Three landowners in Bowie County own land burdened by a utility easement held by Southwestern Electric Power Company. The easements were granted to the power company’s predecessor in 1949 by the landowners’ predecessors in title. The easement document provides as follows:
“[A]n easement or right-of-way [is granted to Southwestern Gas & Electric Company] for an electric transmission and distributing line, consisting of variable numbers of wires, and all necessary or desirable appurtenances (including towers or poles made of wood, metal or other materials, telephone and telegraph wires, props and guys), at or near the location and along the general course now located and staked out by the said Company over, across and upon the following described lands . . . .Together with the right of ingress and egress over my (our) adjacent lands to or from said right-of-way for the purpose of constructing, reconstructing, inspecting, patrolling, hanging new wires on, maintaining and removing said line and appurtenances . . . .”
Importantly, none of the documents specified a width of the easement.
In 1949, the company constructed a wooden-pole transmission line. The company has continued to use the easement to maintain the line following the same general path since the line’s construction.
Updating the Transmission Line Without an Updated Agreement
In 2014, Southwestern Electric Power Company began a project to rebuild and modernize the transmission line, replacing wooden poles with steel. The company sent landowners a letter informing them of the planned modernization of the line and offering each of them $1,000 in exchange for supplementing the existing easement to include additional terms. The supplemental agreement would have expressly included a width of 100 feet.
The plaintiff landowners refused to sign the supplemental agreement, but the company entered their properties anyway and upgraded the transmission line under the original terms of the 1949 easement.
See You in Court
The landowners filed a declaratory judgment action in the Bowie County District Court seeking a ruling that the company’s easement was limited to 30-feet wide, 15 feet on each side of the transmission line. Their rationale was that the company had only ever used 30 feet for the transmission line. The landowners argued that should be the maximum amount of land the company is allowed to use in the future.
A bench trial was held. Over objection, the judge allowed extrinsic evidence from the landowners regarding the historical use of the easement. The company maintained that the general easement it has for the property is not limited to a specific width but instead gives the company the right to access the property as much as is reasonably necessary for the purposes specified in the easement. The court found that the company had only used 30 feet in the past and limited future use to the same width.
Southwestern Electric Power Company appealed to the Texarkana Court of Appeals. The court held that the general easement described a “framework or skeleton of the easement conveyed without describing the width” and, therefore, extrinsic evidence of historic use was admissible. Further, the court held that once the company had built and maintained the transmission line, “its rights under the easements became fixed and certain.” Thus, the court of appeals affirmed the lower court’s ruling.
Southwestern Electric Power Company appealed that decision to the Texas Supreme Court.
Should a Court Supply a Missing Term?
The Texas Supreme Court noted the easement essentially grants to the company two rights: 1) the right-of-way on the property on which it may construct a transmission line upon a particular course; and 2) the right of ingress and egress over the property adjacent to the right-of-way. The easement does not specify the maximum width of the easement, nor does the easement specify how much land the company may use for ingress and egress.
The legal issue before the Supreme Court was whether the trial court was correct to admit extrinsic evidence to determine the scope of the easement. The court determined that, at least under the language at issue in this case, the lack of a specified width in an easement does not mandate the admission of extrinsic evidence to prescribe a width. Determining a limited width where the parties did not negotiate for or agree on one, the court reasoned, is not something a court is required to do.
What Landowners Should Strongly Consider Before Agreeing to an Easement
One issue not discussed in the Supreme Court’s opinion is that the easement contained the language “at or near the location and along the general course now located and staked out by the said Company.” What was the width of the easement that was staked out in 1949? Could this have been an attempt by the parties to identify a width of the easement? We do not know these answers, but it does offer another lesson: Terms in an easement must be carefully drafted, measurable, precise, and able to be determined from the text of the easement itself, even 70 years later. Landowners would be wise to hire an attorney to help with negotiating and drafting easement agreements.
—Tiffany Dowell Lashmet
The court stated, “We see no reason to disturb this Court’s…long-standing treatment of general easements in Texas. The starting point of any exercise in easement construction is the same as for contract interpretation: the easement’s plain language. If the easement’s terms are ascertainable and can be given legal effect, courts will not supplant the easement’s express terms with additional terms nor consult extrinsic evidence to discern the easement’s meaning. Parties who enter into easements are certainly capable of writing a fixed width into the easement. That is their prerogative. But as the prior cases demonstrate, sometimes parties to an easement account for anticipated developments in technology and demand by not fixing an easement’s width. The use of a general easement without a fixed width is a strategic decision that does not render an easement ambiguous or require a court to supply the missing term.”
Further, the court noted that the landowners purchased the property already subject to this easement, which did not specify a width. The landowners were free to re-negotiate with the company to limit the width of the easement—which the company sought to do with their 100-foot offer—but the parties refused. As a result, “the Landowner’s properties remain burdened by general easements with no fixed width.”
The Plaintiffs May Still Have Options
Lastly, the Supreme Court noted that the landowners are not without recourse as to the company’s future use of the easement, because the holder of a general easement must utilize the land in a reasonable manner and only to the extent that the use is reasonably necessary. Thus, the court says, the landowner has the right to pursue recourse if the grantee utilizes the land in an unreasonable or unnecessary manner. If the landowners believe the company is utilizing the easement in a way that is unreasonable, not reasonably necessary, or that violates the express terms of the easements, the landowners may bring suit to enjoin the company’s use of the easements.
This case illustrates the importance of detailed terms, such as a set limitation of width, in every easement agreement. The chances of the court implying limiting terms into a general easement appear extremely unlikely given this opinion.
How Can Landowners Protect Themselves?
If a landowner is negotiating an easement agreement, including specific, measurable terms is critical to ensure these limitations exist. Keep in mind that the first easement offer from the pipeline or transmission line company will likely not have these types of limiting terms included. Landowners must negotiate for them!
For landowners who may have general easements already burdening their property, this case indicates there are likely two options for imposing limitations: 1) renegotiate the agreement to include specific limitations, or 2) seek an injunction if the easement holder is using the land in an unreasonable manner or in violation of the express terms of the agreement.