Morris v. Charter Communications, LLC

Filing 19

MEMORANDUM OPINION & ORDER: It is hereby ordered that Charter's Motion for Summary Judgment [R. 9 ] is GRANTED. The case will be STRICKEN from the record, and an appropriate judgment will be entered contemporaneously herewith. Signed by Judge Gregory F. Van Tatenhove on 2/17/2021.(JJ)cc: COR

Case: 3:20-cv-00003-GFVT-EBA Doc #: 19 Filed: 02/17/21 Page: 1 of 10 - Page ID#: 151

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
KENNETH MORRIS,
Plaintiff,
V.
CHARTER COMMUNICATIONS,
LLC,
Defendant.
***

***

)
)
)
)
)
)
)
)
)
)
)
)

Civil No. 3:20-cv-00003-GFVT
MEMORANDUM OPINION
&
ORDER

***

***

This matter is before the Court upon Defendant Charter Communications, LLC’s Motion
for Summary Judgment [R. 9.] In December 2019, Plaintiff Kenneth Morris filed suit against
Charter alleging that Charter’s installation of cable wires on his property constitutes unlawful
trespass, a violation of his right to the quiet enjoyment of his property, and a violation of
multiple Kentucky statutes which allegedly provide him a private cause of action. [R. 1-1 at 6.]
In response, Charter moves for summary judgment, arguing that the Cable Act of 1984 shields it
from liability, the statute of limitations has run on Mr. Morris’s claims, and that it holds a
prescriptive easement over the property in dispute. [R. 9-1.] The Court, having reviewed the
record and for the reasons set forth herein, will GRANT Charter’s Motion for Summary
Judgment [R. 9.]

Case: 3:20-cv-00003-GFVT-EBA Doc #: 19 Filed: 02/17/21 Page: 2 of 10 - Page ID#: 152

I
Mr. Morris acquired his property in Trimble County, Kentucky in 1995. [R. 2.] At some
point prior to 1997, Shelby Energy acquired a permanent easement to maintain and operate
power lines strung across and over Mr. Morris’s property. 1 [R. 1-1 at 4.] To support the power
lines, two utility poles were installed within the bounds of the easement. Id. Mr. Morris was
aware of Shelby Energy’s easement when he purchased his property. [R. 16 at 2.] In 2001,
Charter “piggy backed” on this easement and used Shelby Energy’s poles to string its cable lines
across Mr. Morris’s property. Id. Mr. Morris alleges that neither Charter, nor its predecessor,
ever told him of its plans to use the easement. Id. He also states that Charter did not compensate
him for its use of the easement. Id. Although Mr. Morris indicates that he noticed the lines
being installed in 2001, he alleges that he “was led to believe [by the workers] it was Shelby
Energy stringing different or new lines across the easement,” not that Charter was installing
cable lines. [R. 16 at 3.] In 2016, however, another company requested use of Mr. Morris’s
easement. Id. During the negotiation process with this company, Mr. Morris, allegedly for the
first time, became aware that Charter’s lines were installed on his easement. Id. Mr. Morris
states that he soon contacted Charter “a number of times by phone to object and complain that it
was trespassing and got nowhere.” Id. at 4. He states that he ultimately wrote a letter, dated
December 20, 2017, asking Charter to remove its cables. Id. When Charter refused to do so, the
current litigation ensued. Id. Charter now moves for summary judgment. [R. 9-1.]

In her Declaration in Support of Charter’s Motion for Summary Judgment [R. 10.], Charter’s manager
of legal services, Christine M. Flores, provides copies of two Right-of-Way easements entered into by
Morris’s predecessors in interest and Shelby Energy. These agreements, dated November 5, 1945 and
January 6, 1955, “allow Shelby Energy to transmit energy through utility poles on the Morris Property.”
[R. 10 at 5-6.] A subsequent agreement, dated March 27, 1980, allowed for a pole attachment for
television antenna services. [R. 10-3.]

