                  IN THE SUPREME COURT OF MISSISSIPPI
                           NO. 97-CA-01336-SCT
OTIS G. McDONALD, FLORA McDONALD, ROBERT
MORDICA, VON KYLE MODICA, ROBERT R.
ROYALS, JUDY W. ROYALS, VENCIE PRUITT,
RUTHIE MAE PRUITT, W. D. YOUNG, WILLIAM
PAUL ROWELL, BERTIE FLOWERS, SARAH E.
LIFE, MRS. A. W. LIVINGSTON, DAVID
LIVINGSTON, ELIZABETH D. LIVINGSTON,
AUDREY McCLELLAN, TOM McCLELLAN, CECIL
McCLELLAN, JR., E. H. MORGAN, JOHN A.
ASHLEY, JANE CAROL ASHLEY, EDNA M.
SHEPARD, JANIS M. SUMRALL, JAMES THIGPEN,
KATHERYN WHEELER, TEXANA McFARLAND,
SAM SIMMONS, HELEN NAYLOR, NANCY
CARTER, CORRINE SIMMONS, WILLIE MAE
RAINES, HERMAN DEAS, IRA W. STRINGER,
ONITA S. STRINGER, ROBERT E. BELL, SR.,
CHARLES HENRY BELL, LOVELLA HENRY,
MARTHA C. HENRY, BOBBY RAY KIDD, JONIE
KIDD, JAMES C. McKIBBON, ANNA TROTTER,
AUGUSTUS F. BALL, CONNIE BALL, EULA
HICKSON, LELAND L. STOKES, DIANE R. STOKES,
MICHAEL R. STOKES, AND KIMBERLE D. STOKES
v.
MISSISSIPPI POWER COMPANY, A MISSISSIPPI
CORPORATION AND SOUTHERN COMPANY, A
DELAWARE CORPORATION

DATE OF JUDGMENT:                10/01/1997
TRIAL JUDGE:                     HON. H. DAVID CLARK
COURT FROM WHICH APPEALED:       JASPER COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:        JOHN M. DEAKLE
                                 JOHN MICHAEL SIMS
                                 EUGENE C. THACH, JR.
                                 WILLIAM R. COUCH
                                 CURTIS R. HUSSEY
ATTORNEYS FOR APPELLEES:         S. ROBERT HAMMOND, JR.
                                 RICHARD L. YODER
                                 H. R. WILDER
                                 DONOVAN McCOMB
NATURE OF THE CASE:                               CIVIL - EMINENT DOMAIN
DISPOSITION:                                      REVERSED AND REMANDED - 1/14/99
MOTION FOR REHEARING FILED:                       1/28/99
MANDATE ISSUED:                                   4/22/99




      BEFORE PRATHER, C.J., McRAE AND WALLER, JJ.


      WALLER, JUSTICE, FOR THE COURT:


                                     STATEMENT OF THE CASE

¶1. Otis G. McDonald, et al. appeals from the entry of an order of the Chancery Court of the First Judicial
District of Jasper County granting summary judgment to Mississippi Power Company. McDonald raises the
following issues on appeal.

      I. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI
      POWER IS NOT REQUIRED TO ESTABLISH THAT FIBER OPTIC CABLE IS
      NECESSARY FOR THE PRODUCTION AND DISTRIBUTION OF ELECTRIC POWER
      BEFORE ENTERING INTO A PRIVATE CONTRACT FOR LAYING FIBER OPTIC
      COMMUNICATION CABLE ON THE RIGHTS-OF-WAY.

      II. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI
      POWER HAD THE RIGHT TO UTILIZE ITS POWER LINE EASEMENTS FOR THE
      PURPOSES OF MAKING A PROFIT FROM ACTIVITIES OTHER THAN THE
      SELLING OF ELECTRIC POWER AND THAT SUCH USE WAS NOT AN
      ADDITIONAL SERVITUDE ON APPELLANTS' PROPERTY.

      III. WHETHER THE COURT BELOW ERRED IN HOLDING THAT NO AMBIGUITY
      EXISTED IN THE LANGUAGE OF THE EASEMENTS WHICH FORM THE BASIS OF
      THIS DISPUTE.

