M. & M. Pipe Line Co. v. Menke, 7597.

• Decision Date: 22 October 1931
• Docket Number: No. 7597.,7597.
• Parties: M. & M. PIPE LINE CO. v. MENKE.
• Court: Texas Court of Appeals

45 S.W.2d 344

M. & M. PIPE LINE CO. v. MENKE.

No. 7597.

Court of Civil Appeals of Texas. Austin.

October 22, 1931.

Rehearing Denied November 18, 1931.

Appeal from District Court, Waller County; S. A. McCall, Judge.

Suit by C. A. Menke against the M. & M. Pipe Line Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Julius H. Runge, of Dallas, Allan B. Hannay, of Houston, and C. D. Duncan, of Bellville, for appellant.

Krueger & Sullivan, of Bellville, for appellee.

McCLENDON, C. J.

Menke sued the pipe line company to recover (among other items not involved in this appeal) damages for the death of thirty-two head of cattle from Texas fever (and certain incidental damages in the way of care and dipping), the result of their escape from Menke's 2,360-acre pasture into tick-infested territory through breaches in the pasture fence made by employees of the pipe line company in the course of laying a pipe line through the pasture. Menke recovered judgment upon a special issue verdict, and the pipe line company has appealed.

The appeal is predicated upon propositions to the effect that the following defenses were established as a matter of law:

1. Under a proper construction of an easement contract executed by Menke in favor of the pipe line company, the latter acquired the right to breach the fences where and when necessary to the exercise of its rights under the contract, was liable only for damage to the fences, and was neither obligated nor had the right to rebuild or repair the fences.

2. Contributory negligence on Menke's part in permitting the introduction of infected cattle and other animals into his pasture.

The pertinent portions of the easement contract follow: For a recited cash consideration of $113.80 Menke conveyed to the pipe line company, "its successors and assigns, the right of way and easement to construct, maintain, 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 land * * *. To have and to hold unto the 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 pipe lines to a sufficient depth so as not to interfere with cultivation of soil, and to pay damages which may arise to growing crops or fences from the construction, maintenance and operation of said pipe, telegraph and telephone lines."

The pipe line company pleaded that the contract contemplated, as was well known to Menke, the following separate operations in the laying of the pipe line, in each of which operations it was necessary to use heavy machinery and to breach the fence at the points of entrance and exit: (1) Digging trenches, (2) hauling pipe on the premises, (3) laying pipe, (4) welding pipe, (5) covering trenches. The evidence showed that in the course of these several operations the fence was breached a number of times and Menke's cattle escaped. Menke or his employees put up the fence after each breach as soon as it was discovered, but not in time to prevent the escape of cattle. One of the witnesses described the manner in which the fence was breached as follows: "The wire was pulled loose for about 100 or 150 yards. The wire was pulled loose from the posts and lying flat on the ground." (A well-known method in certain portions of the state). It is not questioned that the evidence was sufficient to support the jury finding that the cattle died from Texas fever contracted as the result of escape of some of the cattle through breaches in the fence into infected territory.

In support of the first proposition above, appellant cites Houston & E. T. Ry. Co. v. Adams, 58 Tex. 476; Mexican Nat. Const. Co. v. Meddlegge, 75 Tex. 634, 13 S. W. 257; Gulf Co. v. Watson (Tex. Civ. App.) 8 S.W. (2d) 957; Central P. & L. Co. v. Johnston (Tex. Civ. App.) 24 S.W.(2d) 762; 1 C. J. 964-966. The gist of appellant's contention, which these authorities are cited to support, is that under the easement agreement appellant obtained the legal right to breach the fences when and wherever necessary or proper in the construction, maintenance, and repair of the pipe line, obligating itself only to pay compensation for pecuniary damages to the fences; and that there could be no recovery so long as there was no negligence on its part and no exceeding of the authority thus granted in the easement agreement. In the abstract the general principle thus announced is correct, assuming appellant has correctly construed the contract.

In a...