7th Circuit affirms communications company’s easement use in trespass case

The joint use of a Jeffersonville easement between a Louisville gas company and a communications company is permissible under Indiana law, the 7th Circuit Court of Appeals held Monday. As such, it found no basis for relief against the communications company for a man fighting its use of the easement.

Stephen West inherited a small plot of land in Jeffersonville that hosts a 248-foot-tall utility transmission tower that carries power lines for Louisville Gas & Electric Company. The lines run between Indiana and Kentucky, authorized by a utility easement entered into by West’s predecessors in 1938.

LG&E eventually permitted Charter Communications Inc. to install on the towers a fiber optic cable that carries telephone and cable television services and internet data, but West had previously refused LG&E’s request to do the installation. As a result, West sued both Charter and LG&E for declaratory judgment that the easement did not authorize the installation and asserting breach of contract, trespass and unjust enrichment.

The U.S. District Court for the Southern District of Indiana dismissed all claims against Charter when it concluded Charter’s use of the easement on West’s property was authorized.

The 7th Circuit likewise dismissed West’s appeal in April 2019, finding it did not have appellate jurisdiction to hear the case because neither LG&E nor West asked for an entry of final or binding judgment resolving the claims against LG&E based on the rationale of the decision dismissing Charter.

After settling the dispute with LG&E, West filed a second appeal in Stephen R. West v. Louisville Gas & Electric Company, and Charter Communications, Inc. and Spectrum Mid-America, LLC, 19-2442.

In its Monday opinion, the 7th Circuit noted West did not contend that Charter’s agents or employees caused damage within the scope of 47 U.S.C. § 541(a)(2)(C) while on his land to install the cable. Rather, he denied that the tower was “dedicated for compatible uses.”

“The telecom cable on the towers does not cause any injury to West and is not a new ‘occupation’ of his land for the purpose of Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982),” Circuit Judge Frank Easterbrook wrote for the 7th Circuit. “The thing occupying some of West’s land is the 248-foot-tall tower, not any particular cable strung from one tower to another.

“… Information passes across West’s land constantly: over-the-air radio and TV signals, cell phone communications (voice and data), microwaves, and more,” Easterbrook continued. “None of that differs from laser light travelling through glass fiber.”

West continued to assert on appeal that the easement’s grant extends only to Louisville Gas and its successors, which doesn’t include Charter, and that § 541(a)(2) can’t be used to allow a third party like Charter to add a new interior of a lightning cable to the towers.

“West relies principally on decisions of other circuits, which he reads as holding that ‘dedicated for compatible uses’ in §541(a)(2) means ‘dedicated to the public for compatible uses’ — and whatever the 1938 easement may do, it does not open the transmission corridor to the general public,” the 7th Circuit wrote. “… Adding language to a statute — turning ‘dedicated for compatible uses’ into ‘dedicated to the public for compatible uses’ — is a legislative rather than a judicial task. It is not at all clear to us that the decisions to which West points have done any such thing.”

The court thus found Indiana is permissive and treats easements as permitting new uses compatible with the original grant. Additionally, the 7th Circuit noted that most states permit the holder of an easement to allow third parties to use rights available under the easement and that it has not seen anything to suggest that Indiana would reject that principle.

“So as far as we can tell, then, the use that Louisville Gas and Charter have jointly made of the easement is permissible under Indiana law. … Now that West and Louisville Gas have settled their own differences about the scope of the 1938 easement, there is no basis for any relief against Charter,” the 7th Circuit concluded.

“Whether other states’ laws, or other situations (such as an easement for a buried gas pipeline being used as the springboard for a cable company to build towers and string lines above the corridor), would justify a more restrictive reading of what has been ‘dedicated for compatible uses’ is a question for some other case.”

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