Marcus Cable Associates, L.P. v. Krohn, 01-0291.

• Court: Supreme Court of Texas
• Writing for the Court: O'Neill
• Citation: 90 S.W.3d 697
• Parties: MARCUS CABLE ASSOCIATES, L.P. d/b/a Charter Communications, Inc., Petitioner, v. Alan and Myrna KROHN, Respondents.
• Docket Number: No. 01-0291.,01-0291.
• Decision Date: 05 November 2002

Page 697

90 S.W.3d 697 MARCUS CABLE ASSOCIATES, L.P. d/b/a Charter Communications, Inc., Petitioner,
v.
Alan and Myrna KROHN, Respondents. No. 01-0291. Supreme Court of Texas. Argued February 20, 2002. Delivered November 5, 2002.

Page 698

Bob E. Shannon, William Paul Johnson, Baker & Botts, Austin, Samara L. Kline, Baker & Botts, Dallas, and Joe R. Green-hill, Baker & Botts, Austin, Linda Reisner, for Petitioner.

Brett L. Bigham, Waxahachie, for Respondents.

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Justice O'NEILL delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice ENOCH, Justice OWEN, Justice HANKINSON, Justice JEFFERSON, Justice RODRIGUEZ, and Justice SCHNEIDER joined.

In this case, we must decide whether an easement that permits its holder to use private property for the purpose of constructing and maintaining "an electric transmission or distribution line or system" allows the easement to be used for cable-television lines. We hold that it does not. We further hold that section 181.102 of the Texas Utilities Code, which grants cable companies the right to install lines on a "utility easement," does not apply to private easements like the one at issue here. Accordingly, we affirm the court of appeals' judgment reversing summary judgment in the cable company's favor. 43 S.W.3d 577.

I. Background

This case centers around the scope of a property interest granted over sixty years ago. In 1939, Alan and Myrna Krohn's predecessors in interest granted to the Hill County Electric Cooperative an easement that allows the cooperative to use their property for the purpose of constructing and maintaining "an electric transmission or distribution line or system." The easement further granted the right to remove trees and vegetation "to the extent necessary to keep them clear of said electric line or system."

In 1991, Hill County Electric entered into a "Joint Use Agreement" with a cable-television provider, which later assigned its rights under the agreement to Marcus Cable Associates, L.P. Under the agreement, Marcus Cable obtained permission from Hill County Electric to attach its cable lines to the cooperative's poles. The agreement permitted Marcus Cable to "furnish television antenna service" to area residents, and allowed the cable wires to be attached only "to the extent [the cooperative] may lawfully do so." The agreement further provided that the electric cooperative did not warrant or assure any "right-of-way privileges or easements," and that Marcus Cable "shall be responsible for obtaining its own easements and rights-of-way."

Seven years later, the Krohns sued Marcus Cable, alleging that the company did not have a valid easement and had placed its wires over their property without their knowledge or consent. The Krohns asserted a trespass claim, and alleged that Marcus Cable was negligent in failing to obtain their consent before installing the cable lines. The Krohns sought an injunction ordering the cable wires' removal, as well as actual and exemplary damages. In defense, Marcus Cable asserted a right to use Hill County Electric's poles under the cooperative's easement and under Texas statutory law.

Both parties filed motions for summary judgment. The Krohns moved for partial summary judgment, arguing that Marcus Cable's wires constituted a trespass. The Krohns requested the court to order the wires' removal and to set for trial the determination of damages. Marcus Cable filed a response and its own summary-judgment motion, arguing that both the Hill County Electric easement and section 181.102 of the Texas Utilities Code gave it the legal right to place its wires on the Krohns' property.

The trial court granted summary judgment in Marcus Cable's favor. The court of appeals reversed and remanded, holding that neither section 181.102 nor the easement allowed Marcus Cable's use. 43 S.W.3d at 579. We granted review to consider whether the cooperative's easement or section 181.102 permit Marcus

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Cable to attach cable-television lines to Hill County Electric's utility poles without the Krohns' consent.

II. Common Law

A property owner's right to exclude others from his or her property is recognized as "`one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979))); see also II W. BLACKSTONE, BLACKSTONE'S COMMENTARIES 139 (Tucker ed. 1803). A landowner may choose to relinquish a portion of the right to exclude by granting an easement, but such a relinquishment is limited in nature. Cf. San Jacinto Sand Co. v. Southwestern Bell Tel. Co., 426 S.W.2d 338, 345 (Tex.Civ.App.-Houston [14th Dist.] 1968, writ ref'd n.r.e.); see generally II GEORGE W. THOMPSON, THOMPSON ON PROPERTY §§ 315-16, 319, at 6-7, 14-16, 32-34. Unlike a possessory interest in land, an easement is a nonpossessory interest that authorizes its holder to use the property for only particular purposes. See RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.2 cmt. d.

