LOCAL NEWS

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Judge: Trees in Jacksonville will stand

By Matt Kaspar
Staff Writer

03-19-08

Jacksonville resident Rufus Kinney won't
have to let Alabama Power cut down the
cherry tree in his yard following a judge's
ruling Tuesday.
Photo: Kevin Qualls/The Anniston Star

What started as an act of protest last July ended Tuesday with a happy verdict for Jacksonville residents Barbara Wilson and Rufus Kinney: The trees in Jacksonville will stand.

Calhoun-Cleburne Circuit Judge John Thomason signed an order denying Alabama Power's request to prevent the residents from chaining themselves to trees near their yards. Kinney and Wilson previously had chained themselves to the trees to keep the company from cutting them to the ground.

The ruling, which follows a Feb. 8 hearing, also says the company "shall not trim these trees to a greater extent than has been their prior practice."

Alabama Power wants to cut the trees as part of a safety program to remove all trees under power lines rather than continuing its practice over the years of trimming trees.

A legal assistant for Thomason said Alabama Power can appeal the decision or could choose to condemn the trees. If the trees were condemned, Wilson and Kinney would have to be compensated for the cutting.

Citing the company's interpretation of a 1915 easement that was used to justify removal, Thomason said Alabama Power was overreaching in its argument to fell the trees, three pecans in front of Wilson's yard and a cherry near Kinney's home.

"While the franchise agreement grants the right and duty to maintain the power wires, it does not mention the right to cut the trees," he says in the order.

Thomason also said the argument that removing the trees was necessary for maintenance was incorrect because it was not previously practiced.

"Alabama Power may continue to fully maintain its lines, as it has for many years, without the destruction of these trees," he says.

Though Alabama Power argued removing the trees was necessary for safety reasons, Thomason said the company offered little evidence to demonstrate conditions would improve by removing the trees.

He said the testimony of Alabama Power employee Randall Gann revealed that the National Safety Code does not require tree removal and Gann could not point to any other state where the practice was taking place.

Gann also acknowledged the company was not cutting trees in some other areas of the state such as Mountain Brook.

Lawyers for both sides were asked to submit their final arguments for the case after the February hearing.

Barbara Wilson could not be reached Tuesday for comment.

Kinney said he was delighted at the outcome.

"This is a huge victory for us right now," he said.

Alabama Power spokeswoman Gina Warren said the company was disappointed with the ruling, and said their lawyers were still studying the decision to determine whether they would appeal the verdict.

Mark Martin of Birmingham, who represented Wilson and Kinney, said he was pleased with Thomason's decision because it upheld the contention that Alabama Power's interpretation of the power of an easement was unreasonable.

"I felt like we had the strongest argument. I had confidence in the judge to sort through all the issues and the facts," he said.