Southwestern Electric Power Company v. Kenneth Lynch, Tommy Batchelor, and Twant Wilson

IN THE SUPREME COURT OF TEXAS
444444444444
NO. 18-0768
444444444444

SOUTHWESTERN ELECTRIC POWER COMPANY, PETITIONER,
v.

KENNETH LYNCH, TOMMY BATCHELOR, AND TWANT WILSON, RESPONDENTS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS
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Argued December 5, 2019

JUSTICE GREEN delivered the opinion of the Court.

JUSTICE BLAND did not participate in the decision.

This dispute centers on the width of several general easements that an electric company

acquired from the respondent landowners’ predecessors-in-title in 1949. The petitioner electric

company argues that the easements are general easements with no fixed width, while the landowners

contend that the easements should have a fixed, thirty-foot width. After conducting a bench trial,

the trial court concluded that the easements are fixed at a thirty-foot width, and therefore the trial

court rendered judgment for the landowners. The court of appeals affirmed the trial court’s

judgment, concluding that because the original 1949 easements did not specify a width, the trial

court was within its discretion to admit extrinsic evidence of past use to determine how much of the
landowners’ land “was reasonably necessary” for the petitioner to utilize pursuant to the easements.

581 S.W.3d 292, 304–06 (Tex. App.—Texarkana, pet. granted). We disagree with the court of

appeals and conclude that the easements have no fixed width, but the petitioner’s use of the land

under the easements nevertheless must be reasonable and necessary. We reverse in part the

judgment of the court of appeals and render judgment for the petitioner.

I. Background

In 1949, Southwestern Gas & Electric Company (Southwestern) acquired a number of

easements over a stretch of land in northeast Texas to construct a transmission line. Pursuant to the

easements, Southwestern constructed a wooden-pole transmission line in 1949 that crossed the

encumbered properties. Southwestern Electric Power Company (SWEPCO) subsequently acquired

these easements. The easements authorize SWEPCO “to erect towers, poles and anchors along” a

set course on a right-of-way that traverses several privately owned properties. In addition, these

easements grant SWEPCO the right to ingress and egress over the encumbered properties “for the

purpose of constructing, reconstructing, inspecting, patrolling, hanging new wires on, maintaining

and removing said line and appurtenances.” The easements limit the number of poles, towers, and

anchors that SWEPCO may construct on the properties, but also give SWEPCO the option to

increase the number of poles, towers, or anchors by compensating the landowners. Since acquiring

the easements from Southwestern, SWEPCO has continued to utilize the easements to maintain the

transmission line following the same general path since the line’s construction.

Kenneth Lynch, Tommy Batchelor, and Twant Wilson (collectively, the Landowners)

purchased land encumbered by the 1949 easements in different transactions that took place from

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1986 to 2007. In 2014 and 2015, SWEPCO undertook a modernization project on the original

transmission line. This modernization project included replacing the line’s wooden poles with steel

poles. As part of the modernization project, SWEPCO made offers to many of the landowners

whose properties were encumbered by the 1949 easements to supplement the easements to “bring

the rights and restrictions to SWEPCO’s standard right of way requirements.” Specifically, the

supplemental terms to the 1949 easements included additional rights for SWEPCO and proposed

setting the easements’ width at 100 feet. SWEPCO offered landowners $1,000 if they accepted the

supplemental terms. Some of those landowners accepted SWEPCO’s proposal, but the Landowners

did not. SWEPCO therefore proceeded to complete the modernization project on the Landowners’

properties under the original, unamended terms of the 1949 easements.

Over the course of the modernization project, the Landowners did not object to SWEPCO’s

utilization of the 1949 easements to access their encumbered properties to upgrade the transmission

line. After the project was completed, however, the Landowners filed suit seeking a declaratory

judgment fixing SWEPCO’s easements to a thirty-foot width, fifteen feet on each side of the

transmission line. The Landowners argued that SWEPCO has only ever utilized thirty feet of the

encumbered properties, and thirty feet should be the maximum amount of land that SWEPCO may

utilize in the future. The Landowners were concerned that SWEPCO may, in the future, utilize more

than triple the amount of land it has used in the past. In support of this contention, the Landowners

pointed to SWEPCO’s offer to supplement the easements with a 100-foot fixed width as evidence

that SWEPCO intends to one day utilize the easement more than it has in the past.

