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Gerstein v. Axtell (6/19/98), 960 P 2d 599


     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska, 99501,
telephone (907) 264-0608, fax (907) 264-0878.  



             THE SUPREME COURT OF THE STATE OF ALASKA


STEVE GERSTEIN d/b/a          )
GERSTEIN COMMUNICATIONS,      )    Supreme Court No. S-7514
                              )
             Appellant,       )    Superior Court No.
                              )    4FA-94-2300 CI
     v.                       )
                              )
HOWARD L. AXTELL and PATRICIA )    O P I N I O N
L. AXTELL, and GOLDEN VALLEY  )
ELECTRIC ASSOCIATION,         )    [No. 5004 - June 19, 1998]
                              )
             Appellees.       )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                      Mary E. Greene, Judge.


          Appearances: Joseph W. Sheehan, Law Offices of
Joseph W. Sheehan, Fairbanks, for Appellant.  Charles Cole,
Fairbanks, for Appellees Howard L. and Patricia L. Axtell.  John J.
Burns, Birch, Horton, Bittner and Cherot, Fairbanks, for Appellee
Golden Valley Electric Association.  Donald C. Ellis, Kemppel,
Huffman and Ellis, P.C., Anchorage, for Amicus Curiae Alaska Rural
Electric Cooperataive Association, Inc.   


          Before:  Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.  [Rabinowitz, Justice, not
participating.]  


          EASTAUGH, Justice.
          


I.   INTRODUCTION
           Gerstein Communications (GC) is a cable television
franchisee.  Citing the access provisions of the Cable
Communications Policy Act of 1984, 47 U.S.C. sec. 521 et seq. (the
"Cable Act"), GC sued landowners Howard and Patricia Axtell and the 
Golden Valley Electric Association (GVEA) to obtain access to use
a private easement owned by GVEA and located on the Axtells'
property.  The superior court granted partial summary judgment to
GVEA and the Axtells, and held that 47 U.S.C. sec. 541(a)(2) does
not
give cable franchisees access to private easements. [Fn. 1] 
Because GC would have had to justly compensate the Axtells for use
of the easement if 47 U.S.C. sec. 541(a)(2) did permit access, we
conclude that GC's appeal from those rulings is moot because GC
later used its eminent domain power to obtain access to the
easement and paid the landowners $500.  We therefore affirm. 
II.  FACTS AND PROCEEDINGS
          GC provides cable television services in the Fairbanks
area.  Although GC's service area encompasses the property owned by
Howard and Patricia Axtell, GC does not provide cable service to
the Axtells.  The Axtells' property consists of Tax Lots (TL) 2004
and 2010, located near the junction of Steele Creek Road and
Bennett Road.  The Axtells live on TL 2004; TL 2010 contains trees
and a hay field.
          GVEA holds a blanket "right-of-way easement"across the
Axtells' property to "construct, operate and maintain . . . an
electric transmission or distribution line or system."[Fn. 2]  The
Axtells' predecessor-in-interest had granted the easement to GVEA
in 1953; the Axtells purchased the property in 1968 subject to the
easement.  GVEA maintains an electric distribution line in the GVEA
easement on TL 2010.  A Municipal Utilities System (MUS) telephone
line is also buried within the GVEA easement.
          In 1992 GC began installing cable in the Steele Creek
Road area.  GC's owner, Steve Gerstein, affied that the only
economically feasible way to service subscribers to the north of
his Steele Creek Road receiving station was to place a cable
distribution line across TL 2010 (the Axtells' hay field),
following GVEA's Steele Creek Road distribution line. 
          When the Axtells denied GC access to GVEA's easement, GC
filed suit, seeking a declaration that 47 U.S.C. sec. 541(a)(2)
gives
it access to the GVEA easement.  GC alternatively asked the court
to exercise its eminent domain power and condemn a sufficient
portion of the Axtells' property as an easement through which GC
could run its cable distribution line.
          The third and fourth counts of GC's complaint sought
damages for GC's inability to provide cable television services to
areas beyond the Axtells' property as a result of the Axtells'
refusal to grant GC access to the GVEA easement.  In order to limit
any potential damages under the third and fourth counts, the
Axtells agreed in September 1994 to permit GC to install an
underground cable line parallel and adjacent to GVEA's distribution
line on TL 2010, pending resolution of the litigation.  This
agreement mooted Counts III and IV. 
          Based on GVEA's opposition to GC's claim that it had a
right of unrestricted access to GVEA's private easement, the
superior court permitted GVEA to intervene.  GVEA sought partial
summary judgment, seeking dismissal of all GC claims that relied on
sec. 541(a)(2).  The court granted the Axtells' and GVEA's motion,
holding that the Cable Act did not authorize GC's use of GVEA's
easement on the Axtells' property. 
          The superior court granted GC's request for exercise of
the court's eminent domain power to condemn an easement across the
Axtells' property to run GC's cable distribution line.  The 5-foot
wide, 437-foot long right-of-way easement tracks the location of
the cable GC had already installed under the agreement between GC
and the Axtells.  The superior court found that the Axtells "made
location of the easement in the same place as the cable is
presently located one of the conditions for their non-objection to
the exercise of eminent domain."  The cable line runs parallel to
the electric and telephone lines.
          GC paid the Axtells $500, the amount the court-appointed
master determined to be just compensation for the taking.  The
condemnation judgment was entered in May 1996.  GC appeals from the
rejection of its Cable Act claims.    
III. DISCUSSION 
     A.   Is GC's Cable Act Claim Moot?
          GVEA argues that GC's Cable Act claim is moot.  We have
stated that "[u]nder ordinary circumstances, we will refrain from
deciding questions where events have rendered the legal issue
moot."  Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191,
1195 (Alaska 1995) (citations omitted).  A claim will be deemed
moot "if it has lost its character as a present, live controversy." 
Id.  We have further held that "'[a] case is moot if the party
bringing the action would not be entitled to any relief even if
they prevail.'"  O'Callaghan v. State, 920 P.2d 1387, 1388 (Alaska
1996) (citations omitted).
          GVEA contends that because GC has already obtained an
easement across the Axtell property through eminent domain, there
is no relief possible for GC, even if it prevails on appeal.  GVEA
argues that, according to the terms of GC's stipulation with the
Axtells, GC is not entitled to the $500 it paid as just
compensation for the taking.  The stipulation states that "[t]here
will be no appeal of the Master's decision to the Supreme Court." 
          GC argues that if we hold GC has the right to use GVEA's
easement, GC "has no obligation to 'take' any portion of the
Axtells' property and/or to compensate the Axtells for the use of
GVEA's easement."  GC contends that relief is possible if it
prevails -- recovery of the $500 it paid the Axtells for the
easement.  GC also argues that the stipulation not to appeal the
master's decision relates only to the issue of the amount of
damages.
          We conclude that GC's claim is moot.  Without deciding
whether sec. 541(a)(2) authorizes access to private easements, we
note
that such a construction would violate the Fifth Amendment's
prohibition against "taking"without just compensation unless the
Cable Act were also construed to provide for just compensation for
any taking.  See Cable Holdings of Georgia, Inc. v. McNeil Real
Estate Fund VI, Ltd., 953 F.2d 600, 604-06 (11th Cir. 1992). 
          Loretto v. Teleprompter Manhattan CATV Corp. suggests
that GC's unconsented physical use of the Axtells' easement, even
if authorized by the Cable Act, would be a taking that requires
just compensation.  See Loretto, 458 U.S. 419, 421 (1982) (holding
that "a minor but permanent physical occupation of an owner's
property authorized by the government constitutes a 'taking' of
property for which just compensation is due under the Fifth and
Fourteenth Amendments of the Constitution"). 
          The Cable Act seems to require just compensation.
Subsection (C) of sec. 541(a)(2) requires the cable operator to
ensure
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."
But see Cable Holdings, 953 F.2d at 604 n.2. (stating that
subsection (C) applies exclusively to damages, and does not provide
just compensation for the taking); Cable Invs., Inc. v. Woolley,
867 F.2d 151, 158 (3d Cir. 1989) (same).
          GC obtained its easement through eminent domain.  The
central objective in eminent domain proceedings is to determine
just compensation.  See Babinec v. State, 512 P.2d 563, 570 (Alaska
1973).  GC has already paid the Axtells $500, the amount the court-
appointed master determined to be just compensation for the taking.
This amount is equivalent to the amount GC would be required to pay
the Axtells as just compensation assuming the Cable Act authorized
access.  Because GC would not be entitled to recover the $500 it
paid the Axtells even if it prevailed on its Cable Act claim, we
conclude that this controversy is moot.
     B.   Is GC's Cable Act Claim Regarding GVEA's Standard Form
Easement Justiciable? 

