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Transmission Rights Row

Fiber optic lines expose grid companies to class action lawsuits.

Fortnightly Magazine - March 2008

underlying fee interests, rendering them of little productive use to the grantors. Most of these easements allow the grantor such things as grazing rights, but deny them any construction or permanent occupation of the surface, subsurface, or air within the demised easement. That being said, the grantors retained the right to say “no” to any use of the transferred property that is not incorporated into the easement agreement. It is this denial of their right to reject additional uses that could entitle plaintiffs in these cases to damages.

In the spirit of the U.S. system of justice, the harm is measured monetarily. What clouds the damage calculation is the misconception that the plaintiffs own a corridor, or a continuous stretch of property that enables one to connect critical end-points without interruption. This is quite different from what the plaintiffs actually own, which is an individual parcel that is encumbered by a transmission easement owned by the utility company. Moreover, this easement is one of thousands of contiguous easements that the utility company owns and that, coincidentally, comprise the corridor.

Simply put, who owns the orzo and who owns the spaghetti?

To illustrate this point, consider an assembled right-of-way under common ownership or control that connects Chicago and St. Louis or New York and Boston for transportation, communication, or energy purposes. Obviously, these rights-of-way, or corridors, are worth a lot more than the sum of unconnectedly owned or controlled properties between those or other major markets. Parties to these law suits should answer the following:

• Do plaintiffs have corridors?
• Does the fiber burden plaintiffs’ abutting properties?
• Are the plaintiffs damaged?|
• Has any unauthorized use of the easements unjustly enriched the defendant?
• What factors are there to consider in the measurement of individual plaintiffs’ damages?

Contiguous Properties

Arguably, only the utility company that owns the transmission easement has a corridor. Individual property owners do not. Moreover, in addition to the rights-of-way, the utility company has towers, maintenance crews, specialized vehicles, and other assets essential to enable the suspension of fiber optic cable as well as maintaining and supporting its operation.

A corridor is defined as a contiguous stretch of real property—under common ownership or control—that connects strategic endpoints for a desired purpose. Highways, railroads, transmission lines, and pipelines all are examples of the types of uses that require an ability to move something from one point to another without interruption.

Because corridors are not always readily available, they often exhibit premium value. The availability of a stretch of real property, under common ownership or control, can offer a corridor user special utility without the necessary delay and expense of assembling a new corridor. This availability of assembled corridor property under the control of a single entity can be significantly more valuable than the sum of the non-assembled abutter properties adjacent to it. Furthermore, property recognized as a corridor, either due to ownership or control, is usually valued at some single consolidated unit of measure such as price per square foot or price per acre. This is because it can