Texas Power & Light Co. v. Cole

• Decision Date: 30 April 1958
• Docket Number: No. A-6625,A-6625
• Citation: 158 Tex. 495,313 S.W.2d 524
• Parties: TEXAS POWER & LIGHT COMPANY, Petitioner, v. E. Gladys COLE et al., Respondents.
• Court: Texas Supreme Court

Page 524

313 S.W.2d 524

158 Tex. 495

TEXAS POWER & LIGHT COMPANY, Petitioner, v. E. Gladys COLE et al., Respondents.

No. A-6625.

Supreme Court of Texas.

April 30, 1958.

Rehearing Denied June 11, 1958.

Burford, Ryburn & Ford, Clarence A. Guittard, Dallas, for petitioner.

Eades & Eades, Dallas, for respondents.

NORVELL, Justice.

This is a condemnation case. Articles 3264 et seq., Vernon's Ann.Tex.Stat. Special commissioners appointed by the judge of the County Court at Law of Dallas County, No. 1 awarded defendants $750 for an electric transmission line easement over their property. Defendants objected to the award and appealed to the County Court at Law No. 1 where, after a trial to a jury, the award was reduced to $557. The defendants appealed and the Court of Civil Appeals reversed and remanded. 306 S.W.2d 762. We reverse the judgment of the Court of Civil Appeals and affirm that of the County Court at Law No. 1.

The case turns upon the interpretation and validity of a supplement or amendment to the petition in condemnation which supplement was filed in the County Court at Law after proceedings before the Special Commissioners had been completed and the case had been removed to the Court by the filing of objections to their award. Article 3266, Sec. 6.

In the Court of Civil Appeals, E. Gladys Cole, and husband Earnest Cole, and Willie A. McGlothin (respondents here) presented four points of error. There is no question of fundamental error in the case. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979; McCauley v. Consolidated Underwriters, Tex.Sup., 304 S.W.2d 265. The majority of the Court of Civil Appeals construed three of these points as involving 'the question of whether appellee (Texas Power & Light Company, petitioner here) having taken possession of the condemned property on December 5, 1955, could thereafter limit its taking and minimize the amount of damages to be paid, by providing in the judgment that appellants might carry on operations for the removal of sand and gravel free of any interference by appellee until May 1, 1957.' 306 S.W.2d 766.

From the brief filed in the Court of Civil Appeals and the reply to the application for writ of error we are not entirely certain this this was the exact contention raised or intended to be raised by respondents. For that reason it is deemed appropriate to set out the points presented in the Court of Civil Appeals which are substantially the same as the counter-points contained in the reply to the application for writ of error, viz.:

'1. The trial court erred in permitting appellee's pleadings, evidence, arguments and in charging the jury with reference to market values and damages at a time long after the easement was condemned on December 5, 1955.

'2. The trial court erred by commenting upon the weight of the evidence in charging the jury that after May 1, 1957, appellants would still have the right to enter upon said lands and carry on operations for removal of sand and gravel since such charge assumes the existence of facts not in the record, singles out this theory of appellee's case so as to give it undue prominence and indicated to the jury that the court was of the opinion that such gravel could in fact be removed.

'3. The trial court erred in allowing appellee to plead, introduce evidence upon and argue to the jury that the purposes for which the easement was condemned do not require any interference with the appellants' rights to enter upon the land for the purpose of removing sand and gravel therefrom until May 1, 1957, and that appellee would make whatever arrangements that may be necessary to permit such operations.

'4. The trial court erred in charging the jury that the easement condemned did not include the right to interfere with appellants' right to enter upon the land for purpose of removing sand and gravel until May 1, 1957.'

