IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 1, 2004 Session

RAYMOND E. ROLLINS, JR., ET AL. v. THE ELECTRIC POWER BOARD

OF THE METROPOLITAN GOV’T. 

OF NASHVILLE AND DAVIDSON COUNTY, ET AL.

Appeal from the Circuit Court for Sumner County

No. 21221-C C.L. Rogers, Judge

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No. M2003-00865-COA-R3-CV - Filed June 8, 2004

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This appeal concerns a complaint of negligence filed by the appellants Raymond and Sharon Rollins

against the Electric Power Board of Metropolitan Nashville and Davidson County (NES). The

alleged negligence involved the cutting and removal by NES of three trees on the appellants’

property. The Rollins appeal the trial court’s final order in favor of NES. We affirm. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded

WILLIAM B.CAIN, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, and FRANK

G. CLEMENT, JR., JJ., joined.

J. Todd Moore, T. Holland McKinnie, Perry Moore McKinnie, Franklin, Tennessee, for the

appellants, Raymond E. Rollins, Jr. and Sharon L. Rollins.

C. Dewey Branstetter, Jr., Eugene W. Ward, Nashville, Tennessee, for the appellee, the Metropolitan

Government of Nashville and Davidson County, Tennessee acting by and through the Electric Power

Board.

OPINION

The facts of this case are basically undisputed. The Electric Power Board of Metropolitan

Nashville and Davidson County (NES) acquired an easement over the property of Raymond and

Sharon Rollins, located at 177 Cumberland Drive in Sumner County for the purpose of running a

4000 volt power supply over said property to a transformer located on the Rollins’ property from

which the Rollins’ home was supplied. Directly underneath these power lines three trees grew, two

maple trees and one walnut tree. These trees, which were planted after the lines were run, had been

trimmed by NES on at least two previous occasions. The trees had grown to such an extent that their

limbs were “burning in the wires” on NES’s power poles. It is likewise undisputed that the tree
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limbs had become so involved with the power lines as to require the trimming of at least half of each

tree. It is also undisputed that this trimming would more than likely destroy the trees in question.

In the course of NES’s routine maintenance of power lines in this area, contractors were directed to

remove these three trees. In the course of removal and pursuant to NES’s policy established for the

purpose, representatives of NES attempted to inform the owners of these trees of the impending

removal and obtain permission for that removal. In its attempts to comply with this policy, and

despite open property line indicators to the contrary, NES contractors contacted the landowner

adjacent to the Rollins, Mrs. Dudley Miller. When asked about the trees in question, Mrs. Miller

replied that her husband had planted them and gave her permission for cutting and removal of the

trees. The Rollins were never informed of the pending removal. In fact they were not aware of that

removal until they returned from a vacation and noticed the remaining stumps. Raymond and Sharon

Rollins filed suit in Circuit Court for Sumner County, alleging that the trees “were wrongfully cut

and removed from the Rollins’ property by NES . . .” The plaintiffs alternatively sought recovery

for replacement value of the removed trees, diminution of the property value of their lot at 177

Cumberland Drive in Hendersonville, Tennessee, and recovery of three times the timber value

pursuant to Tennessee Code Annotated section 43-28-312. NES answered, denying the applicability

of section 312, and filed a motion for summary judgment on the basis of sovereign immunity, or in

the alternative based on NES’s right to remove trees located within its easement for the distribution

lines serving the plaintiffs’ property. NES’s co-defendant Trees, Inc. likewise filed a motion for

summary judgment. Plaintiffs responded and on June 7, 2002 the motions were heard.

By order entered June 18, 2002, the court dismissed the claims as to Trees, Inc. and made the

following findings pertinent to the claims against NES:

2. The Defendant, NES provided power lines to Plaintiff’s property since

1951. The Defendant had a prescriptive easement for its power lines on Plaintiff’s

property. Trees were allowed or placed by homeowners within the easement. Over

30-40 years the trees grew to a height where the limbs contacted the power lines,

created power outages, and burning of the trees. Several attempts over the years of

trimming occurred. NES finally determined that the trees were a hazard and removed

them without first contacting Plaintiff, the proper homeowner. The Court finds that

NES has the right to reasonably use and maintain its utility easement and power lines.

