2012 VT 96


Farrell v. Vermont Electric Power
Co. and Vermont Transco, LLC (2011-377)
 
2012 VT 96
 
[Filed 07-Dec-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2012 VT 96

 

No. 2011-377

 

David M. Farrell, Trustee of the
  
David M. Farrell Trust


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Civil Division


 


 


Vermont Electric Power Company,
  Inc. and 
Vermont Transco, LLC


April Term, 2012


 


 


 


 


Geoffrey
  W. Crawford, J.


 

Peter F. Langrock, Middlebury and
Hobart F. Popick, Burlington, of Langrock
Sperry & 
  Wool, LLP, for Plaintiff-Appellant.
 
Gary F. Karnedy and Kevin M. Henry
of Primmer Piper Eggleston & Cramer PC, Burlington, for
  Defendants-Appellees.
 
 
PRESENT:   Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and
Howard, Supr. J.,
                    
Specially Assigned
 
 
¶ 1.            
BURGESS, J.   Plaintiff David Farrell, Trustee of the
David Farrell Trust, appeals the Chittenden Civil Division’s grant of summary
judgment for defendants Vermont Electric Power Company and Vermont Transco (together,
VELCO), the holders of an easement for the construction and operation of
electrical transmission lines on plaintiff’s property.  Plaintiff claims
that VELCO’s easement is limited to the installation and operation of
transmission lines necessary for the so-called Queen City Tap Project.  As
such, he argues that VELCO exceeded the scope of its easement by installing a
second transmission line on plaintiff’s property in connection with an
unrelated transmission-line project.  He further argues that, even if
VELCO’s easement authorizes its construction of transmission lines for
unrelated projects, a genuine issue of material fact exists as to whether the
new line overburdens plaintiff’s property.  The trial court held that the
easement’s express terms authorize VELCO to install transmission lines
unrelated to the Queen City Tap Project, and that any increased impact on
plaintiff’s property caused by the new line does not amount to overburdening.  We affirm.   
¶ 2.            
The facts may be summarized as follows.  Plaintiff owns a parcel of
land in South Burlington (the Property).  In 1972, VELCO obtained a
certificate of public good for the Queen City Tap Project, a venture to erect
electrical transmission lines in Chittenden County.  In December 1976, the
Public Service Board issued an order (the 1976 Order) in a condemnation
proceeding relating to the Property.  The 1976 Order explained that VELCO
was “condemning a permanent easement” on the Property, and described the
easement as:
 
A perpetual right and easement to construct, inspect, operate, maintain,
reconstruct, relocate and remove lines of poles or towers or both with wires
and/or cable thereon for transmission of intelligence by electricity and all
necessary foundations, anchors, guys, braces, fittings, equipment and
appurtenances including buried ground wires or cables over and upon [a right of
way] hereinafter described . . . . 
 
