Pentagon Enterprises v. Southwestern Bell Tel. Co., 1405
| Decision Date | 21 July 1976 |
| Docket Number | No. 1405,1405 |
| Citation | 540 S.W.2d 477 |
| Parties | PENTAGON ENTERPRISES, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
John M. O'Quinn, Riddle, Murphrey, O'Quinn & Cannon, Robert A. Markowitz, Houston, for appellant.
Charles G. King, Bracewell & Patterson, Houston, for appellee.
This is an appeal from a judgment non obstante veredicto. Pentagon Enterprises sued Southwestern Bell Telephone Company for a continuing trespass by telephone poles erroneously erected on a tract of land. The jury returned a verdict favorable to Pentagon. Judgment non obstante veredicto was entered for Bell. We affirm.
Pentagon engages in building and then leasing commercial structures such as warehouses. On June 2, 1972 Pentagon contracted to purchase a tract of land from Seymour Sacks located in Houston. Pentagon planned to build and lease a warehouse on this tract. Financing for the tract's purchase was contingent on Pentagon obtaining a major tenant committed to lease a portion of the building. Pentagon obtained a tenant, Western Merchandisers, to lease 10,000 square feet of the 38,000 square feet in the planned warehouse. Pentagon was to close the real estate transaction in August of 1972 and to construct Western Merchandisers' warehouse space by January 1, 1973.
A survey of the tract showed two telephone poles and electrical equipment encroaching on the property, approximately 4 feet and 10 feet off an adjacent easement. Both poles had been erected and in place since 1950. Bell was contacted about removing its encroaching poles in September of 1972. The poles and equipment were not completely removed until January 17, 1973. On January 18, 1973 Pentagon completed the land purchase from Sacks and took title to the property.
Pentagon sued Bell for the continuing trespass claiming damages as a result of Bell's delay in removing its poles and equipment. Pentagon claimed that because of the delay the warehouse cost more to build, that there were added extra costs of interim financing, that Pentagon incurred expenses in borrowing money to cover added expenses and losses, and that Pentagon lost Western Merchandisers as its major tenant. The jury found that Bell's delay in removing its poles was negligent which proximately caused damages of $71,643.76 to Pentagon. The trial court entered judgment non obstante veredicto that Pentagon take nothing from Bell.
The primary issue is whether Pentagon had a right to sue and recover damages from Bell for a continuing trespass to property to which Pentagon had neither possession nor title. Pentagon had only an equitable right to the property under its contract with Sacks. The contract specifically provided that 'possession of the premises shall be delivered to Purchaser (Pentagon) on the date of closing.' It is evident that Pentagon did not have title or actual or constructive possession until after the continuing trespass had been abated by Bell. Under these facts we hold that Pentagon possessed no right to sue and recover damages from Bell for its...
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