NES is a governmental entity, per T.C.A. 29-20-101 et seq. T.C.A. 43-28-312 is not

applicable to a governmental entity. The only issue is whether the NES action was

a reasonable use and maintenance of its easement, a question of fact that is disputed.

The GTLA, per T.C.A. 29-20-205 does not bar a claim for employee negligence in

deciding it was reasonable and necessary to remove the trees. The Motion for

Summary Judgment by NES is therefore granted in part as to T.C.A. 43-28-312 and

denied in part as to sovereign immunity.

3. By the court’s action this matter shall proceed pursuant to GTLA,

non-jury, on July 7 and 21, 2002.
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With the issues thus defined, the trial court, Honorable C.L. (Buck) Rogers presiding,

conducted a full hearing of the cause on December 5, 2002. The plaintiffs’ argument at trial centered

around an alleged injury to their property rights proximately caused by NES’s failure to inform them

of the decision to cut the trees rather than to trim them. This argument rests on two postulates:

I. NES had adopted a policy, paragraph 14.4.2 of which requires NES

to make reasonable efforts to obtain landowner permission prior to tree removal.

II. NES failed to follow this procedure, proximately causing the Rollins’

inability to find suitable alternatives to tree removal. 

In support of this argument Mr. Rollins gave the following testimony upon direct

examination:

Q. Had NES contacted you prior to removing these trees and asked for

your permission to remove these trees and cut them down, what would your response

have been?

A. Don’t cut them down; let’s try to trim them. If you think you [can’t]

do a correct job of trimming, let’s take those two conductors down, move that

transformer out to the street pole and the revenue meter out there, run the service

underground into my house - - because the service into my house is already

underground from their revenue meter. I would have paid - - gladly paid to run out

underground service into my house from that utility pole out to the street, because

these subject lines only service my house. That’s the alternative I’d have sought. 

The NES tree trimming and line clearance policy was introduced as exhibit 2 in the record.

Paragraph 14.4 of that policy constitutes the duty argued by the plaintiffs in the trial court and here:

14.4 ROUTINE MAINTENANCE

14.41 NES or its Contractor shall make a reasonable effort to notify

owner of the proposed trimming; if owner cannot be contacted, trees

will be trimmed according to the National Electric Code, NES Tree

Trimming Clearance Requirements, and local ordinances.

14.4.2 NES will make a reasonable effort to obtain permission to

remove instead of trim all trees directly under the line.

a) If permission is granted, all brush and debris will be removed

and wood cut into lengths desired by the customer, if not NES will

remove all wood.
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b) If customer refuses to necessary trimming, the Tree Trimming

Contractors representative or NES representative shall explain FIVE

DAY TRIM POLICY to the customer. In this policy customer has

five days to hire their own contractor (at customer’s own expense) to

trim trees to NES specifications. If after five days customer has not

had the trees trimmed; then NES Tree Trimming Contractor will

return to trim the trees with a police officer present to handle any

disagreeable customers.

14.4.3 It is preferred that no trees be directly under primary lines or on

easements. Clearance will be obtained by trimming or removing trees in

accordance with NES Tree Trimming Clearance Requirements. Obstructions

such as limbs, trees, etc. shall be removed with a ten-foot (10 ft) radius

around NES poles and equipment such as transformers, fused side lines, side

lines, etc.