The 1976 Order further described
the easement as including a “permanent right” to cut, trim and remove trees
“outside the limits of said right of way strip” that may “interfere with or be
likely to interfere with, the successful operation of said line or lines now or
hereafter to be constructed on said right of way strip hereinbefore
described.”  Finally, on the question of compensation for VELCO’s use of
the Property, the 1976 Order explained that “the total compensation . . . for
the permanent easement being acquired is $38,850.00, allocated entirely to the
value of the property being taken,” and that the Board found no further
“impairment to the value of the remaining property or consequential
damages.”  
¶ 3.            
In 1977, as part of the Queen City Tap Project, VELCO installed a
three-wire electric transmission line (the QCT line) within the right of way
described in the 1976 Order.  The QCT line had ten wooden structures
consisting of twenty-one poles—nine two-pole structures and one three-pole
structure.  The structures were strung along the center of the right of
way and supported three wires, arrayed horizontally.  
¶ 4.            
In 2005, VELCO obtained a certificate of public good for the so-called
Northwest Reliability Project, which included the erection of an electrical
transmission line from New Haven to South Burlington, passing through various
towns in Addison and Chittenden Counties.  In 2008, as part of the
Northwest Reliability Project, VELCO installed a second transmission line (the
NRP line) within the right of way located on the Property.  The NRP line
has ten single-pole structures that range from sixty-five to eighty-seven feet
in height, which support three transmission wires, arrayed vertically. 
The NRP line also supports a static wire with fiber optic capacity.  At
the same time that it built the NRP line, VELCO modified the QCT line, replacing
the original two-pole structures with ten single-pole structures, ranging in
height from sixty-five to eighty-two feet, which support three wires, now
arrayed vertically.  The QCT line and NRP line are now situated parallel
to each other about thirty-one feet apart.  
¶ 5.            
In 2010, plaintiff sued VELCO for damages in Chittenden Superior Court,
alleging that VELCO’s use of the Property, specifically its installation of the
NRP line, was “a material overburdening” of the easement granted by the 1976
Order.  Plaintiff further alleged that VELCO failed to provide
compensation for its expanded use of the Property, and for the resulting
diminution in the Property’s value.  VELCO moved for summary judgment,
arguing that the language of the easement unambiguously gave it the right to
construct transmission lines on the Property unrelated to the QCT line.  
¶ 6.            
Plaintiff responded that the 1976 Order confined VELCO’s authority to
the construction of transmission lines relating to the Queen City Tap
Project.  He further asserted that there was a genuine issue of material
fact as to the extent to which VELCO’s installation of the NRP line and the
changes to the QCT line overburdened the Property, claiming that towers erected
for the NRP line were anywhere from twenty-five to sixty-seven percent taller
than those for the original QCT line.  If they fell in a westerly
direction, plaintiff added, the newly constructed towers would land outside the
perimeter of the right of way and onto plaintiff’s adjoining property. 
Plaintiff also alleged overburdening due to the vertically arrayed wires
appearing as six distinct wires to an observer on the Property, instead of the
“one cluster” of wires formerly viewable with the original QCT line.  
¶ 7.            
The trial court granted summary judgment for VELCO.  The court
concluded that the easement’s terms limit neither “the number of lines of poles
or towers, their height, [n]or the orientation of the wires or cables attached
to them,” nor the use of the right of way to the QCT line.  The court
emphasized that the easement’s language permitting VELCO the right to remove
vegetation that might impede operation of the “line or lines now or hereafter
to be constructed” supported VELCO’s right to construct new lines on the right
of way.  Finally, the court rejected plaintiff’s argument that a new
finding of public necessity was required for any new line.  Plaintiff
appealed.
¶ 8.            
Reiterating his arguments below, plaintiff first claims that the scope
of VELCO’s use of plaintiff’s property is defined by the 1976 Order, in which
the Board determined that the QCT line, but no other project, was necessary for
the public good.  Plaintiff argues, therefore, that VELCO lacked the
authority to expand its use to the unrelated NRP line.  Plaintiff also
