Incorporated Town of Hempstead v. Gulf States Util. Co.

• Decision Date: 12 November 1947
• Docket Number: No. A-1167.,A-1167.
• Citation: 206 S.W.2d 227
• Parties: INCORPORATED TOWN OF HEMPSTEAD et al. v. GULF STATES UTILITIES CO.
• Court: Texas Supreme Court

206 S.W.2d 227

INCORPORATED TOWN OF HEMPSTEAD et al. v. GULF STATES UTILITIES CO.

No. A-1167.

Supreme Court of Texas.

November 12, 1947.

Rehearing Denied December 31, 1947.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Gulf States Utilities Company against Incorporated Town of Hempstead and others to enjoin defendants from enforcing an ordinance requiring plaintiff to remove its electric power line from the streets, wherein named defendant filed a cross-action. Judgment for defendant was reversed by Court of Civil Appeals, 198 S.W.2d 620, and defendant brings error.

Judgment of Court of Civil Appeals reversed and that of trial court affirmed.

Vinson, Elkins, Weems & Francis and Victor W. Bouldin, all of Houston, and W. H. Betts, of Hempstead, for petitioners.

Orgain, Bell & Tucker and B. D. Orgain, all of Beaumont, Pitts & Liles, of Conroe, and Baker, Botts, Andrews & Walne and F. G. Coates, all of Houston, for respondent.

SIMPSON, Justice.

Gulf States Utilities Company sued the Incorporated Town of Hempstead to enjoin it from enforcing an ordinance requiring the company to remove its electric power lines and poles from the town's streets and alleys. The town by cross-action sought a decree ordering the company to remove its lines and poles from the public ways of the municipality. Upon a trial before the court without a jury, judgment was entered against the company and in favor of the town. The Court of Civil Appeals reversed the judgment below and rendered judgment for the company, permanently enjoining the town from enforcing the questioned ordinance and from interfering with the exercise by the company of "the rights herein held to have been vested in it over the streets and public ways of the town." 198 S.W.2d 620, 624.

The original Town of Hempstead was incorporated in 1856 but that incorporation was dissolved in 1899. It was reincorporated in 1935. Gulf States Utilities Company obtained a fifty-year franchise from the commissioners' court of Waller County on October 3, 1927, purporting to grant it the privilege of erecting and maintaining its lines along and across the streets and alleys of the then unincorporated town of Hempstead. Two similar franchises which had previously been granted to others also passed into the hands of the company. In reliance upon those grants, the company equipped itself at a substantial expense to serve the Hempstead area, and since 1930 has been continuously selling electric power and incidental services to the inhabitants of Hempstead and its environs. Since the town's incorporation in 1935, the company, with the town's acquiescence, has erected and maintained its poles and lines along the public ways; it has paid the town street rentals in compliance with a town ordinance; it has complied with a rate ordinance passed by the town in 1941; it has made improvements and extensions along the town's streets and alleys with the town's permission, which it had secured under the terms of an ordinance of 1944; it has paid annually ad valorem taxes which the town had levied and assessed; it has sold the town electric current for public lighting and the operation of the town's water works. It has acquired no right of way within the town's municipal limits by condemnation, but has obtained two private easements extending 120 feet along one block and 75 feet along another.

Both the management of the company and the officials of the town had been assuming until the decision in State of Texas ex rel. City of Jasper v. Gulf States Utilities Company, 144 Tex. 184, 189 S.W.2d 693, that the county franchises held by the company were valid. The company had never applied to the town for a franchise to use the public ways of Hempstead for the prosecution of its business, nor had the town ever extended to the company for its acceptance a formal franchise granting the right to such a user. Some three months after the judgment in the City of Jasper case became final, the town council passed the ordinance here under attack.

Among other contentions, the town urges that at all times since its incorporation the use of its public ways by the company was at the town's sufferance and that this permissive use was validly terminated by the ordinance of January 28, 1946. It also contends that the acts and conduct of the town in relation to the company should not be construed as an implied grant of a franchise to the company nor to vest in the company any continuing right to the use of the public ways of the town for the operation of an electric distribution system. On the other hand, the company argues that by virtue of Articles 1435 and 1436, Revised Statutes 1925, it had a grant from the State to use the streets and alleys of the unincorporated community of Hempstead and that the subsequent incorporation of the town did not require the company to obtain the town's consent to continue the use of the public ways in connection with the company's operations. But, the company urges, if consent were required, the acts and conduct of the town must in law be held to comprise that consent. These contentions were presented in the Court of Civil Appeals, which sustained the company's position. With this we cannot agree.

The company plausibly suggests that Articles 1435 and 1436 were enacted in 1911 to ameliorate the hardships arising from the holding in Jacksonville Ice & Electric Co. v. Moses, 63 Tex.Civ.App. 496, 134 S.W. 379, error refused, where a charged wire suspended by the electric company across a public road outside the city limits of Jacksonville had fallen and caused the injury out of which the action arose. Apparently this wire had been extended across the highway without authority having been obtained from anyone. "If this be true," the court said, "then the appellant was maintaining a nuisance and was responsible absolutely, and without reference to negligence, for whatever injuries were caused by the maintenance of such an obstruction." 63 Tex.Civ. 496, 134 S.W. 379, 386.

By Article 1435 extensive rights were given electric current and power corporations to engage in business "at and between different points in this State," and to own lands, rights of way, improvements, and the like.

By Article 1436 it was provided that:

"Such corporation shall have the right and power to enter upon, condemn and appropriate the lands, right of way, easements and property of any person or corporation, and shall have the right to erect its lines over and across any public road, railroad, railroad right of way, interurban railroad, street railroad, canal or stream in this State, any street or alley of any incorporated city or town in this State with the consent and under the direction of the governing body of such city or town. Such lines shall be constructed upon suitable poles in the most approved manner and maintained at a height above the ground of at least twenty-two feet; or pipes may be placed under the ground, as the exigencies of the case may require."

It is manifest from the language employed that what had been denounced as a nuisance in the Jacksonville case, namely, extending electric wires across a public road, was legalized, and electric power corporations might lawfully suspend their wires "over and across" public ways, conformably, of course, to all the provisions of the article. Significantly, these corporations were given the extraordinary power of eminent domain, and in connection with extending electric transmission lines along rights of way which they were empowered to acquire either by purchase or condemnation, these companies might, when they came to "any public road, railroad, railroad right of way, interurban railroad, street railroad, canal or stream in this State," erect their lines "over and across" them. And if, for instance, permission to cross a railroad right of way should be refused, electric power corporations might effectively resort to condemnation. In rural areas and unincorporated villages and towns, the companies might not only prosecute the business of intercity or long distance transmission...