For its part, Metro presented no expert testimony during the hearing concerning the feasibility

of the other options referenced in Mr. Rollins’ direct examination. As a result the trial court ordered

supplemental proof to be submitted via affidavit or deposition concerning the feasibility and

appropriateness of other remedial measures. Metro presented the affidavit of Holly Lively, an

engineering supervisor in the Customer Engineering Department for NES. Ms. Lively gave oath

that, while it is possible to place a 4000 volt primary service line underground, “this is not something

that NES normally or routinely does, and it would not have been offered as an option to an NES

customer as any part of discussions concerning tree trimming.” Nonetheless, in order to accomplish

the underground placement of the 4000 volt primary service line, excavation, backfill and installation

of the line was estimated at a total cost of $19,395.00. In addition, the underground primary service

line would be placed approximately where the current line is suspended, thereby requiring the

removal ofthe trees to provide a fifteen foot access road to an above ground transformer necessitated

by the underground placement. The plaintiffs responded with the affidavits of Raymond Rollins, and

Richie Bolin, a licensed electrical contractor. Mr. Bolin estimated the cost of underground

installation of a service line at $7,350.00, excluding rock excavation. That estimate assumed that

NES would relocate the existing pole-mounted transformer and meter to another existing service

pole located on the street fronting the Rollins’ property. Relying on Mr. Bolin’s estimate, Mr.

Rollins asserted in his affidavit that the following three options would have been discussed with

NES, had he the opportunity:

6. None of the three (3) options presented below include replacing the

existing, overhead primary service on our property with underground primary service.

That scheme would be unnecessarily expensive, does not exist in our neighborhood,

would serve no useful purpose and is not required by NES policy. The NES New

Individual Residence Handbook provides that for typical residential installation of

up to 400 amps, no underground primary service is required. See NES New
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Individual Residence Handbook, Exhibit 1 to Affidavit of Holly Lively, Figure 16,

p. 19. The secondary service line inside my house is 400 amps.

7. The first option that we would have discussed with N.E.S., had we

had the opportunity is to replace the overhead, bare 4,000 volt primary conductors

on our property with insulated, 12/240 volt, secondary, underground conductors from

the street into our house. This alternative would include moving the existing

transformer, located 59 feet northwest of our house on N.E.S. pole number 625026,

to the existing N.E.S. pole number 6825025 at Cumberland Drive. The service on

our property would then be changed from overhead primary to underground

secondary. No new transformer would be needed for this option. Underground

secondary service exists in our neighborhood. Please see photographs labeled

photograph page 1 through 6 and Sketch “A” attached hereto. The cost estimate

received for this option is $7,350. Please see the Affidavit of Richie Bolin filed

herewith. In my opinion, using this option would have added significantly to the real

property value of our home. 

8. The second option would be to replace the overhead, bare, 4,000 volt

primary conductors on our property with overhead, insulated, 120/240 volt,

secondary conductors. This would require the same transformer move described in

the option (1) above i.e., move transformer from N.E.S. pole number 6825026 to

N.E.S. pole number 6825025 at Cumberland Drive. This option does not require a

new pole or a new transformer and is the least costly option. This Option would

eliminate the need for tree removal since the overhead conductors are changed from

bare 4,000 volt to insulated 110/220 volt. This is the service method used to supply

most houses in our neighborhood. Please see photographs labeled pages 11 through

13 and Sketch “B” on the attached exhibits.

9. The third option would be the same as second option as set forth in

paragraph 8 above but to include installation of plastic, spiral wound coverings over

the insulated, secondary conductors to avoid the necessity of tree trimming or tree

removal. This has also been done by N.E.S. and exists today in our neighborhood.

Please see photograph labeled pages 7 through 10 on the attached exhibits.

The parties submitted written argument pursuant to the court’s order from the bench. On

February 6, 2003, the court entered its Memorandum Opinion. The final order of the court was

entered on March 10, 2003. Of particular note is the following language from the trial court’s order:

Long before the Rollins acquired the property, NES had acquired a

prescriptive easement for the purpose of using and maintaining its distribution line.

Once NES had acquired the easement, it had the right to use and maintain that

easement without providing notice to the property owner, and without seeking the

property owner’s permission or consent to remove trees located within the easement.
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NES is not required to discuss other options with property owners before removing

trees located within its easement. The fact that NES may have a policy to contact

property owners before removing trees does not create a legal duty to contact a

property owner prior to tree removal. While NES may have been careless in

identifying the property owner, this careless mistake would not be a breach of any

legal duty by NES. NES acted within its legal rights when it removed the trees in

question, and the Plaintiffs’ complaint should be dismissed.

