honor it's our position on behalf of mr wesson that they could do this by agreement so long as the agreement was that if they were unsuccessful on appeal there would be no further action between l g any west rule fifty four after we looked at it after the trial court suggested it when they didn't accept the stipulation of movement we were concerned that that we could we potentially might not be able to meet the standard un and so we chose this tactic which was reached after which was pursued after we reached the agreement with l g and me that that any action would be dismissed against them and that it wouldn't be refiled  the appeal was unsuccessful so if mr rast agreed to strike the provision from the tolling can still agreement allowing him to as the party explicitly agrees to treat missile the claim the stabbing them with prejudice in other words the parties agree not to refile the claim in the district court in the event of an unsuccessful appeal we found jurisdiction secure for the appeal to proceed and percent that's that's language with the citations for that i don't actually support that conclusion they require just an unconditional dismissal and i  i do believe that that is partially correct i don't believe that that that case was considering as facts situations such as what those cases were considering the fact situations that we have here for example arrow which is one of the cases that they could refile the win or lose on appeal after the appeal was disposed of and piecemeal the case which is the point of these rules this on the other hand is a situation where we're trying to avoid  light on this tower and when we spoke with l g any after going through the case we frankly agreed that we would drop that claim but because the lights needed for navigation aircraft never get correct correct i understand it your theory is that after the dismissal of the claims against the inside defendants they are no longer a party to the litigation that's correct and that's the approach they care they didn't the different kind of hypothetical suppose you're here online you're in state court against both a diversity non diverse defendant within a year the district or the trial court dismisses and if one other party is already out of the case that that line just like a third party complaint is gone so you go down this line which is the remaining party and and dismiss it that way which is how we handled it  questions of law we did not with the consent of the street judge we did not and in hindsight perhaps we could have done it that way but it was not something we thought that we thought about we really consider this path and went down and after we saw the kagan language would have been about a week within a week it would have been there and frankly there would have been a lot of motion practice in addition after these other rulings there was another motion probability any after this would have been the third point your honor i didn't think we needed insights agreement because they were no longer a party or the only agreement we got was from l g and eight which was the stipulation that a dismissal that was filed with the court after we reached the agreement  fourth the ninth the tenth and or the eighth the night in the eleventh has looked at this were dedicated and they said we're going to interpret the word dedicated in its legal technical way which is the black's law dictionary it's not this ordinary everyday usage and they looked after each of the each of these circuit courts of appeal has looked at that technical language and done it that way because the united states supreme court has said that we're congress chooses technical words those words would be so construed by reference to the art or science involved they've done it that way and every one of them has has construed the cable act in before the case law developed but the premise of that case was that the ordinary everyday usage of the word dedicated applied not the technical meaning so it got down on this path and it really was the wrong path to go down in hindsight your honors me please the court all were on behalf of the inside of police and i'd like to start if i may with the jurisdictional question that the court has raised and the issue for us is that while we may be gone we have not been forgotten in th litigation that is proceeding in the district court and our concern stems from both the rule forty one issue but also the side tolling agreement that purports to allow insight or i'm sorry wesson elegy any two region of the litigation during during the pendency of this appeal and we wouldn't be allowed to participate in that and our concern of course is that this isn't just a dispute between west analogy any and inside it's a dispute also between l he he did a page four and five of the reply brief where he commits on equivocally not to refile claims against elegy any if his appeal in this court isn't successful i think that any and an insight which satisfies our concerns sort so you now think we do have jurisdiction and why and in light of the binding admission in the reply brief and also of counsel before you here today agreeing not to refile especially agreeing that the dismissal of the well l g any is with prejudice if that is if i'm hearing that correctly if i'm understanding that correctly and i would encourage the court to follow up he's this situation that would take indistinguishable because kagan there's actually use of the word with prejudice with regard to the interest of the tolling agreement here does not use the phrase with projects yes your honor that is a single issue and we argued that in our in our brief can accept that as a final judgment and move forward with the merits i think or for the reasons that you heard from counsel and also from the bench today there are important reasons of