Flora McDonald v. Mississippi Power Company ( 1997 )


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  •                   IN THE SUPREME COURT OF MISSISSIPPI
    NO. 97-CA-01336-SCT
    OTIS G. McDONALD, FLORA McDONALD, ROBERT
    MORDICA, VON KYLE MODICA, ROBERT R.
    ROYALS, JUDY W. ROYALS, VENCIE PRUITT,
    RUTHIE MAE PRUITT, W. D. YOUNG, WILLIAM
    PAUL ROWELL, BERTIE FLOWERS, SARAH E.
    LIFE, MRS. A. W. LIVINGSTON, DAVID
    LIVINGSTON, ELIZABETH D. LIVINGSTON,
    AUDREY McCLELLAN, TOM McCLELLAN, CECIL
    McCLELLAN, JR., E. H. MORGAN, JOHN A.
    ASHLEY, JANE CAROL ASHLEY, EDNA M.
    SHEPARD, JANIS M. SUMRALL, JAMES THIGPEN,
    KATHERYN WHEELER, TEXANA McFARLAND,
    SAM SIMMONS, HELEN NAYLOR, NANCY
    CARTER, CORRINE SIMMONS, WILLIE MAE
    RAINES, HERMAN DEAS, IRA W. STRINGER,
    ONITA S. STRINGER, ROBERT E. BELL, SR.,
    CHARLES HENRY BELL, LOVELLA HENRY,
    MARTHA C. HENRY, BOBBY RAY KIDD, JONIE
    KIDD, JAMES C. McKIBBON, ANNA TROTTER,
    AUGUSTUS F. BALL, CONNIE BALL, EULA
    HICKSON, LELAND L. STOKES, DIANE R. STOKES,
    MICHAEL R. STOKES, AND KIMBERLE D. STOKES
    v.
    MISSISSIPPI POWER COMPANY, A MISSISSIPPI
    CORPORATION AND SOUTHERN COMPANY, A
    DELAWARE CORPORATION
    DATE OF JUDGMENT:                10/01/1997
    TRIAL JUDGE:                     HON. H. DAVID CLARK
    COURT FROM WHICH APPEALED:       JASPER COUNTY CHANCERY COURT
    ATTORNEYS FOR APPELLANTS:        JOHN M. DEAKLE
    JOHN MICHAEL SIMS
    EUGENE C. THACH, JR.
    WILLIAM R. COUCH
    CURTIS R. HUSSEY
    ATTORNEYS FOR APPELLEES:         S. ROBERT HAMMOND, JR.
    RICHARD L. YODER
    H. R. WILDER
    DONOVAN McCOMB
    NATURE OF THE CASE:                               CIVIL - EMINENT DOMAIN
    DISPOSITION:                                      REVERSED AND REMANDED - 1/14/99
    MOTION FOR REHEARING FILED:                       1/28/99
    MANDATE ISSUED:                                   4/22/99
    BEFORE PRATHER, C.J., McRAE AND WALLER, JJ.
    WALLER, JUSTICE, FOR THE COURT:
    STATEMENT OF THE CASE
    ¶1. Otis G. McDonald, et al. appeals from the entry of an order of the Chancery Court of the First Judicial
    District of Jasper County granting summary judgment to Mississippi Power Company. McDonald raises the
    following issues on appeal.
    I. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI
    POWER IS NOT REQUIRED TO ESTABLISH THAT FIBER OPTIC CABLE IS
    NECESSARY FOR THE PRODUCTION AND DISTRIBUTION OF ELECTRIC POWER
    BEFORE ENTERING INTO A PRIVATE CONTRACT FOR LAYING FIBER OPTIC
    COMMUNICATION CABLE ON THE RIGHTS-OF-WAY.
    II. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI
    POWER HAD THE RIGHT TO UTILIZE ITS POWER LINE EASEMENTS FOR THE
    PURPOSES OF MAKING A PROFIT FROM ACTIVITIES OTHER THAN THE
    SELLING OF ELECTRIC POWER AND THAT SUCH USE WAS NOT AN
    ADDITIONAL SERVITUDE ON APPELLANTS' PROPERTY.
    III. WHETHER THE COURT BELOW ERRED IN HOLDING THAT NO AMBIGUITY
    EXISTED IN THE LANGUAGE OF THE EASEMENTS WHICH FORM THE BASIS OF
    THIS DISPUTE.
    IV. WHETHER THE LOWER COURT ERRED IN DENYING THE APPELLANTS'
    REQUEST FOR INJUNCTIVE RELIEF.
    STATEMENT OF THE FACTS
    ¶2. Otis G. McDonald and the other Plaintiffs (referred to collectively as "McDonald" hereinafter) are
    owners in fee simple of certain tracts of real property located in Jones, Clark and Jasper Counties,
    Mississippi. Mississippi Power Company ("MPC") obtained easements through the Plaintiffs' property by
    way of condemnation, eminent domain proceedings or voluntary easements executed by the Plaintiffs some
    thirty years prior to the filing of this action. Those easements gave MPC the right to "construct, operate and
    maintain electric lines and all telegraph and telephone lines, towers, poles, wires, and appliances and
    equipment necessary or convenient in connection therewith from time to time and counterpoise wire and
    other counterpoise conductors, upon, over, under, and across a strip of land . . ."
    ¶3. MPC and the Southern Company ("Southern") filed a complaint for declaratory relief in the Chancery
    Court of the Second Judicial District of Jones County, Mississippi. This action was later transferred to the
    Chancery Court of the First Judicial District of Jasper County. MPC and Southern sought declaration that
    they had the right to use the existing easements to install and utilize fiber optic cables. McDonald filed a
    counter-claim seeking injunctive relief and damages resulting from MPC's installation of the fiber optic
    cable.
    ¶4. The Chancery Court of the First Judicial District of Jasper County, Honorable H. David Clark, II,
    presiding, entered an order of summary judgment and final judgment in favor of MPC. The record before
    this Court contains detailed conclusions of law, as well as findings of fact, made by Chancellor Clark. Many
    of the findings made by the chancellor are relevant here and are paraphrased below. As a matter of law, the
    chancellor found:
    1. The easements to be "clear and unambiguous."
    2. The language in the easements which states, "appliances and equipment convenient and necessary .
    . . included not only telephone and telegraph lines, but also fiber optic cable."
    3. The fact that MPC profits from the fiber optic lines is irrelevant, since the easements were private
    contracts.
