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The land involved in this case is legally described as the SE1⁄44NW1⁄4, Section 6, E2W2, Section 7, Township 12 North, Range 2 West, W.M., Lewis County, Washington. The land was acquired by the claimant in July 1961. The original easements were purchased by the Administration from three separate owners in 1940. These tracts will be designated from south to north by legal description, and hereafter, as No. 1, No. 2, or No. 3 as follows:
Tract No. 1-The E2SW14, Sec. 7, T. 12 N., R. 2 W., W.M., Lewis
Tract No. 2-The E2NW, Sec. 7, T. 12 N., R. 2 W., W.M.,
Tract No. 3-The SE4NW4, Sec. 6, T. 12 N., R. 2 W., W.M.,
Maintenance spraying on the transmission right-of-way which crosses these tracts was first undertaken in the early 1950's by BPA. These first sprays had little or no effect upon conifers; however, the natural deciduous growth was almost entirely killed. This created favorable growing conditions for the conifers, and the growth of these trees quickly obliterated the initial boundaries of the right-of-way. At points on these tracts dense stands with individual trees ranging in height to 35 feet grew on the right-of-way. Prior to claimant's acquisition, these tracts were not used for growing Christmas trees. The trees affected by the spraying were not planted by claimant but were natural wild growth.
In February 1961 chemical treatment was undertaken by the Administration on the right-of-way to control the conifers. An experimental compound "Dybar Fenuron" was used on a test plot which lies within Tract No. 2. The right-of-way on the Longview-Chehalis Line No. 1, from towers 31/3 to 31/4, and approximately one-half of the span from towers 31/1 to 31/2 was treated. Inspection of this plot was made at 30-day intervals. A significant kill of the smaller growth 5 on the right-of-way was obtained but there was no lasting effect on the larger growth.
In April 1961 a much smaller area near the boundary between Tract No. 1 and Tract No. 2 was treated with the same chemical with substantially the same results.
In August 1962 spraying with 2,4-D, 2,4,5-T and TCA (Sodium Trichloro Acetate) was undertaken on this transmission line right-ofway, including the right-of-way where it crosses above the described three tracts. In conjunction with this spray program, the Administration also undertook hand clearing, cutting, and limbing of the dense
2 Claimant originally described the lands as T. 12 N., R. 7-W., W.M. This was corrected by letter of October 23, 1963, which is attached to the original claim.
3 Parenthetical references are the official BPA tract designations.
May 1, 1964
stands. This was done to minimize the fire hazards which would result from allowing the dense stands to remain standing after spraying. It is the 1962 spraying which claimant alleges resulted in its damages. None of the damages complained of occurred outside the right-of-way boundaries.
Claimant has included in its claim the area upon which the 1961 chemical test was made. The 1961 chemical test covered 1,200 feet of the overall distance of 2,640 linear feet on Tract No. 2 and a lesser amount on Tract No. 1. Since this alleged damage occurred prior to the date claimant acquired ownership of the property, the portion of the claim attributable to this chemical treatment cannot be allowed. See Caledonian Coal Co. v. Rocky Cliff Coal Mining Co., 16 N.M. 517, 120 Pac. 715, 718 (1911), where the court stated:
* If * ** the title to coal, before the plaintiff received a deed from the railroad company, was in the railroad company, a right to action to recover for the same was also in the railroad company, and such right did not pass by the deed.
See also United States v. Loughrey, 172 U.S. 206 (1898), and W. T. Smith Lumber Co. v. McKenzie, 256 Ala. 496, 55 So. 2d 919 (1952).
Claimant also has included as a part of its claim damages for loss of future productivity of the land. This amount, $575, is predicated upon an alleged sterilization of the soil. The chemicals used by the Administration in the spraying on August 30, 1962, have little or no lasting effect. Laboratory and field tests indicate the residual effects are measured in months, not years. The estimate by claimant of a ten-year loss of productivity of the land is unsubstantiated by any evidence and this portion of the claim must be denied for this reason (see Plant Growth Substances, A. J. Audus, Leonard Hill Books Ltd., London, England, 1959) as well as the reasons hereafter discussed.
