Justice Elizabeth Garry
Defendant American Towers (ATI) appealed from an order granting property owner Gates summary judgment on ATI’s liability for repairs to a road. Gates’ predecessors conveyed part of the property to AT&T with an easement and right of way over adjoining property. Gates testified the road constructed was always repaired by AT&T upon request. Yet, ATI claimed it had no duty to maintain or repair the road. The court disagreed noting the easement agreement required ATI to provide drainage facilities, holding ATI was responsible for costs related to road repair and maintenance which was reflected by a provision requiring ATI to indemnify Gates against any damages suffered by reason of maintenance of the road. It agreed with the Supreme Court that ATI was obliged to maintain the roadway’s drainage facilities to prevent flood and erosion damage to Gates’ adjacent property. The court noted it saw no reason why a “perpetual right” to use the easement should not be accompanied by an equally perpetual duty to do so responsibly. The dissent disagreed finding the easement required ATI to install drainage facilities when it constructed the road, but imposed no further maintenance obligations, arguing the Supreme Court erred in granting Gates summary judgment on liability.
