And although the precise location of the Easements' right-of-way was indefinite, it "became definite by the actual placement of the poles," followed by the passage of a considerable period of time, more than 80 years in this case, from the completion of the original work. Bibb County v. Ga. Power Co., 241 Ga. App. 131, 133 (2) (525 SE2d 136) (1999) (citations omitted). See Jackson Electric Membership Corp. v. Echols, 84 Ga. App. 610, 611 (66 SE2d 770) (1951) ("While the easement relied upon by the plaintiff did not specifically designate the location or the extent of the line or system of lines to be erected on and over the defendants' lands, the subsequent erection of a line and the termination of the work thereon for a considerable period of time operated to fix and determine this feature of the contract"). Accordingly, we find no merit to this claim of error.
Jackson Elec. Membership Corp. v. Echols explained the consequences of a contrary holding: Jackson Elec. Membership Corp. v. Echols, 84 Ga. App. 610, 611 ( 66 S.E.2d 770) (1951); see Gaston v. Gainesville c. R. Co., 120 Ga. 516, 517-518 (1) ( 48 S.E. 188) (1904).Jackson Elec., supra, 84 Ga. App. at 612; see Martin v. Seaboard Air-Line R., 139 Ga. 807, 809 (1) ( 77 S.E. 1060) (1913) (grantee confined to land used in first establishing easement).
Smith v. Bruce, 241 Ga. 133 ( 244 S.E.2d 559) (1978);Walker v. Duncan, 236 Ga. 331 ( 223 S.E.2d 675) (1976).Martin v. Seaboard Air-Line R., 139 Ga. 807 (77 S.E. 1060) (1913); Bibb County v. Georgia Power Co., 241 Ga. App. 131, 133-134 ( 525 S.E.2d 136) (1999); Jackson Elec. Membership Corp. v. Echols, 84 Ga. App. 610 ( 66 S.E.2d 770) (1951). Citing foreign cases, Herren urges the adoption of a rule allowing the owner of the servient estate to relocate the easement under limited circumstances when it places no undue hardship on the owner of the dominant estate.
On appeal, the Court of Appeals, in a 5-4 decision, reversed the trial court and held that Fordham's complaint stated a claim for relief under the statute. The majority of that court supported its decision with Jackson Electric Membership Corp. v. Echols, 84 Ga. App. 610 ( 66 S.E.2d 770). In that case, the power company was granted an easement to enter upon the land of another to construct a power system.
In Waggle v. Peoples Natural Gas Co., 17 Pa. D. C.2d 550 (1958), the court held the right in such easement ceased to be transitory when the original installation was completed. For the rule where a blanket form of easement to erect an electric transmission line by contract is granted, see Jackson Electric c. Corp. v. Echols, 84 Ga. App. 610, 66 S.E.2d 770. In my opinion on the facts in this case there is no distinction between an unreasonable use of the easement acquired by the defendant power company by condemnation and an unauthorized use of the easement. If it was unreasonable to construct an underground concrete barrier along the right-of-way it was unauthorized, and on this basis the decision of the trial court should have been reversed.
Neither would it seem to have the right to erect an extension or extensions across the premises of the plaintiff to serve other customers without additional compensation therefor. Jackson Electric Membership Corp. v. Echols, 84 Ga. App. 610, 66 S.E.2d 770. Since the plaintiff did not see fit to go upon the premises and agree upon a new location for the defendant's power line, as he was invited to do, the defendant had the right to select the site for the relocation, provided, the site selected did not violate the provisions of its right of way agreement, and in our opinion it did not.
Bibb County v. Ga. Power Co., 241 Ga.App. 131, 133(2), 525 S.E.2d 136 (1999). See Jackson Electric Membership Corp. v. Echols, 84 Ga.App. 610, 611, 66 S.E.2d 770 (1951) (“While the easement relied upon by the plaintiff did not specifically designate the location or the extent of the line or system of lines to be erected on and over the defendants' lands, the subsequent erection of a line and the termination of the work thereon for a considerable period of time operated to fix and determine this feature of the contract”). Accordingly, we find no merit to this claim of error.
Once the path of the easement became fixed, the path could not be unilaterally relocated or widened by either of the parties. See id. at 879-880; Herren v. Pettengill, 273 Ga. 122, 123-124 (2) ( 538 SE2d 735) (2000); Thomason v. Kern Co., 259 Ga. 119, 120 ( 376 SE2d 872) (1989); Martin v. Seaboard Air Line R, 139 Ga. 807, 809 (1) ( 77 SE 1060) (1913); Jackson Elec. Membership Corp. v. Echols, 84 Ga. App. 610, 611-612 ( 66 SE2d 770) (1951). In contrast, a change in "the manner, frequency, and intensity of use" of the easement within the physical boundaries of the existing easement is permitted without the consent of the other party, so long as the change is not so substantial as to "cause unreasonable damage to the servient estate or unreasonably interfere with its enjoyment."
For these purposes the condemnor already has an adequate easement, for all other purposes he has none at all. The plaintiff's situation therefore much resembles that of Jackson Electric Membership Corp. v. Echols, 84 Ga. App. 610 ( 66 S.E.2d 770). There the landowner, Echols, entered into a written agreement granting the corporation an easement to erect an electric transmission and distribution system over her land, which the corporation did.