Wednesday, August 10, 2011

Easement and Trespass on Property

“An easement is a non-possessory interest that authorizes its holder to use property for a particular purpose.” Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 497 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (citing Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002)).


We interpret easements according to basic principles of contract construction and interpretation. Marcus Cable, 90 S.W.3d at 700; DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999); Koelsch, 132 S.W.3d at 497. Courts construe contracts as a matter of law, and we review their rulings de novo. See J.M Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003) (applying rule in arbitration-agreement context) (citing Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983)). The intent of the parties, as expressed in the grant, determines the scope of the interest conveyed. Marcus Cable, 90 S.W.3d at 700–01; Koelsch, 132 S.W.3d at 497–98. To interpret the parties’ intentions adequately and to discern the scope of the rights conveyed to the easement holder, we focus on the terms of the granting language. See Marcus Cable, 90 S.W.3d at 701.

We rely solely on the written terms of the easement unless the language is ambiguous. Koelsch, 132 S.W.3d at 498. When terms are not defined, we give them their “plain, ordinary, and generally accepted meaning.” Marcus Cable, 90 S.W.3d at 701. Courts must consider the entire writing, assume that the parties intended to give effect to every clause they chose to include, and strive to harmonize and give effect to all the provisions of the contract by analyzing the provisions with reference to the whole agreement. Frost Nat’l Bank v. L & F Distribs., 165 S.W.3d 310, 312 (Tex. 1999); Koelsch, 132 S.W.3d at 498; see also Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006). “When interpreting the granting language of an easement, we resolve doubts about the parties’ intent against the grantor, or servient, estate and adopt the interpretation that is the least onerous to the grantee, or dominant, estate in order to confer on the grantee the greatest estate permissible under the instrument.” CenterPoint Energy Houston Elec. LLC v. Bluebonnet Drive, Ltd., 264 S.W.3d 381, 388–89 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). No rights pass to the easement holder by implication except those that are “reasonably necessary” to enjoy the rights that the easement grants expressly. Marcus Cable, 90 S.W.3d at 701. Accordingly, if the grant expressed in the easement cannot be construed to apply to a particular purpose, a use for that purpose is not allowed. See id.

SOURCE: Houston Court of Appeals - 01-10-00186-CV - 8/4/11


A trespasser has neither express nor implied permission to enter the property of another, but enters it nonetheless. Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 671 (Tex. 1999); Koelsch, 132 S.W.3d at 497. An easement holder who exceeds the rights granted by the owner of the servient estate thus commits a trespass. Compare Marcus Cable, 90 S.W.3d at 703 (reversing trial court’s grant of summary judgment on trespass claim in favor of easement holder, who had installed cable-television lines on easement, because easement document only granted right to use land for purpose of constructing and maintaining facilities to transmit electricity, not cable) with Koelsch, 132 S.W.3d at 499 (holding that no trespass occurred where easement holder constructed above-ground block valve assembly because easement document granted right to “lay, operate, renew, alter, inspect, and maintain two pipe lines . . . upon, over, under and through” property); CenterPoint Energy Houston Elec. LLC, 264 S.W.3d 381, 388–89 (holding that no trespass occurred where easement holder allowed assignee to install and use cellular telecommunication equipment within easement because easement document granted right of way for “all necessary and desirable appurtenances” including “telephone and telegraph wires”). A party claiming trespass must establish that the defendant committed an act that exceeded the bounds of any legal rights the defendant may have possessed. See Koelsch, 132 S.W.3d at 497.

To prevail on a breach of contract claim, a party must establish that: (1) a valid contract existed between the plaintiff and the defendant; (2) the plaintiff tendered performance or was excused from doing so; (3) the defendant breached the terms of the contract; and (4) the plaintiff sustained damages as a result of the defendant’s breach. See Valero Mktg. & Supply Co. v. Kalama Int’l, 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.). “A breach occurs when a party fails or refuses to do something he has promised to do.” Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see DeWitt, 1 S.W.3d at 98 (holding that trial court properly granted directed verdict in favor of electrical cooperative on breach of contract claim, where cooperative had cut down two trees and trimmed another in easement, because easement document gave cooperative right to “cut and trim trees within the right-of-way.”).

