law-easement | trespass | real estate law and litigation | condemnation and eminent domain proceedings

Ward v. Northamption MUD (Tex.App.- Houston [14th Dist.] June 12, 2008) (Hedges) (easement dispute)
AFFIRMED: Opinion by Chief Justice Hedges  
Before Chief Justice Hedges, Justices Hudson and Boyce
14-07-00868-CV Robert Ward v. Northampton Municipal Utiity District
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd  

Chappel Hill Bank v. Lillian Smith (Tex.App. - Houston [14th Dist.] May 8, 2008)(Brown)  
(real estate law, easement, attorneys fees)
AFFIRMED: Opinion by Justice Brown  
Before Chief Justice Hedges, Justices Brown and Boyce
14-07-00099-CV Chappell Hill Bank v. Lillian Smith
Appeal from 335th District Court of Washington County
Trial Court Judge: Terry Flenniken  

Mitchell v. Garza II (Tex.App.- Houston [1st Dist.] Dec. 6, 2007)(op. on rehr'g by Hanks)
(real estate law, easement by estoppel)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-06-00959-CV Robert S. Mitchell and Leta M. Mitchell v. Arturo Garza
Appeal from 129th District Court of Harris County (Hon. Grant Dorfman)

Bradley v. Peters (Tex.App.- Houston [1st Dist.] Dec. 6, 2007)(Bland)(real estate law, easement)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-07-00081-CV Paul D. Bradley v. Milton Peters, Rodney Rice and Laura Rice
Appeal from 21st District Court of Washington County (Hon. Terrill L. Flenniken)

Barrow v. Pickett (Tex.App.- Houston [1st Dist.] Nov. 8, 2007)(Keyes)(real estate law, easement, rural,
electrical cattle fence, attorney's fees)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Keyes
Before Justices Nuchia, Jennings and Keyes
01-06-00664-CV Nick Barrow v. Carl N. Pickett
Appeal from 344th District Court of Chambers County (Carroll E. Wilborn, Jr.)
This is a real property dispute concerning the nature and scope of an express easement. Appellant Nick Barrow, holder of the
servient estate, appeals the trial court's judgment permanently enjoining him from placing a two-wire electric cattle gate across
the roadway easement providing access to appellee Carl N. Pickett's dominant estate. In his sole point of error, Barrow
contends that the trial court erred when it interpreted the Access Easement Agreement to mandate that Pickett's passage along
the easement be uninterrupted by obstructions and permanently enjoined Barrow's use of the gate across the easement.
We reverse and render on the merits and remand for reconsideration of attorney's fees.
We reverse the trial court's orders granting injunctive relief and render judgment that the temporary, permanent, and mandatory
injunctions are dissolved. We reverse that portion of the trial court's judgment awarding attorney fees to Pickett and remand that
issue to the trial court for further proceedings consistent with this opinion.

EFFECT OF EVOLVING TECHNOLOGY ON EXISTING UTILITY EASEMENTS

Does easement for telephone and telegraph wires also include equipment for cell phone transmissions?

A. Easements and Trespass

CenterPoint Energy Houston Electric LLC V Bluebonnet Drive, Ltd. (Tex.App.- Houston [1st Dist.] July 31,
2008) (Radack) (interpretation of easement, new cell phone technology vs. telephone and telegraph wires in
1929)

"An easement is a non-possessory interest that authorizes its holder to use property for
a particular purpose." Koelsch v. Indus. Gas Supply Corp. 132 S.W.3d 494, 497 (Tex.
App.--Houston [1 Dist.] 2004, pet. denied) (citing Marcus Cable Assocs. v. Krohn, 90
S.W.3d 697, 700 (Tex. 2002)).