1

2

Case: 3:20-cv-00003-GFVT-EBA Doc #: 19 Filed: 02/17/21 Page: 3 of 10 - Page ID#: 153

II
Summary judgment is appropriate when the pleadings, discovery materials, and other
documents in the record show “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 323-25 (1986). “A genuine dispute exists on a material fact, and thus
summary judgment is improper, if the evidence shows ‘that a reasonable jury could return a
verdict for the nonmoving party.’” Olinger v. Corp. of the Pres. of the Church, 521 F. Supp. 2d
577, 582 (E.D. Ky. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
The moving party has the initial burden of demonstrating the basis for its motion and identifying
those parts of the record that establish the absence of a genuine issue of material fact. Chao v.
Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its burden by
showing “that there is an absence of evidence to support the non-moving party’s case.” Celotex
Corp., 477 U.S. at 325. Once the movant has satisfied this burden, the non-moving party must
go beyond the pleadings and come forward with specific facts demonstrating there is a genuine
issue in dispute. Hall Holding, 285 F.3d at 424 (citing Celotex Corp., 477 U.S. at 324).
The Court must then determine “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir.
1989) (quoting Anderson, 477 U.S. at 251-52). In doing so, the Court must review the facts and
draw all reasonable inferences in favor of the non-moving party. Logan v. Denny’s, Inc., 259
F.3d 558, 566 (6th Cir. 2001). Summary judgment is inappropriate where there is a genuine
conflict “in the evidence, with affirmative support on both sides, and where the question is which
witness to believe.” Dawson v. Dorman, 528 F. App’x 450, 452 (6th Cir. 2013).

3

Case: 3:20-cv-00003-GFVT-EBA Doc #: 19 Filed: 02/17/21 Page: 4 of 10 - Page ID#: 154

A
The Court first turns to Charter’s argument that summary judgment must be granted
because the statute of limitations has run on Mr. Morris’s claims. [R. 9-1 at 12.] Mr. Morris’s
Complaint contains three causes of action for property damage 2. [R. 1-1 at 6.] Kentucky law
establishes a five-year statute of limitations for property damage claims. See KRS § 413.120.
While Charter does not state an exact date that it believes the statute of limitations began to run,
it states “Morris must have known of the facts forming the basis for the allegation at least by
September 2001, the date Charter installed fiber optic and other cable on Shelby Energy’s poles.”
[R. 9-1 at 12.] Charter alleges that, because Morris did not bring his property claims by
September 2006, his claims are time barred. Id.
In response, Mr. Morris argues that Charter has not provided proof of the date Mr.
Morris became aware that Charter had attached its cables on his easement, thereby causing the
statute of limitations to run. Id. Additionally, Mr. Morris discusses at length Kentucky case law
which he alleges permits him to maintain a cause of action for damages dating back at least five
years from the date of filing of the lawsuit because the trespass is “ongoing.” Id. at 10. The
Court need not analyze whether the time periods are severable because summary judgment is
inappropriate on this ground. The Kentucky Supreme Court has indicated that “[a]n injured
party has an affirmative duty to use diligence in discovering the cause of action within the
limitations period. Any fact that should excite his suspicion is the same as actual knowledge of
this entire claim.” Fluke Corp. v. LeMaster, 306 S.W.3d 55, 64 (Ky. 2010) (quoting Hazel v.
General Motors Corp., 863 F. Supp. 435, 440 (Ky. W.D 1994). If a party’s concealment or false

Morris alleges that Charter’s installation of cable wires on his property constitutes an unlawful
trespass, a violation of his right to the quiet enjoyment of his property, and a violation of multiple
Kentucky statutes which allegedly provide him a private cause of action. [R. 1-1 at 6.]
2