proficiency to to hear the merits especially where counsel turning to the merits it was there was a scotchman on the six twenty one line of cases and there are a scattering of appellate decisions out there that address six twenty one and we dress those and are on our priest fundamentally the question for the court and easements dedicated to compatible purposes there is no limitation on the types of easements that can be used outside of the public rights of way so long as that use ones are compatible there is really no question here that the easement involved in this case is fundamentally compatible with insights use of it for communications purposes this easement is a recorded easement from a public utility  another public utility for the purpose of transmission delivery and use of electric energy by the public utility other companies that successors an absence and other persons all for the benefit of the public at large for heat electricity power and telecommunications that's the scope of the one nine hundred thirty easement that isn't was not in any material way augmented by the one nine hundred seventy eight supplement in fact the one nine hundred seventy supplement re and a hundred feet wide and basically consume the entirety of the property we're talking about in this case that was not easy but i think he's simply wrong if i thought that the agreement was limited to the we think that the easement is susceptible to that interpretation but even if you were to limit it simply to electric utility purposes for the benefit of the public that continues to be easement that is compatible with insights communications use and just factually on that point one thing i want to emphasize is that the wire that that insight uses is a shielding grounding cable operators the right to use easements dedicated to compatible uses in the legislative history of that act congress makes very clear that the easements that are to be caught her by that provision ment itself but i would point out even under indiana law and we cite these cases in our three to five point the court to the howard decision among others the scope of the easement the scope of an easement is is guided by its  here union oil dismissed the appeal an arrow deer extracted an unconditional commitment for dismissal with prejudice as i read your honor yes you're right i believe that there needs to be an unconditional dismisses not unconditional well i just so the question is again have we actually done what you all want us to do which is accept a conditional see any evidence in our case law that it actually has been done if you are the i spar as i can point you to error of yours the reading case that we rely on and what would be analogous to the circumstance here if it doesn't go as had result these cases and what i would like to emphasize this quarter as we did in our previous the way that line of cases breaks down is pretty clear the cases that involved multiple dwelling unit refused to enact section six thirty three and that's what the discussion of those cases is so six thirty three involved a grant of a right to a less see or the owner of the individual unit to allow the cable operator wire up the internal primacy so that they could receive cable service congress decided not to and act that statute for reasons that that's best left to the market to determine and those cases break down along that specific where cable operator sought to do with section six twenty one what they were denied the ability to do with section thirty three section six thirty three the courts refuse them the right to wire up condominiums apartments and the like but the cases that involve utility easements like are at issue here all go in favor of the cable operator in fact if you look at all of the surgeons in toto they all understand that there is a clear difference under six twenty one between wiring up internal premises and access to easements they're used by other utilities even the six twenty one cases that rely on congress action not to how many cable systems could be granted access to this tower there's no limit under the statute the statute congress was very clear a cable operator is granted a right to use compatible easements that's sad there generally is only one cable wire cable operator in any given area so it is not a huge risk that other cable operators are going to comment and certainly that hasn't been the case on the facts here we have a tower that was installed in the one nine hundred thirty s and there's one communications provider on it and that's inside of the very top and in a shield wire dedicated dedicated dedicated dedicated for compatible uses the question in all the circuit courts of appeals has been what does the word dedicated mean and dedicated is the black's law dictionary definition not this general oh if you got any in there on your property you somehow converted this into the the right of of insight to be able to use this season  courts of appeals have looked at that issue and every one of them have found the dedicated is this narrow interpretation the striking of section six thirty three from the cable act did not change anything in relation to the situation with mr west all it did was made sure that everybody that's got an owner of a multi unit apartment dwelling or a mobile home park stands in the same shoes as mr west there has to be a dedication and if you look at black's law dictionary it says that the appropriation of land that a dedication is the appropriation of land or an easement therein by the owner for the use of the public for up the public and there's nothing to indicate in any of those easements that that is in fact the that case i'm happy to hear that they'd like this to proceed to the merits even though we are we are advocating for a conditional dismissal to be clear where we could refile