Hudson v. Arkansas Louisiana Gas Co.

• Decision Date: 24 November 1981
• Docket Number: No. 8928,8928
• Citation: 626 S.W.2d 561
• Parties: James S. HUDSON, et al, Appellants, v. ARKANSAS LOUISIANA GAS COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 561

626 S.W.2d 561

James S. HUDSON, et al, Appellants, v. ARKANSAS LOUISIANA GAS COMPANY, Appellee.

No. 8928.

Court of Appeals of Texas, Texarkana.

Nov. 24, 1981.

Rehearing Denied Dec. 22, 1981.

James E. Hudson, Jr., James E. Davis, Texarkana, Ark., for appellants.

Howard Waldrop, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellee.

HUTCHINSON, Justice.

This is an appeal from the granting of a summary judgment.

Appellant, James S. Hudson, Sr., filed this suit on October 16, 1978, alleging a continuing trespass by appellee, Arkansas Louisiana Gas Company (Arkla), and praying for injunctive relief as well as for both compensatory and punitive damages. On January 21, 1980, by an amended petition, Dorothy C. Hudson, James S. Hudson, Jr. and Hudson Seed House, Incorporated, were made party plaintiffs along with James S. Hudson, Sr.

In 1940 Arkla laid a major gas line under certain tracts of land located in the Factory Heights Addition of Texarkana, Texas. Hudson, Sr. acquired one of the Factory Heights tracts here involved in 1955 and he and his wife, Dorothy C. Hudson, acquired the other involved contiguous tracts in 1967. Hudson Seed House, Incorporated, a corporation owned by Mr. and Mrs. Hudson, Sr., and their son, James S. Hudson, Jr., leases these tracts of land, owns some buildings and improvements thereon and has done business there for a number of years.

In 1977, appellants decided to expand their business and entered into a number of contracts to buy soybeans from area farmers and decided to construct two new storage tanks on the Factory Heights property to accommodate the extra beans. On July 26, 1977, the contractor hired to build and install the tanks discovered the underground Arkla pipeline. Appellants assert that because of the pipeline they were unable to install the tanks where planned and were forced to acquire another but less convenient site to locate the tanks and that the delay caused a financial loss in the venture. A decrease in the value of the Factory Heights property was also alleged. Appellants insisted that neither they nor their predecessors in title had any knowledge of the location of the gas line and that no easement had ever been granted to or acquired by Arkla.

Arkla by its defense claimed, alternatively: 1) that the two-year statute of limitations applicable to trespass actions had run; 2) that it held a prescriptive easement for the pipeline; and 3) that the pipeline was constructed beneath a public street under a franchise agreement between Arkla and the City of Texarkana.

Arkla moved for a complete summary judgment upon the merits of its limitation plea and alternatively for judgment as regarding the three new plaintiffs and for a partial summary judgment on the issue of exemplary damages.

Arkla was granted a complete summary judgment on the basis of its two-year limitation defense and alternatively a partial summary judgment on the exemplary damage issue.

Motions for summary judgment are controlled by Tex.R.Civ.P. 166-A. In order to prevail under this rule, the movant must establish that no material fact issue exists and that he is entitled to judgment as a matter of law. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). Since Arkla moved for the summary judgment on the basis of the affirmative defense of limitations, it had to conclusively prove all the essential elements of that defense. Swilley v. Hughes, supra. In considering the motion for summary judgment the trial court must accept as true all the evidence which tends to support the opponent's claims and resolve all conflicts in the evidence in his...