San Jacinto Sand Co. v. Southwestern Bell Tel. Co.

• Decision Date: 06 March 1968
• Docket Number: No. 81,81
• Parties: SAN JACINTO SAND COMPANY, Inc., Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 338

426 S.W.2d 338

SAN JACINTO SAND COMPANY, Inc., Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.

No. 81.

Court of Civil Appeals of Texas Houston (14th Dist.).

March 6, 1968.

Rehearing Denied April 3, 1968.

Charles J. Sullivan, Houston, for appellant.

John L. Murchison, Jr., Donald L. Howell, Vinson, Elkins, Weems & Searls, James M. Shatto, James E. Barden, Houston, for appellee.

BARRON, Justice.

Appellee, Southwestern Bell Telephone Company (Southwestern Bell), as plaintiff, brought suit against defendant, San Jacinto Sand Company, Inc. (Sand Company) and others as defendants, seeking a temporary injunction to prohibit defendants from making excavations which allegedly would result in the destruction of the cables, conduits, and equipment of Southwestern Bell, and further seeking a declaration of its rights as an alleged easement owner to lateral and/or subjacent support. During the hearing on appellee's application for temporary injunction, on November 29, 1966, all parties jointly moved to consolidate for all purposes the hearing on application for temporary injunction and the hearing of the cause on the merits.

The hearing on the application for temporary injunction and on the declaratory judgment was tried without a jury, and at the conclusion of the testimony after some delay, on May 22, 1967, the trial court granted appellee's application for temporary injunction and held that Southwestern Bell, as owner of two easements burdening a tract of land owned by Sand Company, was entitled to the reasonable enjoyment and use of its easements, and was entitled to exercise the rights, privileges and authorities granted thereby without interference, damage or destruction by removal of the lateral and subjacent support of the easements through excavation of the sand, gravel and soil on the servient tract owned by the Sand Company.

This appeal has been perfected from the trial court's final judgment by San Jacinto Sand Company, Inc., as appellant. Southwestern Bell Telephone Company is appellee.

Appellant, Sand Company, is a Texas corporation doing business in Harris County and is engaged in the excavation and sale of sand and gravel. Appellee, Southwestern Bell, is a telephone company and public utility serving telephone customers in the Beaumont-Houston area and areas throughout and beyond the State of Texas. Appellant owns a certain 17.584 acre tract of land in Harris County, Texas, adjoining and east of the San Jacinto River, said property having been conveyed to appellant by deed from Sherwood E. Beverly, dated January 20, 1966, and duly recorded in the deed records of Harris County. In 1945 and 1954, two easements were executed by the then owners of the land to Southwestern Bell. Each easement specifically located the telephone lines across the property, the 1954 easement providing that the lines should extend approximately 10 feet north of and parallel with the 1945 easement lines. The easements provided that Southwestern Bell was granted the 'right, privilege and authority to construct, reconstruct, operate, maintain, Or remove lines of telephone and telegraph, or other signal or communication circuits, consisting of underground conduits, cables, manholes, markers and fixtures As the grantee may from time to time require, (with the right to cut down and keep cut down trees, brush, and stumps within ten feet of each side of said lines), on and under the property * * *.', and that the conduits and cables were required to be buried to such depth as not to interfere with the ordinary cultivation of the land. Pursuant to the easement granted in 1945, Southwestern Bell installed in 1945 and 1946, certain equipment including underground intercity toll cables referred to as the Houston-Beaumont A and B cables. Pursuant to the 1954 easement, appellee installed in 1954, underground inter-city toll cables, referred to as the Crosby-Houston cables. The lines extend from the east bank of the San Jacinto River in an easterly direction and then generally in a north-northeasterly direction to the north property line of the 17.584 acre tract. The easements were referred to during trial as a 30-foot easement or easements to describe the 30-foot wide area used by appellee in the repair, operation, maintenance, etc., of its equipment, though by stipulation, reference to the 30-foot area was used by the parties as an identification device. The cables have not been replaced since they were originally installed except at the river crossing. Appellant, Sand Company, also owns a tract of land of about 20.099 acres located immediately adjacent to and south of the 17.584 tract and has extensively excavated sand and gravel from the surface of the 20.099 acre tract. Waters of the San Jacinto River have filled the excavations on that tract. Appellant and others were excavating and removing sand and gravel from the 20.099 acre tract for some time prior to the filing of this action.

