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Sack v. FirstEnergy Corp.

A-0154-07T2 (N.J. Super. App. Div. 2008) (Unpublished)

EASEMENTS; UTILITIES — Even though an easement agreement may give unbridled discretion to a utility to cut trees within a right of way, if it does not act in reasonable manner and unnecessarily increases its grantor’s burden, the utility may be obligated to pay damages resulting from the way it removes any trees or shrubs are removed.

A landowner sued a utility company for damages. It alleged the company had exceeded its right to clear trees within a right of way on the land. The utility company had the right to remove or clear any or all trees within the right of way and even outside the right of way if, in its judgment, such trees interfered with or endangered its utility lines and structures. In this case, the utility company cleared only trees and shrubbery within the right of way, leaving seventy-one tree stumps behind.

The landowner alleged the company had exceeded its rights under the right of way because the trees and shrubs were not interfering with the power lines. The lower court rejected that claim because the utility company had an unqualified right to remove trees and vegetation inside of the right of way. The owner appealed.

The Appellate Division first agreed with the lower court that the terms of the right of way agreement were unambiguous, allowing the utility company unbridled discretion to cut trees within the right of way. It commented that the holder of an easement has an implied right to do whatever is reasonably necessary for its complete enjoyment, provided that it acts in a reasonable manner to avoid unnecessary increase in burden upon the landowner. Here, the Court found that the lower court erred when it failed to consider whether the landowner was entitled to damages based on the condition of the right of way resulting from the way the trees and shrubs had been removed.

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