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Boss v. Rockland Electric Co.

Decided: December 22, 1983.

JEFFREY AND SHARON BOSS, THE WEINSTEINS, THE YOKOIS, THE SULLIVANS, THE KALLITS, THE QUESTERS, THE GUILIANOS, THE PEDRETTIS, THE RIPPES, THE BANKOFFS AND THE ALESSIOS, PLAINTIFFS-RESPONDENTS,
v.
ROCKLAND ELECTRIC COMPANY, DEFENDANT-APPELLANT, AND PUBLIC SERVICE ELECTRIC AND GAS CO., AND TENNESSEE GAS AND TRANSMISSION CO., DEFENDANTS



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

This appeal concerns the relationship between a court and an administrative agency in determining the legal rights of parties when resolution of a dispute depends in part upon determination of factual issues that have been placed within the special competence of the administrative body. We hold that the proper procedure in this case is for the court to refer the factual issues to the agency for its findings. We reverse the judgment below that determined the parties' rights under an electric utility easement without reference to the Board of Public Utility Commissioners.

Defendant utility, Rockland Electric Company (Rockland), is a wholly-owned subsidiary of Orange and Rockland Electric Company, a New York corporation. The parent corporation operates 380 miles of transmission lines of which about 82 miles are in New Jersey and maintained by Rockland.

This case concerns a 6 to 8 mile loop of transmission line in northwest Bergen County, particularly a 1500 to 2000 foot stretch through Upper Saddle River. Plaintiffs are the owners of single family homes whose property is crossed by the utility's easement for the line. The easement is 50 feet wide. The line consists of three transmission wires and a ground shield wire hung on 70 foot wooden poles, beginning 37 1/2 feet from the earth.

In February 1980, Rockland notified the plaintiffs that it was about to institute a "selective removal" program on its easement. Translated, this meant that the utility intended to clear the easement area of any trees that had the capacity to grow to the height of the wires.

Rockland had acquired its easement in 1927 when the land was undeveloped. In 1962 the utility clear cut along the easement

to construct and erect the line. The land was thereafter subdivided and plaintiffs bought single family dwellings subject to the easement. When they bought their homes, the area was a woodland with trees, shrubbery and underbrush on the easement.

From time to time the utility trimmed and pruned the trees to keep them off the wires. The 1980 "selective removal" program was to be drastically different. Certain plaintiffs communicated with the Board of Public Utility Commissioners (Board) about the proposed program. On July 9, 1980, the Chief of the Board's Bureau of Engineering Operations wrote to one of the plaintiffs that the proposed program would benefit all of Rockland's customers by preserving the environmental quality of the rights-of-way, reducing the number of tree-related outages, and keeping maintenance costs down. The program did not violate Board regulations requiring non-uniform clearing and was "necessary to allow the Company to continue to provide safe, adequate and proper service."

On June 27, 1980, before receiving this reply from the Board, plaintiffs sought and obtained an order to show cause and temporary restraints against implementation of the selective removal program. On July 2, 1980, the Appellate Division denied Rockland's motion for leave to appeal and stay of the trial court's restraints. On July 23, 1980, those temporary restraints were continued to trial with provision for trimming any trees dangerously close to the utility's wires.

Following a personal view of the premises and a plenary trial, the trial court concluded that the terms of the easement did not allow for removal of any trees. It enjoined the utility from cutting, pruning, or trimming any trees or limbs on plaintiffs' property that were not within 15 feet of its wires. The Appellate Division affirmed the trial court's judgment on the basis of the ...


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