    4. The right to install and operate fiber optic cable is a legal issue to be determined from the four
    corners of the instrument.
    5. "Necessary and convenient" is utilized in its common usage, rather than "ascribing to those terms
    any special meanings used by the Public Service Commission."
    6. MPC has the right to "utilize its assets as it sees fit" as long as it complies with the four corners of
    the easements.
    7. Omission of "telephone and telegraph" in some of easements is immaterial, since "appliances and
    equipment necessary and convenient therewith, or other similarly broad language is broad enough to
    encompass the fiber optic cable."
    8. MPC's successors and assigns have no greater rights than MPC originally had under the
    easements.
    9. Laying of fiber optic cable is well within the express or implied language of the easements. Further,
    MPC has the right to enter the land for purposes of "installing, operating, and maintaining the subject
    communication line." MPC has "an unfettered right . . . including but limited to, leasing or selling
    excess capacity on said lines, without further compensation to the landowners."
    10. Southern is not responsible in any way for the actions of MPC.
    11. There is no genuine issue as to any material fact in controversy, and MPC and Southern are
    entitled to prevail as a matter of law.
    STANDARD OF REVIEW
    ¶5. This Court's standard of review for summary judgment is well-settled and was recently restated in
    Aetna Casualty & Sur. Co. v. Berry, 
    669 So.2d 56
     (Miss. 1996). In Berry, this Court stated:
    The standard for reviewing the granting or denying of summary judgment is the same standard as is
    employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting
    or denying summary judgment and looks at all the evidentiary matters before it--admissions in
    pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the
    light most favorable to the party against whom the motion has been made. If, in this view, the moving
    party is entitled to a judgment as a matter of law, summary judgment should forthwith be entered in his
    favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion
    for summary judgment obviously are present where one party swears to one version of the matter in
    issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of
    fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt.
    Berry, 669 So.2d at 70 (quoting Mantachie Natural Gas v. Mississippi Valley Gas Co., 
    594 So.2d 1170
    , 1172 (Miss. 1992)); Caldwell v. Alfa Ins. Co., 
    686 So.2d 1092
    , 1095 (Miss. 1996).
    ¶6. Moreover, a motion for summary judgment should be denied unless the trial court finds beyond any
    reasonable doubt that the plaintiff would be unable to prove any facts to support his/her claim. Yowell v.
    James Harkins Builder, Inc., 
    645 So.2d 1340
    , 1343 (Miss. 1994); McFadden v. State, 
    580 So.2d 1210
    , 1214 (Miss. 1991). The trial court cannot try issues of fact on a Rule 56 motion; it may only
    determine whether there are issues to be tried. Yowell, 645 So.2d at 1343-44; Brown v. Credit Ctr.,
    Inc., 
    444 So.2d 358
    , 362 (Miss. 1983).
    ¶7. In considering a motion for summary judgment, the trial court must view all the evidence (admissions in
    pleadings, depositions, affidavits, answers to interrogatories, etc.) in the light most favorable to the non-
    moving party; and, upon this consideration, if the moving party is entitled to judgment as a matter of law, the
    motion should be granted; otherwise, it should be denied. Sanford v. Federated Guar. Ins. Co., 
    522 So.2d 214
    , 217 (Miss. 1988); Southern Farm Bureau Cas. Ins. Co. v. Brewer, 
    507 So.2d 369
    , 370
    (Miss. 1987); Brown, 444 So.2d at 363.
    When a motion for summary judgment is made and supported as provided in this rule, an adverse
    party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits
    or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue
    for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
    Brown, 444 So.2d at 364 (quoting M.R.C.P. 56(e)).
    DISCUSSION OF THE LAW
    I. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI
    POWER IS NOT REQUIRED TO ESTABLISH THAT FIBER OPTIC CABLE IS
    NECESSARY FOR THE PRODUCTION AND DISTRIBUTION OF ELECTRIC POWER
    BEFORE ENTERING INTO A PRIVATE CONTRACT FOR LAYING FIBER OPTIC
    COMMUNICATION CABLE ON THE RIGHTS-OF-WAY.
    II. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI
    POWER HAD THE RIGHT TO UTILIZE ITS POWER LINE EASEMENTS FOR THE
    PURPOSES OF MAKING A PROFIT FROM ACTIVITIES OTHER THAN THE
    SELLING OF ELECTRIC POWER AND THAT SUCH USE WAS NOT AN
    ADDITIONAL SERVITUDE ON APPELLANTS' PROPERTY.(1)
    ¶8. MPC obtained its easements through a certificate of public necessity obtained from the Public Service
    Commission ("PSC"). McDonald argues that in order for MPC to lay fiber optic cable it must obtain new
    easements. The large majority of the easements(2) in dispute contain the following language:
    ...do hereby grant to said Mississippi Power Company, its successors and assigns the right, without
    limitation as to duration of use, to construct, operate and maintain electric lines and all telegraph and
    telephone lines, towers, poles, wires, and appliances and equipment necessary or convenient in
