Krohn v. Marcus Cable Associates L.P.

• Citation: 43 S.W.3d 577
• Decision Date: 14 March 2001
• Docket Number: No. 10-99-244-CV,10-99-244-CV
• Parties: (Tex.App.-Waco 2001) ALAN KROHN, ET UX., Appellants v. MARCUS CABLE ASSOCIATES, L.P., Appellee
• Court: Court of Appeals of Texas

Page 577

43 S.W.3d 577 (Tex.App.-Waco 2001)

ALAN KROHN, ET UX., Appellants v. MARCUS CABLE ASSOCIATES, L.P., Appellee

No. 10-99-244-CV

Court of Appeals of Texas, Waco.

March 14, 2001

From the 40th District Court Ellis County, Texas Trial Court # 56945

Before Chief Justice Davis, Justice Vance, and Justice Gray

OPINION

TOM GRAY, Justice

This case is about an individual's rights in real property. It involves the question of a cable television company's right to use an easement granted to an electric cooperative. The parties agree that the cable television company has attached its cable to the poles of the electric cooperative. They further agree the electric cooperative has a valid easement to have the poles on the property. They also agree that the electric cooperative validly contracted with the cable television company for the right to use the poles. There is some dispute whether the television cable is too low, thus, interfering with the use of the property.

The trial court determined the cable television company had a right to enter upon the property and attach its cable to the cooperative's poles within the easement and granted summary judgment in favor of the cable television company. Because we hold the electric cooperative's easement was limited by the terms of its grant and that the grant did not extend the use for other purposes, we reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.

BACKGROUND

Alan and Myrna Krohn own an 11.764 acre tract of land in Ellis County. The property is burdened by an easement granted by a prior owner to the Hill County Electric Cooperative. That easement allows the Cooperative to:

place, construct, operate, repair, maintain, relocate and replace thereon and in or upon all streets, roads or highways abutting said land an electric transmission or distribution line or system, and to cut and trim trees and shrubbery to the extent necessary to keep them clear of said electric line or system and to cut down from time to time all dead, weak, leaning or dangerous trees that are tall enough to strike the wires in falling.

At some point, Marcus Cable Associates, L.P. went onto Krohn's property and attached television cables to the Cooperative's poles. Krohn sued Marcus, claiming that the entry onto the property was without permission and was not supported by any other legal right.

Krohn filed a motion for partial summary judgment, asking that the court render judgment that Marcus did not have the right to enter on the property and ordering it to move its cable, but reserving the issue of monetary damages for another day. Marcus filed a response and also filed its own motion for summary judgment, asking that the court dismiss Krohn's suit because it was legally entitled to use the property. Marcus based its motion for a summary judgment on two theories. First, it argued that Section 181.102 of the Texas Utilities Code authorized it, as an entity in the business of providing cable television service to the public, to install its equipment within the easement on the property. Tex. Util. Code Ann. § 181.102(a) (Vernon 1998). Alternatively, Marcus argued that the existing easement was apportionable and that it had been properly assigned the right to use the easement by the Cooperative, the owner of the easement rights. Krohn responded to Marcus's motion, arguing that section 181.102 does not apply to private property and that the easement could not be apportioned as a matter of law and was not apportioned properly as a matter of fact. In its order granting the motion and rendering judgment against Krohn, the court specifically relied on both theories advanced by Marcus.

TEXAS UTILITY CODE SECTION 181.102

Marcus claimed that it was entitled to place its cable within the Cooperative's utility easement by virtue of Section 181.102, which provides, in full:

181.102. Authority to Install and Maintain Equipment (a) In an unincorporated area, a person in the business of providing community antenna or cable television service to the public may install and maintain equipment through, under, along, across, or over a utility easement, a public road, an alley, or a body of public water in accordance with this subchapter.

(b) The installation and maintenance of the equipment must be done in a way that does not unduly inconvenience the public using the affected property.

Tex. Util. Code Ann. § 181.102. Krohn argues that the statute should be construed to apply only to public lands, and, so, does not apply to easements on private property. Marcus argues in reply that the plain language of the statute does not limit its application to public lands. We have determined that neither is entirely right, nor entirely wrong.

