Pole Attachment Development (July 1, 2004)
Easement Ruling

Date: Jul 01, 2004

In Ogg v. Mediacom, L.L.C., case no. WD 63033 (Mo. Ct. App. June 22, 2004), the court ruled that Mediacom, a cable operator, could not rely upon the prescriptive easement held for decades by Platte Clay Electric Cooperative, Inc., since prescriptive easements confer only a qualified right to use land for a particular purpose. In this case, Platt Clay Electric obtained an easement for the operation and maintenance of electric power cable on poles, and Mediacom's stringing of fiber for cable and telecommunications purposes fell outside of this narrow easement condition. Mediacom, therefore, was required to negotiate with the landowner for its own easement or be liable for trespass. In a related matter, the court ruled that cable companies like Mediacom are not "public utilities" as that term is defined in Missouri, so that the state highway commission has no authority to grant Mediacom the right to use public highway rights-of-way. The Mediacom ruling is the latest pole attachment easement ruling in favor of landowners. It follows the $20 million settlement of an easement dispute reached recently between landowners in Virginia and North Carolina with Virginia Electric and Power Company and Dominion Telecom, Inc. Landowners clearly are becoming more aggressive in enforcing easements, and both utility pole owners and their attachers would be well advised to become more circumspect of landowner rights. Given the foregoing, Keller and Heckman LLP can assist pole owners in evaluating both the provisions of easements they may seek to rely upon and relevant state case law construing and interpreting the scope and implications of such provisions. The importance of such easement audits and the potential pitfalls they can help to avoid should not be underestimated.