Texas Power & Light Co. v. Lovinggood

• Citation: 389 S.W.2d 712
• Decision Date: 26 March 1965
• Docket Number: No. 16456,16456
• Parties: TEXAS POWER & LIGHT COMPANY, Appellant, v. Lavon E. LOVINGGOOD et ux., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 712

389 S.W.2d 712

TEXAS POWER & LIGHT COMPANY, Appellant, v. Lavon E. LOVINGGOOD et ux., Appellees.

No. 16456.

Court of Civil Appeals of Texas, Dallas.

March 26, 1965.

Rehearing Denied April 23, 1965.

Burford, Ryburn & Ford, Wayne Pearson and John L Estes, Dallas, for appellant.

Locke, Purnell, Boren, Laney & Neely, and Wayne O. Woodruff, Dallas, and Robert G. Scofield, Lewisville, for appellees.

DIXON, Chief Justice.

Our former opinion in this case is withdrawn and the following is substituted therefor.

Texas Power & Light Company has appealed from a jjudgment of $38,525 in a condemnation proceeding wherein appellant acquired an easement over land owned by appellees Lavon E. Lovinggood and wife, Elaine Boren Lovinggood.

The parties stipulated that the only issue before the trial court was the amount of money due appellees as damages to appellees' land as a result of appellant's taking the easement rights.

The property owned by appellees prior to condemnation consisted of a tract of 158.18 acres used primarily for agricultural purposes. The easement obtained by appellant by condemnation running across appellees' property is 250 feet wide and contains 14.915 acres.

Of the remainder of appellees' property after the faking, approximately 42 acres lie north of the easement and approximately 102 acres south of the easement. The south 102-acre tract is traversed by Bear Creek, 42 of its acres being north of Bear Creek and 60 acres south of the creek.

There is evidence that the highest and best use for appellees' property is for residential subdivision.

In its first two points appellant complains of the trial court's submitting special instructions Nos. 2 and 3 under Special Issue No. 2 in the court's charge; and of the court's refusal to include in the charge apfpellant's requested special instructions.

Special instructions 2 and 3 as submitted by the court were as follows:

'2. You are further instructed, that by the terms of the easement obtained by the plaintiff light company through said condemnation proceedings, all rights in, and to, said land, not inconsistent with the right of way easement granted to the plaintiff light company by said condemnation proceedings, are reserved by and to the defendant landowners.

'3. By the term 'easement', as used in this charge, is meant the right to use the 14.9 acres of land of the defendants, for the above specified purposes and none other; so that the title to the property covered by the easement right of way, as well as to the right to use, occupy, and enjoy the property, remains in the defendant landowners, privided, however, that such use, occupancy, and enjoyment of the 14.9 acres by the defendant landowners, does not interfere with the use of said 14.9 acres, for the specified purposes for which said easement and right of way has been acquired by the Texas Power & Light Company, through said condemnation proceedings.'

Appellant objected to the instructions given by the court in the above paragraphs 2 and 3 on the grounds that said instructions (a) informed the jury that appellant had the sole determination of the consistency of the use of the easement by appellees, and (b) failed to inform the jury that under the terms of the easement after any streets, alleys or tracks have been laid out along or upon the property taken by appellees or subsequent owners, appellant would have no right to interfere in any way with such streets, alleys or tracks so constructed even though the existence of such streets, alleys or tracks interfere with appellant's rights of use, and even though such streets, alleys or tracks are inconsistent with appellant's use of the easement taken.

The special instructions requested by appellant but refused by the court included the substance of the court's instructions but also included additional instructions as follows:

'All wires other than guy wires shall be suspended at a height sufficient to insure a minimum clearance of 22 feet above the ground. * * * plaintiff * * * shall have no right to fence or enclose said land or to use it for any purpose other than as aforesaid, and the right of defendants and subsequent owners of said land to pass back and forth across said land on foot or in vehicles, to cultivate or landscape the same, to raise crops or gardens thereon, or use it for recreation or any other purpose not inconsistent with plaintiff's use of the facilities above mentioned, shall not be obstructed or interfered with, except to the extent above stated.

