Richardson v. Va. Elec. & Power Co.

EVERETT A. MARTIN, JR. JUDGE

EVERETT A. MARTIN, JR. JUDGE Joshua E. Baker, Esq.
Waldo & Lyle, P.C.
301 West Freemason Street
Norfolk, Virginia 23510 Daniel R. Quarles, Esq.
Otey, Smith & Quarles
485 McLaws Circle
Williamsburg, Virginia 23185 Richard J. Cromwell, Esq.
McGuire Woods
101 West Main Street, Suite 9000
Norfolk, Virginia 23510 Dear Gentlemen:

The facts adduced at the hearing on April 23 are not controverted; the legal consequences of those facts are. In 1958, Virginia Electric and Power Company ("VEPCO") acquired an easement over what is now the plaintiffs' property. Sometime before 2002, VEPCO erected a 100 foot high steel pole on the easement.

In 2002, VEPCO allowed T-Mobile to place nine cellular telephone antennas atop the pole. This required the attachment of a fifteen foot high structure to the top of the pole. T-Mobile also erected a ground facility (the "facility") within a twelve by twenty-one foot chain link fence in the easement, but on property adjoining that of the plaintiffs. From the facility T-Mobile ran eighteen 7/8" cables within the easement and under about twenty-five feet of the plaintiffs' land. These cables came out of the ground very close to the pole and then ran, within conduit attached to the outside of the pole, to the nine antennas.

In 2009, T-Mobile replaced three of nine antennas and added some support pieces to the antennas. It also added to the facility. You agree that any claim for damage to the plaintiffs' property by the 2002 and 2009 construction is barred by the statute of limitations. Reachmeade v. City of Richmond, 267 Va. 598, 594 S.E.2d 606 (2004).

In 2012, T-Mobile replaced six antennas and added one 1 ¼" underground fiber optic cable in the same area as the eighteen existing cables. The underground portion of the new cable on the plaintiffs' land is also about twenty-five feet in length. As it is a law of science that no two forms of matter can occupy the same space at the same time, the installation of the fiber optic cable required that either a trench or tunnel be dug in the easement.

Photographs introduced at the hearing show that the location of the fiber optic cable is no garden spot. It runs from the facility to the pole; vegetation around it is high; it is close to two parallel railroad tracks; it is separated from the plaintiffs' home by a row of trees. To describe whatever damage its installation caused the plaintiffs' land as de minimis would be most generous.

Nonetheless, in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the Supreme Court answered in the affirmative "the question whether a minor but permanent physical occupation of an owner's property authorized by government constitutes a 'taking' of property for which just compensation is due...." 458 U.S. at 421. The taking in Loretto was slightly greater than that here.

The defendants contend that the damage occurred in 2002 and that what occurred in 2012 was merely an upgrade to existing service. I agree with respect to the replacement of six antennas atop a now 115 foot pole the plaintiffs do not own. I do not agree with respect to the 2012 installation of the fiber optic cable. That was a new and additional physical occupation of (a very small part of) the plaintiffs' property. It was additional damage to that which occurred in 2002. It inflicted a new injury (however miniscule it may be), and it gave rise to a new and separate cause of action. Hampton Roads Sanitation District v. McDonnell, 234 Va. 235, 360 S.E.2d 841 (1987).

An order reflecting this ruling is attached. Please schedule a hearing before me on the demurrers with Mrs. Spivey at 664-4594.

Sincerely yours,

/s/

Everett A. Martin, Jr.

Judge EAMJr/mls