Opinion
No. 38565.
Filed February 9, 1973.
1. Easements: Deeds. The extent of an easement created by conveyance is fixed by the conveyance. 2. ___: ___. In ascertaining the extent of an easement by conveyance, this court attaches importance to circumstances surrounding the making of the conveyance. The criteria are not exclusive.
Appeal from the district court for Sarpy County: VICTOR H. SCHMIDT, Judge. Affirmed.
J. Patrick Green of Eisenstatt, Higgins, Kinnamon Okun, for appellants.
Dixon G. Adams, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
The question is whether a power line and poles were a privileged use under grant of an easement for construction and maintenance of an agricultural levee. The district court found for the easement owner, Sarpy County, and an order accordingly enjoined Lawrence and Anna Iske, owners of the servient tenement. Iskes appeal.
The facts are as follows. In 1966 the Corps of Engineers of the Department of the Army prepared design memorandum R-613-1 for construction of a levee in Sarpy County. The purpose was protection of 3,000 acres of land, some of which the Iskes owned. The memorandum provided for electric motors to pump water over the levee and into the Missouri River. Some of the water would be runoff, but it was not known whether runoff from Iskes' land would be pumped.
Subsection 4.3.8 of the memorandum stated that Omaha Public Power District would supply power for operation of the motors. It continued: ". . . (OPPD) would build approximately two miles of power line from an existing line to the pumping station." The proposed line was not located, but the site of the pumping station was to be some distance from Iskes' land.
Lawrence Iske attended meetings that Army representatives held to explain the project to farmers, for 2,600 acres were farmland. The representatives often spoke of the electric motors and line. The memorandum to which they sometimes referred was present and available for perusal by the public, although the representatives did not generally encourage such practice.
Lawrence Iske heard nothing about the electric motors or line at the meetings he attended. According to his testimony an Army representative advised him that farming to the toe of the levee would be permissible. Iske studied "a good bit" not only the plans the easement grant was to describe but also other attached plans. One pictured the service pole and another, the pumps. Lawrence Iske testified: "Q. . . . (D)id you see . . . (the pumps) when you looked at it when . . . (an Army representative) showed you the plans? A. No, I don't think he especially pointed them out there. I wasn't interested anyway. That wasn't on my land . . . . Q. Did you know there was going to be some pumps there? A. No, I didn't know that, not on my land."
The easement grant, dated April 7, 1967, described "An Agricultural levee . . . as described in Plan Numbers M(R613) C1-310E of the U.S. Army Corps of Engineers." Those plans did not disclose electric motors or a power line.
In construction of the levee an unstated number of concrete posts were set approximately 12 feet from the levee and either inside or on the boundary line of the easement. The engineers intended the posts to prevent landowners from plowing within the easement.
After construction of the levee and concrete posts, OPPD over Iskes' protest built a power line with 6 poles, one with a guy wire, within the easement. The line extended to the service pole near the pumping station.
Iskes cross-petitioned for damages from the power line but not from the concrete posts, although Lawrence Iske conceded that the posts served their purpose. Lawrence Iske testified that the power poles substantially interfered with his farming, but the location of the poles with reference to the concrete posts does not otherwise appear.
The extent of an easement created by conveyance is fixed by the conveyance. Bors v. McGowan, 159 Neb. 790, 68 N.W.2d 596 (1955); Restatement, Property, 482 (1944). If the details are obscure, a reasonably convenient use must have been intended. 2 American Law of Property, 8.65 and 8.66, pp. 276, 277 (1952).
In ascertaining the extent of an easement by conveyance, this court attaches importance to circumstances surrounding the making of the conveyance. The criteria are not exclusive. See, Bors v. McGowan, supra; 2 American Law of Property, 8.66, p. 277 (1952); Restatement, Property, 483 (1944).
Iskes assert that we should construe the easement (1) to have been gratuitous and thus lessen the weight we give to the expectations of the grantee, and (2) to benefit grantors, the grantee having drafted the conveyance. See, 2 American Law of Property, 8.67, p. 280 (1952); Restatement, Property, 483 (b) and Comments g and h (1944); Gettel v. Hester, 165 Neb. 573, 86 N.W.2d 613 (1957). Respecting the first proposition, the easement was gratuitous in the sense that Sarpy County paid no money to Iskes for the conveyance. With that reservation we assume the truth of the first proposition for present purposes. The second proposition does not require us to resolve every ambiguity under all circumstances against the draftsman.
Details of the easement granted by Iskes are obscure. In the absence of other language a grant of an easement for an agricultural levee without substantial benefit to land owned by the grantor does not ordinarily confer a privilege for construction of a power line. Under the foregoing rules of interpretation and the evidence the Iskes' grant, however, encompassed construction and maintenance of the power line.
The judgment is affirmed.
AFFIRMED.