Marcus Cable claims rights under Hill County Electric's express easement, that is, an easement conveyed by an express grant. See DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex.1999). While the common law recognizes that certain easements may be assigned or apportioned to a third party, the third party's use cannot exceed the rights expressly conveyed to the original easement holder. See Cantu v. Cent. Power & Light Co., 38 S.W.2d 876, 877 (Tex.Civ. App.-San Antonio 1931, writ ref'd); Keokuk Junction Ry. Co. v. IES Indus., Inc., 618 N.W.2d 352, 356, 362 (Iowa 2000); Buhl v. U.S. Sprint Communications Co., 840 S.W.2d 904, 910 (Tenn.1992); cf. Carrithers v. Terramar Beach Cmty. Improvement Assoc., 645 S.W.2d 772, 774 (Tex. 1983) ("[A]n easement may not create a right or interest in a grantee's favor which the grantor himself did not possess."). Marcus Cable's rights, therefore, turn on whether the cooperative's easement permits the Krohns' property to be used for the purpose of installing cable-television lines.

Marcus Cable raises three arguments to support its contention that the original easement encompasses cable-television use. First, it argues that easements must be interpreted to anticipate and encompass future technological developments that may not have existed when the easement was originally granted. Second, Marcus Cable contends that courts should give strong deference to the public policy behind expanding the provision of cable-television services. Third, Marcus Cable argues that its use is permitted because adding cable-television wires does not increase the burden on the servient estate. These arguments, however, ignore `fundamental principles that govern interpreting easements conveyed by express grant. Those principles lead us to conclude that the original easement does not encompass Marcus Cable's use.

A. Express Easements

We apply basic principles of contract construction and interpretation when considering an express easement's terms. DeWitt County, 1 S.W.3d at 100; Armstrong v. Skelly Oil, Co., 81 S.W.2d 735, 736 (Tex.Civ.App.-Amarillo 1935, writ ref d). The contracting parties' intentions, as expressed in the grant, determine the

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scope of the conveyed interest. See DeWitt County, 1 S.W.3d at 103 (stating that "the scope of the easement holder's rights must be determined by the terms of the grant"); see also Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 664-65 (Tex.1964) (holding that parties' intentions are determined by interpreting the real-property grant's language); Garrett v. Dils Co., 157 Tex. 92, 299 S.W.2d 904, 906 (1957) (same); City of Dallas v. Etheridge, 152 Tex. 9,253 S.W.2d 640, 642 (1952) (same); RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 4.1 (providing that an easement "should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created").

When the grant's terms are not specifically defined, they should be given their plain, ordinary, and generally accepted meaning. DeWitt, 1 S.W.3d at 101; see also' RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 4.1 cmt. d ("[Easement] language should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it ..."); RESTATEMENT (SECOND) OF CONTRACTS § 202(3)(a) ("Unless a different intention is manifested, where language has a generally prevailing meaning, it is interpreted in accordance with that meaning."). An easement's express terms, interpreted according to their generally accepted meaning, therefore delineate the purposes for which the easement holder may use the property. See DeWitt, 1 S.W.3d at 100, 103; see also Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974); Vahlsing v. Harrell, 178 F.2d 622, 624 (5th Cir.1949) (applying Texas law). Nothing passes by implication "except what is reasonably necessary" to fairly enjoy the rights expressly granted. Coleman, 514 S.W.2d at 903; Bland Lake Fishing & Hunting Club v. Fisher, 311 S.W.2d 710, 715-16 (Tex.Civ.App.-Beaumont 1958, no writ). Thus, if a particular purpose is not provided for in the grant, a use pursuing that purpose is not allowed. See Coleman, 514 S.W.2d at 903; Kearney & Son v. Fancher, 401 S.W.2d 897, 904-05 (Tex.Civ.App.-Fort Worth 1966, writ ref'd n.r.e.); cf. Bickler v. Bickler, 403 S.W.2d 354, 359 (Tex.1966). If the rule were otherwise,

then the typical power line or pipeline easement, granted for the purpose of constructing and maintaining a power line or pipeline across specified property, could be used for any other purpose, unless the grantor by specific...