argues that, even if the 1976 Order permits its installation, the NRP line
magnified the burden on the Property, and a genuine issue of material fact
remains as to the extent that the Property has been overburdened. 
Plaintiff again raises the greater height of the NRP line’s towers, and the
risk of their falling, and points to the additional, vertically-arrayed wires
installed for the NRP line.  Echoing the trial court, we hold, pursuant to
the easement’s unambiguous terms, that VELCO had the authority to erect the NRP
line on the Property.  We further hold that, again, in light of its broad
grant of authority, VELCO did not exceed the easement’s scope, and thus did not
overburden the Property by constructing the NRP line.  Accordingly, we
affirm the court’s grant of summary judgment for VELCO.
¶ 9.            
We review decisions for summary judgment using the same standard as the
trial court.  Lamay v. State, 2012 VT 49, ¶ 6, ___ Vt. ___, 49 A.3d 559 (mem).  We will affirm the court’s ruling if
there is no genuine issue of material fact and the party seeking summary
judgment is entitled to judgment as a matter of law.  Id.  The
party opposing summary judgment is given the benefit of all reasonable doubts
and inferences.  Id.    
¶ 10.         We
first address plaintiff’s argument that VELCO lacked the authority to construct
the NRP line on the Property and begin by explaining how condemnation easements
are obtained under Vermont law.[1] 
As a public utility, VELCO’s authority to use the Property rests in
30 V.S.A § 110, which permits a public service corporation to condemn an
easement over private property when “necessary . . . [to]
render adequate service to the public in the conduct of its business.” 
Pursuant to Vermont statutory law, a public utility’s condemnation of an
easement is a two step process.  The utility must first obtain a certificate
of public good for the project for which the easement is needed.  See
30 V.S.A. § 248(a)(2)(B) (providing that no public utility “may exercise
the right of eminent domain in connection
with . . . construction of any such [electric] transmission
or generation facility, unless the public service board first finds that the
same will promote the general good of the state and issues a certificate to
that effect”).  Having obtained the certificate of public good, the
utility must then petition the Board, which, following a hearing, must find,
among other requirements, that the proposed use “is necessary . . . [to]
render adequate service to the public.”  30 V.S.A. §§ 111,
112(2)-(4); see also Auclair v. Vermont
Elec. Power Co., 133 Vt. 22, 24-25, 329 A.2d 641, 643 (1974) (describing
statutorily-defined condemnation process).  Where the Board finds that
condemnation is necessary, the utility’s authority to use the condemned land is
defined by the terms of the easement, as described and approved in the Board’s
decision.  See Auclair, 133 Vt. at 27, 329 A.2d at 644 (explaining that after holding hearing on
issue of necessity Board may grant utility permission to condemn land). 
As noted, VELCO obtained the requisite certificate of public good for the NRP
line in 2005, satisfying the requirement of 30 V.S.A. § 248.  
¶ 11.         The
proper method of interpreting condemnation easements, and specifically whether
their interpretation should differ from the construction of easement deeds, is
a novel question for this Court.  But though they are born of different
processes, the former by dint of statutory condemnation proceedings and the
latter from arms-length negotiations, we agree with those courts from other
jurisdictions that have interpreted a condemnation easement in the same way as
an easement deed.  See Cousins v. Ala. Power Co., 597 So.2d 683,
686-87 (Ala. 1992) (interpreting easement deeds and condemnation easement using
same principles); Spears v. Kan. City Power & Light Co., 455 P.2d
496, 501 (Kan. 1969) (explaining that scope of condemnation easement is defined
by terms of condemnation order).  Therefore, as with the interpretation of
an easement deed, unless ambiguous, the terms of a condemnation easement
described in the order granting the easement define the easement holder’s
authority to use the condemned property.  See DeGraff
v. Burnett, 2007 VT 95, ¶ 26, 182 Vt. 314, 939 A.2d 472 (explaining that
“the permissible extent of the use of [an] easement must be determined from the
language in the deed”); Kipp v. Estate of
Chips, 169 Vt. 102, 107, 732 A.2d 127, 131 (1999)
(“[E]xtrinsic evidence is
not admissible to show the intent of the parties to a deed unless the language
of the deed is ambiguous.”).  The question, therefore, is whether
VELCO’s authority to use the Property, as defined by the terms of the easement
