Appeal from the Judgment of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD77-09816
John M. Cramer, Pittsburgh, for appellant.
Anthony J. Martin, Monroeville, for appellee.
Olszewski, Popovich and Montgomery, JJ.
[ 347 Pa. Super. Page 621]
Defendant-Appellant Duquesne Light Company appeals from a judgment entered in the lower court, in an equity case, which ordered Defendant to relocate its electrical transmission system, at its own expense, on property owned by the Plaintiff-Appellee. After careful review of the record, we are constrained to reverse the decision of the lower court.
The facts have been stipulated by the parties and are not in dispute. On September 9, 1954, Defendant, Duquesne Light Company (hereinafter referred to as "Duquesne") obtained a right-of-way over land owned by Gabriel and Marion Monzo, husband and wife, in order to install an overhead electrical transmission system, including line and supporting poles. The easement was created by an express grant and the easement agreement was duly recorded. The land over which the easement was granted was in an unimproved condition, and the majority of the land surface, at that time, was at a substantially lower elevation than the public thoroughfares which formed the western, eastern, and northern borders of the property. Of particular significance in this dispute, the easement agreement provided, inter alia:
In the event the said Grantors [Monzos] should change the present grade of the land where the poles supporting said transmission system are erected by filling around said poles, the said Grantee [Duquesne], at its expense, shall raise said poles as many times as may, in the judgment of said Grantee, be necessary to provide adequate clearance for the operation of said transmission system.
In the years following the creation of the easement, changes were made in the surface of the subject property by a land-filling operation designed to raise the elevation of the land. From time to time, Duquesne raised its poles
[ 347 Pa. Super. Page 622]
pursuant to the agreement. On August 12, 1971, Plaintiff-Appellee Gateway Motel, Inc. acquired the property formerly owned by Gabriel and Marion Monzo, which was subject to the easement agreement with Duquesne. On or about May 2, 1977, Gateway demanded that Duquesne either relocate above ground or place underground the transmission line, with all expense to be borne by Duquesne. Duquesne refused to comply with Gateway's request.
On May 4, 1977, Gateway filed a Complaint in Equity in this case seeking a determination that the above-mentioned paragraph of the easement agreement required Duquesne to relocate its power lines at Gateway's request. The Chancellor entered an Adjudication and Decree Nisi, on October 13, 1984, in which he held that the easement agreement required the relocation of the transmission lines and that said relocation was to be at the expense of Duquesne. Timely exceptions were filed by Duquesne on October 24, 1983. On February 21, 1985, the lower court entered an Opinion dismissing these exceptions. Final judgment was entered thereafter on March 19, 1985, and this appeal followed.
In reaching its conclusion, the lower court reasoned that: (1) the easement was not restricted to a particular corridor on the site; (2) both parties to the easement agreement knew that the land was subject to future development; (3) the same parties contemplated that the transmission lines would need to be relocated periodically; and (4) the parties agreed that the expense of such relocation was to be borne by Duquesne Light Company. The court also considered the cost of easement to the Appellant, which the court ...