The Rollins appeal the trial court’s order, challenging this conclusion that NES had no duty

to notify the Rollins prior to removing the trees instead of trimming them. 

There is no dispute that NES has an easement. There is no dispute that the limbs of the trees

interfered with the power lines. There is no dispute that more than fifty percent of the trees would

have to be trimmed in order to secure NES’s easement. Under the circumstances of this case, the

only choices which the Rollins claim they would have presented to NES involve its adjustment of

its own easement rights in order to preserve three trees located directly within the prescriptive

easement and interfering therewith.

This Court is, therefore, presented with a controversy involving the appropriate use of an

easement. Our rationale begins with the tenet that an easement is an interest in property conferring

upon its holder an enforceable right to use another’s property. See, e.g., Bradley v. Mcleod, 984

S.W.2d 929, 934 (Tenn.Ct.App. 1998); Brew v. Van Deman, 53 Tenn. 433, 436 (1871); Clayton v.

Wise, 1 Tenn.Civ.App. 620, 638-39 (1910). The case at bar involves an easement by prescription.

“An easement by prescription arises when a person acting under an adverse claim of right, makes

uninterrupted, open and visible use of another’s property for at least twenty years with the owner’s

knowledge and acquiescence. Long v. Mayberry, 96 Tenn. at 382, 36 S.W. at 1041; Pevear v. Hunt,

924 S.W.2d at 116.” Bradley, 984 S.W.2d at 935.

The holder of an easement has the right to use or alter the affected premises

only as reasonably necessary for the use of the easement. Such holder has no right

to exclude others from the use of or alteration of the premises so long as there is no

interference with the easement privilege. For this reason, the holder of an easement

could not be reasonably required to perform any maintenance, repairs or alterations

upon the property over which the easement exists, unless such holder has made such

maintenance, repairs or alterations necessary by the manner of His use of the

easement.

Yates v. Metropolitan Government of Nashville and Davidson County, 60 Tenn.App. 719, 726, 451

S.W.2d 437, 441.

As a result, the surface rights of a servient tenement remain in constant tension with the rights

of the easement holder to use and maintain the easement of way. The fact that the holder of the

easement is a provider of electric power heightens the tension, for it has been said: “Electricity if not
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properly safeguarded, is one of the most dangerous and lethal agencies known to man.” Tennessee

Electric Power Co. v. Sims, 21 Tenn. App. 233, 108 S.W.2d 801.

“ * * * One who deals with an article which is imminently dangerous owes

a public duty to all to whom it may come and who may be endangered thereby to

exercise caution adequate to the peril involved, as for example, in giving notice of

its dangerous character, and there need be no privity between him and the person

injured * * * .” 45 C.J. 846, Sec. 264.

International Harvester Co. v. Sartain, 32 Tenn. App. 425, 454-55, 222 S.W.2d 854, 867 (1949).

As a general proposition, 

“[t]he person having the right to use an easement has the right to remove obstructions

unlawfully placed thereon, as well as natural obstructions interfering with the use of

the easement, so long as there is no breach of the peace. The theory is that the

unlawful obstruction constitutes a private nuisance which the owner of the easement

is entitled to abate under the rules applicable to nuisances generally; in doing so, he

does not become a trespasser.” 

25 Am.Jur.2d Easement and Licenses, § 101 (footnotes omitted). Continuing in this vein, we are

persuaded by the following discussion of the owner’s rights:

The owner of the fee may use the property through which the easement runs

in any manner he desires, but he may not interfere with the plaintiff’s enjoyment of

its existing rights in the pipe line. Panhandle Eastern Pipe Line Co. v. State

Highway Commission, 294 U.S. 613, 55 S.Ct. 563, 79 L.Ed. 1090. An easement is

an interest in real property. It is expressed not in terms of possession or occupancy

but in terms of use. Therefore, the property of the owner of an easement is taken

from him not necessarily when the adverse party occupies the land, but onlywhen he

prevents or interferes with the owner’s use of the easement. When that occurs there

has been a taking of property from the owner of the easement just as much as if an

adverse party had taken real estate which another owned in fee.

