Texas Power & Light Co. v. Hering

• Court: Texas Court of Appeals
• Writing for the Court: Rice
• Citation: Texas Power & Light Co. v. Hering, 178 S.W.2d 162 (Tex. App. 1944)
• Decision Date: 03 February 1944
• Docket Number: No. 2569.,2569.
• Parties: TEXAS POWER & LIGHT CO. v. HERING et ux.

178 S.W.2d 162

TEXAS POWER & LIGHT CO. v. HERING et ux.

No. 2569.

Court of Civil Appeals of Texas. Waco.

February 3, 1944.

Rehearing Denied March 2, 1944.

Appeal from McLennan County Court; D. Y. McDaniel, Judge.

Proceeding by the Texas Power & Light Company against Jim Hering and wife to condemn an easement across defendants' land for construction of a transmission line. From a judgment awarding defendants compensation and damages, plaintiff appeals.

Reversed and remanded.

Cox, Brown & Daniel, of Temple, and Bryan & Maxwell, of Waco, for appellant.

Fitzpatrick & Dunnam, of Waco, for appellees.

RICE, Chief Justice.

This proceeding was instituted by Texas Power & Light Company for the purpose of condemning an easement across two tracts of land owned by Jim Hering and wife. The latter appealed to the County Court from the award of damages by the Commissioners; and plaintiff has perfected this appeal from the judgment of the County Court.

For the purpose of transmitting electric current of high voltage between its McGregor substation in McLennan County and Gatesville Army Camp in Coryell County, it was necessary for plaintiff to construct its transmission lines over and across the lands owned by defendants. Being unable to agree with defendants on the amount of damages to which defendants were entitled because of such construction, plaintiff brought this proceeding for the purpose of acquiring, by condemnation, an easement for the purposes mentioned, over and along a strip of land 100 feet in width, aggregating 5.3 acres. In the center line of this strip the transmission line was to be erected, consisting of 5 poles and 4 guy-wires. The poles were not to exceed 22 inches in diameter at the ground line, were to be erected in an upright position to a depth of not exceeding 9 feet, with not exceeding 4 cross-arms to the pole, placed at a height sufficient to insure a minimum clearance of 22 feet between the lowest conductor and the ground, on which not in excess of 9 metallic wires were to be strung. The 4 guy-wires were not to exceed one inch in diameter, were to be attached to devices which were to occupy a space of ground not more than 5 feet square nor more than 15 feet deep, and which were to be buried not less than five fee below the surface of the ground. On said strip of land there was to be erected one H frame and 5 guys. The frame was to consist of 2 poles, except angle structures to consist of not more than 3 poles erected in an upright position not exceeding 10 feet apart. The maximum diameter of these poles at the ground line and their maximum depth in the ground were to be as set forth above. The guy wires or rods were not to exceed one inch in diameter and were to be fastened into the ground by devices which were not to occupy a space of ground more than 3 feet square, were not to be more than 15 feet deep and not less than 5 feet below the surface of the ground.

Plaintiff's petition further provides: "The land upon which said lines will be located, and the space of 50 feet on each side of center line heretofore described will not be fenced or enclosed by petitioner, and no use thereof is to be made by petitioner except for the erection of said lines and devices for fastening said guy wires, and ingress and egress in the operation and maintenance thereof, and the use of said land by the owner thereof is not to be obstructed or interfered with except so far as this may be done by said lines and devices for fastening said guy-wires, and the construction, maintenance and operation thereof, and except, that in order to prevent endangering the said lines by fire, storm or otherwise, and in order to prevent causing the same to become dangerous in anywise to life or property, no growth, other than growing crops or trees less than 15 feet in height and no building or structure, is to be permitted within a space bounded by a line 50 feet on each side of the center line heretofore described * * * and any such growth, except as aforesaid, and any such building or structure will be removed at the time of construction of said lines and thereafter prevented."

Over plaintiff's objection the trial court submitted to the jury special issues inquiring as to the reasonable market value per acre of the 5.3 acres of defendants' land embraced in the easement; whether the market value of the remainder of defendants' land would be reduced by reason of the construction of the power line across the same; and...