Hill Farm, Inc. v. Hill County, B--872

Decision Date15 January 1969
Docket NumberNo. B--872,B--872
Citation436 S.W.2d 320
PartiesHILL FARM, INC., Petitioner, v. HILL COUNTY, Texas, Respondent.
CourtTexas Supreme Court

Beard & Kultgen, Pat Beard and Thomas L. Cook, Waco, for petitioner.

Betty Dohoney, Hillsboro, for respondent.

WALKER, Justice.

This suit was brought by Hill County, respondent, to obtain a mandatory injunction requiring Hill Farm, Inc., petitioner, to remove a pipeline placed by the latter in a public road. Summary judgment was rendered for the County, and the Court of Civil Appeals affirmed. 425 S.W.2d 414.

Petitioner extended a 2-inch galvanized pipeline from a well on land owned by G. E. Ryno to a tract owned by Guy Moore. It provides water for petitioner's operations, for three families who live on petitioner's property, and for three neighbors. The line is laid in the public road for a distance of some 300 yards. It is buried to a depth of approximately four feet and lies generally about nine feet from the center of the road. The road varies in width from 24 feet to 27 feet. Petitioner laid the pipeline there with the consent of the county commissioner for the precinct. Although petitioner is willing to take up the pipe temporarily whenever work is to be done on the road, it insists that the County has no right to complain of its replacing and maintaining the line in a manner that will not interfere with the maintenance and the use of the road for travel.

The Court of Civil Appeals concluded: (1) that the pipeline is a purpresture and (2) that the County, in its capacity as trustee of the public easement in the road, is entitled to maintain this action to have the pipeline removed. A purpresture has been defined as an encroachment upon public rights and easements, the appropriation to private use of that which belongs to the public. See Words and Phrases, 'Purpresture.' The encroachment or appropriation may or may not amount to a nuisance; it becomes a nuisance when the right of the public to immediate use is affected. 10 McQuillin, Municipal Corporations, 3rd ed. 1966, § 30.73. The pipeline here does not constitute a nuisance, and the nuisance cases have no application.

Petitioner recognizes that a private individual would not be entitled to maintain a pipeline in a city street over the objection of the municipality. It says that the situation is different in the case of a rural road, however, because the easement there is limited to the right of passage and other uses incidental to that right. From this premise petitioner argues that maintenance of the pipeline in the road is not an invasion or appropriation to private use of any right or easement belonging to the public.

Most of the cases dealing with the nature and extent of the public easement in streets and roads have been suits by abutting landowners seeking to prevent, or obtain additional compensation for, some particular use of the property. Neither petitioner nor the County owns the land where the pipeline is laid, and petitioner does not claim to have an easement from the fee owner. We are not directly concerned, therefore, with the rights of an abutting owner.

In Vestry of St. Mary, Pattersea v. County of London and Brush Provincial Electric Lighting Company, Ltd., (1899) 1 Ch. 474, it was held that the parish vestry could not compel the removal of cables laid without authority below the surface of a street by the defendant electric company. The court reasoned that the cables did not interfere with the power of control over the street granted to the vestry by Parliament. The case seems to have turned upon the extent to which control was vested in the local authority rather than upon the extent of the public easement.

The easement in a city street is generally held to be quite comprehensive. It is not confined to the surface but extends to a depth that will enable the urban authority to do that which is done in every street, including the laying of sewer, gas and water pipes. See City of San Antonio v. United Gas Pipe Line Co., Tex.Civ.App., 388 S.W.2d 231 (wr. ref. n.r.e.); West Texas Utilities Co. v. City of Baird, Tex.Civ.App., 286 S.W.2d 185 (wr. ref. n.r.e.); Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 62 So. 712, 47 L.R.A.,N.S., 607; Lostutter v. City of Aurora, 126 Ind. 436, 26 N.E. 184, 12 L.R.A. 259; Levi v. Schwartz, 201 Md. 575, 95 A.2d 322, 36 A.L.R.2d 1241; Haven Homes v. Raritan Township, 19 N.J. 239, 116 A.2d 25; Mayor and City Council of Baltimore v. United States, 4th Cir., 147 F.2d 786; 1 Elliott, Roads and Streets, 4th ed. 1926, §§ 20, 255.

Some courts have taken the position that an easement for a rural road is much less comprehensive and amounts to little more than a right of passage. See West v. Maryland Gas Transmission Corp., 162 Md. 298, 159 A. 758, and authorities there cited; Sterling's Appeal, 111 Pa. 35, 2 A. 105; Bloomfield and Rochester Natural Gaslight Co. v. Calkins, 62 N.Y. 386; 1 Elliott, Roads and Streets, 4th ed. 1926, § 482 et seq. These courts usually hold that the rights of the abutting owner diminish as the public needs increase, but they seem to proceed on the theory that the fee owner retains, subject to lawful regulation, all that is not presently needed for public use. See Colegrove Water Co. v. City of Hollywood, 151 Cal. 425, 90 P. 1053, 13 L.R.A.,N.S., 904.

The courts of other jurisdictions apparently do not recognize any difference between an urban and a suburban servitude. See Franklin v. Board of Lights and Water Works, 212 Ga. 757, 95 S.E.2d 685; In re Opinion of the Justices, 297 Mass. 559, 8 N.E.2d 179; Cheney v. Barker, 198 Mass. 356, 84 N.E. 492, 16 L.R.A.,N.S., 436; Cater v. Northwestern Tel. Exch. Co., 60 Minn. 539, 63 N.W. 111, 28 L.R.A. 310; Hardman v. Cabot, 60 W.Va. 664, 55 S.E. 756, 7 L.R.A., N.S., 506. Nichols states that the 'seemingly fanciful distinction' between urban and rural servitudes does not rest on a legal difference between the public easement of a highway in the city and in the country, but on a different ground. He points out that:

'No community, however rural, enterprising enough to desire to supply itself with the conveniences common in cities or towns, has been denied the use of its own highways to lay pipes or wires of a kind maintained without compensation in thickly settled municipalities. However, the use of the highways running through such a region has been denied to the promoters of an undertaking, of no benefit to the community through which it passes or to the...

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