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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2006-2007

1050996


Ex parte Lightwave Technologies, L.L.C.

PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Lindburgh Jackson and Kathy Matthews

v.

City of Auburn, Alabama Power Company, and Lightwave
Technologies, L.L.C.)

(Lee  Circuit Court, CV-04-04;
Court of Civil Appeals, 2031010)

BOLIN, Justice.

Lightwave Technologies, L.L.C., petitioned this Court for
a writ of certiorari to review the decision of the Court of
Civil Appeals, in a plurality opinion, affirming the trial
court's summary judgment in part, reversing it in part, and
remanding the cause. Jackson v. City of Auburn, [Ms. 2031010,
April 7, 2006] So. 2d (Ala. Civ. App. 2006) (opinion
on application for rehearing). We granted the petition
specifically to consider the Court of Civil Appeals'
resolution of the issue whether, and to what extent, the
holder of an easement obtained by prescription might
"apportion" that easement for some additional use by another
party.

Lindburgh Jackson owned property in Auburn, Alabama;
Alabama Power Company (hereinafter "APCo") has maintained
power lines across the property and a utility pole on the
property. Over the years since he first obtained an interest
in the property in 1978, Jackson occasionally complained of
APCo's use and maintenance of the lines and the pole and
threatened legal action against APCo.  In October 1999,
Jackson conveyed the property to his daughter, Kathy Matthews,
although he continued to use the property for his business,

and APCo's lines and pole remained on the property.  Sometime

between November 2000 and March 2001, Lightwave, pursuant to

a "pole-sharing" agreement with APCo, installed fiber-optic

cable on the utility pole on the property.1 The City of

Auburn had authorized Lightwave to install its cable in Auburn

and by ordinance had established the route for such placement.

In September 2003, Jackson sued various parties,

including APCo, Lightwave, and the City of Auburn asserting,

1In response to Lightwave's petition and after we had
issued the writ of certiorari, APCo submitted a brief in which
it argued that we should quash the writ of certiorari and not
consider the apportionment issue. APCo argues that, because
Lightwave agreed in the pole-sharing agreement to secure from
the landowner its own right to use the subject property, APCo
"did not authorize Lightwave to use its rights and did not
apportion its easement rights to Lightwave ...."(APCo's brief,

p. 8.) Lightwave argues that APCo initially advised the Court
of Civil Appeals that Lightwave could share APCo's rights.
Thereafter, according to Lightwave, APCo first modified its
position on that issue in its application for rehearing to
that court when APCo stated: "It is not appropriate for APCo
to take a position on whether Lightwave's telecommunications
use is within the scope of APCo's [pole-sharing] agreement
...." (APCo's application for rehearing, p. 23 n. 5.)  We
reject APCo's invitation to quash the writ.  For the purposes
of this proceeding, we address the apportionment issue as
framed by Lightwave because APCo did not question the
appropriateness of apportionment under its agreement with
Lightwave until APCo filed its application for rehearing in
the Court of Civil Appeals. See Water Works & Sewer Bd. of
Selma v. Randolph, 833 So. 2d 604, 608 (Ala. 2002) (opinion on
application for rehearing) (well-settled rule of appellate
procedure precludes consideration of arguments made for the
first time on rehearing).

among other things, that APCo had conspired with Lightwave to
commit trespass on the property. In 2004, Matthews was added
as a plaintiff. 2 After considerable litigation, the trial
court entered a summary judgment in favor of all the
defendants. Jackson and Matthews appealed to this Court,
which transferred the case to the Court of Civil Appeals
pursuant to

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