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West v. Louisville Gas & Electric Co.

United States District Court, S.D. Indiana, New Albany Division

January 8, 2018

STEPHEN R. WEST, Plaintiff,
v.
LOUISVILLE GAS & ELECTRIC COMPANY, CHARTER COMMUNICATIONS, INC., INSIGHT KENTUCKY PARTNERS II, L.P TIME WARNER CABLE, Defendants. LOUISVILLE GAS & ELECTRIC COMPANY, Cross Claimant,
v.
CHARTER COMMUNICATIONS, INC., INSIGHT KENTUCKY PARTNERS II, L.P., TIME WARNER CABLE, Cross Defendants.

          ENTRY ON DEFENDANT LOUISVILLE GAS & ELECTRIC COMPANY'S PARTIAL MOTION TO DISMISS

          RICHARD L. YOUNG, JUDGE

         The present action filed by Plaintiff, Stephen R. West, against Defendants, Louisville Gas & Electric Company, Charter Communications, Inc., Insight Kentucky Partners II, L.P., and Time Warner Cable, arises out of a dispute over the scope of an easement covering Plaintiff's land. Louisville Gas & Electric Company (“LGEC”) seeks to dismiss two of Plaintiff's claims from the Amended Complaint-criminal trespass (Count Three) and conversion (Count Seven)-based, in part, on the court's previous Entry which addressed LGEC's first motion to dismiss. (Filing No. 18). For the reasons stated below, the court DENIES the motion.

         I. Background

         The court assumes the parties' familiarity with the facts set forth in its previous Entry, (see Filing No. 18), and so the court will only provide a brief summary here.

         Plaintiff owns a parcel of real estate (the “Property”) in Jeffersonville, Indiana. (Filing No. 33, Amended Complaint at ¶ 8). Located on the Property is a 248-foot tall tower that LGEC owns and utilizes to run electric utility lines between Kentucky and Indiana. (Id. at ¶ 9). In 2000, LGEC contracted with Time Warner Cable[1] (“TWC”) to run fiber optic cables across the already existing infrastructure owned by LGEC. (Id. at ¶ 17). The rights of the parties with respect to the Property and the fiber optics are governed by an easement and supplemental agreement, though the parties dispute their scope and application.

         LGEC maintains that the original 1938 Easement (the “Easement”) is controlling.

         The Easement provides there be:

[A] right of way and perpetual easement to maintain, operate, renew, repair, and remove a line or lines of poles and towers and all necessary equipment, wires, cables, and appurtenances in connection therewith, for the transmission, distribution and delivery of electrical energy to the Grantee and other persons and concerns and to the public in general for light, heat, power, telephone and/or other purposes . . . .

(Filing No. 33-1, Exhibit A). And so the story goes, according to LGEC, that the Easement unambiguously permits the placement of fiber optic cables because it allows for the “delivery of electrical energy” for “other purposes.”

         Plaintiff views the situation differently. Plaintiff points out that in 1976, Plaintiff's predecessor-in-interest entered into a Supplemental Deed of Easement (the “1976 Supplemental Agreement”) with the Ohio Valley Transmission Corporation, a subsidiary of LGEC. The 1976 Supplemental Agreement reads, in part:

Grantors hereby convey and re-convey to the Company all rights heretofore acquired by the Company or its predecessors, including the perpetual right, privilege and easement to enter upon, construct, reconstruct, replace, upgrade, maintain, operate, and/or remove, one or more lines for the transmission of electrical energy, together with any and all towers, poles, guys, stubs, anchors, foundations, and other necessary equipment, fixtures and appurtenances over, across, and within the existing 100 feet wide easement, a part of or all of which crosses the property of Grantors . . . .

(Filing No. 33-3, Exhibit C). According to Plaintiff, the 1976 Supplemental Agreement-which allegedly clarifies the “other purposes” phrase that exists in the Easement-supersedes the Easement and re-defines the rights of the parties. Accordingly, Plaintiff argues that the 1976 Supplemental Agreement does not permit the placing of the fiber optic cables within LGEC's existing infrastructure.

         LGEC previously filed a Motion to Dismiss (Filing No. 7) arguing that the Easement expressly permitted the placement of fiber optic cables across the infrastructure as a matter of law. The court denied LGEC's Motion. (Filing No. 18). In its Entry, the court noted that both parties had presented reasonable yet conflicting interpretations of the language within the Easement. (Id. at 6). As such, it declined to find that Plaintiff could not make out his claims as a matter of law.

         After the court's denial, Plaintiff amended his complaint and added (among others) claims of criminal trespass and conversion against all Defendants. It is these two ...


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