Houston Pipe Line Co. v. Dwyer

• Decision Date: 08 January 1964
• Docket Number: No. A-9508,A-9508
• Citation: 374 S.W.2d 662
• Parties: HOUSTON PIPE LINE COMPANY, Petitioner, v. Roberta Powell DWYER et al., Respondents.
• Court: Texas Supreme Court

Page 662

374 S.W.2d 662

HOUSTON PIPE LINE COMPANY, Petitioner, v. Roberta Powell DWYER et al., Respondents.

No. A-9508.

Supreme Court of Texas.

Jan. 8, 1964.

Rehearing Denied Feb. 12, 1964.

Fulbright, Crooker, Freeman, Bates & Jaworski, B. J. Bradshaw, Houston, with above firm, for petitioner.

Fountain, Cox & Gaines, Vinson, Elkins, Weems & Searls, James W. McCartney, Houston, with above firm, for respondents.

SMITH, Justice.

Respondents, Roberta Powell Dwyer et al., plaintiffs in the trial court, instituted this suit on October 3, 1960, against petitioner, Houston Pipe Line Company. The parties will hereafter be designated as in the trial court.

Plaintiffs sought judgment declaring a pipeline easement across their land to have lapsed and terminated as a result of defendant removing an 18-inch relatively low pressure pipeline and replacing it with a 30-inch high pressure pipeline, and for judgment removing the easement as a cloud on their title. Plaintiffs further sought to enjoin defendant from further operation of the pipeline, and to recover rental from defendant. In the alternative plaintiffs sought damages. This alternative claim was later withdrawn.

Defendant answered that its rights under the easement agreement entered into between the parties had not lapsed and terminated. In an alternative cross bill defendant sought to condemn a right of way and easement in the event it shouod be determined that the right of way easement granted in the 1926 agreement between the parties had lapsed or terminated '* * * or that for any reason (defendant) 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. Defendant's motion was granted and plaintiffs' was denied. The Court of Civil Appeals for the First Supreme Judicial District at Houston, Texas, reversed and remanded for trial 'not inconsistent with (its) opinion.' 364 S.W.2d 736.

The duty of this court, where a motion for summary judgment has been granted, is to determine if there are any issues of fact to be tried. See Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. A summary judgment is not proper if the evidence raises issues of fact to be determined by a court or jury. See Smith v. Bolin, supra; McDonald on Texas Civil Practice, Vol. 4, Sec. 17.26, pp. 1380, 1382.

The facts giving rise to the present litigation are as follows: On or about March 9, 1926, plaintiffs' predecessors in title executed and delivered to Houston Pipe Line Company a right of way and easement agreement covering certain properties now owned by plaintiffs. This agreement was contained in a printed form prepared by defendant, which the parties changed by several deletions and interlineations. Prior to the deletions, the granting clause of the instrument read as follows:

'First party (plaintiffs) * * * does hereby grant, sell and convey unto second party a right of way to lay, maintain, operate, repair and remove a Pipe Line for the transportation of gas. * * *' (Emphasis added.)

The parties struck out the words 'and remove' from the granting clause. They also deleted a paragraph in the habendum clause giving the right to construct additional pipelines over said lands. In another part of the instrument they authorized a removal of the pipeline upon termination of the easement.

The agreement in question contains no specifications for the size of the pipeline. Also, the agreement does not prescribe metes and bounds for the easement, nor does it define a course or direction for the pipe to follow across the land.

As originally constructed, the pipe used in the pipeline was 18 inches in diameter. This pipeline, laid in 1926, was continuously in operation, serving the area of east Harris County until the latter part of 1959. On or about December 15, 1959, defendant removed the old 18-inch line which it had originally laid, reditched the property and installed a 30-inch pipe along the same course. During this replacement, the transportation of gas ceased for a few weeks.

We are of the opinion that the evidence outlined above does not raise an issue of fact to be determined by a court or jury. No contention is made in this court to the contrary. A determination of this case depends upon a proper construction of the 1926 agreement entered into between the parties.

It is plaintiffs' position tht in construing the 1926 agreement, the fact that the words 'and remove' were struck from the granting clause should be considered by the Court in order to arrive at the intention of the parties. Plaintiffs contend that the agreement, as changed, authorized the construction, maintenance, operation and repair of one pipeline only, and did not authorize its replacement or removal except upon termination of the easement as provided in the habendum clause. Plaintiffs insist that upon removal by defendant of its 18-inch line, its rights and easements terminated. Defendant answers that, apart from whether it exceeded its rights by replacing the original pipe with larger pipe, it was at lest authorized under the agreement to remove and replace the original pipe when the condition of the pipe required such replacement, and that such replacement would not terminate its easement.

The deletions made by the parties in the 1926 agreement may be considered by this court in order to arrive at the true meaning and intention of the parties. See Gibson v. Turner, 156 Tex. 289, 294 S.W.2d 781. The granting clause of the agreement, after deletions, authorized defendant to 'lay, construct, maintain, operate (and) repair' a pipeline. Defendant contends that even though the grantors struck the words 'and remove' from this granting clause, the words left by the grantors are consistent with the right to remove and replace the original pipe when conditions make it necessary. This court has previously considered what 'operating' and 'maintaining' mean in relation to a pipeline. See Big Three Welding Equipment Co., Inc. v. Crutcher, Rolfs, Cummings, Inc., 149 Tex. 204, 229 S.W.2d 600. In that case, the 'ordinary, usual' meanings of these terms were accepted and applied. The sources in which this court found these meanings were Webster's New International Dictionary, Black's Law Dictionary and Words and Phrases. Defendant contends that an application of the ordinary and usual meaning of the term 'remove' as defined by these dictionaries, relegates to insignificance the striking of this term from the granting clause because 'remove' is defined by the dictionaries as meaning 'to relocate' or 'to put in a different place.' It is defendant's position that such a definition leads to the conclusion that the grantors struck the words 'and remove' from the agreement because they did not want the pipe to be relocated once it was established, and not because the grantors intended to prevent replacement of the pipe.

If plaintiffs are correct in their contention, then defendant's rights and easement under the 1926 agreement would terminate simply by removing and replacing the original pipe, regardless of its condition, with pipe of any...