When a statute is clear and unambiguous, we apply its common meaning. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997); also Texas Ass'n of School Boards, Inc. v. Ward, 18 S.W.3d 256, 259 (Tex. App.--Waco 2000, pet. filed). Furthermore, "every word of a statute must be presumed to have been used for a purpose [and] every word excluded from a statute must also be presumed to have been excluded for a purpose." Laidlaw Waste Systems (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995). Thus, we must assume that the Legislature intentionally used the word "public" in parts of the statute but not in others. Id.; In re Estate of Huff, 15 S.W.3d 301, 306 (Tex. App.--Texarkana 2000, no pet.). The Code Construction Act states that "it is presumed that: (1) compliance with the constitutions of this state and the United States is intended;..." Code Construction Act § 311.021 (1).

In 1983, when the Legislature passed Section 181.102, putting cable television in unincorporated areas was relatively new. Cable television had been in municipalities for a number of years. In an incorporated area, by ordinance, the city could grant to a cable company the right to use utility easements that had been dedicated to the general public. See Clark v. El Paso Cablevision, Inc., 475 S.W.2d 575 (Tex. Civ. App.--El Paso 1971, no writ). In Clark, the court stated:

The easement was created by the developer dedicating the five (5) foot strip to the use of the public. Acting for the public, the City allowed the Plaintiff the use of the easement. Plaintiff's right to the use of the easement comes from the dedication, and its rights to use the poles comes from the Electric Company.

* * *

Having considered the broad general nature of the original easement, the dedication of which was made to the public, and thereafter the grant of the franchise [to the cable company] by the City of El Paso, acting for the public, the trial Court was correct in granting the temporary injunction.

Id. at 577-578.

In an unincorporated area there is no city council to consider and determine if a cable television company should be allowed to use "utility easements." By statute, the legislature filled this void and specifically authorized cable television companies to use utility easements. Tex. Util. Code Ann. § 181.102. This creates general uniformity across the state in all unincorporated areas. This is the same authority exercised by a municipality within the incorporated areas of the state. See id. at 578.

An easement is expressly limited by the granting clause that creates the easement. DeWitt County Elec. Co-op, Inc. v. Parks, 1 S.W.3d 96, 103 (Tex. 1999). To construe the statute as Marcus would have us construe it would mean that the Legislature has granted to every cable television company the right to use every existing easement in all unincorporated areas of the state granted to any utility, regardless of the express terms of the deed creating the easement.

To so construe the statute would be to burden the servient estates to an extent greater than the original grant. This added burden would constitute a taking of the grantor's property. The statute does not provide for, or require, the payment of compensation. Thus, to construe the Utility Code as Marcus would have us construe it would be to construe it as an unconstitutional taking of a private citizen's property without just compensation. Regardless of the benefits that cable television may provide to consumers, the Legislature may not take private property for public benefit without complying with the constitutional requirement of providing "just" compensation. See U.S. Const. amend V (uses the term "just" compensation); also Tex. Const. art. I, § 17 (uses the term "adequate" compensation). The Code Construction Act requires that we construe a statute as constitutional if it can be so construed and still effect the legislative intent. See Code Construction Act § 311.021; see also Bush v. State, 628 S.W.2d 270, 271 (Tex. App.--Amarillo 1982, pet. ref'd).

In this case, there is a much more plausible construction than that offered by Marcus. We believe there is a very real distinction between an easement granted to a utility and the term "utility easement" as used in the statute. Hill County Electric Cooperative is a utility. However, the easement granted to the Cooperative is very limited. The easement in this case is expressly limited to an easement for "...an electric transmission or distribution line or system.... In granting this easement it is understood that at [each] pole location, only a single pole and appurtenances will be used, and that all poles and guys will be placed so as to form the least possible interferences to farm operations." This is clearly distinguishable from the general grant of a "utility easement" which would be for the use of any recognized utility.¹

It is clear that the Legislature was concerned about whether cable television companies would be allowed to use "utility easements." By this statute, it removed any question that if there was a general dedication of a utility easement in an unincorporated area of the state, a cable...