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In response to the Landowners’ suit for declaratory judgment, SWEPCO filed two pleas to

the jurisdiction, arguing that the Landowners had not suffered any injury, and therefore their claims

were not justiciable. The trial court denied SWEPCO’s pleas to the jurisdiction. SWEPCO also

filed counterclaims against the Landowners for trespass and breach of contract. SWEPCO

ultimately nonsuited these counterclaims before trial.

The trial court held a bench trial on the Landowners’ declaratory judgment claim. At trial,

the court admitted—over SWEPCO’s repeated objections—extrinsic evidence showing SWEPCO’s

historical use of the easements, which the Landowners offered in support of their argument that the

easements should have a thirty-foot width. SWEPCO meanwhile maintained that it possesses

general easements over the Landowners’ properties, and the easements are not limited to a specific

width but instead give SWEPCO the right to access the properties as much as is reasonably

necessary for the purposes specified in the easements. SWEPCO also asserted that it has no plans

to expand its use of the easements.

At the conclusion of the bench trial, the trial court entered findings of fact and conclusions

of law. The trial court found that SWEPCO “utilized, operated and maintained the transmission line

within a thirty (30) foot easement subsequent to the 2014-2015 rebuild and modernization of the

transmission line.” The trial court also found that a “thirty (30) foot easement is reasonably

necessary for the operation, use and maintenance of the transmission line across [the Landowners’]

respective properties.” Accordingly, the trial court concluded that SWEPCO’s easements are limited

to fifteen “feet on each side of the center point of the transmission line, amounting to a thirty (30)

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foot utility easement” on the Landowners’ properties. The trial court also awarded the Landowners

attorneys fees and costs.

On appeal, SWEPCO argued that the trial court lacked subject matter jurisdiction over the

suit because there was no justiciable controversy. Specifically, SWEPCO argued that the

Landowners have not alleged that SWEPCO used the easements in an unreasonable manner or

beyond what was reasonably necessary. As for the trial court’s conclusion that the easements have

a fixed, thirty-foot width, SWEPCO argued that the 1949 easements are express general easements

containing unambiguous language, and the trial court erred in admitting the Landowners’ extrinsic

evidence to write new terms into the easements. The court of appeals held that the trial court was

correct to conclude that it had subject matter jurisdiction over the dispute because SWEPCO might

choose to use its interpretation of the 1949 easements to “oppose the [Land]owners’ future usage”

of their properties. 581 S.W.3d at 302 (citation omitted). The court of appeals also pointed to

SWEPCO’s trespass counterclaim, even though this counterclaim was nonsuited, as evidence that

the dispute between SWEPCO and the Landowners presented the trial court with a justiciable

controversy. Id. In addressing SWEPCO’s argument on the merits, the court of appeals concluded

that the 1949 easements described “a framework or skeleton of the easement[s] conveyed without

describing [the easements’] width, [and] the trial court could resort to extrinsic evidence in order to

determine the width of the easement[s].” Id. at 304 (citation omitted). The court of appeals

reasoned that “SWEPCO’s interpretation of the 1949 [easements] would result in ‘growing’

easement[s],” and “once SWEPCO built and maintained the transmission lines, its rights [under the

easements] became fixed and certain.” Id. at 306. Accordingly, the court of appeals concluded that

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the trial court acted within its discretion to admit extrinsic evidence to determine “that a thirty-foot

easement is reasonable and necessary.” Id. The court of appeals affirmed the trial court’s judgment.

Id.

II. Standard of Review

We review questions of subject matter jurisdiction de novo. Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Ripeness is a component of subject matter

jurisdiction that focuses on a lawsuit’s timing. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849,

851 (Tex. 2000) (“While standing focuses on the issue of who may bring an action, ripeness focuses

on when that action may be brought.”). Because a case must be ripe in order for the trial court to

have subject matter jurisdiction, we review a trial court’s ripeness determination de novo. Mayhew

v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (“[R]ipeness is a legal question subject to

de novo review . . . .”) (citations omitted).

