WEIGAND v. ASPLUNDH TREE EXPERTS

GONZALES, Judge.

This suit involves a claim for property damages by Mr. and Mrs. Joseph Weigand arising out of the cutting of fourteen cypress trees by Defendant, Asplundh Tree Experts ("Asplundh"), without the plaintiffs' permission. The named defendants were Asplundh and Louisiana Power and Light Company ("LP & L"). The trial court rendered judgment in favor of the plaintiffs for damages to the trees and surrounding grounds. LP & L and Asplundh appeal urging the following assignments of error:

Plaintiffs filed an answer to the appeal claiming:

In August of 1983, Asplundh, under contract with LP & L, trimmed some trees which had grown into the power lines of LP & L. The utility poles supporting the power lines were located in the Terrebonne Parish right-of-way along St. George Road and were at least five feet outside of what was referred to at trial as the south-east boundary of plaintiffs' property, St. George Plantation. In the course of this work, Asplundh's crew trimmed approximately fourteen cypress trees which were allegedly located on St. George Plantation. The trees were cut about six feet below LP & L's primary power line; the top one-third, approximately six to fourteen feet, of each tree was removed.

At trial, defendants did not dispute that Asplundh's crew had cut the trees, however, they advanced various arguments disputing that the cutting of the trees gave rise to any liability to the plaintiffs. The asserted defense which is pertinent to this appeal is that LP & L had a servitude over that portion of St. George Plantation on which the trees were located and as the owner of such a servitude LP & L did not need the landowner's permission to maintain it.

The trial court made the following findings:

Whether the trial court found a servitude in favor of LP & L over plaintiffs' land upon which the trees in question grew or over the land upon which the utility poles and wires crossed (outside of plaintiffs' property) alone is unclear. However, after a thorough examination of the record and exhibits, we find a servitude existed in favor of LP & L over plaintiffs' property, and based on the evidence presented, any other finding would be manifestly erroneous.

The Third Circuit explained the effects of the St. Julien doctrine in Rogers v. Louisiana Power & Light Co., Inc., 391 So.2d 30 (La.App. 3rd Cir.1980), as follows:3

C.E. Brown, a retired LP & L supervisor of the area encompassing St. George Plantation, testified at trial that the power lines in question were placed along St. George Road in the 1950s. Thus, the St. Julien doctrine can be applied to the facts of this case. During the 1950s, St. George Plantation was owned by Charles Corbin. No testimony was presented to show that Mr. Corbin objected to the construction of the electrical lines. The testimony presented did reflect that electrical power supplied through the lines has been uninterrupted since 1950, minor power outages excepted. The right of LP & L to the servitude has been apparently unquestioned. In fact, the previous owner of St. George Plantation testified that he allowed LP & L to trim the trees extending into the power lines, noting that the power lines were in existence when he planted the trees. Where there has been consent or acquiescence of the owner at the time of construction, subsequent owners take the property subject to the servitude. Rogers v. Louisiana Power & Light Co., 391 So.2d at 34 [citing Webster Sand, Gravel & Construction Co. v. Vicksburg S. & P. Railway Co., 129 La. 1096, 57 So. 529 (1912)].

Having found that plaintiffs' ancestor in title acquiesced to the power line construction, there remains to be determined only the extent of that servitude. The limits of a servitude for electric transmission lines and the rights of the servitude owner revolve around what is reasonable and necessary from the point of view of both parties. Barnes v. Dixie Electric Membership Corp., 323 So.2d 247 (La.App. 1st Cir.1975). There must be a balancing between what is necessary in order for the servitude owner to use his servitude and what the landowner must suffer as a result of the servitude. 323 So.2d at 250. Reasonableness is determined upon each particular set of facts. Id. The Barnes court concluded that a twenty foot servitude (ten feet on either side of the pole) was reasonable in that case. In Sticker v. Southern Bell Telephone and Telegraph Co., 101 So.2d 476 (La.App. 1st Cir.1958), six feet on either side of telephone lines was found to be a reasonable servitude.

In order to determine what distance is reasonable in the case sub judice, we must first examine the location of the trees with reference to the power lines, plaintiffs' property line and the existing highway servitude. Plaintiffs' ancestor in title, Charles Corbin, acquired the land, consisting of 5.137 acres, by deed (introduced into evidence) dated September 11, 1945, indicating the property line extended to the centerline of the "project road" and was subject to the right-of-way for that road. The property was sold by the Corbin Estate to Charles Chauvin in 1962 and consisted of 4.7584 acres bounded on the south by the "Public Project Road", and 0.361 acres lying between Highway 24 and Bayou Terrebonne. Made a part of the act of sale to Mr. Chauvin was the map prepared by William Clifford Smith (reproduced in Appendix "A"), incorporated by reference thereto. In 1982, Mr. Chauvin sold the property to plaintiffs. Plaintiffs' deed, which also incorporated the 1961 Smith Survey, indicates that they purchased 4.785 acres5, bounded on the south by the "Public Project Road". The "project road" is shown on later maps to be St. George Road, along which the power lines and cypress trees in question stand.

