Caseflicks

Missouri Court of Appeals • 1985

Henley v. CONTINENTAL CABLEVISION OF ST. LOUIS COUNTY, INC.

692 S.W.2d 825 | 1985 Mo. App. LEXIS 3475

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Takeaway

In short, this case holds that exclusive commercial utility easements may be shared with a cable provider when cable equipment fits the easements' communications purpose and adds no material new burden to the land.

Background

The trustees of University Park subdivision held authority under a 1922 recorded indenture to construct and maintain electric, telephone, and telegraphic service over the rear five feet of subdivision lots and to grant easements for those purposes. Later in 1922, the trustees granted Southwestern Bell an easement for telephone and electric-light lines and granted Union Electric an easement for cables, wires, conduits, manholes, fixtures, and related equipment.

In 1981 and 1982, Continental Cablevision obtained licenses from both utilities and entered the easement areas to install cables, wires, and conduits for cable television transmission. The trustees sued for an injunction, removal of the equipment, $300,000 in damages, and the reasonable value of Continental's use of the property. They alleged a continuing trespass and sought recovery in quantum meruit.

The trial court dismissed the petition for failure to state a claim. Although Continental supported its dismissal motion with affidavits and easement documents outside the pleadings, the Court of Appeals treated the ruling in substance as a summary judgment and affirmed.

Issues

Issue #1

Whether the trial court's consideration of materials outside the pleadings required reversal of an order styled as a dismissal for failure to state a claim.

Holding

No. The court treated the motion as one for summary judgment in substance and found no basis to remand merely to correct its label.

Reasoning

A motion to dismiss supported by matters outside the pleadings ordinarily should be treated as a summary-judgment motion under Missouri Rule 55.26(a). Here, however, the trustees had ample notice and opportunity to respond: Continental filed its motion in March 1984, the matter was argued in May, and the trustees submitted the subdivision indenture on the day of argument.

Because the parties had a fair opportunity to present the relevant easement materials, the court found that the rule's purpose had been satisfied. It declined to order a remand solely for the technical correction of calling the motion a dismissal rather than summary judgment.

Issue #2

Whether the utility easements in gross were exclusive and therefore apportionable to Continental Cablevision.

Holding

Yes. The easements were exclusive as against the landowners and could be apportioned by Southwestern Bell and Union Electric to Continental.

Reasoning

The parties agreed that the utility rights were easements in gross: they belonged to the utility companies independently of ownership of any dominant parcel. An easement in gross is apportionable when it is exclusive, meaning that the owner of the servient land has no retained right to participate in the particular use granted. The term does not mean that only one entity may use the easement.

The 1922 grants gave the utilities the right to use the five-foot strips for electric-power and telephone-related systems, while the trustees retained no comparable right to construct or operate such systems themselves. The trustees neither claimed an intention to provide utility services nor had authority from the Public Service Commission to do so during the following sixty-three years.

Because the grantors did not retain a right to share the utilities' operational use of the easement, dividing that use with a licensee did not diminish any retained landowner interest. The easements were thus exclusive in the relevant sense and presumptively apportionable.

Issue #3

Whether Continental's installation of cable-television equipment exceeded the scope of the utility easements or imposed an unauthorized additional burden on the servient land.

Holding

No. Adding a coaxial cable to existing utility facilities for television transmission was consistent with the authorized uses and did not materially increase the burden on the property.

Reasoning

An easement holder may authorize a third party's use of the right-of-way when that use is not inconsistent with the principal purpose of the easement. The Union Electric easement expressly allowed the utility and its successors and assigns to add and relocate wires, cables, conduits, and related equipment over time. The Southwestern Bell easement likewise covered poles, cables, wires, conduits, fixtures, and appurtenances considered necessary by the company and its successors and assigns.

Cable television transmits images and sound by electrical impulse over coaxial cable. Attaching one such cable to existing poles was within the broad, communications-related purpose of the grants and did not burden the property more than the telephone wires and other equipment the parties had expressly contemplated in 1922.

The court distinguished an Illinois decision involving possible excavation for underground cable. Digging on homeowners' property can create a substantially greater physical burden, whereas Continental merely attached aerial cable to existing poles. Decisions from Ohio, New York, and California likewise supported the conclusion that cable television was a natural technological development in wire-based power and communications, even if the 1922 drafters did not specifically foresee it.

The court also emphasized the practical and public-interest considerations supporting use of already installed utility facilities. Using existing poles and easements to provide modern communications was more economical and less environmentally disruptive than creating new routes or facilities.