If a case proceeds to a bench trial and the trial court enters findings of fact and conclusions

of law, appellate courts defer to the trial court’s findings of fact—so long as they are supported by

the record—and reviews conclusions of law de novo. Reliance Nat’l Indem. Co. v. Advance’d

Temps., Inc., 227 S.W.3d 46, 50 (Tex. 2007) (“Appellate courts review legal determinations de

novo, whereas factual determinations receive more deferential review based on the sufficiency of

the evidence.”); see also MBC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.

2002) (citation omitted) (“The appellant may not challenge a trial court’s conclusions of law for

factual insufficiency; however, the reviewing court may review the trial court’s legal conclusions

drawn from the facts to determine their correctness.”).

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III. Analysis

A. SWEPCO’s Pleas to the Jurisdiction

The first issue we must address is whether the court of appeals erred in concluding that the

trial court had subject matter jurisdiction over the Landowners’ declaratory judgment suit.

SWEPCO argued in the courts below that there was no justiciable controversy, and therefore the trial

court lacked subject matter jurisdiction. Specifically, SWEPCO argued that the Landowners

complained about future events that have not yet occurred, such as the possibility that SWEPCO will

cut down vegetation on the Landowner’s properties. The court of appeals rejected SWEPCO’s

arguments and held that “even though the differences between the parties as to their legal rights have

not reached the state of an actual controversy,” the case presents the “ripening seeds of a

controversy.” 581 S.W.3d at 302 (quoting Trinity Settlement Servs., LLC v. Tex. State Sec. Bd., 417

S.W.3d 494, 506 (Tex. App.—Austin 2013, pet. denied)) (citations omitted). Therefore, the court

of appeals concluded that the trial court had subject matter jurisdiction. Id.

For a court to have subject matter jurisdiction over a case, the plaintiff’s claims must be ripe.

Mayhew, 964 S.W.2d at 928. “Ripeness, like standing, is a threshold issue that implicates subject

matter jurisdiction . . . , and like standing, emphasizes the need for a concrete injury for a justiciable

claim to be presented.” Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439,

442 (Tex. 1998) (citations omitted). In determining whether a case is ripe, the focus is on whether

“the facts are sufficiently developed ‘so that an injury has occurred or is likely to occur, rather than

being contingent or remote.’” Gibson, 22 S.W.3d at 851–52 (quoting Patterson, 971 S.W.2d at

442). If the plaintiff’s claimed injury is based on “hypothetical facts, or upon events that have not

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yet come to pass,” then the case is not ripe, and the court lacks subject matter jurisdiction. Id.

(citation omitted).

A plaintiff bringing suit under the Uniform Declaratory Judgments Act (UDJA) must still

properly invoke the trial court’s subject matter jurisdiction. See Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (citations omitted) (explaining that the UDJA is a

“procedural device for deciding cases already within a court’s jurisdiction” and does not permit

courts to render advisory opinions). The UDJA provides that “[a] person interested under a

deed . . . may have determined any question of construction or validity arising under the

instrument . . . and obtain a declaration of rights, status, or other legal relations thereunder.” TEX.

CIV. PRAC. & REM. CODE § 37.004(a). As the court of appeals correctly pointed out, the UDJA does

not authorize a court to decide a case in which the issues are hypothetical or contingent—the dispute

must still involve an actual controversy. 581 S.W.3d 292 at 300 (citing Empire Life Ins. Co. of Am.

v. Moody, 584 S.W.2d 855, 858 (Tex. 1979)).

The Landowners argue that they presented the trial court with a ripe, justiciable controversy.

The controversy, according to the Landowners, is the competing interpretations of the meaning of

the 1949 easements. The Landowners suggest that SWEPCO views the easements as “blanket

easements,” which allow SWEPCO to utilize as much of the Landowners’ properties as it deems

necessary, including land on which one of the Landowners’ homes is located. In further support of

its position that this case presents a justiciable controversy, the Landowners point to the fact that

SWEPCO filed counterclaims arguing that the Landowners encroached on SWEPCO’s rights under

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its easements. In sum, a justiciable controversy exists, according to the Landowners, because they

are uncertain how much of their properties are burdened by SWEPCO’s easements.