          The superior court denied GC's reconsideration motion,
which asked the court to decide whether the Cable Act authorizes GC
to use GVEA's easements obtained under the standard easement form
GVEA currently uses.  GVEA's access to the Axtells' property was
granted under an easement form that differs from the easement form
GVEA now uses.  GC asks us to consider whether GVEA's current
easement form gives GC access to GVEA's easements.  Because the
standard easement form that GVEA currently uses differs from the
form that gave GVEA access to the Axtells' land, any dispute about
the current form does not create an actual controversy.  See
Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027,
1035-36 (Alaska 1972), overruled in part on other grounds by City
of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979).  We
consequently decline to decide this question to avoid issuing an
advisory opinion.  
IV.  CONCLUSION 
          AFFIRMED. 


                            FOOTNOTES


Footnote 1:

     Subsection 541(a)(2) authorizes a cable franchisee to
construct a cable system "over public rights-of-way, and through
easements, which is [sic] within the area to be served by the cable
system and which have been dedicated for compatible uses."  47
U.S.C. sec. 541(a)(2) (1984). 


Footnote 2:

     "A right of way is primarily a privilege to pass over
another's land. . . . A right of way may be either public or
private, that is, it may be a right of passage of which every
individual may avail himself, or it may exist for the benefit of 
one individual or class of individuals."  3 Herbert Thorndike
Tiffany, The Law of Real Property sec. 772, at 232 (Basil Jones,
ed.,
3d ed. 1939 & Supp. 1997).

          An easement involves primarily the privilege
of doing a certain class of act on, or to the detriment of,
another's land, or a right against another that he refrain from
doing a certain class of act on or in connection with his own land,
the holder of the easement having, as an integral part thereof,
rights against the members of the community generally that they
shall not interfere with the exercise or enjoyment of the easement.

Id. sec. 756, at 200-01.

          The United States Court of Appeals for the Eighth Circuit
has described one blanket easement as failing to "define or specify
either the location, width, length, or other dimensions of the
actual strip(s) of property to be (or actually) utilized by the
[holder of the easement]."  TCI of North Dakota, Inc. v. Schriock
Holding Co., 11 F.3d 812, 816 (8th Cir. 1993).