Friday, May 04, 2007, 4:04 PM

NC SCT Grants PDR To Review "Easement Within Easement" Jury Charge In Condemnation Case

Today the Supreme Court granted review in Level 3 Communications v. Couch. The case concerns the proper jury instruction for valuing an "easement within an easement." (Womble Carlyle represents the petitioner, Level 3.)

Level 3, a telecommunications company, possesses by statute the power of eminent domain. In exercising that power in this case to condemn an easement for laying fiber optic cable, a controversy arose about valuing the easement.

At trial, Level 3 requested the following instruction: "You are instructed that if you find that the Level 3 easement is within land already burdened by an existing easement, you are to award damages only for the additional burden caused by the Level 3 easement. In other words, you are to consider the Respondents' land not in its pristine and [u]nencumbered state, but encumbered by any easements exist[ing] prior to the Level 3 easement. You are to award the difference in the fair market value of Respondents' land subject to the existing easement, immediately before and immediately after subjecting it to the additional easement imposed by Level 3."

The trial court declined to give that instruction. The jury returned a verdict exponentially larger than should've been the case. The Court of Appeals affirmed, unanimously holding in an unpublished decision that the trial court's charge conveyed the substance of the charge requested by Level 3.

This is an important case, because easement-within-easement condemnations are quite common. They arise with telecommunications, powerline, railroad, and highway easements. The Court of Appeals' decision, if left standing, could encourage more valuation disputes if landowners sense that they might be able to capture in litigation a higher value than the minimal value of the marginal additional burden (if any) imposed by an easement running over an already existing easement.

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