described in the 1976 Order, extends to the NRP line.  
¶ 12.         We
conclude that the easement unambiguously authorized VELCO to construct other
lines on the Property.  The easement permits VELCO to construct and
maintain “lines of poles or towers or both with wires and/or cables [on the
Property] for the transmission of electricity” and to manage tree growth that
might “interfere with or be likely to interfere with, the successful operation
of said line or lines now or hereafter to be constructed” on the
Property.  As the trial court explained, nothing in the easement’s
language restricts VELCO from constructing transmission lines unrelated to the
QCT line.  Thus, although the 1976 Order refers to the QCT line, and the
easement’s roots undeniably rest in that project, the easement described in the
1976 Order is not so narrow.  See Rowe v. Lavanway,
2006 VT 47, ¶ 13, 180 Vt. 505, 904 A.2d 78 (mem.) (interpreting easement using
its express terms and refusing to imply limitation of easement’s use where no
such limitation was included in easement’s language).  In short, because
the 1976 Order expressly permits VELCO to install and operate transmission
lines on the Property, and does not confine VELCO’s use for that purpose to the
QCT line alone, VELCO’s installation of the NRP line was authorized.  
¶ 13.         We
next consider whether the NRP line overburdened the easement.  An easement
must be used “in a manner consistent with the use contemplated at the time of
its creation,” and may not be used “in a way that materially increases the
burden on” the property subject to the easement.  Rowe,
2006 VT 47, ¶ 22.  Whether a particular use overburdens an
easement, therefore, depends on the easement’s original purpose and the scope
of its authorized use.  Id.; see also 3 J. Sackman,
Nichols on Eminent Domain § 9.02[11][a], at
9-43 (2006) (“If a new use of an easement is consistent with the original
purpose of an easement, then no additional taking or easement is
required.”).  Where an easement is obtained through condemnation, “[i]f the new use is of the same character as the use for
which it was originally taken, and it advances the original purpose, there is
an uncompensable (for the fee owner) difference in
degree of use.”
¶ 14.         Here,
the easement’s original purpose, like its grant of authority, is found in its
express terms.  The easement authorizes the installation and maintenance
of towers, poles, lines, and other infrastructure on the Property “for the
transmission of electricity.”  Although this purpose was originally
pursued through the construction of the QCT line, as explained above, the
easement itself does not limit the authorized use to the QCT line or a single
transmission-line project.  See Rowe, 2007 VT 47, ¶ 23 (refusing to
read restriction on use of easement into a deed where deed’s express language
contained no such restriction).  
¶ 15.         Nor
does the installation of the NRP line, as a use consistent with the easement’s purpose,
impose an additional burden on the Property.  We
recognize that this is not a case where an easement’s use has evolved “to
reflect modern developments,” such as in Rowe, where we affirmed an
easement holder’s ability to use an automobile upon a right-of-way granted in
1881.  2007 VT 47, ¶¶ 23-24.  Here, VELCO simply installed a second
electrical transmission line on the Property, where only one line existed
before.  Nevertheless, plaintiff produced no evidence that the NRP line
imposes an additional burden on the Property.  The risk that the
now taller transmission towers standing on the Property could fall in a
westerly direction, and land outside the condemned right-of-way, is
speculation.  Moreover, plaintiff cites no authority to support that taller towers, by virtue of their greater height, or
that a view of six wires, versus the appearance of one before, impose a new
burden on the Property.  See Brennan v. Mogul Corp., 151 Vt. 91, 96, 557 A.2d 870, 872 (1988) (concluding that
bald argument, left unsupported with legal authority, was inadequately
briefed).  More broadly, the 1976 Order recited a compensation
award for the full value of the condemned land, and plaintiff has not shown
that VELCO’s installation of the NRP line, or its updates to the QCT line,
constituted an additional taking requiring further compensation.[2]
¶ 16.         In
sum, VELCO’s easement, by its express terms, authorized its installation of the
NRP line on the Property.  Such use is also consistent with the easement’s
purpose—the transmission of electricity—and does not impose an additional
burden on the Property requiring further compensation.  Accordingly, the
trial court’s grant of summary judgment for VELCO is affirmed.
Affirmed.