SOURCE: Houston Court of Appeals - 01-10-00186-CV - 8/4/11

As CenterPoint notes, an element essential to both trespass and breach of contract is that CenterPoint’s action exceeded the rights granted to it by the easement. If the scope of the rights granted by the easement included the removal of the trees and other vegetation in the easement, then the action was authorized and the [ Property Owners ] cannot prevail on either claim.

Here, the easement granted CenterPoint an “unobstructed easement”, along with the right “to remove from said right-of-way and land adjacent thereto, all bushes, trees, and parts thereof, or other obstructions, which, in the opinion of [CenterPoint], endanger or may interfere with the efficiency, safety or proper maintenance of said line or its appurtenances.” [Emphasis added] See Nalle v. Taco Bell Corp., 914 S.W.2d 685, 687 (Tex. App.—Austin 1996, writ denied) (holding that the word “may” means possibility) (citing Black’s Law Dictionary 979 (6th ed.1990))). Pakeltis stated that, in CenterPoint’s opinion, all the trees and other vegetation that were removed from the easement on the Rutherford’s property could have interfered with the efficiency, safety, and maintenance of its transmission lines on the property. CenterPoint has a general policy to remove all vegetation that can grow at least ten feet high in a transmission easement because transmission lines have such high voltage. In accord with this policy, CenterPoint’s contractor removed all trees along the northern border of the easement and other vegetation. Coleman testified that all vegetation he removed was at least ten feet or had the potential to grow at least ten feet. From a maintenance and safety perspective, Pakeltis explained that trees of such height along the edge of an easement may impede work on the transmission lines because CenterPoint must position large trucks between the outermost line and the edge of the easement to safely complete certain maintenance and restoration projects. In addition, he said that in the event that the entire transmission line is destroyed CenterPoint may need the entire width of the easement to replace the line and restore power. From an efficiency perspective, Pakeltis stated that controlling the trees at their youngest stage and removing them from the easement before they become a problem is the most cost-efficient method to maintain the transmission lines. Because CenterPoint offered its opinion that the trees and other vegetation it removed from the easement could have interfered with the efficiency, safety, and maintenance of the transmission lines, CenterPoint acted within in the scope of the express easement when it removed the vegetation.

The [ Property Owners ] point out that CenterPoint removed “border” trees more than fifty feet away from the nearest power line, and that it removed trees that could not be any sort of obstruction. CenterPoint did not remove the trees underneath the transmission lines on the Edwards Cemetery property, and these trees have not endangered or impaired those lines. The easement for the Edward Cemetery property, however, has different terms than those in the easement for the [ Property Owners ]’ property. Under the Edward Cemetery easement, CenterPoint only has the right to trim the tops of the trees in the cemetery at forty feet. Under the Rutherford easement, CenterPoint has right to remove all vegetation if, in its sole opinion, the vegetation may interfere with the efficiency, safety, or maintenance of the transmission line. The [ Property Owners ] did not show any removal took place outside the easement. The [ Property Owners ] also point out that they received no prior notice of the removal of the trees. The easement, however, did not require that CenterPoint provide them with notice prior to their removal.

The [ Property Owners ] correctly note that the easement language allows them to construct a fence within the easement property. When read with the tree obstruction provision, they argue, the express easement allows for at least fence-high vegetation; CenterPoint’s right to remove vegetation is qualified by the allowance for fencing. We disagree. Although the [ Property Owners ] can fence and also plant trees on the land encumbered by the easement, CenterPoint has an express right to remove the trees, unlimited by the fence provision and limited only by its opinion as to the need to remove vegetation. Although the clear-cutting operation here appears to be overkill, it was within CenterPoint’s right to do it.[1] Accordingly, because the easement authorized CenterPoint’s actions, the trial court did not err in granting directed verdict on the [ Property Owners ]’ claims for trespass and breach of contract.

SOURCE: Houston Court of Appeals - 01-10-00186-CV - 8/4/11

1 comment:

  1. Can a landowner install a fence across CenterPoint Row Of Away? if not how far does fence have to be from ROW?