    connection therewith from time to time....
    It is clear that the above clause gives MPC the right to maintain telephone lines which are "necessary or
    convenient" in providing electrical services. The first question here is whether a fiber optic cable is the
    equivalent to a telephone line. We have addressed a similar question in Ball v. American Telephone &
    Telegraph Co., 
    227 Miss. 218
    , 
    86 So.2d 43
     (Miss. 1956).
    ¶9. Ball held that an easement acquired for telephone and telegraph service could also be used to carry
    television signals. Id. at 226, 86 So.2d at 45. With this conclusion we wholly agree. Under the above
    easement, MPC has the right to maintain a telephone line for use in connection with providing electrical
    service. The clear intent of the easement was to grant MPC the right to install and maintain telephone lines
    to be used in connection with the providing of electrical services. A fiber optics cable is nothing more than a
    technologically advanced or new type of telephone line. The chancellor was correct in holding that the
    granting clause of the above easement gives MPC the right to maintain a fiber optics cable.
    ¶10. However, to say simply that MPC has the right, under the present easements, to utilize a fiber optics
    cable does not fully answer the question. MPC wishes to sublet space on its fiber optics cable to third
    parties for uses other than providing electricity. Unlike the easements before the Ball Court, MPC's current
    easements contain limiting language which precludes them from utilizing the fiber optics cable for anything
    but services provided in connection with supplying electricity. According to the phrase in question, MPC's
    use of "telegraph and telephone lines, towers, poles, wires, and appliances and equipment" is limited to "in
    connection therewith" MPC's service of providing electricity to its customers. Although it would not
    constitute an additional servitude on the property, MPC without more definite easements simply does not
    have the authority. Since MPC drafted a number of the easements in question, they are interpreted most
    favorably to the landowner. Capital Elec. Power Ass'n v. Hinson, 
    226 Miss. 450
    , 463, 
    84 So.2d 409
    ,
    413 (1956). We find that the chancellor erred in holding that the language of the above easements permitted
    MPC to sublease space on its fiber optics cables for purposes other than those which are in connection
    with providing electricity.
    ¶11. Although unclear in the record as to exactly which other easements were the subject of the chancellor's
    opinion, it is apparent that he considered at least two (2) easements which were obtained through
    condemnation or eminent domain proceedings. The power of eminent domain is generally construed in
    favored of the landowner. Berry v. Southern Pine Elec. Power Ass'n, 
    222 Miss. 260
    , 274, 
    76 So.2d 212
    , 217 (1954). At page two hundred forty-eight (248) of the record, there is an easement obtained from
    Elige L. Dase, et al, which contains the following language:
    ...for the erection and maintenance of poles, wires and other facilities and appurtenances necessary to,
    or used in connection with, an electrical transmission distribution line or lines...
    As with the previous easements, this too contains the language which is broad enough to encompass the use
    of communications lines, but limits the use of that incident to providing electrical service.
    ¶12. A review of the record indicates only the above two (2) types of easements, though it is not entirely
    clear whether or not these were all that were at issue. We find it unnecessary to reach the other contentions
    raised by McDonald under issues I and II.
    III. WHETHER THE COURT BELOW ERRED IN HOLDING THAT NO AMBIGUITY
    EXISTED IN THE LANGUAGE OF THE EASEMENTS WHICH FORMED THE BASIS
    OF THIS DISPUTE.
    ¶13. It is McDonald's argument that the easement is ambiguous on its face, and parole evidence should be
    allowed to determine the intent of the parties. Specifically, he argues that because the term "under" is found
    in the granting clause and not in the descriptive clause the easement is ambiguous. The granting clause of the
    easements allows MPC to "operate and maintain . . . equipment necessary or convenient therewith . . .
    upon, over, under, and across . . . ." (emphasis added). In the descriptive portion of the easements, the
    following additional language is found. "The 125 foot wide right of way herein granted over and across the
    above described land . . . ." (emphasis added). McDonald argues that the omission of the word "under"
    from the descriptive portion renders the whole easement ambiguous. We disagree.
    ¶14. The question of whether ambiguity exists within an instrument is one of law. Lamb Constr. Co. v.
    Town of Renova, 
    573 So.2d 1378
    , 1383 (Miss. 1990). Where there is conflicting language found in the
    granting clause and the descriptive or recital clause, the granting clause controls. Mississippi Cent. R.R.
    Co. v. Ratcliff, 
    214 Miss. 674
    , 684, 
    59 So.2d 311
    , 314 (1952); Dossett v. New Orleans Great N.
    R.R., 
    295 So.2d 771
    , 774 (Miss. 1974); Jones v. New Orleans & N. E. R. Co., 
    214 Miss. 804
    , 814,
    
