Lone Star Gas Co. v. Childress

• Decision Date: 17 May 1945
• Docket Number: No. 2638.,2638.
• Parties: LONE STAR GAS CO. v. CHILDRESS et ux.
• Court: Texas Court of Appeals

Page 936

187 S.W.2d 936

LONE STAR GAS CO. v. CHILDRESS et ux.

No. 2638.

Court of Civil Appeals of Texas. Waco.

May 17, 1945.

Appeal from District Court, Eastland County; Floyd Jones, Judge.

Action by D. L. Childress and wife against Lone Star Gas Company for damages alleged to have been done by defendant when it removed one of its pipe lines from plaintiff's land, and to enjoin defendant from using any portion of their land not included in right of way deed. The trial court awarded plaintiffs $500 damages and granted the injunction, and defendant appeals.

Judgment granting injunction reversed, and judgment awarding damages affirmed.

Conner & Conner, of Eastland, and Marshall Newcomb, Warren J. Collins, and J. L. Toone, all of Dallas, for appellant.

Turner & Seaberry, of Eastland, for appellee.

TIREY, Justice.

The plaintiffs brought this suit against the defendant to recover certain items of damage alleged to have been done by defendant when it removed one of its pipe lines from their land and to enjoin defendant from using any portion of their land "not included in defendant's right-of-way and from using any gate or gates owned by the plaintiffs and not located upon the right-of-way, and from using any portion of said premises for any purpose not contemplated by the right-of-way deed or deeds." A jury failed to reach a verdict and a mistrial resulted. The parties then agreed to submit the case to the trial court upon the record made during the jury trial.

The court rendered judgment in favor of plaintiffs and found in the judgment substantially (1) that plaintiffs should recover from defendant the sum of $500 for damages; and (2) that "a strip of land thirty feet wide for each right-of-way grant will be sufficient and reasonable for all use by the defendant under its easements, that plaintiffs have no adequate remedy at law in the premises, and that the writ of injunction prayed for by plaintiffs should issue as herein decreed." The court awarded the $500 to plaintiffs, with interest and costs, and permanently enjoined defendant from using under its right-of-way grants (and specifically referred to instruments evidencing such grants and the recording thereof) "a strip of land in excess of thirty feet in width constituting each right-of-way in all of its operations thereon; said defendant, its agents and employees, are further permanently enjoined from using any gate or gates owned by the plaintiffs and not located upon defendant's aforesaid rights-of-way." No request was made for findings of fact and conclusions of law and none was filed.

Points 1 to 5 inclusive assail the judgment substantially to the effect that the court erred in finding that a strip of land thirty feet wide for each right-of-way granted will be sufficient for all use by the defendant under its easements; that plaintiffs have no adequate remedy at law in the premises, and that the writ of injunction should issue; and in permanently enjoining defendant from using a strip of land in excess of thirty feet in width; and in permanently enjoining defendant from using fence gates located on the lands covered by defendant's right-of-way deeds but not located upon such thirty foot strip; that such decree in effect reforms the right-of-way deeds and that the pleadings do not warrant or support the reformation. We sustain these contentions.

The defendant, by right-of-way deeds, duly recorded, acquired the right to construct, maintain and operate pipe lines as well as telegraph and telephone lines in connection therewith and to build future pipe and telegraph and telephone lines over and through the land in question prior to the time of the purchase of any part of the lands by the plaintiffs. Defendant constructed two pipe lines, one 10 inches and the other twelve inches in diameter, and telephone wires over said property prior to the time plaintiffs acquired the same. The provisions of said right-of-way deeds are identical except as to grantors, consideration and description of the land covered. We quote the pertinent parts of one of the deeds:

"That for and in consideration of Thirty and 50/100 ($30.50) Dollars to the undersigned, J. M. Ray and wife, L. V. Ray (herein styled Grantor, whether one or more) paid, the receipt of which is hereby acknowledged, the said Grantor does hereby Grant, Sell and Convey unto Lone Star Gas Company, a corporation (herein styled Grantee), its successors and assigns, the right of way and easement to construct, maintain and operate pipe lines and appurtenances thereto, and to construct, maintain and operate telegraph and telephone lines in connection therewith, together with the necessary poles, guy wires and anchors, over and through the following described lands situate in Eastland County, State of Texas, to-wit: 670 acres, more or less, out of Section 53, Block 4, H. & T. C. RR. Co., survey and being the same land more fully described in deed from A. F. Bentley to R. W. Higginbotham recorded in Volume 84, page 74, Deed Records of said County, to which reference is here made for further description.

