Ashcot, Inc. v. Texas Eastern Transmission Corp.

• Decision Date: 08 May 1961
• Docket Number: No. 41859,41859
• Citation: 129 So.2d 405,241 Miss. 392
• Parties: ASHCOT, INC. v. TEXAS EASTERN TRANSMISSION CORPORATION.
• Court: Mississippi Supreme Court

Page 405

129 So.2d 405

241 Miss. 392

ASHCOT, INC. v. TEXAS EASTERN TRANSMISSION CORPORATION.

No. 41859.

Supreme Court of Mississippi.

May 8, 1961.

Cox & Dunn, Jackson, for appellant.

Brunini, Everett, Grantham & Quin, Vicksburg, and Jackson, Ray, Spivey & Cain, Canton, for appellee.

LEE, Presiding Justice.

This is an interlocutory appeal by Ashcot, Inc. from a decree of the Chancery Court of Madison County which refused to dissolve a temporary injunction theretofore issued against it, without notice, at the instance of Texas Eastern Transmission Corporation.

The litigation arose out of these circumstances: C. L. Castle and wife, by written instrument, dated and acknowledged March 26, 1955, and filed for record April 13, 1955, for a stated consideration, conveyed and warranted unto Texas Eastern Transmission Corporation 'a right of way and easement to construct, lay, maintain, operate, alter, repair, remove, change the size of, and replace pipe lines and appurtenances thereto (including without limitation Corosion Control equipment) for the transportation of oil, gas, petroleum products or any other liquids, gases, or substances which can be transported through pipe lines, the Grantee to have the right to select, change, or alter the route under, upon, over and through lands which the undersigned owns or in which the undersigned has in interest, situated in the County of Madison, State of Mississippi, described as follows:

'(Describing 40 acres.)

'By the terms of this agreement, Grantee has the right to lay, construct, maintain, operate, alter, repair, remove, change the size of, and replace at anytime, or from time of time, one or more additional lines of pipe and appurtenances thereto (including without limitation Corrosion Control equipment). Provided, however, that for each additional line laid after the first line is laid hereunder, Grantee shall pay Grantor, his heirs or assigns, One Dollar per lineal rod of additional pipe line laid under, upon, over or through said hereinbefore described property.' (Emphasis supplied.) The other provisions are immaterial here.

Shortly thereafter, the grantee in the easement laid a pipeline which extended about 500 feet across the described land.

Subsequently, C. L. Castle and wife, by warranty deed dated and acknowledged October 3, 1956, and filed for record October 4, 1956, conveyed and warranted to Ashcot, Inc. a large tract of land, including the 40 acres described in the foregoing easement, but 'Subject to right of way over NE 1/4 SW 1/4, Section 12, Township 7 North, Range 1 East, less and except the lots contained in Lake Castle Subdivision, conveyed by C. L. Castle to Texas Eastern Transmission Corporation by instrument dated March 26, 1955, recorded in Book 61 at page 293.'

About 1959, the Texas Eastern representatives advised Ashcot of their intention to lay an additional pipeline across the property to the east of the existing line. Ashcot was opposed to such location and contended that the line should be laid within the 30-foot area where the existing line was situated. It finally expressed its willingness for the line to be laid provided it would be placed west of the existing line. The parties did not reach a common understanding; and at length, Texas Eastern sent its check in payment for the additional line, as provided for in the right-of-way agreement.

On August 12, 1960, Texas Eastern filed its bill of complaint in the chancery court to obtain a prohibitory injunction against Ashcot for the purpose of preventing its interference in any way with the survey, laying, etc, of the additional pipeline as proposed in the bill. A copy of the right-of-way agreement was exhibited thereto. It was alleged that the defendant had refused to permit the complainant to enter upon the premises for the purpose of making the construction. On the same date, the chancellor, by his fiat, ordered the issuance of a temporary injunction, in accordance with the prayer of the bill, upon the execution of bond in the sum of $1,000. Such bond was given and approved, and the injunction was issued. Upon service of the writ and accompanying process, the defendant filed its answer and motion to dissolve. Thereafter, the cause was heard on September 7, 1960, with the result stated in the first paragraph of this opinion.

Texas Eastern offered evidence to show that it was engaged in what it denominated as its Fifty Million Expansion in order that it might transport an additional 50,000,000 cubic feet of gas daily. To consummate this purpose, it was necessary to lay a second or additional pipeline, called a 'loop line', parallel with and adjacent to its existing line on the property of Ashcot, Inc. The line would be laid approximately 25 feet east of the existing pipeline. The usual right-of-way for a pipeline is 75 feet in width, composed of the 'spoil side' of approximately 25 feet, including the ditch, and a 'working side', for construction, of approximately 50 feet. In accordance with safety and economic factors, there should be at least 25 feet between the existing line and the new one to be installed because dynamite should not be exploded closer than 25 feet to a 'hot line', that is, a line filled with gas, and advantage should be taken of the work already done and the money spent for the existing line. All equipment, necessary for use in such construction, has to be utilized with the pipeline being to the left of such machinery. The company's plan for this additional pipeline was to use the space of 75 feet eastward from and parallel with the existing pipeline and running for a distance of slightly less than 500 feet for this installation. The lines could not be placed west of the existing line because the balance of the proposed line was on the east side. Such a change would therefore not be feasible and would be too expensive.

The evidence for the defendant was to the effect that, while it objected to the laying of another line except within the right-of-way of the original line, it would acquiesce in the construction of the same on the west side. But it strenuously objected to the proposed location, contending that the value of the land to the east thereof would be destroyed because such land would be rendered unfit for development as building lots. The court excluded the proffered evidence as to the construction placed on the meaning of the instrument by the original grantors, holding that the...