SWEPCO, on the other hand, maintains that the Landowners allege only a hypothetical

future controversy—not a dispute ripe for judicial review. SWEPCO contends that the court of

appeals erred in concluding that the controversy here “manifests the presence of ripening seeds of

a controversy” and that this is not enough to satisfy the ripeness requirement and invoke the trial

court’s subject matter jurisdiction. 581 S.W.3d at 303. Instead, SWEPCO argues that the

Landowners’ suit for declaratory judgment is based entirely on a hypothetical injury. According to

SWEPCO, this case lacks the facts necessary to resolve the Landowners’ claim because SWEPCO

has general easements over the Landowners’ properties and is permitted to use the easements in

whatever manner is reasonably necessary. Because there is no evidence that SWEPCO’s use of the

easements is unreasonable and unnecessary at this time, and there is no evidence that SWEPCO

intends to utilize the easements in an unreasonable and unnecessary way in the future, SWEPCO

asserts that there is no justiciable controversy for the courts to resolve.

While it may be true that many of the Landowners’ concerns stem from SWEPCO’s possible

future use of the easements, their claims are inextricably tethered to a present disagreement between

the parties over the easements’ scope. SWEPCO maintains that the easements are general easements

with no fixed width, while the Landowners argue that the easements’ width is fixed to SWEPCO’s

historical thirty-foot use. The Landowners’ argument that SWEPCO’s utilization of 100 feet of the

easements would interrupt their use and enjoyment of structures on their property further indicates

that there is indeed a live controversy in this case. The Landowners assert that they are unsure what

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portions of their land they can utilize without fear of SWEPCO’s encroachment on their use and

enjoyment of the land. Notwithstanding the fact that SWEPCO nonsuited its breach of contract and

trespass counterclaims, SWEPCO’s allegation that the Landowners were encroaching on their

easements underscores the controversy in this case: divergent interpretations of the 1949 easements.

In determining whether a suit for a declaratory judgment presents a court with a ripe

controversy, we have explained that “the declaration sought must actually resolve the controversy.”

Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004) (citations omitted). But we have

acknowledged that UDJA suits are often brought with an eye to future harm. See Cobb v.

Harrington, 190 S.W.2d 709, 713 (Tex. 1945) (describing the UDJA “as a speedy and effective

remedy for the determination of the rights of the parties when a real controversy has arisen and even

before the wrong has actually been committed”). To be sure, the often future-looking nature of

UDJA suits does not remove the requirement that the court must have subject matter jurisdiction

over the suit—that is, that the parties must have standing, and a ripe, justiciable controversy must

exist. See City of Dall. v. Albert, 354 S.W.3d 368, 378 (Tex. 2011) (citations omitted) (“[T]he DJA

does not enlarge a court’s jurisdiction; it is a procedural device for deciding cases already within a

court’s jurisdiction.”). A plaintiff may very well present a court with a justiciable controversy when

the plaintiff asserts that a live controversy exists and harm will occur if the controversy is left

unresolved. See Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 624 (Tex. 2011) (citation omitted)

(“[The UDJA] is intended as a means of determining the parties’ rights when a controversy has

arisen but before a wrong has been committed . . . .”).

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The controversy here is the scope of SWEPCO’s 1949 easements. Even if SWEPCO has not

utilized its easements beyond the thirty feet the Landowners claim is the easements’ fixed width,

there remains a dispute over how much of the Landowners’ land SWEPCO is entitled to utilize

pursuant to the easements. That dispute is not merely academic or theoretical. Indeed, the

Landowners contend that they “face current opposition in the usage of their properties in light of

SWEPCO’s claims” to its rights under the easements. In fact, the Landowners worry that SWEPCO

could use its easements to destroy existing structures on the Landowners’ properties. One of the

Landowners testified at trial that he received a letter from SWEPCO listing a cost estimate to

bulldoze the Landowner’s house and all the other buildings on the property. The Landowner

testified that this letter from SWEPCO was inconsistent with the Landowner’s understanding of

SWEPCO’s rights under the 1949 easements, and that he needed a determination from the court as

to how much of his land SWEPCO may utilize under the easements. Without such a determination,

the Landowner testified that he does not know where on his property he can build structures.

