No. The power company cannot automatically assume it has the right to rent out its lines to others; it must follow the rules in the original agreement. The court explained that previous court decisions the company relied on were about a different issue. Those cases decided whether adding a new *type* of wire was allowed at all. This case is about whether the company can *rent out* its existing, allowed wires to another business. The court said the answer to that question depends completely on the specific words written in the original permission document the landowners signed.

No, the power company can't assume it can let others use the land without checking the specific permission it was given. The old cases the judge mentioned were about slightly different issues and didn't look at situations where the permission had limits on letting others use the land. The permission here seems to limit the power company to using the land only for its own business needs. To figure out exactly what's allowed, the court needs to look closely at the specific wording of the permission. The first judge was wrong to throw out the landowners' complaint without doing that.

<opinion type="majority">
<author id="b414-11">Justice MOORE:</author>
Appellants (Landowners) commenced this class action against respondent (SCE &amp; G) for trespass, unjust enrichment, an injunction, and declaratory judgment. Landowners claim SCE &amp; G’s conveyance of excess capacity on its fiber optic cables was an improper use of the electric easements granted by Landowners to SCE &amp; G. The trial judge granted SCE &amp; G’s motion to dismiss under Rule 12(b)(6), SCRCP. We reverse.
FACTS
A motion to dismiss pursuant to Rule 12(b)(6) must be based solely on the allegations set forth in the complaint and <page-number citation-index="1" label="379">*379</page-number>we must presume all well-pled facts to be true. Overcash v. South Carolina Elec. and Gas Co., 364 S.C. 569, 614 S.E.2d 619 (2005). The complaint here alleges the following.
Landowners granted easements to SCE &amp; G giving SCE &amp; G “the right to construct, operate, and maintain electric transmission lines and all telegraph and telephone lines ... necessary or convenient in connection therewith....”<footnotemark>1</footnotemark> Sometime in the 1990’s, SCE &amp; G began installing fiber optic communications lines on its existing poles in these easements. Fiber optic lines do not carry electricity but transmit digital signals. After setting up this communications network,<footnotemark>2</footnotemark> SCE &amp; G began conveying excess fiber optic capacity to third-party telecommunications companies without notice or compensation to Landowners.
Landowners’ complaint further alleges that the easements granted to SCE &amp; G do not include the right to apportion any part of these easements to third parties for general telecommunications purposes. Landowners do not contest SCE &amp; G’s installation and use of the fiber optic lines for its own internal communications.
For purposes of the motion to dismiss, the trial judge accepted as true the allegation that the language of the easements does not allow third-party communications, but found the written easements were not determinative in light of this Court’s precedent in Lay v. State Rural Electrification Auth., 182 S.C. 32, 188 S.E. 368 (1936), Leppard v. Central Carolina Tel. Co., 205 S.C. 1, 30 S.E.2d 755 (1944), and Richland County v. Palmetto Cablevision, 261 S.C. 222, 199 S.E.2d 168 (1973). The trial judge concluded these cases stand for the proposition that utility easements “confer a broad right to use the utility easement for additional purposes” and therefore SCE &amp; G’s conveyance was authorized as a matter of law.
<page-number citation-index="1" label="380">*380</page-number>ISSUE
Does the holder of a utility easement have the right to apportion part of its own use to third-parties as a matter of law and without reference to the written easements?
DISCUSSION
Our resolution of this case rests on our reading of Lay, Leppard, and Palmetto Cablevision. Since we must presume as true the allegation that the language of the easements does not allow SCE &amp; G to convey use of its fiber optic cable to third parties, the issue is whether these cases allow apportionment of the use of a utility easement as a matter of law despite the language of the written easements.
In Lay, a 1936 case, we considered whether the placing of an electric line on a highway easement constituted an additional servitude. At issue was an Act of the General Assembly allowing the Rural Electrification Authority to install electric lines in any public highway. The plaintiff landowners contended it was a taking without compensation to allow this additional servitude of the easements granted to the State “for highway purposes.” We held the placement of electric lines in the highway easements did not constitute an additional servitude because communication was within the traditional use of a highway. There was no issue regarding whether the written easements in Lay prohibited an apportionment of use to third parties. We simply held the erection of electric lines was not an additional servitude to easements that were granted “for highway purposes.”
In 1944, we decided the Leppard case which involved § 8531 of the 1932 Code, now S.C.Code Ann. § 58-9-2020 (1977). This section provides:
<blockquote id="b416-9">Any telegraph or telephone company ... may construct, maintain and operate its line . . . under, over, along and upon any of the highways or public roads of the State....</blockquote>
The complaining landowner had previously conveyed “an unqualified right of way” to the State Highway Department. The issue was whether the erection of telephone lines in the highway easement was an additional servitude entitling the landowner to compensation. We followed our earlier decision <page-number citation-index="1" label="381">*381</page-number>in Lay and concluded the erection of telephone poles and lines within the highway easement was not an addition servitude and no compensation was due. Again, no restrictive language in the underlying easement was involved.
