Clark v. El Paso Cablevision, Inc., 6231
| Decision Date | 15 December 1971 |
| Docket Number | No. 6231,6231 |
| Citation | 475 S.W.2d 575 |
| Parties | Allen B. CLARK, Sr. and Amy Clark, Appellants, v. EL PASO CABLEVISION, INC., Appellee. |
| Court | Texas Court of Appeals |
Walter C. McGhee, Jr., El Paso, for appellants.
Peticolas, Luscombe, Stephens & Windle, W. C. Peticolas, El Paso, for appellee.
This appeal is from the granting of a temporary injunction whereby Allen B. Clark and his wife are restrained from interfering with the Plaintiff's use of a certain utility pole and easement located at the rear of the Clark property. We affirm the judgment of the trial Court.
Mr. and Mrs. Clark have their home located on a lot in the Cielo Vista Park Unit N Addition to the City of El Paso. When the map of the addition was dedicated in 1965, the then owner and developer of the addition dedicated to the use of the public, the streets, avenues, drives, roads and utility easements as were therein designated including easements for the overhang of service wires for pole type utilities, including the right to ingress and egress. This map shows that across the entire five feet back portion of the Clark property is one of the easements.
The Plaintiff in the trial Court, El Paso Cablevision, Inc., is in the process of installing a television system whereby for a fee, some eighteen (18) separate television channels are carred to subscribers within the City of El Paso by means of electric cables. To obtain this right, the cablevision company, through an ordinance of the City of El Paso, secured a franchise to construct, maintain and operate the system, the franchise providing that the 'grantee is authorized to make a contract or contracts with any public utility company lawfully having poles or underground ducts in the streets, alleys, or public grounds of the City, under which contract the grantees may, by lease, license or otherwise, use such poles or ducts for grantee's cables and necessary equipment'. This ordinance provides that 'the City agrees that any public utility lawfully having such poles or ducts may, without amending its franchise, allow the grantee to make use thereof'. The franchise requires that the cablevision system must be built no later than eighteen (18) months from January 22, 1971; the company must serve all homeowners within the City who apply for service, and its rates are controlled by the City.
The El Paso Electric Company admittedly has the right to use the easement in question. Under the terms of the franchise ordinance, it granted to El Paso Cablevision, the right to attach the cablevision equipment to its poles. The cablevision company placed a strand on the power company pole located in the easement. Thereafter, Mr. Clerk required the company to remove the strand. The pleadings of Mr. and Mrs. Clark allege that neither the dedication, the franchise, nor the contract rights with the Electric Company grant any right to the cablevision company to enter the easement and attach the cable and they further allege that there has been an unlawful trespass upon their property.
On the hearing for the temporary injunction, not only were the various instruments above discussed introduced into evidence, but it was further shown that some 125 miles of t.v. strand had already been installed, that the costs including inventory and orders placed, amount to some $1,400,000.00, and that ultimately, some 725 miles of strand and cable will have to be installed to complete the system. Testimony was produced that if the company was not permitted to place its strand and cable on the one pole located on the disputed easement, that at least twenty (20) homes in the area would be deprived of service, and the company would be in violation of those portions of the franchise which required the furnishing of a complete distribution system within the limited period of time.
Complaint is made that the order of the trial Court in granting the temporary injunction does not meet the mandatory requirement of Rule 683, Texas Rules of Civil Procedure, that the order set forth the reasons for the issuance of the writ. The reasons in the original over were that the Court was 'of the opinion that the Plaintiff is entitled under the franchise ordinance and the contract it has with the El Paso Electric Company, to use the...
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Marcus Cable Associates, L.P. v. Krohn
...be read to cover only public easements, that is, those easements dedicated to the public's use. See, e.g., Clark v. El Paso Cablevision, Inc., 475 S.W.2d 575, 577 (Tex.Civ.App.-El Paso 1971, no The limited legislative history that is available supports this interpretation. Statements were r......
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Witteman v. Jack Barry Cable TV
...v. Hardin Cable Television Co. (1971) 26 Ohio St.2d 103, 55 Ohio Ops.2d 203, 269 N.E.2d 588; see also Clark v. El Paso Cablevision, Inc. (1971) (Tex.Ct. of App.) 475 S.W.2d 575. The appellants in Salvaty were denied review by the California Supreme Court on May 15, 1985. Plaintiff also cont......
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Krohn v. Marcus Cable Associates L.P.
...could grant to a cable company the right to use utility easements that had been dedicated to the general public. See Clark v. El Paso Cablevision, Inc., 475 S.W.2d 575 (Tex. Civ. App.--El Paso 1971, no writ). In Clark, the court The easement was created by the developer dedicating the five ......