'The right is reserved to defendants and subsequent owners of said land to lay out, dedicate, construct and maintain roads, streets, alleys, railroad tracks, underground communication conduits, and gas, water and sewer pipelines across said land at any angle of not less than 45 degrees to any electric line thereon, so long as such roads, streets, alleys, tracks, conduits, and gas, water and sewer pipelines do not interfere with any facilities theretofore constructed by plaintiff, * * *. Plaintiff shall have no right to erect or install any of its facilities within the traveled portion of any paved road, street, alley or track so constructed hereafter across said land by defendants or the subsequent owners of said land * * *.

'The right is also reserved to defendants and the subsequent owners of said land to erect fences not more than 8 feet high across and upon said land, provided all such fences shall have gates, openings, or removable sections at least 10 feet wide which will permit plaintiff reasonable access to all parts of said land.' (Emphasis supplied)

In easement condemnation cases the purposes, rights and limitations of the condemnors in the use of easements are of very great variety and must be clearly delineated. As stated in Texas Public Utilities Co. v. Bass, Tex.Civ.App., 297 S.W. 301, 'It is a matter of law for the court to determine the nature and extent of the property condemned, and the jury should be instructed thereon in connection with the rule of compensation or damages applicable to the particular case.' (Emphasis supplied)

Our Supreme Court in an eminent domain case involving an easement has said:

'It was the function of the petition to describe the nature and extent of the easement required. * * * It thereupon became the duty of the judge of the that court to explain in detail the extent of the easement sought to be condemned in order that the jury might properly evaluate the value of both the fifty foot strip and the balance of the tract exclusive of the strip before the taking, as well as afterwards. Such instructions accurately describing the required easement and the incidents thereto can hardly be said to constitute a comment upon the weight of the evidence.' (Emphasis supplied) Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524, 529.

Turning to appellant's petition in the instant case we find that it describes not only the limitations and rights of the parties as set out in the court's instructions but in addition describes in detail the limitations on appellant's use as described in the requested instructions.

The instructions given by the court are the instructions approved by the Houston Court of Civil Appeals, speaking through Chief Justice Bell, in Central Power & Light Co. v. Graddy, 318 S.W.2d 943, 947 and copied in Rayburn's 'Texas Law of Condemnation,' Sec. 178(2). No doubt the instructions were sufficient in the Graddy case and may well be sufficient in many light and power easement condemnation cases. But neither Chief Justice Bell in his opinion nor Judge Rayburn in his work says that the instructions will be sufficient in all light and power easement cases, and we shall not so construe their statements.

In this particular case we are of the opinion that the instructions submitted by the court were proper except that they did not go far enough. We have concluded that the court should have submitted the instructions requested by appellant in addition to the instructions which were submitted.

It is important to remember that there is evidence from Lovinggood himself among others that the highest and best use of appellees' property is for residential subdivision. If the property is to remain available for residential subdivision it is of the utmost most importance that appellees and their successors have the right to construct roads, streets, storm sewers, underground conduits and water, gas and sewer lines on, over and under the easement. These roads, streets, etc. may not interfere with any facilities theretofore constructed by appellant, but appellant does not have the right to erect any of its facilites within the traveled portion of a road hereafter constructed by appellees, or any road now existing.

Appellees' property is bounded on the North by Bear Creek Road, on the West by Houston School Road and on the South by Reindeer Road. All of these are hardsurfaced county roads. Bear Creek and appellant's easement traverse the property and divide it into four parts. Access to the county roads from all parts of appellees' property and the availability of facilities are important factors in evaluating the property for subdivision purposes. This is especially true of the 42 acres between the south line of the easement and the north line of Bear Creek. $Instructions concerning fencing and sewer have been held to be proper. Aycock v. Houston Lighting & Power Co., Tex.Civ.App., 175 S.W.2d 710; Holcomb v. City of Dallas, Tex.Civ.App., 315 S.W.2d 454.

Appellees argue that the instructions given by the court are broad enough to include clude the requested instructions, therefore it was not error to refuse the requested instructions. However, it seems to us that since the court undertook to describe in considerable detail the easement and incidents thereto it should have included all the material details and incidents affecting value, as set out in the requested instructions together with the instructions...