Attorney General's Opinion

Attorney General, Richard Blumenthal

June 6, 2007

Daniel F. Caruso, Chairman

Connecticut Siting Council

10 Franklin Square

New Britain, CT 06051

Dear Chairman Caruso:

          You have asked me to provide “an opinion as to what the rights and responsibilities are of the utility companies relative to their use of existing easements” in connection with the Middletown – Norwalk 345 kV electric transmission line and associated facilities approved by the Council in Docket No. 272. The Council’s request for an opinion also referred to a letter from Senator Gayle Slossberg and Representative Paul Davis to the Council dated March 20, 2007.  In that letter, Senator Slossberg and Representative Davis requested:

that the Siting Council seek an opinion from the Attorney General’s office clarifying the rights and obligations of the utility company as related to indemnification of homeowners in the event of an injury or accident in the Right of Way of construction activities.

          In preparing this response, my Office has reviewed samples of the various easement agreements that the Connecticut Light and Power Company (“CL&P”) has used over the years along the Middletown-Norwalk right-of-way.

          As you are aware, this office does not have the statutory authority to resolve legal issues related to privately owned property.  Only a court of competent jurisdiction can make binding determinations on personal property rights. Zhang v. Omnipoint Communication Enterprises, Inc. 272 Conn. 627 (2005).  Nevertheless, according to case law, homeowners apparently would not be liable for injuries or accidents occurring in the utility right of way (“ROW”) related to the construction and operation of the approved transmission line.  Additionally, we conclude that all aspects of transmission line construction are within the jurisdiction of the Siting Council.  The Siting Council has the authority to ensure that electric transmission facilities are constructed so that any private property that may be affected by a transmission line project is protected and utility companies are required to assume all liability for injuries or damages in transmission rights of way related to the construction and operation of transmission facilities.  The Council may impose such requirements as a condition of its granting a certificate of environmental compatibility and public need, and I recommend that it do so.

There are more than 450 separate easement agreements between CL&P and individual property owners along the Middletown-Norwalk right-of-way.  These easements were obtained by CL&P in the early twentieth century, long before transmission lines or construction projects of this magnitude were envisioned or contemplated.  CL&P obtained these easements, most probably, by either using the power of eminent domain given the company by the State of Connecticut or with the property owners’ knowledge that eminent domain was available to the company.

The specific terms of each of these agreements vary slightly and the model easement form used by CL&P changed over the years.

Generally, under Connecticut law, the character and extent of an easement created by deed is ascertained by the intent of the parties.  Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 831 (1998).  Absent evidence to suggest that the terms of an easement were intended to have any special or unusual connotation, the words of an easement are construed according to their ordinary meaning. Lakeview Association v. Woodlake Master Condominium Association, 239 Conn. 769, 777 (1997). It is only where the language of the deed is ambiguous that the courts look beyond that language to the surrounding circumstances to determine the intent of the parties.  Lynch v. White, 85 Conn. 545, 550.  "Although in most contexts the issue of intent is a factual question over which our scope of review is limited, the construction of a deed, considered in light of all the surrounding circumstances, presents a question of law over which we exercise plenary review."  Zhang v. Omnipoint Communications Enterprises, Inc., at 634.

The easement deeds used by CL&P along the Middletown-Norwalk right-of-way reference a right to install wires, towers and poles. There are no references to voltage. One easement form references such items being installed "for the transmission of electric current of any character necessary or convenient from time to time in the conduct of grantee’s business . . . .”

          The easements state that CL&P has the right to clear vegetation of all types, from brush to trees, and overhanging tree limbs in the easement area. Property owners generally retain a right to cultivate the areas between poles, towers and wires so long as those activities do not obstruct or interfere with the use, maintenance or operation of that equipment.

The sample easements reviewed between CL&P and the property owners along the MiddletownNorwalk right-of-way do not appear to contain any language concerning liability or indemnification of property owners for damages or injury arising from the construction, operation and maintenance of CL&P’s transmission lines. 

Despite the lack of any reference in the easements to issues of liability, case law indicates that homeowners have no liability for damages or injuries in the easement right of way related to the construction, operation and maintenance of transmission lines. While we know of no Connecticut case directly on point, cases from other states indicate that utility companies owning transmission lines are liable for damages or injury resulting from those lines. 

