Grimes v. Corpus Christi Transmission Co.

• Decision Date: 09 April 1992
• Docket Number: No. 13-91-101-CV,13-91-101-CV
• Citation: 829 S.W.2d 335
• Parties: Util. L. Rep. P 26,205 E.B. GRIMES and Jeanne K. GRIMES, Appellants, v. CORPUS CHRISTI TRANSMISSION COMPANY and Corpus Christi Transmission Company, a General Partnership, Appellees.
• Court: Texas Court of Appeals

Page 335

829 S.W.2d 335

Util. L. Rep. P 26,205

E.B. GRIMES and Jeanne K. GRIMES, Appellants, v. CORPUS CHRISTI TRANSMISSION COMPANY and Corpus Christi Transmission Company, a General Partnership, Appellees.

No. 13-91-101-CV.

Court of Appeals of Texas Corpus Christi.

April 9, 1992.

Rehearing Overruled May 14, 1992.

M.W. Meredith, Caroline L. Bertuzzi, Corpus Christi, for appellants.

Charles R. Porter, Randal W. Hill, Corpus Christi, for appellees.

Before DORSEY, GILBERTO HINOJOSA and BISSETT, ¹ JJ.

OPINION ON MOTION FOR REHEARING

DORSEY, Justice.

Upon consideration of the motion for rehearing filed in this case, which involves a utility's right to lay high pressure gas pipelines under a highway right-of-way when the original easement grant was limited to roadway purposes, we overrule the motion, withdraw our original opinion rendered February 6, 1992, and substitute the following opinion.

The Grimeses' land abuts a state highway built on an easement granted to the State by the Grimeses' predecessor in title. That easement recites that it is "for the purpose of opening, constructing, and maintaining a permanent road...." The Grimeses bought their property in 1973, and they have fee title, encumbered by this easement, to the land extending to the mid-point of the highway. In October of 1989, Corpus Christi Transmission Company laid a 16"' gas pipeline beneath the highway right-of-way after obtaining permission from the Texas Highway Department under the authority of TEX.REV.CIV.STAT.ANN. art. 1436b § 1 (Vernon 1951).

The Grimeses filed suit against the pipeline company for trespass, or in the alternative, an unconstitutional taking of their property without just compensation, claiming that the easement was restricted to use as a roadway and nothing more. Both parties filed motions for summary judgment; the trial court granted the utility's motion and denied the Grimeses'.

The Grimeses assert three points of error. They challenge the granting of the summary judgment in favor of the utility, the denial of their own summary judgment, and the constitutionality of the statute under which the utility claims its authority to lay this pipeline, as it applies to these facts. The pipeline company asserts by cross point that it should recover attorney's fees. We affirm the judgment of the trial court.

The Grimeses' theory of the case is straightforward. They argue that because the easement granted to the county by their predecessor in title was for the express purpose of a highway, other uses are outside the grant. The Grimeses assert that because they retain fee title to the land subject to the easement, a use not authorized by the easement grant invades the spectrum of their rights in the land and constitutes a trespass.

The utility relies on art. 1436b § 1, which it claims allows it, as a company transporting gas for public consumption, the right to lay its lines along all public highways. ²

The Grimeses respond that the State cannot give that which it does not own; therefore, if the statute grants the utility a right that does not belong to the State, an unlawful taking without just compensation has occurred, contrary to art. 1, § 17 of the Texas Constitution.

The issue is whether the grant of a right-of-way for highway purposes includes within that grant other compatible uses.

The public's rights in a public rural road and a city street have been held to be identical. Hill Farm, Inc. v. Hill County, 436 S.W.2d 320, 323 (Tex.1969). The Supreme Court stated in Hill Farm, "in either case the responsible officials may, within the limits of the power vested in them by the Legislature, authorize the use of the subsurface for sewers, pipelines and other methods of transmission and communication that serve the public interest." Hill Farm, 436 S.W.2d at 323. Right-of-way easements may be used generally for travel, transportation of persons and property, and communication. Harris County Flood Control Dist. v. Shell Pipeline Corp., 591 S.W.2d 798, 799 (Tex.1979), (citing Hill Farm, 436 S.W.2d at 323).

The use of roads for reasons other than transportation is permitted, although those are secondary activities. City of San Antonio v. Bexar Metropolitan Water Dist., 309 S.W.2d 491, 492 (Tex.Civ.App.--San Antonio 1958, writ ref'd). Easements in city streets remain broad enough to allow the municipality to do the activities normally incident to maintaining those streets: laying sewer, gas and water pipelines. Hill Farm, 436 S.W.2d at 323. A roadway easement granted to a municipality includes the right to use the easement for street purposes. Pittman v. City of Amarillo, 598 S.W.2d 941, 944 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.). "Street purposes" include within their scope the laying of gas lines. Harris County Flood Control Dist., 591 S.W.2d at 799. Similarly, tunneling under the street to construct and maintain electric power distribution lines is considered a "use" for a street as contemplated by applicable statutes. West Texas Utils. Co. v. City of Baird, 286 S.W.2d 185, 188 (Tex.Civ.App.--Eastland 1956, writ ref'd n.r.e.).