4

Case: 3:20-cv-00003-GFVT-EBA Doc #: 19 Filed: 02/17/21 Page: 5 of 10 - Page ID#: 155

representations prevent actual knowledge, however, equitable tolling of the statute of limitations
might be applicable. See Fluke, 306 S.W.3d at 67. Here, Mr. Morris alleges that, in 2001, he
was told Charter’s employees were laying lines on behalf of Shelby Energy. [R. 16 at 3.] This
statement, if true, indicates the potential presence of concealment on Charter’s behalf. Thus,
because genuine issues of material fact exist regarding when the statute of limitations began to
run and whether equitable tolling applies, summary judgment is inappropriate on statute of
limitations grounds.
B
Next, Charter argues that it holds a prescriptive easement on the area of Mr. Morris’s
land where its cables are placed. [R. 9-1 at 12-15.] “As with adverse possession of a fee simple
estate, a prescriptive easement can be acquired by actual, hostile, open and notorious, exclusive,
and continuous possession of the property for the statutory period of fifteen years.” Columbia
Gas Transmission Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727 (Ky. 2000). Charter argues
that because it holds a prescriptive easement on the disputed portion of land, Mr. Morris cannot
bring trespass and property damage claims against it. [R. 9-1 at 12-15.] In response, Mr. Morris
argues that no prescriptive easement exists because Charter’s possession of his land was neither
open and notorious nor continuous. 3
Regarding the continuous element, Mr. Morris argues that his alleged phone calls and
letter 4 to Charter created an interruption of Charter’s continuity on his land. [R. 16 at 14-17.] In
support, Morris cites to Allen v. Thomas, 209 S.W.3d 475 (Ky. Ct App. 2006). In Allen, the

Although Morris makes clear that he is challenging the “open and notorious” element, the Court
surmises that he is also challenging the “continuous” element based on his case citations and discussion.
4
Because no discovery has occurred in this case, it is unclear whether these phone calls occurred
prior to September 2016, when the fifteen-year prescriptive period possibly would have ended. Mr.
Morris’s letter, however, is dated December 20, 2017. [R. 18 at 8.]
3

5

Case: 3:20-cv-00003-GFVT-EBA Doc #: 19 Filed: 02/17/21 Page: 6 of 10 - Page ID#: 156

Kentucky Court of Appeals adopted the principle that “actions are sufficient to interrupt the
prescriptive period when the servient landowner engages in overt acts, such as erecting physical
barriers, which cause a discontinuance of the dominant landowner’s use of the land, no matter
how brief.” Allen, 209 S.W.3d 475 at 481. The Court of Appeals also stated, “we find that clear
conduct indicating that a property owner is not acquiescing as to a prospective easement owner’s
claim of right should rightfully be considered as ending the running of a prescriptive period.” Id.
Charter argues that Mr. Morris’s alleged phone calls and letter were not sufficient to interrupt its
period of continuity. [R. 18 at 8-9.] Thus, because there exists a genuine issue of material fact as
to whether Mr. Morris’s actions severed Charter’s period of continuity, summary judgment is
inappropriate on this ground.
Moreover, regarding the open and notorious element, Mr. Morris refers the Court again to
his statement that, in 2001, he was allegedly led to believe that it was not Charter installing lines
on his property, but Shelby Energy. [R. 16 at 3.] Although Charter states that its use was open
and notorious since it has “not taken any steps to conceal its use of the Morris Property from
Morris,” the Kentucky Supreme Court has indicated that open and notorious possession must be
“conspicuous and not secret, so that the legal title holder has notice of the adverse use.” [R. 9-1
at 14; Appalachian Reg’l Healthcare, Inc. v. Royal Crown Bottling Co., 824 S.W.2d. 878, 880
(Ky. 1992). Here, there is a genuine dispute of material fact regarding whether Charter hid the
nature of its installation from Mr. Morris and convinced him that they were installing lines on
behalf of Shelby Energy. [R. 16 at 3.] Thus, summary judgment is also inappropriate for this
reason.