In Kibbons v. Union Electric Company, 823 S.W.2d 485 (Mo. banc 1992) the plaintiff’s decedent was electrocuted while performing construction duties in Union Electric Company’s (UE’s) transmission line easement on property owned by J.R. Green Properties, Inc. (Green).  The Court noted that, “Green’s predecessor in title had conveyed an easement over this tract, including Lot 6, to Union Electric (UE) to construct, operate, and maintain utility poles and lines over the property.” Id., at 487.  In analyzing liability, the Missouri Supreme Court stated:

A landowner has no duty to maintain or repair, Gnau, 672 S.W.2d at 145; Mispagel, 785 S.W.2d at 282; Annin v. Lake Montowese Dev. Co., Inc., 759 S.W.2d 240, 241-2 (Mo.App. 1988), or to warn or barricade dangerous conditions on the easement that are in the sole control of the holder of the easement.  Gnau, 672 S.W.2d at 145; Reyna v. Ayco Development Corp., 788 S.W.2d 722 (Tex.App. 1990).  This is because the landowner is only liable for those injuries caused by devices placed on the premises by the holder of the easement that are under the landowner’s possession and control.  Hunt v. Jefferson Arms Apartment Co., 679 S.W.2d 875, 879 (Mo. App. 1984).  There is no duty even where the landowner has knowledge of the potentially harmful condition.  Gnau, 672 S.W.2d at 145, citing Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982).

In Duke Power, a child was injured when she touched a transformer on an easement owned by Duke Power Company on land owned by a housing authority and leased to an individual.  The lessee knew the box was unlocked and had notified both the power company and the housing authority.  In following the principle that it is control and not ownership which determines liability, the North Carolina Supreme Court held that Duke had the sole duty to keep the transformer safe and that the knowledge of the owner and lessee of the servient estate is “irrelevant to the question of their liability” where they had no control over the transformer.  290 S.E.2d at 598.

UE had sole control of the lines on its easement.  Green, having no control of the lines on the easement, could not be liable for any dangerous condition resulting therefrom and accordingly had no duty to maintain, repair, warn of or barricade the condition in order to protect invitees on its own property crossing through the easement.

Kibbons v. Union Electric Company, supra, at 488-489 (footnotes omitted).

More recently, the Appellate Division of the New York Supreme Court decided Tagle v. Jakob, 275 A.D.2d 573, 712 N.Y.S.2d 681 (A.D. 3 Dept. 2000), in which a homeowner was sued by a guest who was injured when climbing a tree in contact with utility wires on an easement on the homeowner’s property.  The plaintiff sued both the New York State Electric and Gas Corporation (NYSEG) and the homeowner.  The Court held that the homeowner was not liable, stating, “In the absence of any obligation to maintain or repair the easement, the [servient owner’s] only duty is to refrain from unreasonably interfering with the exercise of the right to the use of the easement by the owner of the dominant estate.” Id., 712 N.Y.S.2d at 683 (citations omitted).  The Court noted that the utility wires which caused plaintiff’s injury passed through the large pine tree located within the confines of NYSEG’s easement.  The instrument conveying the easement did not contain any covenants obligating the grantor to maintain or repair it.”  Id.

We have no reason to believe that Connecticut’s courts, if faced with similar circumstances, would reach different conclusions.

          In addition to the apparent protection against liability afforded homeowners by case law, additional protection may be provided by the Connecticut Siting Council and the Connecticut General Assembly.

The siting of electric transmission facilities is governed by the Public Utility Environmental Standards Act enacted by the Connecticut General Assembly.  Conn. Gen. Stat. §16-50g, et seq. According to law, the Siting Council has full authority to direct the manner and method of transmission line construction. 