A trespasser has neither express nor implied permission to enter the property of another, but enters it
nonetheless. Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 671 (Tex. 1999); Koelsch, 132 S.W.3d at 497. An
easement holder who exceeds the rights granted by the owner of the servient estate thus commits a trespass.
Marcus Cable, 90 S.W.3d at 703 (quoting McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex. Civ.
App.--Beaumont 1934, writ ref'd) ("[E]very unauthorized entry upon land of another is a trespass even if no
damage is done or the injury is slight. . . . .")); see Koelsch, 132 S.W.3d at 499 (holding that no trespass
occurred because easement permitted construction and relocation of above-ground block valve assembly). A
party claiming trespass must establish that the defendant committed an act that exceeded the bounds of any
legal rights the defendant may have possessed. See Koelsch, 132 S.W.3d at 497 (citing Murphy v. Fannin
County Elec. Coop., 957 S.W.2d 900, 903-04 (Tex. App.--Texarkana 1997, no pet.)).

In this case, the trial court concluded, as a matter of law, that (1) CenterPoint and Sprint exceeded the rights
acquired by the 1926 easement by permitting placement of Sprint's cellular telecommunications equipment
within the easement and (2) therefore committed a trespass. See id.

B. Assignability of Easement Rights

CenterPoint claims its rights in this case pursuant to the express easement conveyed to HL&P in 1926. See
Marcus Cable, 90 S.W.3d at 700 (citing DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex.
1999)). Sprint's rights derive from CenterPoint's rights. An easement holder who is authorized to assign or
apportion rights to a third party (5) must conform the rights conveyed to the third party to those originally
conveyed. See id. (citing Cantu v. Cent. Power & Light Co., 38 S.W.2d 876, 877 (Tex. Civ. App.--San Antonio
1931, writ ref'd)). Accordingly, CenterPoint could not grant Sprint any use that "exceed[ed] the rights expressly
conveyed to the original easement holder," here HL&P, and, by succession, CenterPoint. See id.; see also
Carrithers v. Terramar Beach Cmty. Improvement Ass'n, Inc., 645 S.W.2d 772, 774 (Tex. 1983) ( "[A]n
easement may not create a right or interest in a grantee's favor which the grantor himself did not possess.")
(citing Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 202 (Tex. 1962)).

C. Interpretation of Easements

We interpret easements according to basic principles of contract construction and interpretation. Marcus
Cable, 90 S.W.3d at 700; DeWitt County Elec. Coop., 1 S.W.3d at 100; Koelsch, 132 S.W.3d at 497. Courts
construe contracts as a matter of law, and we review their rulings de novo. See J.M Davidson, Inc. v. Webster,
128 S.W.3d 223, 226, 229 (Tex. 2003) (applying rule in arbitration-agreement context) (citing Coker v. Coker,
650 S.W.2d 391, 394 (Tex. 1983)).

The intent of the parties, as expressed in the grant, determines the scope of the interest conveyed. Marcus
Cable, 90 S.W.3d at 700-01; Koelsch, 132 S.W.3d at 497-98. To interpret the parties' intentions adequately
and to discern the scope of the rights conveyed to the easement holder, we focus on the terms of the granting
language. See Marcus Cable, 90 S.W.3d at 701 (citing DeWitt County Elec. Coop., 1 S.W.3d at 103 and
Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 664-65 (Tex. 1964)); Koelsch, 132 S.W.3d at 497-98; see
also Marcus Cable, 90 S.W.3d at 701 (citing and quoting Restatement (Third) of Property (Servitudes) § 4.1)
(providing that an easement "should be interpreted to give effect to the intention of the parties ascertained
from the language used in the instrument, or the circumstances surrounding the creation of the servitude, and
to carry out the purpose for which it was created")).

The language of an easement is not ambiguous when the terms can be given a certain or definite meaning, in which case we interpret the
easement as a matter of law. See DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 2002). Terms are not ambiguous simply because
they are not clear or because the parties proffer differing interpretations of them. Id. Ambiguity arises only when applying the established rules of
construction results in more than one equally reasonable interpretation. Id.; see Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex.
2005) (interpreting term equipment-lease agreement with purchase-option provision). In this case, the parties' postures in filing cross-motions for
summary judgment as a matter of law belie claims of ambiguity, despite CenterPoint's and Petro-Guard's having asserted ambiguity as an
alternative claim.