Moreover, it is wholly immaterial whether the municipality owns the fee in the soil over which the streets are laid out, or only an easement when the city grants a utility the right to lay its pipelines under a right-of-way. City of San Antonio v. United Gas Pipeline Co., 388 S.W.2d 231, 232 (Tex.Civ.App.--San Antonio 1965, writ ref'd n.r.e.), quoting 12 McQuillin, Municipal Corporations, § 34.14 (1966). When a municipality holds a right-of-way easement for a roadway, the landowner who holds the fee simple interest in the land underneath that easement cannot interfere with the public use of the street. Pittman, 598 S.W.2d at 944. The fee simple owner holds his property interest subject to the dominant right-of-way easement. Id. at 944; City of Fort Worth v. Southwest Magazine, 358 S.W.2d 139, 141 (Tex.Civ.App.--Fort Worth 1962, writ ref'd n.r.e.), cert. denied, 372 U.S. 914, 83 S.Ct. 730, 9 L.Ed.2d 722 (1963).

The Grimeses argue that an express-purpose easement is limited to the purposes set forth in the grant, and that it may not be expanded beyond the purposes enumerated, citing Kearney & Son v. Fancher, 401 S.W.2d 897, 903 (Tex.Civ.App.--Fort Worth 1966, writ ref'd n.r.e.), and Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974), to support that proposition. That is inapplicable here, however, because there has been no expansion of the grant beyond that stated. The attendant public purposes of transportation of persons and property, communication, and travel are included within the State's right-of-way grant for roadway purposes. Further, the rights enumerated under a public use easement are identical whether the easement is gained by condemnation, dedication, prescription, or deed. City of Houston v. Fox, 429 S.W.2d 201, 203 (Tex.Civ.App.--Houston [1st Dist.] 1968), rev'd on other grounds, 444 S.W.2d 591 (Tex.1969). We overrule point of error two.

By their third point of error, the Grimeses claim that the trial court erred in denying their motion for summary judgment. They argue that the evidence established that they neither consented to the laying of this pipeline nor received compensation from the company when it took additional property rights from them. Therefore, they claim, they should be entitled to a judgment for either trespass damages or compensation for the taking as a matter of law.

Appellants cite the case of LO-VACA GATHERING CO. V. MISSOURI-KANSAS-TEXAS R.R. CO. ³, which interprets art. 1436, an article appellant argues is a companion to the statute at issue here, art. 1436b. Article 1436 gives a condemning authority the right to cross railroad right-of-ways in this State with utility lines, with the consent and under the direction of the local governing body. ⁴ The Austin Court of Appeals held that art. 1436 was an enabling statute, granting utility companies the right of eminent domain to lay their lines over railroad rights-of-way, but did not relieve these condemning authorities from paying just compensation to the railways.

In the Lo-Vaca case, the railroad, a private entity, was the owner of the right-of-way, having obtained an easement for its tracks. That case addresses the private easement owner's right to compensation for the condemnation of its property, its right-of-way. In this case, the owner of the right-of-way, the State, granted permission to the condemning authority to lay pipelines. The easement owner is not the party seeking compensation here. We find Lo-Vaca distinguishable from the facts in the case at issue.

Moreover, because the use of the easement for the public transportation of gas was included within the original easement grant for highway purposes, the right to transport gas was acquired by the State when it purchased the easement from the Grimeses' predecessor in title. Accordingly, we find that no trespass was committed when the pipeline was laid nor was property seized from the Grimeses without compensation. Point of error three is overruled.

By their first point, the Grimeses contend that the trial court erred in granting the summary judgment because a question of fact remains regarding whether art. 1436b, § 1 applies to the pipeline company. This statute allows i) any person, firm or corporation or incorporated city or town, ii) engaged in the business of transporting or distributing gas, iii) for public consumption, to lay pipelines for transporting gas under public streets. To support its summary judgment, the utility was required to prove as a matter of law each of the above three criteria. The issue is whether there is a factual dispute that the pipeline company is engaged in transporting gas for public consumption.

The summary judgment evidence that bears on whether the company qualifies under art. 1436b § 1 is as follows. First, Kris Keeble, the company's Vice President, stated by affidavit that Corpus...