We have explained that “[a] declaratory judgment is appropriate only if a justiciable

controversy exists as to the rights and status of the parties and the controversy will be resolved by

the declaration sought.” Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (citing

Tex. Air Control Bd., 852 S.W.2d at 446). And in order “[t]o constitute a justiciable controversy,

there must exist a real and substantial controversy involving genuine conflict of tangible interests

and not merely a theoretical dispute.” Id. (citations omitted). Here, a real and substantial

controversy exists: SWEPCO maintains that the easements have no fixed width—the width could

be at least 100 feet, according to SWEPCO—while the Landowners maintain that the easements

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have a fixed, thirty-foot width. Indeed, SWEPCO asserted counterclaims of trespass and breach of

contract, alleging that the Landowners encroached on SWEPCO’s rights under the easements.

While SWEPCO later nonsuited these counterclaims, the counterclaims underscore that a

controversy exists between the Landowners and SWEPCO. And this controversy involves a

“genuine conflict of tangible interests”—that is, SWEPCO’s interest in utilizing the easements for

the transmission line and the Landowners’ interests in utilizing their properties. Id. Accordingly,

the court of appeals did not err in concluding that a justiciable controversy exists between SWEPCO

and the Landowners, and the trial court possessed subject matter jurisdiction over the Landowners’

UDJA suit.

B. The Scope of SWEPCO’s Easements

Having determined that the Landowners properly invoked the trial court’s subject matter

jurisdiction to resolve the controversy over the meaning of the 1949 easements, we now turn to

whether the court of appeals erred in concluding that the trial court was permitted to define the width

of SWEPCO’s easements at thirty feet. When construing the terms of an easement, courts deploy

the rules of contract interpretation and look to the easement’s express terms to determine its scope.

DeWitt Cty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999) (citations omitted) (“The rules

of contract construction and interpretation apply to easement agreements. When a court concludes

that contract language can be given a certain or definite meaning, then the language is not

ambiguous, and the court is obligated to interpret the contract as a matter of law.”). As in contract

interpretation cases, courts look to all of the language in the easement and harmonize its terms to

give effect to all of the provisions. See id. at 101 (looking to multiple portions of an easement to

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give effect to the agreement’s intent). If the easement’s terms can be given a definite or certain

meaning, “then the language is not ambiguous, and the court is obligated to interpret the contract

as a matter of law.” Id. at 100. Importantly, a dispute over the meaning of the easement’s terms

is not enough to render an easement ambiguous. Id. (citing Forbau v. Aetna Life Ins. Co., 876

S.W.2d 132, 134 (Tex.1994)). An easement is ambiguous only if it is susceptible to two different,

reasonable meanings. Id.

The language in the SWEPCO easements grants:

an easement or right-of-way 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 [the Landowners’ predecessors-in-
title’s] 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; the right to remove from said lands all trees
(fruit trees excepted) and parts thereof, or other obstructions, which endanger or may
interfere with the efficiency of said line or its appurtenances; and the right of
exercising all other rights hereby granted. . . .

In sum, the plain language of the easements grants SWEPCO (1) a right-of-way on the Landowners’

properties on which SWEPCO may construct a transmission line along a particular course; and (2)

the right of ingress and regress over the Landowners’ properties adjacent to the right-of-way for the

purpose of constructing, removing, reconstructing, and maintaining the transmission line. The

easements do not state a specific maximum width of the right-of-way, nor do the easements specify

how much of the land SWEPCO is entitled to access under the ingress and egress provision.

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SWEPCO maintains—and its representatives testified at trial—that this plain language grants

SWEPCO what is known as a “general easement.” General easements, SWEPCO argues, entitle the

company to access, in a reasonable manner, as much of the Landowners’ properties as is reasonably

necessary to maintain the transmission line.

The first point of disagreement regarding the construction of the easements is whether the

trial court erred in admitting extrinsic evidence to discern the easements’ scope. SWEPCO argues

that the easements “purposefully and unambiguously impose no specific, fixed limitation” of the

easements’ width, and therefore the trial court inappropriately considered extrinsic evidence

showing SWEPCO’s historical use of the easements to add a thirty-foot width to the easements.