We rely solely on the written terms of the easement unless the language is ambiguous. Koelsch, 132
S.W.3d at 498. (6) When terms are not defined, we give them their "plain, ordinary, and generally accepted
meaning." Marcus Cable, 90 S.W.3d at 701 (citing DeWitt County Elec. Coop., 1 S.W.3d at 101). Courts must
consider the entire writing, assume that the parties intended to give effect to every clause they chose to
include, and strive to harmonize and give effect to all the provisions of the contract by analyzing the provisions
with reference to the whole agreement. Frost Nat'l Bank v. L&F Distribs., 165 S.W.3d 310, 312 (Tex. 1999);
Koelsch, 132 S.W.3d at 498; Corley v. Entergy Corp., 246 F. Supp. 2d 565, 573 (E.D. Tex. 2003); see also
Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006) (construing contract for
sale of oil and gas working interest and stating that courts must "examine and consider the entire writing in an
effort to harmonize and give effect to all the provisions . . . so that none will be rendered meaningless" and
that "[n]o single provision taken alone will be given controlling effect," but that "all the provisions must be
considered with reference to the whole instrument").

When interpreting the granting language of an easement, we resolve doubts about the parties' intent against
the grantor, or servient, estate and adopt the interpretation that is the least onerous to the grantee, or
dominant, estate in order to confer on the grantee the greatest estate permissible under the instrument. See
Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 665 (Tex. 1964); Stevens v. Galveston, H. & S.A. Ry. Co.,
212 S.W. 639, 644 (Tex. Comm. App. 1919); Gulf View Courts, Inc. v. Galveston County, 150 S.W.2d 872, 874
(Tex. Civ. App.--Galveston, 1941, writ ref'd). (7)

No rights pass to the easement holder by implication except those that are "reasonably necessary" to enjoy
the rights that the easement grants expressly. Marcus Cable, 90 S.W.3d at 701 (citing Coleman v. Forister,
514 S.W.2d 899, 903 (Tex. 1974)). Accordingly, if the grant expressed in the easement cannot be construed
to apply to a particular purpose, a use for that purpose is not allowed. See id. In Marcus Cable, the supreme
court construed an easement that granted an electrical utility permission to construct and maintain "an electric
transmission or distribution line or system" over private real property. Id., 90 S.W.3d at 699. In 1991, Marcus
Cable obtained permission from the utility to attach cable lines and wiring to the utility's poles, but its
agreement with the utility limited use of the poles to lawful activity by the utility. Id. The property owners sued,
claiming that the cable company did not have a valid easement and that they had not consented to the
placement of the cable lines across their property. Id. The supreme court held that the grant expressed in the
easement encompassed only an "electric transmission or distribution line or system" and therefore did not
encompass use for cable television transmission. 90 S.W.3d at 706.

Yet, Marcus Cable acknowledged that the common law permits some flexibility in determining an easement
holder's rights because the manner, frequency, and intensity of use of an easement "may change over time
to accommodate technological development." Id., 90 S.W.3d at 701 (citing Restatement (Third) of Property
(Servitudes) § 4.1). Changes must, however, "fall within the purposes for which the easement was created, as
determined by the grant's terms." See id. (citing Restatement (Third) of Property (Servitudes) §§ 1.2 cmt. d
("The holder of the easement . . . is entitled to make only the uses reasonably necessary for the specified
purpose."); 4.10 & cmt. a (noting that manner, frequency, and intensity of easement may change to take
advantage of technological advances, but only for purposes for which easement was created)). Accordingly,
an express easement "encompasses only those technological developments for which the easement was
granted." Id., 90 S.W.3d at 702 (citing Restatement (Third) of Property (Servitudes) §§ 1.2 cmt. d, cmt. a, 4.10
& cmt. a).