6

Case: 3:20-cv-00003-GFVT-EBA Doc #: 19 Filed: 02/17/21 Page: 7 of 10 - Page ID#: 157

C
Finally, the Court turns to Charter’s argument that the Cable Communications Policy Act
of 1984, 47 U.S.C. § 51 (“Cable Act”) shields it from liability. [R. 9-1 at 4-12.] The Cable Act
was enacted by Congress “to establish franchise procedures and standards which encourage the
growth and development of cable systems,” and “minimize unnecessary regulation that would
impose an undue economic burden on cable systems.” 47 U.S.C. § 521(2); 47 U.S.C. § 521(6).
“To advance these objectives, [§ 541(a)(2)] of the Cable Act authorizes a cable operator to
construct ‘a cable system over public rights-of-way . . . through easements . . . which have been
dedicated for compatible uses.’” [R. 9-1 at 4.] In a 1984 Committee on Energy and Commerce
House Report, Congress stated that this authorization includes “an easement or right-of-way
dedicated for electric, gas, or other utility transmission.” H.R. Rep. No. 934, 98th Cong., 2d
Sess. 59, at 59 (1984). Charter alleges that this use is to be done “without having to obtain any
additional permission from the original grantor of the easement for the privilege.” Id. In its
Motion, Charter first argues at length that Shelby Energy’s Right-of-Way Easement is “dedicated
for utility purposes compatible with Charter’s use of the easement” and is thereby covered under
the Cable Act. [R. 9-1 at 5-7.] Because Mr. Morris does not dispute that Charter “would
ordinarily have a right to ‘piggy-back’ on the easement of another,” the Court need not analyze
Charter’s arguments on this matter. [R. 16 at 7.]
Instead, the Court turns to Mr. Morris’s argument that Charter cannot shield itself from
liability under the Cable Act because it failed to provide him compensation for its use of the
easement. [R. 16 at 6-8.] Section 541(a)(2)(C) of the Cable Act states as follows:
(C) that the owner of the property be justly compensated by the cable operator for
any damages caused by the installation, construction, operation, or removal of such
facilities by the cable operator.

7

Case: 3:20-cv-00003-GFVT-EBA Doc #: 19 Filed: 02/17/21 Page: 8 of 10 - Page ID#: 158

47 U.S.C. § 541(a)(2). Morris argues that, under this section of the Cable Act, Charter was
required to compensate him for its use of the easement. [R. 16 at 7.] He states, “missing from
Charter’s analysis is the fact that it cannot attempt to seek the safe harbor of the rights afforded it
under the statute to shield itself from liability, yet fail to comply with the obligations imposed on
it thereunder.” Id. Because his argument is unclear and he does not allege any physical damage
to his property, the Court surmises that Mr. Morris believes Charter was required to compensate
him under a constitutional Takings Clause theory. Additionally, Mr. Morris also argues that,
because Charter only cites to persuasive decisions from outside the Sixth Circuit, its argument
that the Cable Act shields it from liability must fail. [R. 16 at 7-8.]
In response, Charter argues that Mr. Morris cannot allege that he was not properly
compensated because he does not allege any damage to his property during the “installation,
construction, operation, or removal” of the cables. [R. 18 at 5.] Charter also alleges that, if
§ 541(a)(2)(C) is to be interpreted as a provision requiring compensation under the Takings
Clause of the Fifth and Fourteenth Amendments, Mr. Morris’s argument still fails because he
does not allege that Charter’s lines materially increase the burden on his property. [See R. 18 at
4-5.] Finally, Charter argues that the “reasoning underlying the decisions” in the non-binding
cases it cites should be considered by this Court. [R. 18 at 5.]
The Court agrees with Charter. First, Mr. Morris does not allege any physical damage to
his property caused by “the installation, construction, operation, or removal” of Charter’s cables.
Therefore, it appears that his argument that Charter is required to pay him for its use of the
easement on his land is rooted in takings theory. However, determining whether Section
541(a)(2)(C) of the Cable Act requires just compensation for damages under the Takings Clause