      IV. WHETHER THE LOWER COURT ERRED IN DENYING THE APPELLANTS'
      REQUEST FOR INJUNCTIVE RELIEF.

                                     STATEMENT OF THE FACTS

¶2. Otis G. McDonald and the other Plaintiffs (referred to collectively as "McDonald" hereinafter) are
owners in fee simple of certain tracts of real property located in Jones, Clark and Jasper Counties,
Mississippi. Mississippi Power Company ("MPC") obtained easements through the Plaintiffs' property by
way of condemnation, eminent domain proceedings or voluntary easements executed by the Plaintiffs some
thirty years prior to the filing of this action. Those easements gave MPC the right to "construct, operate and
maintain electric lines and all telegraph and telephone lines, towers, poles, wires, and appliances and
equipment necessary or convenient in connection therewith from time to time and counterpoise wire and
other counterpoise conductors, upon, over, under, and across a strip of land . . ."

¶3. MPC and the Southern Company ("Southern") filed a complaint for declaratory relief in the Chancery
Court of the Second Judicial District of Jones County, Mississippi. This action was later transferred to the
Chancery Court of the First Judicial District of Jasper County. MPC and Southern sought declaration that
they had the right to use the existing easements to install and utilize fiber optic cables. McDonald filed a
counter-claim seeking injunctive relief and damages resulting from MPC's installation of the fiber optic
cable.

¶4. The Chancery Court of the First Judicial District of Jasper County, Honorable H. David Clark, II,
presiding, entered an order of summary judgment and final judgment in favor of MPC. The record before
this Court contains detailed conclusions of law, as well as findings of fact, made by Chancellor Clark. Many
of the findings made by the chancellor are relevant here and are paraphrased below. As a matter of law, the
chancellor found:

     1. The easements to be "clear and unambiguous."

     2. The language in the easements which states, "appliances and equipment convenient and necessary .
     . . included not only telephone and telegraph lines, but also fiber optic cable."

     3. The fact that MPC profits from the fiber optic lines is irrelevant, since the easements were private
     contracts.

     4. The right to install and operate fiber optic cable is a legal issue to be determined from the four
     corners of the instrument.

     5. "Necessary and convenient" is utilized in its common usage, rather than "ascribing to those terms
     any special meanings used by the Public Service Commission."

     6. MPC has the right to "utilize its assets as it sees fit" as long as it complies with the four corners of
     the easements.

     7. Omission of "telephone and telegraph" in some of easements is immaterial, since "appliances and
     equipment necessary and convenient therewith, or other similarly broad language is broad enough to
     encompass the fiber optic cable."

     8. MPC's successors and assigns have no greater rights than MPC originally had under the
     easements.

     9. Laying of fiber optic cable is well within the express or implied language of the easements. Further,
     MPC has the right to enter the land for purposes of "installing, operating, and maintaining the subject
     communication line." MPC has "an unfettered right . . . including but limited to, leasing or selling
     excess capacity on said lines, without further compensation to the landowners."

     10. Southern is not responsible in any way for the actions of MPC.

     11. There is no genuine issue as to any material fact in controversy, and MPC and Southern are
      entitled to prevail as a matter of law.

                                         STANDARD OF REVIEW

¶5. This Court's standard of review for summary judgment is well-settled and was recently restated in
Aetna Casualty & Sur. Co. v. Berry, 669 So.2d 56 (Miss. 1996). In Berry, this Court stated:

      The standard for reviewing the granting or denying of summary judgment is the same standard as is
      employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting
      or denying summary judgment and looks at all the evidentiary matters before it--admissions in
      pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the
      light most favorable to the party against whom the motion has been made. If, in this view, the moving
      party is entitled to a judgment as a matter of law, summary judgment should forthwith be entered in his
      favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion
      for summary judgment obviously are present where one party swears to one version of the matter in
      issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of
      fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt.

Berry, 669 So.2d at 70 (quoting Mantachie Natural Gas v. Mississippi Valley Gas Co., 594 So.2d
1170, 1172 (Miss. 1992)); Caldwell v. Alfa Ins. Co., 686 So.2d 1092, 1095 (Miss. 1996).