It appears that in 1946, petitioner Texas Power & Light Company, secured an easement over a five and a half acre tract owned by respondents for the purpose of erecting and maintaining electric transmission lines. This easement described a strip of land 100 feet in width. The easement sought in this proceeding was described as being over a fifty foot strip lying immediately west of the 1946 easement. The pleadings upon which the case was ultimately submitted to the jury consisted of an original petition (in which the appointment of Special Commissioners was requested) and a supplemental petition which was filed in the County Court at Law after the commissioners had completed their duties. In the original petition the fifty foot strip was located in reference to the then existing easement and described as:

'* * * an easement and right of way over and across defendant's said land for an electric transmission line, together with the right of ingress and egress over a strip of land 50 feet wide, being 50 feet on West side of the center line above described, for the purpose of constructing, reconstructing, operating, inspecting, patrolling, maintaining and removing said line and appurtenances, and the right to remove from said strip and prevent the construction thereon of any building or other structure, except fences and also to remove therefrom all growth other than crops, shrubs and fruit trees less than 15 feet high, which, in the sole judgment of plaintiff, may endanger or interfere with the efficiency, safety, or convenient operation of said transmission line and its appurtenances. However, plaintiff shall have no right to occupy permanently any part of said strip, except the portion occupied by the structures constituting its transmission line above described, and shall have no right to fence or enclose said strip, or to use it for any purpose other than as aforesaid, and the right of defendants and subsequent owners of said land to cultivate said strip, raise crops thereon, or use it for pasturing live stock or for any other purpose, not inconsistent with plaintiff's enjoyment of the easement and right of way above described, shall not be obstructed or interfered with, except to the extent above stated.

'The right of ingress and egress aforesaid shall not include the right in the future, after the original construction of said transmission line to destroy or damage any crops, fences or other property of defendants or of any subsequent owner of said land without payment to defendants or said owners of reasonable compensation; provided, however, that no compensation need be paid for the removal from said strip of buildings or other structures, or of growth, other than crops, shrubs, and fruit trees less than 15 feet high, which may endanger or interfere with said line, as aforesaid.'

The transmission lines and the poles, frames and cross arms supporting them together with the rights incident thereto were described as follows in the petition:

'Said transmission line to be erected on said land shall include not more than three conductor wires, and not more than two static wires, together with one H-Frame, no single poles, no guy anchorages, no angle structures.

'Each H-Frame shall consist of two poles connected by one or more cross arms.

'Cross arms shall be fastened upon poles of said transmission line at a height sufficient to insure a minimum clearance of 22 feet between the lowest conductor wire and the ground at any point in the span. The conductor wires and static wires shall be sustained in the air by attachments to said cross arms, and said transmission line shall include such poles, braces, bolts, pins, insulators, and other fasteners, appliances and attachments as may be necessary and proper for attaching said cross arms to said poles and said wires to said cross arms and said poles to the ground.'

After the case reached the County Court at Law, petitioner filed a pleading which it denominated a Supplemental Petition in which it said that:

'Plaintiffs says that the purposes for which the easement described in its original petition is being taken do not require any interference with defendants' right to enter upon the land in question for the purpose of removing sand and gravel therefrom until May 1, 1957. Consequently, plaintiff says that until such date, said easement shall be subordinate to defendants' right to enter upon said land for such purpose, and plaintiff will make whatever arrangements may be necessary to permit such operations.' (Italics ours.)

In his charge to the jury the trial judge described the easement rights according to the allegations of the original petition hereinabove set out and in addition gave the following instruction relating to the restriction upon the easement set forth in the supplemental petition:

'You are further instructed that the easement taken does not include the right to interfere with defendant's right to enter upon said strip of land or upon any adjoining land for the purpose of removing sand and gravel therefrom, until the 1st day of May, 1957, and that until that date plaintiff will make whatever arrangements are necessary to permit such operations, and, further, that after the 1st day of May, 1957, defendants will still have the right to enter upon said land and carry on operations for the removal of such sand and gravel, so long as such operations do not interfere with the construction, maintenance and operation of said electric transmission line.'

This instruction was followed by four special issues patterned after those suggested in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979. In all of these issues the date of inquiry as to ascertainment of market value was December 5, 1955. Special Issues 1 and 3 referred to the reasonable market value of the severed strip covered by the easement and of the remaining part of respondents' land, respectively, immediately before the taking of the easement on December 5, 1955, while Special Issues Nos. 2 and 4 refer to such values immediately after the taking on said date.

The parties are seemingly...