8

Case: 3:20-cv-00003-GFVT-EBA Doc #: 19 Filed: 02/17/21 Page: 9 of 10 - Page ID#: 159

has not been decided by the Sixth Circuit 5 and Mr. Morris has not litigated this issue thoroughly.
The Court will not litigate it on his behalf. Furthermore, the Court need not decide this issue
because Mr. Morris fails to sufficiently allege that a taking has occurred on his property in the
first place. Under general property law principles, an easement’s burden cannot be “materially
increased.” If the burden is materially increased, a taking may have occurred. See Johnson v.
APJ Props., LLC, 729 Fed. Appx. 401, 405 (6th Cir. 2018) (interpreting Michigan property law);
Sherwood v. TVA, 590 Fed. Appx. 451, 461-62 (6th Cir. 2014) (interpreting Tennessee property
law); West v. Louisville Gas & Elec. Co., 2018 U.S. Dist. LEXIS 2832 at *16 (S.D. Ind. January
8, 2018) (“the court finds that no taking has occurred because Plaintiff has failed to allege that
Insight’s use materially burdens Plaintiff’s property.”)
Here, Mr. Morris does not allege that the burden on the already-existing easement was
materially increased by Charter’s installation of cables. In fact, Mr. Morris indicates that the
cables have had essentially no impact on his land aside from their presence. Mr. Morris states
“[t]ruth be told, there are no trees on the Property that interfere with the poles or lines, so once
these lines are installed across the poles on my Property, I virtually never see anyone on the
Property tending to or ‘servicing’ the lines.” [R. 16 at 3.] Thus, Mr. Morris acknowledges that
The United States District Court for the Western District of Michigan, however, has indicated
that “when Section [541(a)(2)] is read in its entirety, it becomes apparent that Congress intended to grant
cable operators the right to use easements which have been dedicated for compatible uses and establish a
scheme that provides just compensation to the property owner for that use.” United Cable Television v.
Louis J. Eyde Ltd. Family Partnership, 1989 U.S. Dist. LEXIS 18154 at *11 (W.D. Mich. November 20,
1989). While this decision is not binding and does not analyze whether a material burdening of a party’s
property is required to demonstrate a taking, the Court does not foreclose the possibly of analysis in future
cases. Nonetheless, Mr. Morris does not sufficiently litigate this argument.
Moreover, the Sixth Circuit has not indicated whether Section 541(a)(2) requires payment for the
use of “private” easements. While most litigation appears to be centered around whether private
easements can be accessed by cable companies, United Cable Television indicates that Section 541(a)(2)
allows for cable companies to use both public and private easements. United Cable Television v. Louis J.
Eyde Ltd. Family Partnership, 1989 U.S. Dist. LEXIS 18154 at *7 -*9 (W.D. Mich. November 20, 1989).
While this decision is not binding and the Court does not foreclose the possibly of analysis in future
cases, Mr. Morris does not litigate this argument nor claim that his easement is not public.
5

9

Case: 3:20-cv-00003-GFVT-EBA Doc #: 19 Filed: 02/17/21 Page: 10 of 10 - Page ID#:
160

he never sees anyone on his land tending to the lines and does not allege any physical damage or
change to his land that is not simply de minimis. Ultimately, because Mr. Morris neither alleges
damages “caused by the installation, construction, operation, or removal of such facilities by the
cable operator” nor properly alleges damages under a takings theory, his argument that Charter
cannot rely on the Cable Act to shield itself from liability is meritless.
Accordingly, and the Court being otherwise sufficiently advised, it is hereby ordered that
Charter’s Motion for Summary Judgment [R. 9] is GRANTED. The case will be STRICKEN
from the record, and an appropriate judgment will be entered contemporaneously herewith.

This the 17th day of February, 2021.

10