The title of Sand Company to the 17.584 acre tract and the title to the two easements of Southwestern Bell derive from a common grantor, and appellant's chain of title clearly reflects the existence of appellee's easements, which were duly recorded. Sand Company acquired title to the 17.584 acre tract with actual knowledge that the tract was burdened with the two easements, and with actual knowledge that appellee had installed its cables and conduits pursuant to such easements.

The trial court found that the operation and maintenance of the conduits, cables, etc., have reasonably required the use of a ten-foot area on each side of each of the cables. Since the second easement is located ten feet north of the first easement, there is an overlap in the area used, and Southwestern Bell has utilized a strip approximately thirty feet in width for the entire length of the easements. In 1966, appellee began construction of a new river crossing under the San Jacinto River. The Houston-Beaumont A and B cables and the Crosby-Houston cable were connected to the new river crossing at a distance of approximately 192--197 feet east of the east bank of the San Jacinto River on the 17.584 acre tract. The new crossing consists of a 12-inch concrete coated pipe, which enters the east bank of the San Jacinto River at a point located between the two 8-inch steel pipes in which the Houston-Beaumont A and B cables and the Crosby-Houston cable had been installed. The 12-inch pipe terminates a manhole at the 192--197 foot point on appellant's land, where the existing 27 quad, 19 gauge Houston-Beaumont A and B cables and the Crosby-Houston 51 pair, 19 gauge cable were brought into the manhole on the 17.584 acre tract and spliced into the three 37 quad, 19 gauge cables. The two 8-inch pipes from that point westward to the river were thereby rendered useless. The cables constitute an integral part of the communication system between Houston and the area of Beaumont, Port Arthur and Orange. In addition, the cables involve high priority government circuits, press circuits, radio broadcast circuits, high-flying dispatch circuits, aviation control circuits and foreign exchange circuits.

The composition of the surface of the 17.584 acre tract is largely common sand and gravel. Certain areas of the tract contain deposits of sand and gravel at least to the extent of 15 to 30 feet below the surface, and appellant claims that there are deposits of sand in commercially marketable quantities extending to a depth of about 60 feet. Beginning about November, 1966, appellant prepared the surface of the 17.584 acre tract for excavation. Soon thereafter, the Sand Company began dragline excavations to the north and to the south of appellee's easements and the cables and conduits placed pursuant to the easements. Excavation of the 17.584 acre tract was discontinued as the result of a temporary restraining order obtained by appellee. Appellant stipulated that it did not intend directly to extract any sand from beneath the easements of appellee, and accordingly it stated that excavation operations would not be conducted within the 30-foot strip extending from the east bank of the San Jacinto River in a generally eastern direction for approximately 1,747 feet and then in a generally northeastern direction to the northern boundary of the tract.

In the course of the trial, hydraulic, soil and structural engineers testified, and the trial court found, that prosecution of appellant's plan of development would destroy the lateral and subjacent support of appellee's easements and the destruction of the cables, conduits, manholes, etc., placed pursuant thereto. The natural ground surface of the 17.584 acre tract is about 15 to 18 feet above the surface level of the water flowing in the San Jacinto River. The trial court further found that if excavations proceeded on either side of the 30-foot easement strip, the strip would deteriorate, and that if there were dredging operations to a depth of 60 feet on either side of the easement, the surface land would disappear, and deterioration would begin long before a 60-foot depth is reached. The trial court found from the evidence that alternatives would be impracticable, such as rerouting of appellee's lines, installation of aerial crossings, use of steel sheet piling bulkheads on either side of the easements, etc., and though technologically possible, such alternatives would be prohibitive and not feasible because of cost, maintenance, and loss of time.

In order to provide lateral and subjacent support for Southwestern Bell's easements, the trial court decreed that the entire natural east bank of the San Jacinto River, along the west boundary of the 17.584 acre may not be further disturbed, and that no excavation may be made east of the east bank of the river for a distance of 200 feet; that no excavation may be made on land which forms the easements, the 30-foot strip. South of the easements at a point 200 feet east of the river...