SWEPCO contends that the omission of any specific width of the easements was a deliberate and

purposeful decision that the signatories to the easements made in 1949. In support of its position,

SWEPCO points to the common use of general easements that lack specific widths as necessary

tools that allow utility companies to acquire flexible easements that account for growth and change

in the transmission lines. Indeed, as SWEPCO observes, the language in the 1949 easements

authorizes SWEPCO to accommodate possible changes in technology that might require the

installation of poles made from different material as well as the addition of more poles. Because the

general nature of the easements was deliberate—not ambiguous—SWEPCO argues that the trial

court and the court of appeals erred in fixing the easements’ width at thirty feet based on the

Landowners’ extrinsic evidence showing SWEPCO’s historical use of the easements.

Instead of construing the easements as general easements that intentionally omitted a defined

width, the courts below concluded that once Southwestern constructed the transmission line in 1949

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pursuant to the easements, its rights—and therefore SWEPCO’s rights—under the easements

became “fixed and certain,” and based on SWEPCO’s historical use of the land, a thirty-foot wide

easement is what is reasonably necessary. 581 S.W.3d at 306. The court of appeals relied on

Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 666 (Tex. 1964), for its conclusion that “once

the location of the easement is selected by the grantee, its rights then become fixed and certain.”

581 S.W.3d at 305. The easement in Dwyer was for the limited purpose of “laying, constructing,

maintaining, operating and repairing a pipeline.” 374 S.W.2d at 665. Like SWEPCO’s easements,

the Dwyer easement did not state a fixed width. Id. at 663. The plaintiffs in Dwyer sought to

prevent the defendant pipeline company from enlarging an eighteen-inch pipe to a thirty-inch pipe.

Id. The plaintiffs argued that once the eighteen-inch pipe was installed, the defendant could not

replace the pipe with one nearly double the size under the same easement. Id. The Court in Dwyer

concluded that the parties who negotiated the easement for $32.00 could not have intended to create

an easement that “might be enlarged over and over again as often as an increase in demands for gas

might make it necessary.” Id. at 666 (citation omitted). The Court also pointed to the limited nature

of the easement, which only authorized the “laying, constructing, maintaining, operating and

repairing of a pipeline.” Id. at 665. Accordingly, the Court concluded that once the defendant

installed the eighteen-inch pipe, its rights became fixed and certain, and the defendant was not

permitted to install a thirty-inch pipe pursuant to the existing easement. Id. at 666.

In reaching its decision, the Court distinguished the facts in Dwyer from the facts in Knox

v. Pioneer Natural Gas Co., 321 S.W.2d 596 (Tex. App.—El Paso 1959, writ ref’d n.r.e.), a case that

SWEPCO cites to support its argument that the court of appeals erred in fixing the easements’ width

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at thirty feet. The primary distinction the Court drew was that the easement in Knox “clearly gave

the grantee a right in excess of the one actually used,” while the more limited language in Dwyer

could not “be construed to permit the grantee a right in excess of the right actually used.” Dwyer,

374 S.W.2d at 665. In Knox, a pipeline company obtained an easement over the plaintiffs’ land that

included a right-of-way

of sufficient width to permit the grantee to lay, maintain, operate and remove a pipe
line for the transportation of gas . . . together with free ingress, egress, and regress
to and for the said grantee, and his or its agents, employees, workmen and
representatives, as by it, he or them shall be necessary or convenient, at all times and
seasons forever, in, along, upon and across said way, in common with the grantors,
their tenants and assigns.

321 S.W.2d at 598. In response to an increase in the demand for gas, the defendant pipeline

company replaced an old pipeline with a new, larger capacity line. Id. at 599. In concluding that

the pipeline company was not limited to the old line under the terms of the easement, the court of

appeals explained that “if the language of the grant clearly gives the grantee a right in excess of the

one actually used, such right would still exist notwithstanding the exercise of a lesser privilege.”

Id. at 600. The court noted that express easements by conveyance are, by their very nature, forward-

looking. Id. at 601. And when easements are negotiated between two parties, it is “assumed that

the parties contemplated changes in the use of the servient tenant by the normal development in the

use of the dominant tenament.” Id. (citation omitted). The court of appeals reasoned that because

there was no limitation in the easement about the size of the pipe, the defendant did not trespass by

installing a new pipe, using as little of the land as was reasonably necessary. Id. at 602.

Accordingly, the court concluded that because “[e]very easement carries with it the right to do

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whatever is reasonably necessary for the full enjoyment of the easement itself,” and because the

replacement of the new pipe was reasonably necessary, the plaintiffs were not entitled to a court-

ordered limitation on the easement when one was never contemplated by the parties who negotiated

the easement. Id. at 601–02.

