The Austin Court of Appeals has reversed a Hays County Court at Law judgment in favor of plaintiff landowners and rendered judgment for an electric co-op in a breach of easement case.
Pedernales Electric Cooperative, Inc. v. Samuel S. White, Janette Barlow, Gregory Colon and Stephanie Colon (No. 03-22-00797-CV; December 11, 2024) arose from a dispute over the terms of a 1968 easement for an electric transmission line across a sixty-foot-wide strip of land across Plaintiffs’ properties near Wimberley. The easement gave PEC the right of ingress and egress over adjancent lands for purposes of “constructing, reconstructing, inspecting, patrolling, hanging new wire on, maintaining and removing said lines and appurtenaces,” and other rights to maintain the easement. PEC built a four-mile, high-voltage, 69-kilovolt line on wooden poles on the easement. As Wimberley grew (astronomically), PEC applied for an upgrade with the PUC, which approved a 138-kilovolt line in 2019. When PEC accessed the easement to begin construction, the landowners sued for breach of the original easement. Eventually, the trial court granted partial summary judgment to the landowners and denied PEC’s motion for summary judgment. The court awarded the landowners collectively about $250,000 in damages, along with nearly $160,000 in attorney’s fees and $90,000 in contingent appellate fees. The court further enjoined PEC from operating the power line (which supplies power to the whole town), although the court suspended the injunction until 75 days after the exhaustion of all appeals. PEC appealed.
In an opinion by Justice Triana, the court of appeals reversed and rendered judgment in favor of PEC. The decision turned squarely on the plain text of the original easement, which “expressly conveyed to PEC the right to rebuild the line, maintain the line’s ability to transmit electricity, hang new wire on the line for that purpose, and move the line to a new location within the right of way.” The landowners unsuccesfully argued that Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662 (Tex. 1964) was controlling precedent. In that case, Houston Pipe Line replaced an 18-inch gas pipeline with a 30-inch line, effectively expanding the size of the easement in the process. The landowners sued and won based on the text of the easement, which “did not permit the pipeline company to construct, maintain, and operate a new 30-inch pipeline.” The Dwyer court held that “when defendant constructed the 18-inch pipeline with the consent and acquiescence of the plaintiff, the extent of the defendant’s easement rights under the 1926 agreement became fixed and certain.” When the pipeline company removed the old pipe and put in a much bigger one, it violated the easement’s terms. As the court of appeals pointed out, however, in this case the easement was specific as to its width, as well as to PEC’s rights to construct, reconstruct, hang new wires, maintain, and remove lines and appurtenances. The court further cited a long line of authority permitting electric utilities and pipeline companies to do what PEC did here.
There is nothing particularly remarkable about the legal analysis or outcome. What is remarkable to us is that a county court at law judge in Hays County seemed willing to enjoin PEC from operating a rebuilt and expanded power line necessary to supply Wimberley and its residents and businesses with electricity. It’s a shame that PEC and its ratepayers had to foot the bill for defending an action that should have been dismissed at the summary judgment stage.