"To have and to hold unto said Grantee, its successors and assigns, so long as such lines and appurtenances thereto shall be maintained, with ingress to and egress from the premises, for the purpose of constructing, inspecting, repairing, maintaining, and replacing the property of Grantee above described, and the removal of such at will, in whole or in part.

"The said Grantor is to fully use and enjoy the said premises except for the purposes hereinbefore granted to the said Grantee, which hereby agrees to bury all pipes to a sufficient depth so as not to interfere with cultivation of soil and to pay any damages which may arise to growing crops or fences from the construction, maintenance and operation of said pipe, telegraph and telephone lines; said damages, if not mutually agreed upon, to be ascertained and determined by three disinterested persons, one thereof to be appointed by the said Grantor, one by the said Grantee, and the third by the two so appointed as aforesaid, and the written award of such three persons shall be final and conclusive. Should more than one pipe line be laid under this grant at any time, the sum of twenty-five cents per lineal rod for each additional line shall be paid, besides the damages above provided for.

"Upon written application to the Grantee at Dallas, Texas, the Grantee will make or cause to be made a tap on any gas pipe line constructed by Grantee on Grantor's premises for the purpose of supplying gas to the Grantor for domestic use only, the cost of meter, saddle and labor to be borne by said Grantee, all other expenses, including fittings to be borne by Grantor, gas to be measured and furnished at the main line of Grantee at the same price and under the same rules and regulations as prevail in the nearest city or town where Grantee is supplying gas.

"The consideration first above recited as being paid to Grantor by Grantee is in full satisfaction of every right hereby granted. All covenants and agreements herein contained shall extend to and be binding upon the respective heirs, legal representatives, successors and assigns of the parties hereto.

"It is hereby understood that the party securing this grant in behalf of Grantee is without authority to make any covenant or agreement not herein expressed."

In November 1942, defendant began the removal of the twelve inch pipe line. Plaintiffs were living on the ranch from which the pipe line was removed and they had actual notice of the work being done. Mr. Childress testified, in part, as follows:

"A. I saw them down there and I saw they had a Lone Star truck and I drove up and they had cut the wire and he didn't have anything to block it with except an ordinary fence post and he attempted to block it put up a brace post four or five feet from the corner where he cut it.

"Q. Did you have any conversation with that man? A. I said, `I thought you were going to put in heavy posts to block this fence to keep it from getting loose.' He said they were sorry, they didn't have any posts—I told him I was disappointed in it. I didn't like for them to do it that way. * * *

"Q. These places (where) they cut your fence, did they attempt to build any other gates? A. Temporary wire gates.

"Q. Were those wire gates left open? A. Yes. I had a young fellow, Mr. Lorance's boy. I saw it was looking kind of dangerous, and he worked for me about three weeks guarding the pasture and looking after the cattle and stock. * * * I worked about three weeks.

"Q. How did you manage to do that, Mr. Childress? A. I would get up every morning and jump in my pick-up and look after things, and then at noon I would get off a little early and run out to see how they were.

"Q. That is a twenty-mile trip. A. Yes.

"Q. How long did that last? A. About three weeks."

And he further testified in part:

"* * * I didn't make any objections to anything they did. * * *

"Q. You are not complaining, I believe you said about the Gas Company using its right of ingress and egress on its property there? A. No.

"Q. Whatever rights the Gas Company has under its contracts and easement you recognize them? A. I certainly will."

After the removal of the pipe line had been completed plaintiffs made a claim for damages to their land, fences and grass and for other items. The Gas Company refused to pay the damages claimed by plaintiffs and this suit was filed.

Plaintiffs, in their pleadings, among other things, alleged: "That previous to their purchase of this land, the grantors of these plaintiffs had executed a right-of-way or right-of-way deeds to the defendant, creating an easement in each instrument, and authorizing the defendant to lay and maintain a pipe line across said premises. That plaintiffs' purchase of said land was subject to the rights thereby granted. That said deed or deeds granted the right to the defendant to construct, maintain and operate...