Tilley v. Green Mountain Power Corp.

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-044


Russell Tilley and Helen Tilley              Supreme Court

                                             On Appeal from
     v.                                      Chittenden Superior Court

Green Mountain Power Corporation             December Term, 1990


Richard W. Norton, J.

Suzanne R. Brown of Perry & Schmucker, South Burlington, for plaintiffs-
  appellees

David T. Austin of Sheehey Brue Gray & Furlong, Burlington, for defendant-
  appellant


PRESENT:  Allen, C.J., Gibson and Morse, JJ., and Barney, C.J. (Ret.),
          Specially Assigned


     MORSE, J.   Plaintiffs, South Burlington property owners, sued
defendant Green Mountain Power Corporation (GMP) to prevent GMP from running
additional power lines along an existing easement across their property.
The trial court granted plaintiffs a permanent injunction preventing
construction.  The court found that when the easement was initially created
in 1961, a GMP representative, in conversation with Helen Tilley and Russell
Tilley's father, Rollin, had assured them that "the power line would not be
enlarged in scope."  Relying on Isbrandtsen v. North Branch Corp., 150 Vt.
575, 579, 556 A.2d 81, 84 (1988), the court reasoned that GMP's verbal
assurance was a circumstance surrounding the creation of the 1961 easement
deed, which rendered that deed ambiguous.  The court concluded that the only
fair and reasonable interpretation of the deed, given the verbal assurance,
was that no significant expansion of the power lines was intended, and gave
relief to plaintiffs.  We hold that the court misconstrued Isbrandtsen and
violated the parol evidence rule.  Accordingly, we reverse.
     The 1961 deed granted GMP
         the perpetual right and easement to construct,
         reconstruct, repair, maintain, operate and patrol, for
         the transmission of high and low voltage electric
         current and for a line of poles, which may be erected at
         different times, with wires and cables strung upon and
         from the same, and all necessary foundations, anchors,
         guys, braces, fittings, equipment and appurtenances,
         over, across and upon our land . . . .

           Also the perpetual right and easement from time to
         time without further payment therefor . . . to renew,
         replace, add to and otherwise change the line and each
         and every part thereof . . . .

After this deed was executed, GMP constructed a line of poles supporting a
crossarm with four electrical cables.  The trial court heard testimony from
Russell Tilley that, prior to signing the easement, Helen and Rollin were
shown a survey and plan by GMP and were assured that "there wouldn't be any
changes in it."  In 1977, Rollin and Helen entered into a second easement
deed with GMP for the sole purpose of relocating a portion of the
preexisting easement.  The court found, and we agree, that the 1977 easement
did not alter the intent of the 1961 deed as to GMP's right to enlarge the
scope of the power line.
     The event giving rise to this lawsuit was GMP's attempt to add three
cables to the existing line of poles for transmission of low-voltage
electrical current to customers in the Dorset Street area.  To accomplish
this plan, GMP proposed adding a second crossarm to each pole and raising
the height of the poles by ten feet.  The trial court found that this
project would adversely affect plaintiffs' view from their property of Mount
Mansfield and other mountains and that GMP could build the project
underground for an added cost of over $190,000 but declined to do so without
a subsidy in that amount.
     The language of the 1961 easement deed is unambiguous on its face.  The
trial court, however, considered parol evidence that the deed does not mean
what it says and concluded an ambiguity exists.  In Isbrandtsen, we stated:
         [W]e believe it appropriate, when inquiring into the
         existence of ambiguity, for a court to consider the
         circumstances surrounding the making of the agreement.
         Ambiguity will be found where a writing in and of itself
         supports a different interpretation from that which
         appears when it is read in light of the surrounding
         circumstances, and both interpretations are reasonable.

150 Vt. at 579, 556 A.2d  at 84.  In a footnote, however, we cautioned, that
the parol evidence rule is still good law; an oral agreement may not
replace or modify an earlier or contemporaneous written agreement.  Id. at
n.*, 556 A.2d  at 84 n.*.
     The court here indirectly substituted the verbal understanding for the
written language, by holding that the verbal assurance was a surrounding
circumstance that caused the deed to become ambiguous and then resolving the
ambiguity in plaintiffs' favor.  This reasoning fails because the verbal
assurance was not simply a context giving meaning to the written agreement;
rather, the verbal assurance was an oral, contractual term directly
contradicting the later written expression of agreement.  The rule
permitting contracts to be read in light of surrounding circumstances should
not be allowed, as it did here, to swallow up the parol evidence rule.

     Reversed.

                                        FOR THE COURT:



                                        Associate Justice