    59 So.2d 541
    , 543 (1952). The granting clause supraclearly gives MPC the right to install underground
    cable.
    IV. WHETHER THE LOWER COURT ERRED IN DENYING THE APPELLANTS'
    REQUEST FOR INJUNCTIVE RELIEF.
    ¶15. In lieu of the foregoing findings, we find it unnecessary to reach the Appellants' fourth assignment of
    error.
    CONCLUSION
    ¶16. MPC's rights, and those of its successors and assigns, are limited by the language of the easements in
    question, the plain language of which limits the use of telephone lines to be in connection with providing
    electrical services. As such, it was erroneous for the chancellor to grant MPC's motion for summary
    judgment. This action is reversed and remanded for proceedings not inconsistent with this opinion.
    ¶17. REVERSED AND REMANDED.
    PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, ROBERTS, SMITH
    AND MILLS, JJ., CONCUR.
    1. We consider McDonald's first two assignments of error together, as the following analysis is germane to
    both issues.
    2. The record indicates that the chancellor had seventy-seven (77) before him, though we are unable to
    precisely identify the seventy-seven (77) easements in the record.
    

Document Info

Docket Number: 97-CA-01336-SCT

Filed Date: 10/1/1997

Precedential Status: Precedential

Modified Date: 10/30/2014