2005

Va. Elec. & Power Co. v. N. Va. Reg’l Park Auth.

Supreme Court of Virginia

270 Va. 309, 618 S.E.2d 323

In 1977, the Regional Park Authority entered into an agreement with Virginia Power to obtain a recreational trail 1oo feet wide and 45 miles long. In the deeds, Virginia Power reserved to itself an easement for electrical, energy and communication purposes. The Park Authority agreed not to grant any easements without written approval of Virginia Power. AT&T approached Park Authority to place fiber optic cables along trail. A dispute arose as to the scope of Virginia Power’s approval rights. Virginia Power decided it would solely negotiate with telecommunication customers. Both parties filed declaratory judgment actions seeking to resolve whether Virginia Power could apportion telecommunication access to third parties without a license granted by Park Authority. Trial court ruled in favor of Park Authority. Supreme Court had to determine if easement was an exclusive easement in gross (which gives owner right of apportionment) or a non-exclusive easement. The clear language of the deeds giving Park Authority permission to grant third-party easements of any kind, subject to approval by Virginia Power, showed Virginia Power had a non-exclusive easement in gross, and judgment was affirmed.

Dissent by Justice Koontz and Senior Justice Stephenson, asserting that the language of the deeds gave Virginia Power an exclusive easement.

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