As a general rule the fee owner may make any use of the land covered by the easement which is consistent with the easement, or does not interfere with the exercise of the easement. Tiffany, Real Property, § 811, vol. 3 (3d ed. 1939). As a corrollary to this rule, the owner of the easement may make full use of the easement, including rights necessarily implied or incidental thereto. Pitsenberger v. Northern Natural Gas Co., 198 F.Supp. 665 (S.D., Iowa 1961); United States v. 308 Acres of Land, 209 F.Supp. 652 (D. Utah, N.D. 1962); City of Portland v. Metzger, 158 Ore. 276, 114 Pac. 106 (1911).
The methods of exercising the rights granted by the easement are not permanently limited to those which were known, used or contemplated at the time the easement was granted. This point is aptly illustrated in United States v. 3.08 Acres of Land, supra. There the court held that an easement for a canal included the right to construct an irrigation canal 100 feet wide and operate a boom 50 feet high upon the banks. Irrigation canals of this width with the need to maintain
booms of this height were undoubtedly not contemplated at the time of the original easement. The court stated:
***But if we must limit construction or maintenance within the protection of the easement to exactly what was well known or practiced [at the time of the reservation], the basically continuing purpose of the reservation would be frustrated.
The right reasonably to maintain such a canal, including the right to operate the fifty foot boom if reasonably necessary under existing conditions, must be considered to be included in the reserved easement. The general rule is that while an easement holder may not increase the servitude upon the grantor's property by enlarging on the easement itself, it is entitled to do what is reasonably necessary for full and proper enjoyment of the rights granted under the easement in the normal development of the use of the dominant tenement. 209 F. Supp. at 659. [Italics added.]
Since the early 1950's the Administration has been utilizing spray as a means to control natural growth over the more than 8,000 miles of transmission lines it operates. This practice is not confined to the Administration but is a general practice within the industry. The recent development of more effective spraying agents provides a better means to exercise the originally granted rights.
In determining whether spraying is "reasonably necessary under existing conditions," it is proper to consider the costs of different methods of controlling the natural growth. In terrain similar to that of the claimant, the difference between the cost of hand clearing and of spraying is approximately $450 per acre. The cost can be
Maintenance costs for hand clearing range from $300 to $1,000 per acre. This compares to a cost of approximately $40 to $50 per acre for spraying. In view of the greatly increased cost of clearing performed by hand, and the fact that spraying is the general practice in the industry for controlling natural growth on rights-of-way, it is my conclusion that spraying of the natural growth upon the easement was "reasonably necessary under existing conditions."
Analysis of the instruments by which these easements were obtained does not require a different conclusion.
The original easements obtained by the Administration on Tracts Nos. 1 and 3 provide in pertinent part:
*** The said grantee shall be entitled to maintain and keep the said parcel of land at all times free and clear of trees and brush and of all structures or materials which interfere or create a hazard in connection with the said electric power transmission lines, and wires and appurtenances convenient thereto. [Italies added.]
Under the easement granted for Tracts Nos. 1 and 3 the Administration obtained the right to keep the easement "free and clear" of all trees and brush. Under this grant the Administration would not have been liable for cutting the trees upon which claimant bases his loss and it therefore can have no claim for the loss of the trees by spraying.
May 1, 1964
Accordingly, as to these two tracts which comprise approximately two-thirds of the claim, it must be denied.
The deed by which the easement for Tract No. 2 was obtained differs slightly in language from that which granted Nos. 1 and 3. This instrument states:
and to have, hold, keep, maintain, and clear said right of way at all times free and clean of all trees, growth, structures, or materials which interfere with or create a hazard in connection with the construction, operation, or maintenance of any of said lines * **
The said grantee shall be entitled to maintain and keep the said parcel of land at all times free and clear of trees and brush and of all structures or materials which interfer [sic] or create a hazard in connection with the said electric power transmission lines, and wires and appurtenances convenient thereto.