SWEPCO’s easements bear significant similarities to the easement in Knox. The easements

in both cases authorized the grantee the right to construct, maintain, repair, and improve a utility

line—a pipeline in Knox and a transmission line in the present case. Id. at 598. In addition, the

easements granted the rights of ingress and egress as necessary to access the right-of-way. Id. In

rejecting SWEPCO’s argument that the trial court was not permitted to affix a width to the

easements, the court of appeals purported to distinguish the present case from Knox on the basis that

the rule in Knox “has only been applied to easements which also grant an express right to lay

additional lines in the future.” 581 S.W.3d at 305 (citations omitted). But, as SWEPCO points out,

its easements do grant SWEPCO the express right to lay additional lines in the future. The

easements authorize SWEPCO to construct a transmission line with “variable numbers of wires, and

all necessary or desirable appurtenances (including towers or poles made of wood metal or other

materials . . .)” and further state that SWEPCO has the rights of ingress and egress “for the purpose

of constructing, reconstructing, inspecting, patrolling, hanging new wires on, maintaining and

removing said line and appurtenances.” (emphasis added). This language contemplates future

construction and installation of new poles and additional lines, providing an even clearer expression

of SWEPCO’s right than the easement in Knox provided. As a result, SWEPCO’s easements are

distinguishable from the easement in Dwyer, which did not include such broad, forward-looking

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language and did not describe a path for the line. See 374 S.W.2d at 663 (“[T]he agreement does

not prescribe metes and bounds for the easement, nor does it define a course or direction for the pipe

to follow across the land.”).

Notwithstanding the broad, forward-looking language in SWEPCO’s easements, and the lack

of a fixed width, the Landowners maintain that once Southwestern utilized the easements to

construct the transmission line and establish a thirty-foot right-of-way in 1949, SWEPCO’s rights

as to how much of the Landowners’ properties it could utilize became fixed at thirty feet. In support

of this argument, the Landowners couch the easements in the same terms as the court of appeals: that

these easements created a “framework or skeleton,” and extrinsic evidence was needed to define the

easements’ width. 581 S.W.3d at 304. But the lack of a specified width in an easement does not

mandate the admission of extrinsic evidence to prescribe a width—doing so obviates the flexibility

that general easements afford the parties who bargained for the terms of an express general

easement.

Indeed, this Court has recognized the existence of general easements that do not require a

fixed width. As the Court explained in Coleman v. Forister, 514 S.W.2d 899 (Tex. 1974), “[a] grant

or reservation of an easement in general terms implies a grant of unlimited reasonable use such as

is reasonably necessary and convenient and as little burdensome as possible to the servient owner.”

Id. at 903. The Court recently reaffirmed this principle of easement construction in Severance v.

Patterson, 370 S.W.3d 705, 721 (Tex. 2012). Consistent with the recognition of general easements

in Texas, courts have long been reluctant to write fixed widths into easements when the parties to

the easements never agreed to a particular width. See, e.g., Knox, 321 S.W.2d at 601 (rejecting an

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attempt to limit a pipeline company to the size of the original pipe installed pursuant to an easement,

because there was no limitation in the easement on the size of pipe that could be installed, and the

easement contemplated the need for an updated pipe in the future); Crawford v. Tenn. Gas

Transmission Co., 250 S.W.2d 237, 239–41 (Tex. App.—Beaumont 1952, writ ref’d) (refusing to

limit a gas company’s use of land for a pipeline to a fifty-foot strip, because the easement did not

specify a width); Lone Star Gas Co. v. Childress, 187 S.W.2d 936, 940 (Tex. Civ. App.—Waco

1945, no writ) (refusing to confine an easement to a thirty-foot strip of land when the easement did

not specify a width).