One of the Council’s primary responsibilities is to “protect the environment and ecology of the state.”  Conn. Gen. Stat. 16-50g.  To meet that responsibility, the Council shall not grant a certificate “unless it shall find and determine: The nature of the probable environmental impact of the facility alone and cumulatively with other existing facilities, including a specification of every significant adverse effect, including, but not limited to… the natural environment, ecological balance, public health and safety, scenic, historic and recreational values, forests and parks, air and water purity and fish, aquaculture and wildlife.”  The Council must also determine “why the adverse effects… are not sufficient reason to deny” a certificate. Conn. Gen. Stat. 16-50p(a)(3)(B) and (A). In making its required findings and determinations, the Council must pay particular attention to areas designated by the General Assembly for special consideration and attention, such as “residential areas.”  Conn. Gen. Stat. 16-50p(a)(3)(D).

            In issuing a certificate for a transmission line, the Council may impose “such terms, conditions, limitations or modifications of the construction or operation of the facility as the council may deem appropriate.”  Conn. Gen. Stat. 16-50p(a)(1).  The Council may, therefore, require utility companies to ensure that its construction practices are the least intrusive and most environmentally sensitive possible.  These conditions may be set forth in the certificate itself or in the Development and Management Plan that must be approved by the Council.  Significantly, the Council is not required to base its certificate on specific rights or references given utility companies in deeds they have acquired:  “In making its decision as to whether or not to issue a certificate, the council shall in no way be limited by the fact that the applicant may already have acquired land or an interest therein for the purpose of constructing the facility which is the subject of its application.”  Conn. Gen. Stat. 16-50p(g).1

As with other issues related to the construction of a transmission line, the Siting Council, as a condition of its certificate of environmental compatibility and public need, may require utility companies to assume liability for all injuries or damages in utility rights of way during construction and to carry appropriate insurance or other financial security to cover such possibilities. The Council has the authority to ensure that “the location of the line will not pose an undue hazard to persons or property along the area traversed by the line.”  Conn. Gen. Stat. 16-50p(a)(3)(E).  Construction or operation of a transmission line may create hazards to persons or property -- a fact inherent in such construction projects. The Council’s power to protect persons and property necessarily includes the protection from damage or injury as a result of the construction or operation of a transmission line.  Consequently, the Council has the authority to require utility companies, as a condition of their receipt of a certificate of environmental compatibility and public need, to indemnify and hold harmless all property owners along the route of a transmission line for all injuries and damages to persons or property related to construction and operation of the transmission line.

             The State of Connecticut through its Department of Environmental Protection (“DEP”) and its Department of Transportation already make such indemnification  requirements part of easement and/or encroachment agreements with various utilities, including CL&P. For example, a DEP utility easement granted to CL&P includes the following language: 

[t]he Grantee herein [CL&P], for itself, its successors and assigns, hereby agrees to now and forever indemnify and save, protect, and keep harmless the State of Connecticut from every and all causes of action, suits (including without limitation reasonable attorney's fees and court costs), costs, loss, damage, liability, expense, penalty and fine whatsoever, which may arise from or relating to, or claimed against the State of Connecticut, by any person or persons, for any and all injuries to person or property or damage of whatever kind or character consequent upon or arising from the negligent use or maintenance by the Grantee, its employees or authorized agents of (i) the Easement area and (ii) all electric and communications facilities contained in the Easement Area.

          The Council should grant similar indemnification protections to individual property owners along utility rights-of-way.  It has the authority to do so in certificating new construction projects or modifications to existing projects, through insurance or other financial security requirements, irrespective of the specific language that may be contained in existing easements.  The General Assembly may also wish to specifically make such indemnification provisions a requirement of all certificates of environmental compatibility and public need issued by the Council.

                                                          Very truly yours,

                                                          RICHARD BLUMENTHAL


1 State authority over utility company operations within a transmission line right of way does not end once construction is completed.  The Department of Public Utility Control (“DPUC”) has the authority to ensure that utility companies maintain those lines in a manner that protects the public’s safety (Conn. Gen. Stat. 16-11) and any person may file a complaint with the DPUC concerning any unsafe practices by a public service company, which complaint will be investigated by the DPUC.  Conn. Gen. Stat. 16-12, 16-13.  Additionally, Conn. Gen. Stat. §16-243 gives the Department of Public Utility Control “exclusive jurisdiction and direction over the method of construction of reconstruction in whole or in part of each system used for the transmission or distribution of electricity,…”

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