¶6. Moreover, a motion for summary judgment should be denied unless the trial court finds beyond any
reasonable doubt that the plaintiff would be unable to prove any facts to support his/her claim. Yowell v.
James Harkins Builder, Inc., 645 So.2d 1340, 1343 (Miss. 1994); McFadden v. State, 580 So.2d
1210, 1214 (Miss. 1991). The trial court cannot try issues of fact on a Rule 56 motion; it may only
determine whether there are issues to be tried. Yowell, 645 So.2d at 1343-44; Brown v. Credit Ctr.,
Inc., 444 So.2d 358, 362 (Miss. 1983).

¶7. In considering a motion for summary judgment, the trial court must view all the evidence (admissions in
pleadings, depositions, affidavits, answers to interrogatories, etc.) in the light most favorable to the non-
moving party; and, upon this consideration, if the moving party is entitled to judgment as a matter of law, the
motion should be granted; otherwise, it should be denied. Sanford v. Federated Guar. Ins. Co., 522
So.2d 214, 217 (Miss. 1988); Southern Farm Bureau Cas. Ins. Co. v. Brewer, 507 So.2d 369, 370
(Miss. 1987); Brown, 444 So.2d at 363.

      When a motion for summary judgment is made and supported as provided in this rule, an adverse
      party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits
      or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue
      for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Brown, 444 So.2d at 364 (quoting M.R.C.P. 56(e)).

                                       DISCUSSION OF THE LAW


      I. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI
      POWER IS NOT REQUIRED TO ESTABLISH THAT FIBER OPTIC CABLE IS
      NECESSARY FOR THE PRODUCTION AND DISTRIBUTION OF ELECTRIC POWER
      BEFORE ENTERING INTO A PRIVATE CONTRACT FOR LAYING FIBER OPTIC
      COMMUNICATION CABLE ON THE RIGHTS-OF-WAY.

      II. WHETHER THE COURT BELOW ERRED IN HOLDING THAT MISSISSIPPI
      POWER HAD THE RIGHT TO UTILIZE ITS POWER LINE EASEMENTS FOR THE
      PURPOSES OF MAKING A PROFIT FROM ACTIVITIES OTHER THAN THE
      SELLING OF ELECTRIC POWER AND THAT SUCH USE WAS NOT AN
      ADDITIONAL SERVITUDE ON APPELLANTS' PROPERTY.(1)

¶8. MPC obtained its easements through a certificate of public necessity obtained from the Public Service
Commission ("PSC"). McDonald argues that in order for MPC to lay fiber optic cable it must obtain new
easements. The large majority of the easements(2) in dispute contain the following language:

      ...do hereby grant to said Mississippi Power Company, its successors and assigns the right, without
      limitation as to duration of use, to construct, operate and maintain electric lines and all telegraph and
      telephone lines, towers, poles, wires, and appliances and equipment necessary or convenient in
      connection therewith from time to time....

It is clear that the above clause gives MPC the right to maintain telephone lines which are "necessary or
convenient" in providing electrical services. The first question here is whether a fiber optic cable is the
equivalent to a telephone line. We have addressed a similar question in Ball v. American Telephone &
Telegraph Co., 227 Miss. 218, 86 So.2d 43 (Miss. 1956).

¶9. Ball held that an easement acquired for telephone and telegraph service could also be used to carry
television signals. Id. at 226, 86 So.2d at 45. With this conclusion we wholly agree. Under the above
easement, MPC has the right to maintain a telephone line for use in connection with providing electrical
service. The clear intent of the easement was to grant MPC the right to install and maintain telephone lines
to be used in connection with the providing of electrical services. A fiber optics cable is nothing more than a
technologically advanced or new type of telephone line. The chancellor was correct in holding that the
granting clause of the above easement gives MPC the right to maintain a fiber optics cable.

