                          THIRD DIVISION
                           BARNES, P. J.,
                   MCFADDEN, P. J., and MCMILLIAN, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   January 17, 2017




In the Court of Appeals of Georgia
 A16A1537. CLAYTON COUNTY, GEORGIA v. GEORGIA
     POWER COMPANY.

      MCMILLIAN, Judge.

      The sole issue presented by this appeal is whether the Georgia Power Company

(“Georgia Power”) was entitled to compensation from appellant Clayton County,

Georgia (“County”) for the expenses Georgia Power incurred in relocating electrical

lines and supporting structures, which was made necessary by a County road

widening project. The trial court found that a 1929 franchise agreement did not apply

and ordered compensation for the taking. As more fully set forth below, we now

affirm.
      The facts are essentially undisputed. In 1947 and 1950, Georgia Power

acquired certain easements from private property owners along what are now known

as Stagecoach Road and Panola Road in Clayton County (“easement area”), for the

purpose of installing and operating electrical distribution lines and supporting

structures. The electrical lines were in place and operational by April 1955, and

Georgia Power has continuously maintained the lines since that time. Subsequently,

in October 1955 and June 1958, the Georgia Rural Roads Authority acquired an 80-

foot right-of-way along Stagecoach and Panola Roads, which it in turn deeded the

rights to Clayton County. The parties have stipulated that Georgia Power acquired its

easements for its electrical poles and lines from private individuals before Clayton

County acquired the right-of-way along Panola Road.

      In June 2012, the County filed a Petition and Declaration of Taking to condemn

certain property as part of the Panola Road Widening Project (“widening project”),

including Georgia Power’s easement area. Georgia Power filed an answer, a petition

to set aside the condemnation as unauthorized, and a notice of appeal challenging the

amount stated in the declaration as just and adequate compensation for the

condemned property. The County ultimately opposed Georgia Power’s claim for

compensation, contending that under the terms of a franchise agreement entered into

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by the parties in 1929, Georgia Power had to bear the cost of removing and relocating

the power lines. Georgia Power argued that because the electrical poles, lines, and

supporting structures had been placed under the authority of private easements

granted by private property owners, the franchise agreement did not apply here, and

the County was required to compensate it for loss of use of the preexisting private

easements under the authority of Bibb County v. Ga. Power Co., 241 Ga. App. 131

(525 SE2d 136) (1999). The trial court agreed and granted Georgia Power’s claim for

compensation, which would include the costs necessary to relocate the poles and

lines. Following the entry of the final judgment setting the amount of compensation,

the County filed this appeal.

      We start with an overview of the statutory scheme governing who bears the

cost of relocating a utility’s structures in connection with a public road improvement

project before turning to the terms of the franchise agreement.1 Generally, expenses


      1
       As used in this context,
      [a] franchise is a method developed by governments to grant use of
      public land to private companies for purposes benefitting the general
      public. Franchises are common law creations dating back to fourteenth-
      century England, where the sovereign granted private parties use of
      public property under certain conditions. A franchise allowed a private
      party to provide a service that was both a public necessity and a natural

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incurred for relocating utility poles on or adjacent to public roads are paid for by the

utility. See OCGA §§ 32-4-42, 32-6-171 & 32-6-173. However, both OCGA §§ 32-6-

171 and 32-6-173 also explicitly provide that “nothing in this article shall be

construed so as to deprive any utility, relocated from a location in which it owned a

property interest, of compensation for such property interest.” Thus, as we explained

in Bibb County, 241 Ga. App. at 138 (5), while under the above statutes the county

may require a utility to relocate its equipment, even if equipment is located on pre-

existing private easements, the county cannot substantially impair such an easement

without paying compensation and, accordingly, the utility in turn may seek just and

adequate compensation for the loss of its old easement, including the costs to




      monopoly. In the United States, local governments use franchises to
      give right-of-way access to companies providing services that require
      intensive infrastructure, such as electrical and telephone utilities.


Jennifer Amanda Krebs, Notes & Comments, Fair and Reasonable Compensation
Means Just That: How § 253 of the Telecommunications Act Preserves Local
Government Authority Over Public Rights-of-Way, 78 Wash. L. Rev. 901, 906 (2003).
See generally City of Summerville v. Ga. Power Co., 205 Ga. 843 (55 SE2d 540)
(1949) (in the context of a city, explaining generally the power to grant franchises to
public service corporations).

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relocate. Id. (“The county cannot substantially impair an easement without paying

compensation.”).

