Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Koontz, JJ., and Whiting, Senior Justice 

BURLEY E. HISE AND 

DARLENE S. HISE 

 OPINION BY 

V. Record No. 961577 SENIOR JUSTICE HENRY H. WHITING 

 September 12, 1997 

BARC ELECTRIC COOPERATIVE, ET AL. 

FROM THE CIRCUIT COURT OF BATH COUNTY 

Duncan M. Byrd, Jr., Judge 

 In this appeal, we consider the scope of an electric power 

company's rights in an easement in gross for the construction and 

operation of its electric power line acquired (1) by prescription 

and (2) by eminent domain. Specifically, we decide whether the 

power company can permit a telephone company and a cable 

television company to attach their lines to the power company's 

poles without the consent of the owners of the servient estate. 

 For a number of years, BARC Electric Cooperative (the power 

company) operated a 7,000 volt electric power line pursuant to an 

alleged 30-foot prescriptive right of way across the property of 

Burley E. Hise and Darlene S. Hise in Bath County. In an eminent 

domain proceeding, the power company acquired the rights (1) to 

"relocate" its pole line by erecting single pole structures at a 

height not to exceed 60 feet at locations shown on a plat 

attached to its "petition for condemnation" and (2) to widen its 

prescriptive right of way by 50 feet in order to construct and 

operate a new 46,000 volt electric power line over the Hise 

property. Following that proceeding, the power company installed 

new poles and lines within the original 30-foot easement and 

transferred its original lines to the new poles. 
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 Since the power company had permitted Virginia Telephone 

Company and Bath Cable TV, Inc., to attach their respective lines 

to the original poles, and the three companies planned to move 

those lines to the power company's new poles, the power company 

did not comply with the Hise request to remove the original poles 

and the telephone and cable lines attached thereto. Whereupon, 

the Hises brought this action against all three companies to 

compel the removal of the original poles and to enjoin the 

telephone and cable companies from transferring their lines to 

the new poles. 

 After hearing evidence on the issue of the width of the 

prescriptive easement, the court found it to be 30 feet wide. 

Thereafter, in sustaining motions for summary judgment filed by 

the telephone and cable companies, the court held that they could 

transfer their lines to the power company's new poles pursuant to 

their agreements with the power company. The court also ordered 

the power company to remove the old poles after such transfer. 

The Hises appeal the first two rulings. 

 While conceding that the power company had established its 

prescriptive easement over their property, the Hises contend that 

the power company failed to carry its burden of establishing the 

width of its prescriptive easement by clear and convincing 

evidence as required in Pettus v. Keeling, 232 Va. 483, 486, 352 

S.E.2d 321, 324 (1987). The power company contends that it has 

carried that burden. 
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 In accordance with well-settled appellate principles, we 

view the evidence in the light most favorable to the power 

company, the prevailing party on this issue of fact. Such 

evidence indicates that for a period of more than 20 years prior 

to the filing of this suit, the power company periodically 

sprayed and cleared the foliage and undergrowth along its pole 

line, including the Hise property, for a width of at least 30 

feet. The evidence also discloses that during this period it was 

the usual and customary practice of all power companies, 

including this one, to "make all rural lines thirty feet [wide]." 

 In our opinion, this evidence sufficiently supports the 

court's finding that the prescriptive right of way was 30 feet 

wide. Accordingly, we reject this contention of the Hises. 

 Next, the Hises claim that neither the prescriptive rights 

nor the rights taken in the eminent domain proceeding are 

exclusive or apportionable and therefore the power company had no 

right to authorize the attachment of the telephone and cable 

lines to its new pole lines. The utility companies disagree. 

 All parties describe these easements as easements in gross, 

which are "easement[s] with a servient estate but no dominant 

estate." Corbett v. Ruben, 223 Va. 468, 472, 290 S.E.2d 847, 849 

(1982). Although personal to the grantee, the easement is 

transferable by the grantee. Code § 55-6; Corbett, 223 Va. at 

472 n.2, 290 S.E.2d at 849 n.2. 

 Exclusivity 
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 "An exclusive easement in gross is one which gives the owner 

the sole privilege of making the uses authorized by it." 5 

Restatement of Property § 493 cmt. c (1944). If the easement in 

gross is exclusive, the owner of the easement may have the right 

of apportionment which is described as one of "so dividing [an 

easement in gross] as to produce independent uses or operations." 

Id. at § 493 cmt. a. 

 In our opinion, the power company's prescriptive right was 

an exclusive right. The evidence indicates that no use was made 

of the easement by any person or entity other than the power 

company and its permittees, the telephone and cable companies. 