¶10. However, to say simply that MPC has the right, under the present easements, to utilize a fiber optics
cable does not fully answer the question. MPC wishes to sublet space on its fiber optics cable to third
parties for uses other than providing electricity. Unlike the easements before the Ball Court, MPC's current
easements contain limiting language which precludes them from utilizing the fiber optics cable for anything
but services provided in connection with supplying electricity. According to the phrase in question, MPC's
use of "telegraph and telephone lines, towers, poles, wires, and appliances and equipment" is limited to "in
connection therewith" MPC's service of providing electricity to its customers. Although it would not
constitute an additional servitude on the property, MPC without more definite easements simply does not
have the authority. Since MPC drafted a number of the easements in question, they are interpreted most
favorably to the landowner. Capital Elec. Power Ass'n v. Hinson, 226 Miss. 450, 463, 84 So.2d 409,
413 (1956). We find that the chancellor erred in holding that the language of the above easements permitted
MPC to sublease space on its fiber optics cables for purposes other than those which are in connection
with providing electricity.

¶11. Although unclear in the record as to exactly which other easements were the subject of the chancellor's
opinion, it is apparent that he considered at least two (2) easements which were obtained through
condemnation or eminent domain proceedings. The power of eminent domain is generally construed in
favored of the landowner. Berry v. Southern Pine Elec. Power Ass'n, 222 Miss. 260, 274, 76 So.2d
212, 217 (1954). At page two hundred forty-eight (248) of the record, there is an easement obtained from
Elige L. Dase, et al, which contains the following language:

      ...for the erection and maintenance of poles, wires and other facilities and appurtenances necessary to,
      or used in connection with, an electrical transmission distribution line or lines...

As with the previous easements, this too contains the language which is broad enough to encompass the use
of communications lines, but limits the use of that incident to providing electrical service.

¶12. A review of the record indicates only the above two (2) types of easements, though it is not entirely
clear whether or not these were all that were at issue. We find it unnecessary to reach the other contentions
raised by McDonald under issues I and II.

      III. WHETHER THE COURT BELOW ERRED IN HOLDING THAT NO AMBIGUITY
      EXISTED IN THE LANGUAGE OF THE EASEMENTS WHICH FORMED THE BASIS
      OF THIS DISPUTE.

¶13. It is McDonald's argument that the easement is ambiguous on its face, and parole evidence should be
allowed to determine the intent of the parties. Specifically, he argues that because the term "under" is found
in the granting clause and not in the descriptive clause the easement is ambiguous. The granting clause of the
easements allows MPC to "operate and maintain . . . equipment necessary or convenient therewith . . .
upon, over, under, and across . . . ." (emphasis added). In the descriptive portion of the easements, the
following additional language is found. "The 125 foot wide right of way herein granted over and across the
above described land . . . ." (emphasis added). McDonald argues that the omission of the word "under"
from the descriptive portion renders the whole easement ambiguous. We disagree.

¶14. The question of whether ambiguity exists within an instrument is one of law. Lamb Constr. Co. v.
Town of Renova, 573 So.2d 1378, 1383 (Miss. 1990). Where there is conflicting language found in the
granting clause and the descriptive or recital clause, the granting clause controls. Mississippi Cent. R.R.
Co. v. Ratcliff, 214 Miss. 674, 684, 59 So.2d 311, 314 (1952); Dossett v. New Orleans Great N.
R.R., 295 So.2d 771, 774 (Miss. 1974); Jones v. New Orleans & N. E. R. Co., 214 Miss. 804, 814,
59 So.2d 541, 543 (1952). The granting clause supraclearly gives MPC the right to install underground
cable.

      IV. WHETHER THE LOWER COURT ERRED IN DENYING THE APPELLANTS'
      REQUEST FOR INJUNCTIVE RELIEF.

¶15. In lieu of the foregoing findings, we find it unnecessary to reach the Appellants' fourth assignment of
error.

                                              CONCLUSION

¶16. MPC's rights, and those of its successors and assigns, are limited by the language of the easements in
question, the plain language of which limits the use of telephone lines to be in connection with providing
electrical services. As such, it was erroneous for the chancellor to grant MPC's motion for summary
judgment. This action is reversed and remanded for proceedings not inconsistent with this opinion.
¶17. REVERSED AND REMANDED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, ROBERTS, SMITH
AND MILLS, JJ., CONCUR.




1. We consider McDonald's first two assignments of error together, as the following analysis is germane to
both issues.

2. The record indicates that the chancellor had seventy-seven (77) before him, though we are unable to
precisely identify the seventy-seven (77) easements in the record.
