Aycock v. Houston Lighting & Power Co.

• Decision Date: 17 June 1943
• Docket Number: No. 11532.,11532.
• Parties: AYCOCK et al. v. HOUSTON LIGHTING & POWER CO.
• Court: Texas Court of Appeals

175 S.W.2d 710

AYCOCK et al. v. HOUSTON LIGHTING & POWER CO.

No. 11532.

Court of Civil Appeals of Texas. Galveston.

June 17, 1943.

Rehearing Denied December 2, 1943.

COPYRIGHT MATERIAL OMITTED

Appeal from Brazoria County Court; Floyd Enlow, Judge.

Proceeding by the Houston Lighting & Power Company against Mrs. Lula Aycock and others to condemn easements in three strips of defendants' land for electric power line purposes. From a judgment condemning the easements and awarding damages to defendants they appeal.

Affirmed.

Walter F. Brown, of Houston, for appellants.

Cleveland Davis, of Angleton, and Tom M. Davis and W. E. Junell, both of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for appellee.

CODY, Justice.

This is a condemnation proceeding to condemn an easement 80 feet wide for the construction of lines for the transmission and distribution of electric current, and to condemn in addition an easement 50 feet wide on each side of the 80-foot strip. The proceeding was instituted on April 25, 1941, by appellee filing its petition in the County Court of Brazoria, alleging that it could not agree and had failed to agree with the appellants (who were the owners of an undivided third interest in 1550-acre tract across which said easements were sought to be condemned), and prayed for the appointment of Special Commissioners to award the damages. (It should be stated in this connection that appellee had theretofore acquired by agreement the easements from the owners of the undivided two-thirds interest.) Thereafter, the Special Commissioners, who were duly appointed and qualified, awarded the owners, as damages, the sum of $200, being the sum of $50 each to Mrs. Lula Aycock, Mrs. Estelle Rudersdorf, Mrs. Lee Seaburn Hudgins, and Miss Erna Seaburn. Then, on May 13, 1941, appellee filed its bond in the sum of $400, being double the amount of the award. And the owners, who are appellants, being dissatisfied with the award, filed their objections thereto.

Thereafter, the case proceeded to judgment wherein the Power Company recovered, first: "an unobstructed easement over, across and upon the strip of property hereinafter described for the purposes of erecting, maintaining and servicing thereon various numbers of wires, and all the necessary or desirable apparatus or appurtenant thereto (including, but not by way of limitation, poles of wood, or other material, metal towers, guy wires, guy anchors, underground wires and conduits) for the transmission of electric current * * *"; such easement being a strip 80 feet in width; and, second, the Power Company recovered an additional easement 50 feet wide "on each side, and running parallel with the boundaries, of the aforesaid eighty (80) foot unobstructed easement within which additional easement plaintiff (Power Company) shall have the right (but this right only) to cut and/or trim all limbs of trees and trees which, in the judgment of plaintiff, may constitute a hazard to the safe operation of the aforesaid property, or properties, to be placed by plaintiff on the eighty (80) foot unobstructed easement * * *". And three of the aforesaid owners, and the heir of the fourth owner, who died pending the action, each were awarded the sum of $16.67.

The owners of the undivided third interest of the land upon which the easements were thus imposed have duly appealed and here present 46 points, covering some 13 pages of their brief, seeking reversal of the judgment of the trial court. Such a plethoric specification of errors is not contemplated by the new court rules. Obviously we cannot specifically pass upon each point. Indeed, it would unduly extend the opinion to set them out. We have assumed the burden of drafting our opinion so as to rule upon each point by necessary implication where we have been unable to rule expressly thereon.

