Ark. Code Ann. § 18-15-503 (2020)
Powers
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An electric utility organized or domesticated under the laws of this state for the purpose of generating, transmitting, distributing, or supplying electricity to or for the public for compensation or for public use may construct, operate, and maintain such lines of wire, cables, poles, or other structures necessary for the transmission or distribution of electricity and broadband services:
- Along and over the public highways and the streets of the cities and towns of the state;
- Across or under the waters of the state;
- Over any lands or public works belonging to the state;
- On and over the lands of private individuals or other persons;
- Upon, along, and parallel to any railroad or turnpike of the state; and
- On and over the bridges, trestles, and structures of railroads.
- In constructing such dams as the electric utility may be authorized to construct for the purpose of generating electricity by water power, the electric utility may flow the lands above the dams with backwater resulting from construction.
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An electric utility organized or domesticated under the laws of this state for the purpose of generating, transmitting, distributing, or supplying electricity to or for the public for compensation or for public use may construct, operate, and maintain such lines of wire, cables, poles, or other structures necessary for the transmission or distribution of electricity and broadband services:
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- However, the ordinary use of the public highways, streets, works, railroads, bridges, trestles, or structures and turnpikes shall not be obstructed, nor the navigation of the waters impeded, and just damages shall be paid to the owners of such lands, railroads, and turnpikes.
- The permission of the proper municipal authorities shall be obtained for the use of the streets.
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- In the event that an electric utility, upon application to the individual, railroad, turnpike company, or other persons, should fail to secure by consent, contract, or agreement, a right-of-way for the purposes enumerated in subsection (a) of this section, then the electric utility shall have the right to proceed to procure the condemnation of the property, lands, rights, privileges, and easements in the manner prescribed in this subchapter.
- However, an electric utility shall not be required to secure by consent, contract, or agreement or to procure by condemnation the right to provide broadband services over its own lines of wire, cables, poles, or other structures that are in service at the time that the electric utility provides broadband services over the lines of wire, cables, poles, or other structures.
- Whenever an electric utility desires to construct its line on or along the lands of individuals or other persons or on the right-of-way and the structures of any railroad or upon and along any turnpike, the electric utility, by its agent, shall have the right to enter peacefully upon the lands, structures, or right-of-way and survey, locate, and lay out its line thereon, being liable, however, for any damage that may result by reason of the acts.
History. Acts 1907, No. 120, §§ 1-3, p. 303; C. & M. Dig., §§ 4043-4045; Pope's Dig., §§ 5045-5047; A.S.A. 1947, §§ 35-301 — 35-303; Acts 2001, No. 1291, § 3; 2007, No. 739, § 3; 2013, No. 1130, § 3.
Amendments. The 2001 amendment substituted “electric utility” for “corporation” in (a)(1), (b), and (c); in (a)(1), inserted “or domesticated,” inserted “distributing, or,” inserted “to or for the public for compensation or,” inserted “or other structures,” and inserted “or distribution”; inserted “or other structures” in (a)(1), (b), and (c); and made minor stylistic changes throughout.
The 2013 amendment, in (b)(2), substituted “an” for “no” and inserted “not”.
Case Notes
Foreign Corporations.
This section does not confer right of eminent domain on foreign corporations. Southwestern Gas & Elec. Co. v. Patterson Orchard Co., 180 Ark. 148, 20 S.W.2d 636 (1929).
Right-of-Way.
A right-of-way must be surveyed and located, that is, defined. Loyd v. Southwest Ark. Utils. Corp., 264 Ark. 818, 580 S.W.2d 935 (1979).
The only right of access granted by this section is the right to acquire a right-of-way or reasonable access. Loyd v. Southwest Ark. Utils. Corp., 264 Ark. 818, 580 S.W.2d 935 (1979).
Where the public utility had ample access to its right-of-way without the necessity of crossing the lands of the landowner since there were numerous existing public roads on the landowner's lands which crossed the right-of-way, it had to specifically describe, condemn, and pay just compensation for any alternate routes of reasonable access. Ark. Power & Light Co. v. Potlatch Forest, Inc., 288 Ark. 525, 707 S.W.2d 317 (1986).
Where the public utility sought the right to cut, trim, or remove “danger trees” growing outside of its right-of-way that could potentially endanger its transmission line, and the landowner would be deprived of its customary use and practice of tree farming of the property on which the “danger trees” would be cut since it would be unable to grow trees in the area outside the right-of-way, the public utility had to specifically describe, condemn, and pay just compensation for the right to cut, trim, or remove trees that could potentially endanger the transmission line. Ark. Power & Light Co. v. Potlatch Forest, Inc., 288 Ark. 525, 707 S.W.2d 317 (1986).
The question of whether the condemnation of a right-of-way for a transmission line is necessary must be left largely to the discretion of the condemnor, and the exercise of that discretion will not be disturbed unless it clearly appears that the discretion has been abused and the action is arbitrary and causing unnecessary damage to the property owners. Harness v. Arkansas Pub. Serv. Comm'n, 60 Ark. App. 265, 962 S.W.2d 374 (1998).
Commission's decision to grant a certificate to construct a 69-kilovolt electric transmission line affirmed; notice to affected landowners held sufficient under § 23-3-201. Harness v. Arkansas Pub. Serv. Comm'n, 60 Ark. App. 265, 962 S.W.2d 374 (1998).
Streets and Highways.
An electric power company's right to use for its line a highway running through a village subsequently incorporated was merely that a competitor's occupancy should not be allowed to interfere with its physical property. Arkansas Power & Light Co. v. West Memphis Power & Water Co., 184 Ark. 206, 41 S.W.2d 755 (1931), cert. denied, 285 U.S. 536, 52 S. Ct. 310, 76 L. Ed. 930 (1932).
Electric company erecting poles and wires on land was a trespasser and liable for nominal damages even though no actual damages were shown, and highway department had a right-of-way over the land. Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 97 S.W.2d 624 (1936).
Where power company placed its poles along city streets and paid fee for the privilege, the company acquired a property right which could not be taken by the Arkansas State Highway Commission without compensation. Arkansas State Hwy. Comm'n v. Arkansas Power & Light Co., 235 Ark. 277, 359 S.W.2d 441 (1962).
Cited: Arkansas Power & Light Co. v. Lum, 222 Ark. 678, 262 S.W.2d 920 (1953); Arkansas State Highway Com. v. Arkansas Power & Light Co., 231 Ark. 307, 330 S.W.2d 77 (1959); Black v. Arkansas Power & Light Co., 236 Ark. 447, 366 S.W.2d 899 (1963); McCastlain v. Oklahoma Gas & Elec. Co., 243 Ark. 506, 420 S.W.2d 893 (1967); City of Little Rock v. Linn, 245 Ark. 260, 432 S.W.2d 455 (1968); Edwards v. Arkansas Power & Light Co., 519 F. Supp. 484 (E.D. Ark. 1981); Edwards v. Arkansas Power & Light Co., 683 F.2d 1149 (8th Cir. 1982); Columbia County Rural Dev. Auth. v. Hudgens, 283 Ark. 415, 678 S.W.2d 324 (1984); Craighead Elec. Coop. Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003).