The third case, Palmetto Cablevision, was decided in 1973. Palmetto Cablevision did not involve private landowners but was an action by Richland County (County) essentially seeking to assert County’s authority over cable television services. Cablevision had an agreement with a telephone company to use the telephone company’s poles and rights-of-way and was required under the terms of that agreement to obtain consent from the State and private landowners, but not from County.
We found County’s permission to use these easements was not required and, even if it was, the facts indicated such permission was actually given. 199 S.E.2d at 172. We held that the telephone company’s easement was very broadly defined by statute and the stringing of additional cables for newly conceived communication uses was authorized without County’s permission.<footnotemark>3</footnotemark> 199 S.E.2d at 173. In essence, we found the television cables did not constitute an additional servitude on the underlying telephone easements. Again, the case did not involve restrictive language in the easements.<footnotemark>4</footnotemark>
SCE &amp; G would have us read these three cases as standing for the proposition that the use of a utility easement may be apportioned as a matter of law without reference to the language of the easement itself. We disagree.
First, Lay, Leppard, and Palmetto Cablevision, while settling the issue of an additional servitude, did not involve restrictions on the apportionment of an allowed use. As other courts have noted, the issue of apportionment is a slightly different issue from that of additional servitude. Where an easement is granted for some category of use, for instance <page-number citation-index="1" label="382">*382</page-number>“highway purposes,” the question of an additional servitude addresses whether some new use fits within that category of allowed use, a question that may turn simply on an evaluation of the new use rather than an interpretation of the easement’s language. Apportionment, on the other hand, involves the interpretation of a restriction on the easement holder’s conveyance of part of its own allowed use to a third party. See Jackson v. City of Auburn, 2006 WL 893617 at *9 (Ala.Civ.App.2006) (use of fiber optic line in electric easement may be apportioned when language in instrument indicates right to apportion and when apportionment is not additional servitude); City of Orlando v. MSD-Mattie, L.L.C., 895 So.2d 1127 (Fla.App.2005) (use of fiber optic cable not an additional servitude but cannot be apportioned under language of instrument granting easement); McDonald v. Mississippi Power Co., 732 So.2d 893 (Miss.1999) (same); see also Lighthouse Tennis Club Village Horizontal Prop. Regime LXVI v. South Island Pub. Serv. Dist., 355 S.C. 529, 586 S.E.2d 146 (Ct.App. 2003) (holding that language of easement restricted use of easement).
Here, there is no real issue of an additional servitude' — • Landowners concede the fiber optic lines are within the use allowed under the terms of the easements. Rather the issue is whether SCE &amp; G may apportion its allowed use to third parties. This is clearly an issue that cannot be resolved without construing the instruments granting the easements in question. It is well-settled that the rights of an easement holder depend upon the interpretation of the grant in the easement. Patterson v. Duke Power Co., 256 S.C. 479, 183 S.E.2d 122 (1971). Moreover, were we to read our earlier decisions as broadly as SCE &amp; G suggests, the owner of a servient estate could never limit the grant of a utility easement, no matter how specific the language in the easement.
Further, SCE &amp; G argues it can apportion its use of the easements to third parties because the easements in question are commercial easements in gross which are alienable as a matter of law. This is not entirely correct. Even with such an easement, the court will look at the language of the easement to determine whether there was an intention to attach the attribute of assignability by the use of such language as “to his heirs and assigns.” Sandy Island Corp. v. <page-number citation-index="1" label="383">*383</page-number>Ragsdale, 246 S.C. 414, 143 S.E.2d 803 (1965) (parties may make an easement in gross assignable by the terms of the instrument; commercial easement in gross assignable where language included “successors and assigns”); Douglas v. Medical Investors, Inc., 256 S.C. 440, 182 S.E.2d 720 (1971) (commercial easement in gross assignable where instrument included “his heirs and assigns”). Here, the easements attached to Landowners’ complaint do state a conveyance to SCE &amp; G and “its successors and assigns.” While this language indicates assignability, the language limiting the use of the easement to communications necessary to SCE &amp; G’s business appears to restrict that assignability. This ambiguity requires construction of the written easements themselves.
The trial judge’s order dismissing Landowners’ complaint is
REVERSED.
<judges id="b419-7">WALLER, BURNETT, PLEICONES, JJ., and Acting Justice JAMES W. JOHNSON, JR., concur.</judges>
<footnote label="1">
. Another easement, also annexed to the complaint, has slightly different language and provides "communication wires ... deemed by [SCE &amp; G]to be necessary...."
</footnote>
<footnote label="2">
. According to counsel at the motion hearing, SCE &amp; G uses the fiber optic lines for communication between substations.
</footnote>
<footnote label="3">
. Justice Littlejohn dissented from the majority's holding on this issue and would have held that County's permission was required because anyone wishing to use County's streets must first obtain a permit. 199 S.E.2d at 176.
</footnote>
<footnote label="4">
. Nor did the case involve a challenge by private owners of the servient estates. As Justice Littlejohn noted in concurrence, County had no right to raise the issue of just compensation due to private landowners. 199 S.E.2d at 177.
</footnote>
</opinion>