The case was submitted to the jury upon four special issues with reference to which appellants urge objections, and also urge objections to the failure of the court to give special issues which they offered and urge should have been given. In connection with the four special issues submitted by the court, the jury were charged that they should answer them as though appellants owned the entire interest in the land inquired about, and were instructed that the court would determine the interest of each defendant in such land and award each defendant the proper proportion of the damages awarded. The court further instructed the jury that by the term "easement", as used in the special issues, is meant the right to use the land for some specified purpose or purposes, and none other, so that the title to the property covered by the easement, as well as the right to use, occupy, and enjoy the property remains in the original landowner, provided, however, such use, occupancy and enjoyment of the property by said original owner does not interfere with the use of the property for the specified purpose, or purposes, for which the easement is acquired. The court further instructed the jury that appellee, on May 13, 1941, acquired two easements, the first being the 80-foot easement containing 17.97 acres of land, for the construction, maintenance and servicing thereon of "various numbers of wires and all the necessary or desirable apparatus appurtenant thereto (including, but not by way of limitation, poles of wood or other material, metal towers, guy wires, guy anchors, and underground wires and conduits) for the transmission and distribution of electric current and energy; the second easement being an area 50 feet wide on each side, and running parallel with the boundaries of the aforesaid 80-foot easement, containing therein an additional 22.46 acres of land, within which — additional easement Houston Lighting and Power Company shall have the right (but only the right), from May 13, 1941, to cut, and/or trim all limbs of trees and trees which, in the judgment of Houston Lighting & Power Company, may constitute a hazard to the safe operation * * *" etc.

Special Issue No. 1 inquired as to the market value of the strip of land, considered as severed land, covered by the easements acquired by appellee immediately prior to their acquisition on May 13, 1941. And the jury was instructed that by the term "market value", as used in the special issues submitted to them, is meant "the price the property will bring when it is offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying." Special Issue No. 2 inquired as to the market value on May 13, 1941, of said strip of land (inquired about in Special Issue No. 1), considered as severed land, taking into consideration the uses which appellants "may make of the strip of land", immediately after appellee acquired the easements on May 13, 1941. In connection with Special Issue No. 2, the jury was instructed that the phrase "uses, if any, which defendants (i.e. appellants) may make of the land inquired about in Special Issue No. 1" is meant "any use of said land by the defendants which is not inconsistent with and does not interfere with the use of said land for the uses and purposes for which Houston Lighting & Power Company has acquired said two easements, as described in the instructions in this charge." The court further instructed the jury, in connection with Special Issue No. 2, that the Power Company has no right to fence the whole or any part of the land covered by the two easements, but that the landowners may fence along the boundaries of the said strip of land, or any part of it, but are not bound to do so. Special Issue No. 3 inquired as to the market value of the balance of said strip of land belonging to appellants, exclusive of the strip of land now occupied by the two easements, immediately before the Power Company acquired said easements. Special Issue No. 4 reads as follows: "Excluding increase in value, if any, and decrease in value, if any, by reason of benefit or injuries received by the defendants in common with the community generally and not peculiar to them and connected with their ownership, use and enjoyment of the particular tract of land across which said two easements have been acquired by the plaintiff, Houston Lighting & Power Company, and taking into consideration the uses to which the said strips of land so acquired by the plaintiff, Houston Lighting & Power Company, is subjected, or may be subjected under said two easements, what do you find from a preponderance of the evidence was the market value of the remainder of defendants' said tract of land immediately after the acquisition by the plaintiff, Houston Lighting & Power Company, of the easements on said strip of land?"

The jury answered the special issues as follows: No. 1, $600; No. 2, $400; No. 3, $22,650; No. 4, $22,650. Upon such verdict, as stated above, judgment was rendered that each of the landowners recover the sum of $16.67.

The easements condemned by appellee in this suit form a part of appellee's right of way from Houston to Dow's Chemical Company at Freeport, a distance of 53 miles. As indicated above, the easements were condemned for both the transmission (high voltage) and distribution (low voltage) of electric current. However, the line is now equipped only for transmission of current, and carries a current of 132,600 volts. It need hardly be added that if this current comes into contact with man or beast, and there is a ground connection, the result would be fatal.

As appears above, the court instructed the jury that appellee has no right to fence the easements which it condemned. Had the court not so instructed the jury, they might have erroneously concluded that appellee had the right to fence the 80 foot easement and thus exclude appellants from access to said 80 foot strip of land, and thereby also injure the remainder of appellants' land by thus dividing it in two. We agree with appella...