Lewis v. Texas Power & Light Co., 14886

• Decision Date: 25 February 1955
• Docket Number: No. 14886,14886
• Citation: 276 S.W.2d 950
• Court: Texas Court of Appeals
• Parties: Samuel Lee LEWIS et al., Appellants, v. TEXAS POWER & LIGHT CO., Appellee.

Page 950

276 S.W.2d 950

Samuel Lee LEWIS et al., Appellants, v. TEXAS POWER & LIGHT CO., Appellee.

No. 14886.

Court of Civil Appeals of Texas, Dallas.

Feb. 25, 1955.

Rehearing Denied March 25, 1955.

Samuel L. Lewis, Dwight L. McCormack, Dallas, for appellants.

J. E. Abernathy, McKinney, for appellee.

DIXON, Chief Justice.

This is an appeal from a temporary injunction restraining appellants Samuel Lee Lewis, Ruth Lewis Baber and her husband Harvey Earl Baber (1) from interfering, molesting, or preventing appellee Texas Power & Light Company from sending its survey crews upon the property of appellants and (2) from removing or in any way tampering with the stakes and markers placed on said property by the survey crews.

Appellants did not file a supersedeas bond. Consequently the temporary injunction has not been suspended pending this appeal. Some time ago, under protection of the injunction, appellee sent its crews onto appellants' property and their survey has now been completed. Under the circumstances we would declare the controversy moot and dismiss the appeal were it not for the second part of the injunction order, which is still a live issue. We shall therefore proceed to a consideration of the appeal on its merits.

Appellee asserts that this is not a condemnation proceeding. It is an injunction suit filed originally in the District Court of Collin County, Texas. It is our understanding that condemnation proceedings have now been instituted through the County Judge of Collin County, but they were not instituted until after appellee had completed its survey and thus obtained an adequate description of the real property to be condemned. Appellee's contention is that it could not institute condemnation proceedings until it had obtained an adequate description; and that as a matter of law it had a right to go onto appellants' property beforehand in order to make the survey necessary to obtaining a sufficient description for condemnation proceedings.

The only witness who testified at the hearing was appellee's project engineer for transmission lines, William J. Davis, an electrical engineer. Material parts of his testimony will hereinafter be summarized.

Appellee is a public utility company with authority under Art. 1436, V.A.C.S., to exercise the right of eminent domain. It furnishes electricity to various communities in fifty-two counties in the State of Texas. Portions of the area in question are also served to some extent by rural electric associations and by the Community Public Service Company.

In May 1955 appellee expects to finish construction, now under way, of its new steam electric generating plant at Prosper, Collin County, Texas, with a capacity of 143,000 kilowatts, and transmission lines capable of carrying 138,000 volts. The purpose of the new generating plant for the pressent is to furnish additional electricity to the Dallas-Fort Worth area to the south, and to the Sherman, Denison, Gainesville, Bonham area to the north. Later it will be expected to serve the McKinney and Denton areas too. To accomplish this purpose appellee is about to construct two transmission lines, one running south from the Prosper generating plant, the other north to its Payne substation in Grayson County. It is the line running north which is the subject matter of this controversy.

The Payne substation in Grayson County is a redistribution center for electricity now generated in appellee's plants in Waco, McLennan County, Texas and Trinidad, Henderson County, Texas. It also helps distribute 40,000 kilowatts of electricity which appellee purchases from a government-owned 80,000 kilowatt capacity generating plant at Texhoma, the other 40,000 kilowatts from this plant being sold by the Government to Oklahoma consumers.

The line involved in this controversy, running about thirty miles from the Prosper generating plant to the Payne substation, will, unless plans are changed, pass over and across appellants' 300-acre farm. Appellee therefore asked for, but was denied permission to go onto appellants' land to survey and place stakes marking the boundaries of an easement about 100 feet wide.

County maps and aerial photographs have been used by appellee, but they are not sufficiently accurate to use as a basis in preparing an adequate description of the desired easement. That is why, according to appellee, a survey is necessary. Until a survey is available it is impossible to say exactly where the line will go, or even to say for certain that the line will cross appellants' property. For sometimes a survey will reveal for the first time obstacles in the path, or problems arising out of the contour of the land, which require a change in the planned course of the line.

At the present time there is enough electricity from available sources coming into the Payne substation to enable appellee adequately to serve its customers. However it is anticipated that with only the present amount of electricity available, the Payne substation will not be able in the future to satisfy the demands made on it, with the result that the users served by the substation will suffer from 'brownouts,' or curtailments such as were experienced during the war due to power shortage. The witness Davis was not able to say exactly when this point would be reached, but estimated that it would be in about four years even if no new customers came into the area. Existing customers increase their power usage about ten to fifteen percent per year. With the continued development of the area as a result of expected new industries and customers coming into the area, additional electricity will be needed much sooner. And the utility under its franchise is required to have electricity available to consumers that want it. Appellee's commercial department, along with local chambers of commerce and other agencies, is seeking to further the development of the area by attracting new industries and customers.

Appellants' brief presents six points on appeal; (1) The District Court did not have jurisdiction of the cause of action; (2) exceptions should have been sustained attacking the sufficiency of appellee's petition; (3) the temporary injunction destroys the status quo of the parties; (4) appellee failed to allege or prove offer of payment for the taking sought; or (5) to make a deposit in court as a condition precedent; and (6) failure to prove with certainty that the transmission line will pass over appellants' land. However the controlling question involved in this case upon which the injunction must stand or fall is whether appellee is authorized under the law to enter upon appellants' property to make a preliminary survey with a view to the later acquisition of easement rights for the construction of its transmission line.

Our Legislature has expressly and clearly granted such authority to magnetic telegraph companies and to railroad companies. Arts. 1417 and 6318, V.A.C.S. The first named statute has been interpreted to include telephone companies. San Antonio & A. P. R. Co. v. Southwestern Tel. & Tel. Co., 93 Tex. 313, 55 S.W. 117, 49 L.R.A. 459. In our opinion electric current and power companies are also given statutory authority to exercise such power under a proper interpretation of Art. 1436, V.A.C.S.

The last named article provides that 'Such corporation shall have the right and power to enter upon, condemn and appropriate the lands, * * * of any person * * *.' (Emphasis supplied.) It seems to us that the statute thus grants two separate and distinct powers: (1) to enter upon, and (2) to condemn and appropriate. It will be observed that the words 'enter upon' precede the words 'condemn and appropriate,' and are the same words used in Arts. 1417 and 6318, V.A.C.S., in expressly granting telegraph and railroad companies the right to go upon lands for the purpose of making preliminary surveys with a view to selecting lands to be acquired. Surely it cannot reasonably be contended that the Legislature felt it necessary to grant a condemning authority the right to enter upon land after it had condemned and appropriated said land. To so hold would be to assume that the words 'enter upon' as used by the Legislature are meaningless surplusage. In our opinion the Legislature by the language used in Art. 1436, V.A.C.S., recognized the necessity of preliminary surveys and intended to grant authority to electric current and power companies to make such surveys.

The views above expressed are supported by respected authorities. Our own Supreme Court in commenting on Art. 6318, V.A.C.S., above cited, pertaining to railroads has said, 'That a railroad company should have the right to designate its right of way and to condemn property therefor, * * *, would seem almost a...