 We determine the exclusivity of the power company's later 

easement by a consideration of the following pertinent 

descriptions of the rights acquired in the eminent domain 

proceeding: 

 "(3) The public uses for which the perpetual rights, 

privileges and easement of right of way described in 

this Petition are to be acquired are the construction, 

operation, maintenance and relocation of the Company's 

transmission and distribution line . . . ." 

 * * * * 

 "(6) The estate, interest or rights sought to be 

acquired are the perpetual right, privilege and 

easement of right of way . . . over, under, upon and 

across lands described herein . . . . 

 The facilities installed on the easement of right 

of way shall remain the property of the Company. The 

Company shall have the right to inspect, rebuild, 

remove, repair, improve, relocate such facilities on 

such right of way, and make such changes, alterations, 

substitutions, additions to or extensions of its 

facilities as the Company may from time to time deem 

advisable." 
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 * * * * 

 "The owners, their successors and assigns, may use 

the right of way for any purpose not inconsistent with 

the rights herein sought to be condemned including, but 

not limited to, the right to construct, operate and 

maintain . . . telephone, electric or other utility 

lines across the right of way, in such manner that the 

angle between the center line thereof and the center 

line of the right of way shall not be less than fortyfive degrees, provided that such use does not interfere 

with or endanger the construction, operation or 

maintenance of the Company's facilities . . . . The 

Company shall at all times have the paramount right to 

cross or cut through such . . . telephone, electric or 

other utility lines and to interrupt the use thereof, 

for the purpose of constructing, maintaining, 

operating, repairing, altering or replacing its 

facilities . . . " 

 The Hises claim that their right to "use the right of way 

for any purpose not inconsistent with the rights sought to be 

condemned," creates a nonexclusive easement in gross. We 

disagree. 

 Nothing in the description of the Hises' rights permits them 

to share the electric company's poles or lines. Further, any 

utility lines constructed by the Hises or their grantees that 

cross the power company's easement (1) must be at angles of not 

less than 45 degrees with the power company's easement, (2) 

cannot interfere with or endanger the power company's use of the 

easement, and (3) are subject to the power company's paramount 

rights. In our opinion, none of the Hises' retained rights 

deprived the power company of its "sole privilege of making the 

uses authorized by [the eminent domain proceeding]." Restatement 

of Property § 493 cmt. c. Accordingly, we conclude that the 
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power company acquired an exclusive easement in gross in the 

eminent domain proceeding. 

 Apportionability 

 "When an easement in gross is created by prescription, the 

question of its apportionability is decided in the light of the 

reasonable expectation of the parties concerned in its creation 

as inferred from the nature of the use by which it was created." 

Id. at § 493 cmt. b. During the prescriptive period in which the 

power company maintained its pole line across the Hise property, 

it permitted the telephone and cable companies to attach their 

lines to its poles. Such attachments had been made without 

objection from the Hises for more than 16 years before this 

controversy arose and the Hises have used the cable line for 

television reception to their property since 1979. 

 We think the attachment of the telephone and cable lines 

demonstrates that the power company construed its prescriptive 

easement as an exclusive one with a right of apportionment. 

Moreover, the Hises apparently acquiesced in that construction 

both by failing to object to the additional lines and by making 

use of one of those lines. Accordingly, the evidence supports a 

conclusion that the 30-foot prescriptive easement was 

apportionable, thereby giving the power company the right to 

permit the attachment of the telephone and cable lines to its 

poles within that area. 

 In determining the apportionability of the easement acquired 
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in the eminent domain proceeding, we note that "the fact that 

[the servient tenant] is excluded from making the use authorized 

by the easement, plus the fact that apportionability increases 

the value of the easement to its owner, tends to the inference in 

the usual case that the easement was intended in its creation to 

be apportionable." Restatement of Property § 493 cmt. c. 

 The Hises observe that the instrument describing the rights 

acquired in the eminent domain proceeding does not contain the 

broad language contained in the cases relied upon by the utility 

companies in which power company easements in gross were held to 

be apportionable. However, as pointed out by the utility 

companies, the power company's express power to "improve" and to 

make "additions to or extensions of its facilities" as acquired 

in the eminent domain proceedings sufficiently supports the trial 

court's inference of apportionability in this case. Accordingly, 

we hold that the power company could permit the television and 

cable companies to attach their lines to the new poles. 

 For all these reasons, we will affirm the judgment of the 

trial court. 

Affirmed.