The map of the 1961 survey prepared by William Clifford Smith, reproduced in Appendix "A", shows plaintiffs' property line along the St. George Road to be less than 34.33 feet from the centerline of the road. Although the 1961 survey map did not show the placement of the cypress trees, a map prepared by Charles McDonald in 1988, reproduced in Appendix "B", based on the 1961 survey indicates some of the trees are on the property line and some are slightly inside the property line. However, neither of these maps reflect the extent of the servitude for St. George Road. Mr. Weigand testified that the title examination prepared on his behalf which was introduced into evidence reveals that the property is subject to: "all rights, ways and/or servitudes as depicted upon that plat showing property of the United States of America, in particular, the St. George, Isle of Cuba, Waubun Plantations, duly recorded in CB 184, folio 225, under Entry Numbers 105320, 105321, 105322. In particular the gravel road on the boundary of said subject property. [Sic.]" A certified copy of the 1945 plat was filed into evidence and showed an eighty foot right-of-way for St. George Road. The map also indicated the property line extended to the centerline of the road at that time.

Charles McDonald, the surveyor performing the 1988 survey, testified that the utility poles were located approximately five feet off of the property line. The map reproduced in Appendix "C", of the 1984 survey prepared by Charles M. Camp, shows the position of the cypress trees to be approximately 0.1' to 1.8' within the St. George Road servitude. Therefore, if LP & L were found to be entitled to a servitude for its lines co-extensive with that portion of the highway servitude affecting plaintiffs' property, it would amount to some six to eleven feet of clearance on that side of its lines fronted by plaintiffs' property. We believe that this is a reasonable servitude allowance under the circumstances of this case.

Although the trial court correctly found a servitude in favor of LP & L, it went on to find LP & L was required to obtain permission from the landowner prior to cutting the trees; this was error. The trial court correctly sets out the holding of Fontenot v. Central Louisiana Electric Co., 147 So.2d 773 (La.App. 3rd Cir.1962), that an electric company is required to obtain permission before cutting trees on adjacent property with branches overhanging the property line. See also Harrison v. Louisiana Power and Light Co., 288 So.2d 37 (La.1973). However, the instant case is not governed by Fontenot because the trees in question herein are themselves (not merely the branches) within the servitude enjoyed by LP & L. In Fontenot, the offending trees were located on property adjacent to, but not subject to the servitude; only some of the branches of the trees extended into the right-of-way. The confusion arises in the present case because LP & L's servitude encompasses a strip of plaintiffs' property as well as adjacent property arguably6 not owned by plaintiffs.

The test to be applied in cases such as this, where the trees or shrubbery interfering with a utility company's enjoyment of its servitude are located within the right-of-way, is that announced by this court in Sticker v. Southern Bell Telephone and Telegraph Co., 101 So.2d at 477, and Stirling v. Dixie Electric Membership Corp., 344 So.2d 427 (La.App. 1st Cir.1977). Citing La. C.C. arts. 771 and 772,7 the Sticker court held that where a servitude has been acquired, all the rights necessary to preserve or use the servitude pass with it. 101 So.2d at 477. The Sticker court further stated that in order to make use of the servitude granted to the telephone company therein, it was necessary to cut, or clear, the area under and within a reasonable distance of the telephone line. Id. In Stirling8 the court held that when it becomes necessary, in maintaining electrical lines, to remove, cut or trim trees and shrubs, it must be done in a reasonable manner, with due regard to the rights of all parties.

Accordingly, damages for the cutting or trimming of trees growing in LP & L's servitude should only have been awarded if performed in an unreasonable manner. Although the top one-third of each tree was removed, considering the close proximity to and extent of entanglement of limbs and branches with the power lines, we find the actions of defendants to be reasonable and consistent with their duty to prevent hazards to third persons. Consequently, damages awarded by the trial court were made in error and are hereby reversed. We find no merit in plaintiffs' assignments of error.

For the reasons assigned herein, the judgment of the trial court is reversed, and judgment is rendered in favor of LP & L and Asplundh and against the plaintiffs dismissing the plaintiffs' petition with prejudice. All costs of these proceedings are to be borne by plaintiffs herein.