We see no reason to disturb this Court’s and the courts of appeals’ 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. See Marcus Cable Assocs., L.P.

v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002) (citations omitted) (“We apply basic principles of

contract construction and interpretation when considering an express easement’s terms.”). 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. See Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 161–62 (Tex. 2003)

(discussing, in the contract context, that courts “may neither rewrite the parties’ contract nor add to

its language”) (citing Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 181 (Tex. 1965)). Parties that

enter into easements are certainly capable of writing a fixed width into the easement. See, e.g.,

Greenwood v. Lee, 420 S.W.3d 106, 116 (Tex. App.—Amarillo 2012, pet. denied) (holding that an

express easement entitling the easement holder to utilize a forty-five-foot strip of land gave the

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grantee “the unrestricted right to use the entire forty-five feet”). That is their prerogative. But as

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. See RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 4.10 (2000)

(“Except as limited by the terms of the servitude determined under § 4.1, the holder of an easement

or profit as defined in § 1.2 is entitled to use the servient estate in a manner that is reasonably

necessary for the convenient enjoyment of the servitude.”).

Because landowners purchase properties aware of any encumbrances, and easements are a

common encumbrance, landowners are charged with notice of easements that may encumber their

property, including easements that do not contain a specific width but instead include general

language. See Williams v. Thompson, 256 S.W.2d 399, 403 (Tex. 1953) (discussing that a

landowner who purchased a property encumbered by an express easement recorded in the chain of

title is charged with notice of the easement). Here, the Landowners purchased their properties long

after SWEPCO acquired its express general easements. As a result, the Landowners took these

properties with notice that the easements authorized SWEPCO to utilize the land for a number of

purposes relating to the transmission line, and that these easements did not specify a width. The

Landowners were of course free to renegotiate the easements with SWEPCO, and in fact SWEPCO

invited them to do so. But the Landowners did not agree to SWEPCO’s proposed fixed width. As

a result, the Landowners’ properties remain burdened by general easements with no defined width.

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This does not mean, however, that the Landowners are without recourse as to SWEPCO’s

future use of the easements. The holder of a general easement must utilize the land in a reasonable

manner and only to an extent that is reasonably necessary. See Severance, 370 S.W.3d at 721

(citation omitted). Specifically, a general easement includes the implied grant of “reasonable use

such as is reasonably necessary and convenient and as little burdensome as possible to the servient

owner.” Id. (citation omitted). This requirement provides a vehicle for the servient land owner to

pursue recourse if the grantee utilizes the servient land in an unreasonable or unnecessary manner.

SWEPCO itself acknowledges that its utilization of the Landowners’ properties is subject to the

reasonableness and necessary use requirements. SWEPCO’s use of the land is also limited by the

express terms of the 1949 easements. See, e.g., Krohn, 90 S.W.3d at 701 (citations omitted) (“An

easement’s express terms, interpreted according to their generally accepted meaning, therefore

delineate the purposes for which the easement holder may use the property.”). Throughout the

transmission line upgrade project during 2014 and 2015, SWEPCO utilized the easements in a way

that the Landowners evidently did not perceive to be unreasonable or unnecessary, or violate the

easements’ express terms. Indeed, the Landowners did not object to SWEPCO’s use of the

easements to replace the transmission line’s wooden poles with modernized, metal poles. Only after

the completion of the modernization project did the Landowners bring suit in an attempt to fix

SWEPCO’s easements to a width of thirty feet. If at some point in the future SWEPCO utilizes the

easements in a way that the Landowners believe is unreasonable and not reasonably necessary, or

in a way that violates the express terms of the easements, the Landowners could at that point bring

suit to enjoin SWEPCO’s use of the easements. See City of Mission v. Popplewell, 294 S.W.2d 712,

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714 (Tex. 1956) (explaining that injunction is a proper remedy to challenge an easement holder’s

use of an easement). Alternatively, the Landowners and SWEPCO could agree to amend the

easements to add a fixed width.

IV. Conclusion

SWEPCO acquired general easements over the Landowners’ properties. These easements

describe a range of authorized activities and rights granted to SWEPCO for specific purposes

relating to a transmission line. The plain language of the easements does not include a fixed width

for the easements, nor were the easements required to do so. The court of appeals thus erred in

affirming the trial court’s creation of a thirty-foot width for the easements. Accordingly, we affirm

the court of appeals’ judgment as to the trial court’s jurisdiction, and we reverse the court of appeals’

judgment as to the easements’ scope. We render judgment for SWEPCO.

___________________________________
Paul W. Green
Justice

OPINION DELIVERED: February 28, 2020

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