 
 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice
 

 
¶ 17.         REIBER,
C.J., concurring and dissenting.  In 1976, VELCO acquired through the
power of eminent domain a 75-foot wide easement on Thomas Farrell’s property
for a 115-KV electrical transmission line pursuant to a certificate of public
good for the so-called Queen City Tap Line project.  The order of
condemnation by the Public Service Board incorporated a finding that the
property “to be condemned . . . to build the Queen City Tap Line is sought and
necessary in order that [VELCO] may render adequate service to the
public.”  As compensation for the taking, the Board awarded Farrell
$38,500 “allocated entirely to the value of the property taken,” finding no
“impairment to the value of the remaining property or consequential damages.”
¶ 18.         Thirty
years later, VELCO was granted a certificate of public good for a new
electrical transmission project, the Northwest Reliability Project, and in
connection therewith installed a second transmission line of poles and wires on
Farrell’s land and replaced the original line, but this time without the
payment of any compensation.[3] 
The trial court here found that this was permissible as a matter of law, and a
majority of the Court agrees.  As explained below, I do not.  While I
concur that the second parallel arrangement of poles and wires was within the
boundaries of the 1976 taking and of like kind to the general purpose of the
original taking, this does not resolve the question whether it nevertheless
imposes an additional burden for which compensation should be awarded. 
That remains a question of fact, and should not have been determined on summary
judgment.  Accordingly, I respectfully dissent on this issue.
¶ 19.         To
adequately address the damage question it is necessary to briefly consider the
purpose and scope of the taking and the majority’s restrictive understanding of
the issue.  It is the condemnation petition and order that
define the property interest to be taken and the public purpose to be
served.  See 30 V.S.A. § 111(a) (agency must “present a petition to the
public service board . . . describing the property or right, and stating why .
. . its acquisition is necessary”); Grice v. Vt. Elec. Power Co., 2008
VT 64, ¶¶ 25-26, 184 Vt. 132, 956 A.2d 561 (concluding that access routes to
easement condemned for transmission line were adequately described in
condemnation order in light of fact that “VELCO’s petition adequately described
the easement it sought” and Board’s findings of public necessity showed that
access was necessary to “maintain the safety and reliability of the
line”).  
¶ 20.         Indeed,
in construing the scope and purpose of a taking most courts routinely look to
the petition and condemnation order of the issuing court or public
agency.  See, e.g,, City of Huntsville v.
Rowe, 889 So.2d 553, 558 (Ala. 2004) (“The rights acquired by the terms of
the order of condemnation control the scope of the taking.”); Keokuk
Junction Ry. Co. v. IES Indus., Inc., 618 N.W.2d 352, 355 (Iowa 2000) (“The
notice of condemnation provided . . . the scope of the easement.”); Hudson
v. City of Shawnee, 790 P.2d 933, 939 (Kan. 1990) (“The property rights
taken by the condemnor are to be determined by the
language in the petition for eminent domain and the report of the appraisers.”)
(citation omitted); General Hosp. Corp. v. Mass.
Bay Transp. Auth., 672 N.E.2d 521, 525 (Mass. 1996) (Mass. App. Ct. 2003)
(“When deciding the scope of an easement taken by eminent domain, we must
consider the language of the taking order and the circumstances surrounding the
taking.”)(citation omitted).
¶ 21.         In
focusing exclusively on the language of the Farrell easement in isolation, the
majority here overlooks relevant provisions of the petition and order in which
it appears.  The petition alleged that VELCO required Farrell’s property
“to construct an electric transmission line . . . connecting its proposed”
substations in Williston and South Burlington, and further averred that it
could not “render service for its customer without construction of this
line.”  The Board’s resulting order of condemnation specifically incorporated
its earlier finding  “beyond any doubt that this
line is needed immediately in order that [VELCO] may render adequate service to
the public.”  Indeed, the findings of necessity incorporated within the
condemnation order refer repeatedly to the “projected line,” the proposed
“transmission line,” and “the proposed site of this line,” leaving little doubt
that the Board contemplated the installation of a single line of poles and
wires to accomplish the project.
¶
22.        
In concluding otherwise, the majority relies on a single phrase within
the lengthy easement language granting VELCO the right to cut, trim, or remove
trees that may interfere with the operation of “said line or lines now or
hereafter to be constructed on said right of way strip.”  Nowhere else
does the petition or condemnation order suggest that VELCO contemplated the
construction of two or more parallel rows of poles and wires within the
easement for the Queen City Tap Line or any other power project. 
It is more reasonable, therefore, to interpret the reference to “lines” as
simply a means of addressing the possibility that the power line may need to be
replaced in the future or that additional wires may be added to the existing
poles.  Even if this were not the case, however, it would suggest at most
an ambiguity in the meaning of the condemnation order inconsistent with the
granting of summary judgment.      
¶ 23.         The
purpose of a taking necessarily defines its scope, and that purpose—as
noted—cannot be understood solely by looking at easement language in
isolation.  See Howard v. United States, 964 N.E.2d 779, 782 (Ind.
2012) (“[T]he purpose for which the property is acquired, either through
proscription or condemnation, determines the scope of the easement, and the holder
of the easement cannot impose a different or extra burden upon the landowner.”)
(citation omitted).  Viewed in context, it is
plain that the Farrell easement was taken specifically to accommodate “an
electric transmission line” for a discrete power project, and it is equally
plain that the compensation award reflected the limited nature of that
objective.  As one might expect of a single row of poles and wires running
down the center of 75-foot wide easement, the award was solely for the value of
“the property taken” rather than for “any impairment to the value of the
remaining property or consequential damages.”  Obviously, no consideration
was given to the possibility of a second row of poles and attached wires to
accommodate another ambitious power project some thirty years later or to the
impact that a second power line within the same corridor might have on the
remaining property.
¶ 24.         Where—as
here—a new use is consistent with the general nature of an existing easement, the burdened estate may nevertheless be entitled
to compensation if it is more onerous than originally contemplated.  See,
e.g., Minot v. United States, 546 F.2d 378, 381 (Ct.Cl.
1976) (recognizing that, where local power agency installed higher and wider
transmission towers in place of existing line within easement owned by United
States, power agency could be “held to account for an inverse condemnation” in
overburdening plaintiffs’ property, although there was no basis for holding
United States liable); Grimes v. Va. Elec. & Power Co., 96 S.E.2d
713, 714 (N.C. 1957) (holding that placement of additional lines and cross-arms
on existing power poles by second power company imposed additional burden on
easement entitling landowner to compensation); City of Sweetwater v. McEntyre, 232 S.W.2d 434, 437 (Tex Civ. App. 1950)
(holding that, although landowner was previously compensated for street
construction, “the lowering of the [street] grade imposed an additional burden
upon [landowner’s] property from that contemplated when the street was
dedicated for which she is entitled to compensation”); see generally 3 J. Sackman, Nichols on Eminent Domain § 9.04[2][f], at
9-91 (2006) (“If the use is more onerous, the owner is entitled to recover
compensation for the increase in the burden only.”) and § 9.02[11][c], at 9-45
(noting distinction between cases involving uses that impose additional
servitude and those “requiring compensation for damage to property, when the
damage claimed arises out of a new or increased use of an existing easement”). 