       Although the County acknowledges that, generally, it would bear the costs of

relocating the utility poles when, like here, the County is forcing the utility to relocate

power poles and lines constructed on pre-existing private property easements, the

County argues that in this case the determination of who has to pay for the relocation

expenses should be determined under the parties’ 1929 one-page Franchise

Agreement (“Agreement”). The Agreement provides in pertinent part:

              3. For the purposes herein set out [Georgia Power] desires for
       itself, its successors or assigns, the right and privilege to erect from time
       to time, operate, maintain, renew and extend its electric transmission and
       distribution lines, on, along, over and across the public roads, highways,
       streets and alleys of said County, together with transformers,
       appurtenances, fixtures and appliances necessary or desirable for
       efficient operation, subject to the following terms and conditions:


              (a) Said electric transmission and distribution lines, on, along,
       over, and across said roads, highways, streets or alleys shall be erected
       subject to the approval and supervision of the authorities of said County
       having charge of the laying out, building and maintenance of said roads,
       highways, streets or alleys.




                                            5
      (b) In event of change in the grade or width of any of the roads,
highways, streets or alleys by the County authorities, on, along, over and
across which any such transmission or distribution line or lines may
have been or may hereafter be erected, Petitioner agrees, at its own cost
and expense and without any cost or expense to said County, to move its
transmission or distribution lines to such other location on said roads,
highways, streets or alleys as may be designated by said County
authorities.


      (c) [Georgia Power] further agrees to indemnify, protect and save
harmless the said County from the payment of any sum or sums of
money which may be demanded of said County by any person or
persons whomsoever on account of injury to person or damage to
property, of any and every nature or character caused or occasioned by,
or in any way traceable to the erection, operation, renewal extension and
maintenance of said electric transmission and distribution lines so
erected, operated, renewed, maintained or extended by Petitioner on,
over, along and across such roads, highways, streets or alleys.


      ...

      WHEREFORE, [Georgia Power] respectfully requests that said
County grant it, its successors or assigns, permission to so erect from
time to time, operate, renew, maintain and extend its electric
transmission and distribution lines for the transmission, distribution and
utilization of electric current and energy with all necessary wires, cables,
transformers, fixtures, appliances, appurtenances, poles, frames and
other supports, together with its telephone and telegraph lines on, along,

                                     6
       over and across the public roads, highways, streets and alleys of said
       County under the terms and conditions herein set out and stipulated.


       The trial court found the Agreement inapplicable here because the electric lines

and poles at issue were erected on private property easements prior to the time the

County acquired right-of-way rights or built Panola Road and were not erected under

the supervision and approval of any County road authority. But the County argues

that subsection (b) contains no such limiting language, and on its face applies anytime

removal and movement of Georgia Power poles is necessitated by a road widening

or other specified change along what is at the time of the removal a County-owned

road or highway.

       Contract construction is generally a question of law for the court, see OCGA

§ 13-2-1, and we conduct a de novo review of the trial court’s determination. Unified

Govt. of Athens-Clarke County v. Stiles Apartments, Inc., 295 Ga. 829, 832 (1) (764

SE2d 403) (2014). The cardinal principle that guides our construction of a contract

is to effectuate the intent of the parties as set out in the language of the contract. Id.;

OCGA § 13-2-3. “[T]he construction which will uphold a contract in whole and in

every part is to be preferred, and the whole contract should be looked to in arriving




                                            7
at the construction of any part.” Shepherd v. Greer, Klosic & Daugherty, 325 Ga.

App. 188, 190 (750 SE2d 463) (2013).

      Here, the Agreement explicitly sets out its purpose – to permit Georgia Power

“to erect from time to time, operate, maintain, renew and extend” power transmission

lines “on, along, over and across the public roads, highways, streets and alleys of said

County.” Such right or permission is granted subject to the terms and conditions

stated in section 3, as set out in subsections (a), (b), and (c). Subsection (a) provides

that such lines would be “erected” subject to the “approval and supervision” of the

County authority charged with laying out, building and maintenance of said roads,

clearly referring back to the public roads of the County mentioned in section 3. Under

subsection (b), the specific provision at issue here, Georgia Power agrees to bear the

expense of moving “any such transmission or distribution line or lines [which] may

have been or may hereafter be erected.” (Emphasis supplied.) This obligation does

not extend to any power lines that may have been or may be erected along county

roads, but to “any such” power lines that may have been or may be erected, appearing

to refer back to the power lines in subsection (a) that have been erected with county

approval or under county supervision.



                                           8
         Accordingly, looking to the structure and language of the Agreement, i.e., by

placing subsection (b) in the context of the Agreement as a whole, and properly

reading it in relation to the other subsections under section 3, we agree with the trial

court that under the plain language of the Agreement, subsection (b) does not apply

to those situations where Georgia Power is forced by the County to relocate power

transmission lines and poles that it originally erected on private property easements

on or along a non-County owned road or highway. As the trial court found, “[t]o

interpret the agreement otherwise would be to find that it provides that any easement

rights that Georgia Power has anywhere in the county may be taken without

compensation if necessary to widen a road or change its grade, regardless of the

circumstances surrounding the acquisition of the easement and erection of the

equipment.” Based on the authority set out above, the trial court properly found that

Georgia Power was entitled to compensation for the taking of its private property

easements, including the costs of relocating its electrical power and distribution

poles.

         Judgment affirmed. Barnes, P. J., and McFadden, P. J., concur.




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