Several Bowie County landowners attempting to clarify the scope of 70-year-old utility easements across their property were told by the Texas Supreme Court last week they are welcome to return to court when, and if, the easements actually become a problem. Until that happens, they’re stuck with them.
The unanimous ruling in Southwestern Electric Power Co. v. Kenneth Lynch, et al reverses, in part, a Sixth Court of Appeals decision that would have limited the vaguely worded, so-called “general easements” to the 30-foot width they currently enjoy.
The case had been closely watched, with amicus briefs filed not only by landowners and energy transmission companies, but also ranching and farming interests. A brief filed on behalf of 10 major agriculture producers and property groups, including the South Texans’ Property Rights Association, the Texas Land & Mineral Owners Association and the Texas Cattle Feeders Association, argued that companies holding such unrestricted easements are becoming increasingly aggressive in their interpretation of their rights:
With a knock at the door or a letter in the mail, increasingly, landowners are being told that the transmission line on their property will be replaced and the easement expanded by seventy feet or that a company is planning to clear land around the pipeline on the property through a grove of 150-year-old oak trees. When the landowner resists and questions the expansion, the companies respond with a 60-year-old “blanket easement” claiming unlimited access to the property. When the landowner asks why now, the company often responds: “because we can.”
It was exactly such concerns that provoked the Southwestern Electric Power Company case.
In 1949, in order to build an electric transmission line in Northeast Texas, Southwestern Gas & Electric Power Co. obtained a series of easements from the owners of land between New Boston and De Kalb near Texarkana where they were building a transmission line.
As was typical at the time, the easements specified no particular width, but the company ended up using a 30-foot swath of land across the various properties for the towers, wood poles and anchors that held the transmission lines in place, as well as points of access to build and maintain the lines.
Over next 60 years, the affected properties changed hands, the company became known as Southwest Electric Power (SWEPCO) and the transmission grid was maintained without significant controversy. But in 2014 and 2015, SWEPCO announced plans to modernize their transmission system, updating the wood poles for studier metal uprights.
Concerned that a 30-foot wide easement might not be enough for the future, the company offered property owners $1,000 to accept a wider, but more specific easement of 100 feet across, giving the company 50 feet on each side of their increasingly complex transmission system. Some property owners accepted the offer, some didn’t. But the company proceeded to upgrade their system as planned without regard for the holdouts.
After the system was updated, three of the property owners became concerned about potential encroachment on their property should the utility company decide to widen its footprint. They sued to have a state district court in Bowie County declare that the 30-foot swath currently in use had become the fixed-legal width for the easements. Their concerns were not assuaged when the company filed — though later withdrew —counterclaims against the landowners for trespass and breach of contract.
The landowners won at the trial court, then won again at the Texarkana-based Sixth Court of Appeals. SWEPCO appealed to the Supreme Court where its case was argued in December by Marnie McCormick of Duggins Wren Mann & Romero of Austin. C. David Glass of Smith Weber in Texarkana responded on the landowners’ behalf.
SWEPCO argued that the trial court had no authority to decide the case because there was really no issue to decide. SWEPCO had not yet pushed beyond 30 feet during the redevelopment of the transmission lines, so no justiciable controversy existed.
That argument was wrong, the court ruled; the uncertainty of property owners who might want to construct out-buildings, plant orchards or otherwise develop their land within the broader boundary claimed by the power company was issue enough.
“Accordingly, the court of appeals did not err in concluding that a justiciable controversy exists,” wrote Justice Paul Green for court.
How that controversy was decided, however, was another matter, the court said.
In deciding that the landowners were entitled to the fixed 30-foot limit, the appeals court relied on a 1964 case, Houston Pipe Line Co. v. Dwyer. In Houston Pipe Line the company had negotiated an easement of unspecified width for a specific project: construction of an 18-inch pipeline. When the company later tried to replace that original with a 30-inch pipeline, landowners were able to halt construction, arguing that the original easement was never intended to allow a potentially limitless expansion.
SWEPCO, however, argued that its situation more nearly resembled Knox v. Pioneer Natural Gas Co., where a general easement was granted for a pipeline – including unencumbered access – in which it was understood that there would be a need to maintain and improve the system as needs changed and technology improved. The court accepted that argument.
“Parties that enter into easements are certainly capable of writing a fixed width into the easement. That is their prerogative,” wrote Green. Moreover, the landowners acquired their properties long after the easements were set, and any concerns about those easements could have been considered at the time the land was sold.
“As a result, the landowners’ properties remain burdened by general easements with no defined width,” Green wrote.
Even so, the holder of a general easement has the responsibility to use the land in a reasonable way and only for the purpose intended, Green noted. If SWEPCO misuses the easements, then the landowners can file a lawsuit to stop it, he said.
Click here to read the opinion in Southwestern Electric Power Co. v. Kenneth Lynch, et al.