensons’ property if the line is completed.
11. Defendant has not obtained a new right-of-way grant from plaintiffs authorizing defendant to construct a new electric line across plaintiffs’ property.
12. The “floating” right of way granted to defendant by plaintiffs’ predecessor in title has become fixed. In Bradley v. Arkansas Louisiana Gas Company, 280 Ark. 492, 659 S.W.2d 180 (1983) the Supreme Court held:
. . .Undesignated grants of rights-of-way may be termed “floating rights-of-way” until located and utilized but thereafter such easements become fixed.
. . .After the location is designated and used it cannot thereafter be redesignated at a different location without another grant.
13. A right-of-way grant is to be construed against the party preparing it, and in construing the grant the objective is to ascertain the intent of the parties.
14.

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Bluebook (online)
848 S.W.2d 413, 312 Ark. 183, 1993 Ark. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-electric-cooperative-corp-v-benson-ark-1993.