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Transmission Rights Row

Fiber optic lines expose grid companies to class action lawsuits.

Fortnightly Magazine - March 2008

be marketed as a single entity.

In virtually all cases, plaintiffs’ lands are not consolidated into a single marketable property. Each plaintiff has a limited interest in the transmission right of way by virtue of the portion of the easement that encumbers the individual parcel. However, the plaintiffs do not own or control a property or property rights that enable transmission between critical end points. Nor do they share in the ownership of a corridor with a common unit value, but only own the fee interest in land that is encumbered by a transmission easement. Each plaintiff owns a distinct parcel with its own highest and best use and its own unit value. This interest does not constitute a corridor or assembled interest.

From a practical standpoint, if some event triggered the termination of electrical transmission and the utility company’s rights in the easement reverted back to the owner, the nature of the property would change. It would no longer be an assembled corridor, but would be a series of thousands of remnant parcels belonging to the plaintiffs. Most of this land would become additional unencumbered acreage available for use by the property owners. However, because of the size and configuration, the acreage generally would add marginal value to the entire property.

Finally, being next to an assembled corridor does not make each plaintiff’s holding a part of the corridor. Real estate is always next to something. The presence of the transmission corridor, assembled and maintained at great expense, makes it possible for electricity to be transmitted between points. The assemblage of the corridor easements, and not the existence of the adjacent land, makes this possible.

Metaphorically speaking, the individual easements over the plaintiffs’ properties are like grains of rice or orzo. The assembled easements owned by the utility companies produce an interest akin to a strand of spaghetti. The corridor accommodates long strands of transmission wires that allow a commercial electric enterprise. Conversely, the plaintiffs’ properties are like grains of rice or orzo, disconnected with little or no potential for a unified use.

In the remote event that the transmission easements revert to the thousands of abutting plaintiffs, it’s unlikely those same plaintiffs ever would be able to assemble a corridor. First, the continuity of the corridor would be interrupted by major ownerships, such as government entities, railroads, corporations and utility companies. It’s hard to believe these groups ever would agree to share property rights with individuals or participate in the long and costly process of assembling a corridor. There are other discontinuities including, but not limited to, streets, parks, schools and other non-private uses outside a plaintiffs’ control.

No Additional Burden

Static wire accommodating fiber-optic transmission produces no additional burden on plaintiffs’ property interests. The plaintiffs do not suffer from any encumbrance placed upon them beyond what they agreed to pursuant to the original easement.

The substitution of a ground wire with fiber and the subsequent transmission of optical communications over the substituted wire is neither noisy nor unsightly. It does not impede plaintiffs’ access to their properties, impair the