In Marcus Cable, the supreme court construed the utility easement as limited to the purpose of conveying
electricity by demonstrating that settled law had interpreted the terms "electric transmission" and "electric
distribution" as referring exclusively to conveyances of electricity. Id., 90 S.W.3d at 703-04. Accordingly, the
court declined to permit a use by Marcus Cable that went beyond conveying electricity. Id., 90 S.W.3d at 704.

We distinguish Marcus Cable, however, because there was never an argument in that case that the express
grant to the utility -- to construct and maintain an "electric transmission or distribution line or system"--was
broad enough to encompass use for cable-television transmission. See id., 90 S.W.3d at 704. To the contrary,
the cable company maintained that it should be permitted to use the utility's poles, despite the narrow
language of the easement, for the following reasons: (1) easements should be construed to encompass
technical advances, (2) public policy favored expansion of cable-television services, and (3) adding
cable-television wires to existing poles did not increase the burden on the property owners (the servient
estate). See id.

* * *
Technological Advancement or Development

CenterPoint and Sprint acknowledge that the terms of the easement address only "telephone and telegraph
wires," in keeping with the known technology of 1926, and thus do not expressly convey rights to wireless
telephone transmission and equipment as appurtenances that are "necessary and desirable." They contend,
however, that in Marcus Cable, the supreme court recognized the technological advancement doctrine and
that the doctrine applies to permit the installations permitted by CenterPoint's agreement with Sprint. We agree.


The common law recognizes that the "manner, frequency, and intensity of an easement's use may change
over time to accommodate technological advances" and thus permits "some flexibility in determining an
easement holder's rights," as long as the changes respect the original purpose stated in the terms of the
grant. Marcus Cable, 90 S.W.3d at 701-02 (citing Restatement (Third) of Property (Servitudes) §§ 4.10 & cmt.
a, 1.2 cmt. d.). The doctrine did not apply in Marcus Cable because the express easement at issue in that
case could not be construed as permitting any purpose beyond electrical transmission. 90 S.W.3d at 702-03.

In this case, however, the plain terms of CenterPoint's express easement reflect not only electrical
transmission as a purpose of the easement, but also telephone and telegraph transmission as a purpose of
the easement. An express easement properly encompasses technological developments that "further the
particular purpose for which the easement is granted." Id. (citing Restatement (Third) of Property (Servitudes)
§§ 1.2 cmt. d, cmt. a, 4.10 & cmt. a). Citing the Restatement, Marcus Cable expressly recognized, as an
example of appropriate application of the doctrine of technological advancement or development, that a holder
of an easement granted in 1940 for the purpose of telephone transmission could properly attach transmitters
to its poles for cellular telephone transmissions unless that use would interfere unreasonably with the servient
estate. See id., 90 S.W.3d at 702 (citing Restatement (Third) of Property (Servitudes) § 4.10 illus. 13); see
also Corley, 246 F. Supp.2d at 578-79 (holding that easements using terms "telephone," "telegraph," and
"communications" could properly be utilized for both internal communications and for third-party voice and
data communications).

We hold that the express terms of the CenterPoint easement encompass installation and use of cellular
transmission within the easement, and that CenterPoint did not exceed the scope of the easement in assigning
those rights to Sprint. Accordingly, the trial court erred by concluding that CenterPoint and Sprint had
exceeded the scope of the easement.

We sustain CenterPoint's and Sprint's first issue. Because this disposition compels that we reverse and render
judgment that Bluebonnet and Petro-Guard take nothing on their claims against CenterPoint and Sprint, we
need not address their remaining issues.

Rinn v. Wennenweser (Tex.App.- Houston [1st Dist.] July 3, 2008)(Jennings)
(real estate law, easement dispute, validity)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings  
Before Justices Taft, Jennings and Bland
01-07-00763-CV Leeland Rinn v. Max Wennenweser
Appeal from 155th District Court of Austin County
Trial Court Judge: Hon. Dan R. Beck  

Whaley v. Central Church of Christ of Pearland (Tex.App.- Houston [1st Dist.] Mar 8, 2007)(Justice Elsa
Alcala)(real estate law, dispute, easement)