¶ 25.         Farrell
should be permitted to demonstrate any direct or consequential damages to his
property resulting from the additional line not encompassed within the previous
condemnation award.  Indeed, Farrell alleged that the distinct array of
the additional poles and wires, their greater height, and the closer proximity
of the two lines of poles to his remaining property resulted in a diminution of
the value of the remaining property not contemplated by the original
taking.  The majority avers that Farrell “produced no evidence” of
additional burden and consequently “has not shown” that the additional line
“require[ed] further compensation.” Ante, ¶ 15.  The parties here deferred
discovery, however, pending a decision on VELCO’s summary judgment claim that
the additional line was authorized by the original condemnation order. 
The trial court, having determined that the original condemnation order did
authorize the additional line, “also conclude[d] that VELCO’s use of the
easement does not amount to an overburdening.”  Nevertheless, as noted,
the fact that a power line falls within the general purpose of the easement
does not bar Farrell from showing that the installation of a second line
imposed an additional burden entitling him to compensation.  Accordingly,
I would reverse the summary judgment, and remand for further proceedings on
this issue.
¶ 26.         I am
authorized to state that Justice Skoglund joins this
concurrence and dissent.

 


 


 


 


 


 


 


 


Chief Justice

 





[1]  We note that while plaintiff’s complaint
emphasized that VELCO neither purchased nor condemned a separate easement
relating to the NRP line, plaintiff sought only damages arising from what he
characterized as an additional taking of his property, as well as “a material
overburdening of the 1976 condemned easement” and the resulting diminution in
the value of his land.  Though implicitly asserting that VELCO lacked
authority to install the NRP line on property condemned solely for the QCT
line, the logical remedy for which was an injunction, plaintiff did not seek to
enjoin VELCO from erecting the NRP line on the Property.  See Patch v.
Springfield Sch. Dist., 2009 VT 117, ¶ 6, 187 Vt. 21, 989 A.2d 500 (noting
that landowner obtained preliminary injunction to prevent construction of
parking lot on adjacent property based on a restrictive covenant).  With
VELCO having already installed the NRP line on the Property, plaintiff’s claim
that such use was unauthorized is arguably moot.  See Houston v. Town
of Waitsfield, 2007 VT 135, ¶¶ 2, 6-10, 183 Vt. 543, 944 A.2d 260
(describing landowners’ claim that superior court erred in denying request to
enjoin town from drilling wells in a road abutting their property without first
completing condemnation proceedings and holding that appeal was moot because
wells had already been drilled).  Though the light of controversy on this
issue is therefore dim, if lit at all, we address plaintiff’s authority
argument because it is inextricably linked to our determination of the
easement’s scope.
 


[2] 
Because we disagree with plaintiff’s view that VELCO’s installation of the NRP
line constituted an additional taking of plaintiff’s property, we reject his
argument that affirming the trial court’s decision would establish an
“unworkable rule of law” for the determination of severance damages in the
context of condemnation proceedings.  We note that plaintiff’s claim for
severance damages presumes a diminution in the value of the land bordering the
easement, whereas the 1976 Order found no “impairment to the value of the
remaining property,” and plaintiff has produced no evidence to change that
conclusion.  


[3] 
Plaintiff David Farrell is Thomas Farrell’s successor in interest.   



