United States District Court, S.D. Indiana, New Albany Division
STEPHEN R. WEST, Plaintiff,
LOUISVILLE GAS & ELECTRIC COMPANY, CHARTER COMMUNICATIONS, INC., INSIGHT KENTUCKY PARTNERS II, L.P., TIME WARNER CABLE, Defendants. LOUISVILLE GAS & ELECTRIC COMPANY, Cross Claimant,
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.
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.
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.
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
(“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.
maintains that the original 1938 Easement (the
“Easement”) is controlling.
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.
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.
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 claims
that form the basis for LGEC's present motion.