Buckeye Pipe Line Company v. Keating, 329 F.2d 795, 798 (C.A. 7th 1956); Accord Tenneco, Inc.

v. May, 377 F.Supp. 941 (E.D. Ky. 1974), affirmed 512 F.2d 1380 (C.A. 6th 1975). In balancing the

rights of the servient tenement to the use of his land against the rights of the dominant tenement

holding easement rights in this case, overriding consideration must be given to the nature of the use

for which the easement exists. The very nature of electricity dwarfs other considerations. It is the

supplier of electricity who is charged with the heightened duties for public safety, not the servient

estate. The easement predated the planting of the trees and the trees were planted within the

boundaries of the easement itself. As time passed the trees grew to the point that they could come

into contact with a 4000 volt uninsulated electric transmission line. The duty of the power company
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is clear that it cannot allow the trees to become a hazard. This duty as it relates to children is but one

example as has been aptly stated: “In view of the deadly and insidious character of high-tension

wires and in view of the curiosity of children, their ignorance, heedlessness of danger, and their

known love of adventure, the courts have imposed a high degree of care upon persons maintaining

electric wires to guard them so that they will not cause injury to children.” Town of Clinton v. Davis,

177 S.W.2d 848, 851 (Tenn.Ct.App. 1943). Town of Clinton involved the well recognized

propensity of children to climb trees.

Other cases involve the simple protection of the lines and guarding against a development

ofsuch hazards. Closely analagous to the case at bar is Miller-Lagro v. Northern States Power Co.,

582 N.W.2d 550 (Minn. 1998) where Northern States Power Company had cut down several trees

located on the city right-of-way between the paved roadway and the lot of Miller-Lagro. Said the

court:

We begin our analysis by acknowledging the delicate and sometimes

conflicting balance between a public utility’s responsibility to provide safe, efficient

and reliable power and a landowner’s reasonable interest in protecting trees and

shrubbery on the landowner’s property or on an abutting right-of-way. This is yet

another page in the volumes of thoughtful dissertation on the tensions between the

rights of a private landowner and the need for public services in our local

communities.

. . . .

Most jurisdictions hold however, that “[t]he interest of the abutting owners

in trees is subject only to the superior claims of the public.” Municipalities generally

retain rights to trim or cut down trees in the “interest of public safety, convenience,

or health” for such purposes as road improvement, convenience of travelers, and

assisting the work of public utilities. While the Lagros have a common law interest

in the trees that stood on city land in front of their property, that interest is

subordinate to the right of the municipality–here exercised by NSP in its utility line

maintenance function–to trim or cut theLagros’ trees in the performance of its public

works.

582 N.W.2d 550, 552-53 (Minn. 1998).

This argument suffers from a two-fold weakness. First, the undisputed facts at trial suggest

that these trees so interfered with the 4000 volt power line and required so much trimming that they

would not survive. Second, in recognition of the ability of any utility easement holder to secure the

safe exercise of its rights, whether those rights are obtained by prescription or grant, the Rollins must

present proof that the failure of NES to inform, rather than the danger posed by the trees to the safe

use of the easement, was the cause of the removal. The Rollins present no such proof. The only

showing in the record is a speculation on the part of the landowner as to options which they might
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have taken had NES agreed to change the nature of its easement right. This Court cannot disregard

the elementary provisions of our common law concerning easements and apply a theory of

negligence which lacks the key elements: the breach of a recognized duty which proximately causes

injury to the plaintiff. See McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991). The trial

court found that NES reasonably maintained its easement, and the proof of the record does not

preponderate against that finding. See Tenn. R. App. 13(d). The order of the trial court is affirmed

in all respects. The cause is remanded for further proceedings as necessary. Costs of this appeal are

assessed against the appellants.

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WILLIAM B. CAIN, JUDGE