While easements are construed like deeds, the common law rule of hewing strictly to the language of the grant has been modified by modern authority. The shift is away from limiting the estate created to the exact words of the grant. Modernly, an attempt is made to determine the intent of the parties and the instrument will be construed to give effect to such intention. Annot., 58 A.L.R. 2d 1380 (1958). A deed will be construed to give effect to every part. In re Molke's Estate, 198 Wash. 6, 86 P. 2d 763 (1939). It will be construed so that some meaning will be given to every word, if reasonably possible. Fowler v. Tarbet, 45 Wash. 2d 342, 274 P. 2d 341 (1954). The broadest statement of the rule is made in 16 Am. Jur. Deeds § 237 (1938), where it is stated that the intention of the parties, where apparent from the instrument, will be given effect although technical rules of construction are violated.
Claimant interprets the easements as giving the Government the right:
*** to keep the easement free and clear of all such growth as interferes with or creates a hazard in connection with the maintenance of the transmission lines constructed within the easements. We fail to see how the young growth which was destroyed * * * interfered with or created a hazard to the maintenance of the lines ***.
Apparently the claimant would not permit the natural growth to be cleared until it had reach such a height that it would threaten physical or electrical contact with the conductor or was so dense as to block access along the right-of-way. Under such a construction a tree 14' could be cut and removed but an adjacent tree 13'6" would have to be left standing. It is not reasonable to construe the easements. in such a restrictive fashion. Such a construction would result in extremely high maintenance costs and would be completely contrary to prevailing practices for maintaining rights-of-way in the electric utility industry and also in the maintenance of other types of rights-of
* The instrument conveying Tract No. 2 was prepared by the grantor.
way. Spraying of young, natural growth is accepted practice on railroad, telephone and ditch rights-of-way.
The experience upon this very right-of-way amply illustrates the problem which the construction urged by the claimant would pose to the Administration. During the interval between the first spraying in the early 1950's and that which gives rise to this claim, the conifers quickly became an actual hazard to the line. Extensive and expensive hand clearing, thinning and limbing was required to prevent the trees from coming into contact with the transmission line, to reestablish the location of the rights-of-way boundaries, and to reduce the fire hazard. This extraordinary expense can now be avoided by the use of new spraying agents when the natural growth is still young. Moreover, if the construction which is urged by the claimant were to prevail, the right to clear the right-of-way would be no greater than the right to cut danger trees which is often acquired from the owners of property adjacent to a transmission line right-of-way. This right, known throughout the industry, allows the owner of the dominant estate to cut and remove trees adjacent to the right-of-way which actually imperil the line. The right to remove is restricted to those which constitute an immediate danger to the line, and the owner of the dominant estate who has acquired these additional rights makes the selection of those trees to be removed at his peril. Cutting or removing any tree or trees which are not then an actual danger would give rise to a claim. Comparing the two rights illustrates the striking difference. Within the right-of-way the easement owner has the right to clear and keep clear the right-of-way of all natural growth, trees or brush which, if uncontrolled, would interfere with or would become a hazard to the construction, operation, or maintenance of the line. Adjacent to the transmission line right-of-way the owner of danger tree rights may cut only those trees which are an actual and immediate danger to the line.
In my opinion it is not reasonable to construe the easements obtained by the Administration as granting only danger tree rights. From the very beginning the easements were construed as giving to the Administration the right to "clear and keep clear" the rights-of-way. At the time the line was constructed in 1940 the right-of-way was cleared to bare ground. No objections were interposed by the grantors of the easement to such clearing. Nor were objections interposed to the spraying of the right-of-way during the early 1950's, or the chemical treatments during February and April 1961. This is evidence that the original parties to the easement have construed the language of the easement from the very beginning as giving the Administration "the right to clear and keep clear" the right-of-way. This contemporary construction is entitled to great weight in determining the intention of the parties to the easements. See Oneida Township v. Allen, 137 Mich. 224, 100 N.W. 441, 442 (1904), where the court stated: