Sw. Elec. Power Co. v. Lynch

• Decision Date: 12 June 2018
• Docket Number: No. 06-17-00067-CV,06-17-00067-CV
• Citation: 581 S.W.3d 292
• Parties: SOUTHWESTERN ELECTRIC POWER COMPANY, Appellant v. Kenneth LYNCH, Tommy Batchelor, and Twant Wilson, Appellee
• Court: Texas Court of Appeals

581 S.W.3d 292

SOUTHWESTERN ELECTRIC POWER COMPANY, Appellant

v.Kenneth LYNCH, Tommy Batchelor, and Twant Wilson, Appellee

No. 06-17-00067-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: May 2, 2018

Date Decided: June 12, 2018

Rehearing Denied July 3, 2018

James T. Carroll IV, Rickey L. Faulkner, Coghlan Crowson, LLP, P.O. Box 2665, Longview, TX 75606-2665, for Appellant.

C. David Glass, Smith Weber, LLP, 5505 Plaza Dr., Texarkana, TX 75503-1664, for Appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice Moseley

In Bowie County, Texas, Kenneth Lynch, Tommy Batchelor, and Twant Wilson filed a declaratory judgment suit against Southwestern Electric Power Company (SWEPCO), asking the trial court to declare that SWEPCO's prior use of certain utility easements across their respective tracts of land limited the width of its easement to thirty feet. SWEPCO filed a plea to the jurisdiction, which the trial court denied, and entered a general denial, asserting various affirmative defenses. After a bench trial, the trial court found for the Appellees, declared that SWEPCO's prior use of the easement across the Appellees' properties limited its present and future use to a width of thirty feet, and awarded the Appellees attorney fees and costs.

On appeal, SWEPCO contends that the trial court erred by: (1) denying its plea to the jurisdiction; (2) interpreting the deeds using extrinsic evidence; and (3) awarding attorney fees and costs.

We affirm the trial court's judgment because a justiciable controversy existed in the case, extrinsic evidence was admissible to determine the extent of SWEPCO's use under the existing easements, and the trial court possessed jurisdiction over the matter.

I. Factual and Procedural Background

The Appellees own certain tracts of real property in Bowie County, Texas, each of which is encumbered by utility easements in favor of SWEPCO. The easements were each granted to SWEPCO in 1949 by the respective Appellees' predecessors in title, and the operative language in each of the easements is identical. The pertinent part of each of the easements says,

[A]n easement or right-of-way [is granted to Southwestern Gas & Electric Company] for an electric transmission and distributing line, consisting of variable numbers of wires, and all necessary or desirable appurtenances (including towers or poles made of wood, metal or other materials, telephone and telegraph wires, props and guys), at or near the location and along the general course now located and staked out by the said Company over, across and upon the following described lands....

Together with the right of ingress and egress over my (our) adjacent lands to or from said right-of-way for the purpose of constructing, reconstructing, inspecting, patrolling, hanging new wires on, maintaining and removing said line and appurtenances....

None of these 1949 right-of-way conveyances contain a metes and bounds description of the easement. SWEPCO and its predecessor in interest have continuously utilized the easement granted in the deeds to construct, service, and maintain electric transmission lines along the same general paths across the Appellees' lands since construction of the lines in 1949. Appellees' properties are located along the transmission line between New Boston and DeKalb, Texas.

During the period of 2014-2015, SWEPCO rebuilt and modernized the transmission lines, which included replacing the existing wooden pole support structures that had been previously installed with steel pole structures along the existing route. In preparation for the rebuild, SWEPCO sent letters to landowners along the electric transmission line route (including Appellees Lynch and Wilson) informing them of the then-anticipated rebuild and modernization, offering to pay each of the current property owners to whom these were sent $1,000 "to supplement the existing easement on [the] property to bring the rights and restrictions to SWEPCO's standing right of way requirements." A supplemental easement, survey plat, easement payment schedule, and W-9 were enclosed with the letter. The offered supplemental easement and plat sought to "revise[ ], modif[y] and clarif[y]" the "width, and boundaries" of SWEPCO's easement then-unspecified width to a specific width of one hundred feet (fifty feet on each side of the centerline of the existing line). The Appellees refused to grant the supplemental easements, but SWEPCO entered their properties to complete the upgrade under the authorization of the 1949 right-of-way deeds. SWEPCO completed the modernization of the transmission line in 2015.

The Appellees allege that during the rebuild, SWEPCO and its agents "took the position that [under the 1949 right-of-way deeds,] it had previously acquired a blanket easement over" the Appellees' properties. On October 19, 2015, after the rebuild was complete, the Appellees filed a declaratory judgment action against SWEPCO, alleging that SWEPCO was unilaterally attempting to broaden the easement and its easement rights and asking the trial court to declare that SWEPCO's easement under the general terms of the 1949 right-of-way deeds was limited to fifteen feet on each side of the transmission poles, because it is sufficient for operating and maintaining the lines and it is the width and path of the easement SWEPCO "utilized and maintained" during its years of prior use. SWEPCO filed a plea to the jurisdiction, entered a general denial, and made special exceptions, asserting various affirmative defenses. SWEPCO also filed counterclaims against the Appellees, and two of their wives, alleging that under its interpretation of the deeds, the Appellees had trespassed. Some of the trespasses alleged by SWEPCO included the construction of a dwelling house, allowing trees to grow, and constructing and maintaining a pond within the 100-foot easement SWEPCO claimed was necessary to utilize and maintain the transmission lines.

SWEPCO's plea to the jurisdiction argued that the claims asserted were not justiciable and not ripe and that the Appellees lacked standing, all of which deprived the trial court of subject-matter jurisdiction. After a hearing, the trial court denied the plea. SWEPCO later nonsuited its counterclaims without prejudice and dismissed the Appellees' wives from the suit. After nonsuiting its counterclaims, and in light of further discovery and the Appellees' amended pleadings, SWEPCO reurged its plea to the jurisdiction on the same grounds as before and filed traditional and no-evidence motions for summary judgment, arguing that the 1949 right-of-way deeds unambiguously granted a general easement and should be construed as such by the trial court as a matter of law. The Appellees filed a response, as well as their own motion for summary judgment, asserting (among other things) that SWEPCO was attempting to unilaterally broaden its easement rights under the 1949 right-of-way deeds, despite the fact that SWEPCO's prior use and maintenance of the easement was limited to fifteen feet on each side of the then-existing transmission pole and that such a thirty-foot easement is sufficient for future operation and maintenance of the transmission line.¹ The trial court denied SWEPCO's motion to strike the Appellees' summary judgment evidence, denied its reurged plea to the jurisdiction, and denied its motions for summary judgment. The Appellees' motions for summary judgment were carried with the case.

The case proceeded to a bench trial. SWEPCO argued that the 1949 right-of-way deeds unambiguously granted them a general easement and that they should be construed as general easements as a matter of law. The Appellees "want[ed] the Court to draw the line in the sand" to prohibit SWEPCO from using those easement documents to broaden its easement in the future, "[b]ecause without the line in the sand, the landowners can never make productive use of their property because they don't know when SWEPCO is going to choose to push that line back." In support of their motions and petition for declaratory relief, the Appellees produced, over SWEPCO's objections, testimony from Lynch, Wilson, Batchelor, and others who owned property along the transmission line that was encumbered by the 1949 right-of-way deeds.

The first witness called by the Appellees was Trey Bergeret, a transmission right-of-way supervisor for SWEPCO. Bergeret acknowledged that the 1949 right-of-way deeds were the source of SWEPCO's right of way and easement rights over the Appellees' properties and other properties along the transmission line between New Boston and DeKalb. Bergeret was unaware of any SWEPCO utility easements along the transmission line between New Boston, Texas, to DeKalb, Texas, from 1949 that defined the easement's width in terms of feet or meters. The following colloquy occurred on direct examination of Bergeret:

Q ... [W]hat is SWEPCO's position as to the scope or width of the easement that it acquired under these 1949 right of way deeds?

A These easements are what we classify as a general easement that give us the right to use as much as we reasonably determine each time we need to use the easement.

Q Okay. And on Kenneth Lynch's property, how wide -- or what is the scope of your easement on that property?

A Same as I just mentioned, as much as we reasonably need each time we need to use it.

Q Okay. And that would include the whole property?

A These are general easements, yes, sir.

Q Okay. And that would include the property where his house sits?

A Yes, sir. Technically, yes.

Appellees asked Bergeret whether "SWEPCO can use however much of [the Appellees'] property it deems fit," and he answered, "It has reasonable use each time we need to yes, sir," but this was tempered by SWEPCO's goal to be "property owner friendly and ... as least intrusive as possible." In response to a hypothetical question, Bergeret testified that a claim of a one-hundred-foot easement across the Appellees'...