What are secondary easements?
- A secondary easement is a right of access to a power line easement for repair and maintenance.
- The secondary easement is not considered a separate interest, but is a natural incident to the easement itself.
- The secondary easement is an “unlocated easement” and need not be specifically described in condemnation proceedings.
Secondary easements are essential to the utility of power line easements. As stated by the NC Supreme Court “(t)he mere right-of-way for an electric transmission line would be of little value without the right to maintain and protect the line.” Weyerhaeuser Co. v. Carolina Power & Light Co., 257 N.C. 717, 720-721, 127 S.E.2d 539, 542 (1962).
A secondary easement may be created by:
- an express grant, e.g. deed,
- acquired by condemnation, or
- implied from an express grant or condemnation judgment.
Weyerhaeuser Co. v. Carolina Power & Light Co., 257 N.C. 717, 127 S.E.2d 539 (1962) (a deed conveying an easement constitutes a contract to be construed according to the general rules governing the construction of contracts in ascertaining the intent of the parties as to the extent of the easement conveyed)
The issue addressed by the North Carolina Supreme Court was the payment of additional compensation to the landowner for the value of trees as and when cut. The Court held that the landowner was not entitled to additional compensation even if the consideration paid upon entering into the deed of easement was inadequate. The landowner was bound by his predecessor’s bad bargain.
An express grant should include a general description of secondary easements.
DeRossett v. Duke Energy Carolinas, 206 N.C. App 647, 698 S.E.2d 455 (2010)
- In 1942 Duke’s predecessor, Nantahala P & L Co., condemned an easement for a transmission line across a tract of land situated in Graham Co. A consent judgment was entered granting Nantahala an easement.
- Since 1942 the tract of land has been divided by various conveyances and transfers by operation of law among multiple owners.
- The plaintiffs owned a portion of the original tract outside the power line easement. They sued to quiet title to their parcel after Duke’s agents crossed their parcel, altered a road, and destroyed a bridge.
Disposition in Trial Court.
The trial court entered an order on Duke’s motion for partial summary judgment which declared that Duke was the owner of a secondary easement and right-of-way and the right to go over and across plaintiffs’ parcel outside the power line easement.
The consent judgment in the 1942 condemnation adjudged Duke’s predecessor, Nantahala, to be the owner of the power line easement “together with the rights of ingress and egress.”
The power line easement granted is 225 feet in width and 692 feet in length. The easement is to be used, inter alia, for the purpose of erecting, constructing, maintaining and repairing power lines.
The Court interpreted the specific language of the consent judgment, i.e. “together with the rights of ingress and egress”, under the rules of construction for contracts. The Court found the language to be unambiguous and stated that “the only reasonable interpretation of the relevant contractual language is that it does, in fact, create a secondary easement authorizing Duke Energy to access the transmission line…for the purpose of repairing and maintaining that facility.” (emphasis added)
Secondary Easement is “Unlocated.”
The Court also reasoned that the failure of the consent judgment to specify the locations that Duke’s predecessor could exercise its rights of access to the power line easement demonstrates that the original landowners had authorized Nantahala to cross their property at any point outside the primary easement.
The Court concluded that the failure of the consent judgment to specifically locate the secondary easements on the ground does not result in a patent ambiguity sufficient to render the secondary easements granted by the consent judgment unenforceable.
Who are necessary parties?
The Court also held that the other owners of the tract of land crossed by the power line easement (whose land was also subject to secondary easement) were not necessary parties and did not have to be joined. As to those parties the Court said that “(i)n the event that a controversy arises between Duke Energy and the owners of other portions (of the original tract crossed by the power line easement)…both parties will be entitled to litigate that dispute at that time.”
Duke damaged improvements on the land but such conduct did not impair Duke’s exercise of its secondary easements. Damages suffered by landowners are to be determined at trial.
The Court does not reach Duke’s argument that it also has an implied easement for access. Duke cites the case of City of Statesville v. Bowles, 6 N.C. App. 124, 130, 169 S.E.2d 467, 471 (1969) (necessarily included in a sewer easement is the right to go on the property whenever necessary to inspect, repair or replace the sewer line).
The Court stated that “it is well settled that an easement extends to all uses directly or incidentally conducive to the advancement of the purpose for which the easement was acquired.”
The Court holds “that the petitioner acquired only such rights as are incidental to constructing, maintaining and operating a sewer line across the strip of land in question. Necessarily included would be the right to go on the property outside the easement whenever necessary to inspect, repair or replace the sewer line.