No. The holder of a utility easement does not have the right to apportion its use to third parties as a matter of law; rather, the right to do so is determined by the language of the instrument that created the easement. The court distinguished this case from precedents like *Lay*, *Leppard*, and *Palmetto Cablevision*, which the trial court relied upon. It reasoned that those cases dealt with the doctrine of 'additional servitude'—whether a new type of use was an additional burden on the land—not 'apportionment,' which concerns an easement holder's right to convey part of its allowed use to a third party. The court held that apportionment is an issue of contract interpretation that cannot be resolved without construing the specific language of the easement grant. Rejecting SCE & G's argument that commercial easements in gross are always apportionable, the court noted that even if an easement is assignable, the language of the grant can still restrict apportionment, and any ambiguity requires construction of the written document.

No, the holder of a utility easement does not have the right to apportion part of its own use to third parties as a matter of law without reference to the written easements because the rights of an easement holder are determined by the interpretation of the grant in the easement. The cases cited by the trial judge, Lay, Leppard, and Palmetto Cablevision, did not involve restrictions on the apportionment of an allowed use and were not about the apportionment of utility easements to third parties. Rather, they addressed whether certain uses constituted additional servitudes on the easements. The language of the easements in question here indicates that the use of the easement is limited to communications necessary to SCE & G's business, which appears to restrict assignability to third parties. This ambiguity requires construction of the written easements themselves. Therefore, the trial judge erred in dismissing Landowners' complaint without considering the specific language of the easements at issue.

Gressette v. South Carolina Electric & Gas Co.

Case Podcast

Rule of Law:

The Legal Principle

Facts:

Procedural Posture:

How It Got Here

Issue:

Legal Question at Stake

Opinions:

Majority, Concurrences & Dissents

Analysis:

Why This Case Matters

Gunnerbot