Dwyer v. Houston Pipe Line Co.

• Decision Date: 10 January 1963
• Docket Number: No. 14051,14051
• Citation: 364 S.W.2d 736
• Parties: Roberta Powell DWYER et al., Appellants, v. HOUSTON PIPE LINE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 736

364 S.W.2d 736

Roberta Powell DWYER et al., Appellants, v. HOUSTON PIPE LINE COMPANY, Appellee.

No. 14051.

Court of Civil Appeals of Texas, Houston.

Jan. 10, 1963.

As Corrected on Denial of Rehearing Jan. 24, 1963.

Second Motion for Rehearing Denied Feb. 14, 1963.

Joyce Cox, Houston, for appellants Ben Taub et al.

Vinson, Elkins, Weems & Searls, James W. McCartney, Houston, for appellants Roberta Powell Dwyer et al.

Fulbright, Crooker, Freeman, Bates & Jaworski, B. J. Bradshaw, Houston, for appellee.

WERLEIN, Justice.

This suit was brought by Roberta Powell Dwyer et al. against appellee for judgment declaring a pipe line easement across appellants' land to have lapsed and terminated as a result of appellee removing an 18 inch relatively low pressure pipe line and replacing it with a 30 inch high pressure pipe line, and for judgment removing the same as a cloud on appellants' title, and also restraining its further operation, and for rental, and in the alternative for damages. The alternative claim was later withdrawn to permit entry of a final judgment.

Appellee answered contending that under the express terms of the right of way agreement in question, which was executed on March 9, 1926, it was authorized expressly and impliedly to replace the original 18 inch pipe used in the pipe line. It denied that it had voluntarily ceased to use the pipe line for any period of time, and asserted that it had continued to use the easement for the purpose granted and that its rights under the agreement had not terminated. In its alternative cross-bill, it sought to condemn a right of way and easement in the event it should be determined that the right of way easement granted in said agreement had lapsed or terminated or that for any reason appellee does not have a valid subsisting easement for laying, construction, maintenance, inspection, operation, repairing, substitution, replacing and removal of the pipe and pipe line presently on the land for the transportation of gas. Both parties filed motions for summary judgment. The trial court granted appellee's motion and denied appellants' motion.

Appellants do not question appellee's power to condemn an easement across the land, and they seek injunctive relief only in the event appellee fails promptly to pursue condemnation proceedings under its cross-action.

It is appellants' contention that the March 9, 1926 agreement authorized the construction, maintenance, operation and repair of one pipe line only, and did not authorize its replacement and did not authorize its removal except upon termination of the rights and easement granted by said instrument, and that in construing said agreement the trial court should have considered the fact that grantors struck out the words 'and remove' from the granting clause thereof and also struck out language which would have given appellee the right to lay additional lines across appellants' property. Appellants further contend that under the particular provisions of the agreement when appellee constructed its 18 inch pipe line, it thereby limited and defined the extent of the easement right granted so that it was not authorized to increase the size of its pipe line across appellants' lands; and further that upon removal by appellee of its 18 inch line, its rights and easements terminated, but irrespective of such termination appellee had no right or easement to construct, maintain and operate the 30 inch line subsequently laid by appellee across appellants' lands.

On the other hand, it is appellee's contention that the agreement in question does not specifically limit the size or capacity of the line to be constructed, so that the removal of the 18 inch line initially laid and operated pursuant to such instrument for more than 30 years and its replacement by a 30 inch line did not violate the terms of the agreement; and also that the rights granted appellee include the right to replace the original pipe line with different pipe without any restriction as to size, when the condition of the pipe or increased demand for gas make such replacement and enlargement necessary.

There is no substantial dispute as to the issues involved. The determination of the case will depend upon a proper construction of the right of way instrument and the use made of the easement. The printed form of the conveyance of the easement shows that there was struck therefrom the words 'and remove' following the word 'repair,' thus conveying to the grantee only the right to lay, construct, maintain, operate, and repair a pipe line for the transportation of gas over appellants' land. The paragraph in the habendum clause giving the right to construct additional pipe lines over said lands was also deleted. Appellee asserts that the deletion of the words 'and remove' was intended merely to prevent appellee from removing its pipe line from the location where originally constructed to another location on appellants' land; whereas appellants contend that it was the intention of the parties in striking out the words 'and remove' to prevent appellee from removing the pipe line as originally established, and that in removing the 18 inch pipe line and replacing it with a 30 inch pipe line appellee became a trespasser upon the lands in question and should be enjoined from operating the 30 inch pipe line, since the agreement gives appellee no such right.

The evidence shows that the pipe line laid in 1926 was continuously in operation, serving the area of east Harris County until the latter part of 1959, when the old 18 inch pipe was removed and the 30 inch pipe line was laid in its place. The transportation of gas ceased for only a few weeks while the substitution was being made. The evidence further shows that the original 18 inch line had a maximum working pressure of 225 pounds per square inch and under optimum operating conditions it could transport approximately 150 million cubic feet of gas per day; whereas the larger 30 inch pipe line which was installed substantially along the same course from which appellee had removed the 18 inch pipe line, had been tested at pressures in excess of 875 pounds per square inch and had an optimum operating delivery capacity of approximately 650 million cubic feet a day and is the largest size pipe line appellee now has in operation anywhere in its entire system.

The agreement in question does not provide that any increase in the size or capacity of the line may be made, nor does it grant any right to make improvements or additions to the line. The grantors at the time of executing the lease struck out the authorization for the construction of additional pipe lines, thus eliminating the possibility of their lands being subsequently burdened with additional lines in the absence of further negotiations and payment. They also, as stated, struck out the words 'and remove' from the granting clause, thus giving the grantee only the right of removal upon termination of the easement as provided in the habendum clause. It is axiomatic that the pipe line could not be replaced without first being removed. The basic question is whether the instrument as changed by deletions can be construed to give the appellee the right to remove the 18 inch line initially constructed and to increase the burden on appellants' land by permitting construction of the 30 inch pipe line with vastly increased pressure and delivery capacity. We think the foregoing deletions as part of the...