Appellants have appealed from the judgment of the District Court entered in a condemnation proceedings denying to them any compensation for the destruction of trees which were growing and standing adjacent to a power line owned and maintained by the United States of America pursuant to a written right-of-way easement owned by it.

No issue of fact is involved in this appeal since all of the facts were stipulated to and are contained in the pre-trial conference order signed by the District Court.

At the time of the institution of the condemnation proceedings, the appellants were the owners in fee simple of the real property described in the complaint and in the declaration of taking, subject to the rights of the United States as as-signee of certain easements or rights-of-way hereinafter described.

The record discloses that in 1929 the appellants’ predecessors in interest of the real property granted a right-of-way to the Califomia-Oregon Power Company. The material portion of that grant reads as follows:

After the execution and delivery of the grant to the right-of-way the grantee Power Company entered into the lands described therein and constructed across the same the electric transmission line, described in the declaration of taking in the condemnation proceedings as the Bonneville Power Administration, McKinley-Coos Electric Transmission Line and related facilities. The United States is the successor in interest and assignee of the Power Company.

The right, interest or estate sought to be taken, and taken in the condemnation proceedings, so far as material to this appeal is described in the complaint and the declaration of taking, and is as follows:

In the pre-trial conference order under the heading of “Admitted Facts” it is stated, in paragraphs 9) and 10) as follows:

Under the heading “ISSUE OF LAW” in the pre-trial conference order, it is stated:

Under the heading of “STIPULATIONS”, it is provided in the pre-trial conference order as follows:

Paragraph 8 of the “FINDINGS OF FACTS” and paragraph 4 of the “CONCLUSIONS OF LAW” are as follows:

It is to be noted that the easement in question, after recital of the consideration in the amount of $1.00, the grantor granted to the Power Company, its successors and assigns, the right-of-way and easement to erect, construct, repair, replace, maintain and use, over and across the lands of the grantor, for transmission and distribution of electricity, poles, towers, and wires suspended thereon and supported thereby, and all necessary or proper crossarms, braces, connections, etc., and wires for the telephone purposes of the Power Company, its successors and assigns, and also the right to remove the trees and make the clearing necessary or desirable for the purposes aforesaid, both on and adjoining said right-of-way. No width was stated for the easement for the right-of-way. The trees which the United States claimed a right to remove, and did remove, were all of the live Douglas fir and hemlock trees adjacent to the transmission line which were so located and of such height as to fall against one or more of the conductors or structures constituting the power line. Such trees did not overhang in a vertical plane any of such conductors or structures.

It is the government’s contention that in removing the trees in question, it merely exercised its rights under the easement to remove trees that were hazardous to the power line and therefore necessary to remove for the safety of the line. The appellants contend the right to remove and the removal of the trees in question was over and beyond the rights possessed by the government under the easement and that they are entitled to just compensation for the taking of the right to remove the trees.

There appears to be no dispute that the trees in question were dangerous or hazardous only in the sense that if they happened to fall in the right direction they were tall enough so that they could strike the power line or its supporting structures.

Counsel for the parties are in agreement that the real property law of the State of Oregon controls in determining the nature and extent of the rights of the United States acquired under the easement. Both parties rely upon the decision of the Supreme Court of the State of Oregon in the case of Ford v. White, 179 Or. 490 , 172 P.2d 822 (1946). In that case the vendees sued for a rescission of an executory contract of sale of real and personal property and for recovery of $2,000.00 paid to the vendor upon the sale price. The contract required the vendor to furnish an abstract of title showing merchantable title to the property. The abstract of title disclosed that the former owners had granted an easement on the real property in favor of the California-Oregon Power Company, which is the same company which assigned the easement to the United States in the instant case. The instrument by which the easement was granted, except as to description of property, is in the same language as the easement in the instant case except that the easement in the instant case does not contain the word which is bracketed, and does contain the words which are italicized as follows: “also to remove the trees and make the clearings necessary or [and] desirable for the purposes aforesaid, both on and adjoining said right-of-way;”.

In the course of its opinion the Supreme Court of Oregon stated, 172 P.2d at page 824 :

Thus, the Supreme Court of Oregon has stated that the rights acquired under an easement, which appears to us to be without significant distinction from the easement in the instant case, are (a) the right to remove trees and to make such clearing as might have been necessary for the erection of the line; and (b) the right to trim overhanging branches of trees which interfere with its wires if such trimming is reasonably necessary to ensure safe operation of the power line.

In Moss, supra, 293 P. 606 , cited by the court in the Ford case, the plaintiff gave oral permission to the defendant to trim branches of trees on her property so as to clear defendant’s electric power wires for a space of four feet. The court held that if the defendant exceeded the authority conferred by cutting off more branches than was necessary, and thereby injured the value of the plaintiff’s property, the defendant would be liable for the resulting damages. The court also stated, 293 P. at page 607 :

While the problem presented to the court in Ford was whether the easement in that case constituted a cloud on the title which might affect the merchantability of vendor’s title, which is a different problem from the one presented on this appeal, nevertheless, the language in Ford which we have quoted is a helpful guide in predicting the result which would probably be reached by the Supreme Court of Oregon if the instant case were before that court.

Since the trees in question were “cut, felled, removed and sold from, or destroyed upon the premises” by the United States, we need not determine the extent of the right of the United States to remove dead or dying trees, or to top or trim the trees reasonably necessary or desirable for the purposes stated in the easement in order to remove hazards and dangers to the use, repair, maintenance or operation of the transmission lines. We are concerned here only with the right of the United States, under the easement, to remove live Douglas fir and hemlock trees adjacent to the transmission lines, which were so located and of such a height that if they fell in the right direction they could fall upon or against the facilities of the United States, when such trees did not touch or overhang in a vertical plane any of such facilities. It is to be noted that after the execution and delivery of the right-of-way deed to the California-Oregon Power Company, that company, some thirty years ago, entered onto the lands described and constructed across the same the electric transmission line which is now described as the Bonneville Power Administration MeKinley-Coos electric line and related facilities. In Ford the Supreme Court of Oregon stated, in reference to a similar easement, that the right of the holder thereof to remove trees was restricted to the removal of trees to make such clearings as might have been necessary for the erection of the line. While the court gave no reason for such statement, it occurs to us the reason for such holding, as applied to an easement whose width is not described therein, was to limit the extent of the rights acquired under the easement for the protection of the landowner whose property is subject to such easement, and prevent an extension of such right to the detriment of the landowner.

It is our view that if the question presented to us were presented to the Supreme Court of Oregon, that the Court would hold that the United States exceeded the rights acquired by it under the easement in removing the trees in question, and that that court would not construe the easement to sanction the removal of the trees as being reasonably necessary or desirable.

The interest or estate acquired by the United States in the condemnation proceedings to remove the trees in question was over and above the rights acquired by the United States under the easement. For this taking the appellants are entitled to just compensation. By the pretrial conference order the District Court approved the stipulation of the parties that the defendants are entitled to the sum of $3,277.71 as just compensation for this interest or estate acquired under the condemnation proceedings.

This cause is remanded to the District Court with instructions to increase the award and judgment in favor of the appellants by the sum of $3,277.71, together with interest from the date of taking at the rate provided by law.