Opinion

Robert Stuart Koelsch v. Industrial Gas Supply Corp.

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Feb 12, 2004
Status
Published
Cited by
0 cases
Authority
More cited than 35.2%

The opinion

Opinion Issued February 12, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-01106-CV

ROBERT STUART KOELSCH; FRANCITA ULMER, f/k/a FRANCITA

STUART KOELSCH, INDIVIDUALLY AND AS INDEPENDENT

EXECUTOR OF THE ESTATE OF ROBERT C. STUART; AND FRANCES

HUBBARD KOELSCH, Appellants

V.

INDUSTRIAL GAS SUPPLY CORPORATION, Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 0155291

O P I N I O N

This is an appeal of summary judgment rendered for defendant/appellee,

Industrial Gas Supply Corporation, against plaintiffs/appellants, Robert Stuart

Koelsch; Francita Ulmer, f/k/a Francita Stuart Koelsch, Individually and as

Independent Executor of the Estate of Robert C. Stuart; and Frances Hubbard

Koelsch (collectively, the Koelsches), in their suit for trespass and inverse

condemnation. In two issues presented for review, the Koelsches contend that the

trial court erred in granting Industrial Gas’s motion for summary judgment and in

denying the Koelsches’ motion for partial summary judgment. We affirm.

FACTS

The parties do not dispute the underlying facts in this case; thus, they submitted

a joint stipulation of material facts to the trial court. In 1944, before Bellfort Avenue

had been constructed in Houston, T.W. and Rose Williams conveyed to Defense Plant

Corporation an easement permitting the corporation, and its successors and assigns,

to:

lay, operate, renew, alter, inspect and maintain two pipe lines for the

transportation of oil, gas, petroleum products or any other material or

substance which can be transported through a pipeline, or any one or

more of said substances upon, over, under and through the following

described land . . . and Grantee at any and all reasonable times shall

have the right of ingress and egress to and from such pipe lines, and may

remove the same, in whole or in part, at will.

TO HAVE AND TO HOLD the said easements unto said Defense Plant

Corporation, its successors and assigns, so long as such structures or any

thereof are maintained.

By the acceptance hereof, Grantee agrees to bury such pipe lines so

that they will not interfere with the cultivation or drainage of the land,

and also to pay any and all damages to stock, crops, fences and land

which may be suffered from the construction, operation, renewal,

alteration, inspection or maintenance of such pipe lines.

(Emphasis added.) Defense Plant buried the pipe lines but constructed an above-ground block valve assembly, a necessary pipe line safety feature, on a portion of the

easement near Sims Bayou.

The Koelsches are the successors-in-interest to the Williamses, and Industrial

Gas is the successor-in-interest to Defense Plant. The Koelsches partitioned and sold

a portion of the land, including the land on which the block valve assembly was

located. In December 1993, as part of work being performed on Sims Bayou, the

Harris County Flood Control District required Industrial Gas to move the block valve

assembly. Industrial Gas relocated it approximately 1,000 feet to the west on land

still owned by the Koelsches.

In 2001, the Koelsches sued Industrial Gas for trespass and inverse

condemnation, seeking relocation of the block-valve and damages. Both parties filed

motions for summary judgment. The trial court granted Industrial Gas’s motion and

denied the Koelsches’ motion, and this appeal ensued.

DISCUSSION

In two issues presented for review, the Koelsches contend that the trial court

erred in rendering summary judgment for Industrial Gas and in denying the

Koelsches’ motion for partial summary judgment.

Standard of Review

When both sides move for summary judgment and the trial court grants one

motion but denies the other, we review all of the evidence, determine all questions

presented, and render the judgment the trial court should have rendered.

Commissioners Court of Titus County v. Agan , 940 S.W.2d 77, 81 (Tex. 1997);

Stewart Title Guaranty Co. v. Hadnot , 101 S.W.3d 642, 644 (Tex. App.—Houston

[1st Dist.] 2003, pet. denied). The issues presented to the trial court here were

questions of law, not fact—that is, whether the terms of the easement permitted

Industrial Gas to relocate the block valve assembly and, if not, whether the Koelsches

may recover damages for trespass or inverse condemnation associated with the

relocation. We therefore must determine whether the trial court properly rendered

summary judgment on the law. See Tex. R. Civ. P. 166a (c).

Trespass and Inverse Condemnation

A trespasser enters another’s property without express or implied permission.

Mellon Mortg. Co. v. Holder , 5 S.W.3d 654, 671 (Tex. 1999). To recover for

trespass, a plaintiff must establish that the defendant committed an act exceeding the

bounds of any legal rights he may have possessed. See Murphy v. Fannin County

Elec. Coop. , 957 S.W.2d 900, 903-04 (Tex. App.—Texarkana 1997, no pet.).

Inverse condemnation occurs when property is taken, damaged, or destroyed

for public use without due process or proper condemnation proceedings. See City of

Abilene v. Burk Royalty Co. , 470 S.W.2d 643, 646 (Tex. 1971); Allen v. City of Texas

City , 775 S.W.2d 863, 864 (Tex. App.—Houston [1st Dist.] 1989, writ denied).

As Industrial Gas notes, an element essential to both causes of action is that the

act committed was without any legal authority. If the scope of the rights granted by

the easement included placement of the block valve assembly on the land, then the

act was authorized and the Koelsches cannot prevail on either claim.

Scope of Easement

An easement is a nonpossessory interest that authorizes its holder to use the

property for a particular purpose. Marcus Cable Assocs. v. Krohn , 90 S.W.3d 697,

700 (Tex. 2002). When considering the terms of an easement, we apply basic

principles of contract construction and interpretation. Id.; see also Adams v.

Norsworthy Ranch, Ltd. , 975 S.W.2d 424, 427 (Tex. App.—Austin 1998, no pet.).

The contracting parties’ intentions, as expressed in the grant, determine the scope of

the interest conveyed. Marcus Cable, 90 S.W.3d at 700-01 . We read the terms of an

easement as a whole to reach an adequate interpretation of the parties’ intentions and

to carry out the purpose for which the easement was created. Id. at 701 ; DeWitt

County Elec. Coop. v. Parks , 1 S.W.3d 96, 101 (Tex. 1999). Unless the language is

ambiguous, we rely solely on the written instrument. Adams, 975 S.W.2d at 427-28 .

We assume that the parties intend for every clause to have some effect. Eastman

Software, Inc. v. Texas Commerce Bank, N.A. , 28 S.W.3d 79, 85 (Tex.

App.—Texarkana 2000, pet. denied). When the provisions of a contract appear to

conflict, we harmonize them, if possible, to reflect the intentions of the parties.

Ogden v. Dickinson State Bank , 662 S.W.2d 330, 332 (Tex. 1983); Dorsett v. Cross

106 S.W.3d 213, 220 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). To achieve

this objective, we examine and consider the entire contract to harmonize and give

effect to all its provisions, so that none will be rendered meaningless. Dorsett , 106

S.W.3d at 220 . In harmonizing contractual provisions, we must favor terms stated

earlier in an agreement over subsequent terms. Id.

The parties do not contest the geographical scope of the easement; rather, they

contest only the interpretation of the rights granted by the easement conveyance. The

Koelsches point out that while the conveyance expressly grants the right to “lay,

operate, renew, alter, inspect and maintain two pipe lines . . . upon, over, under and

through” the Koelsches’ land, it does not provide for an above-ground block valve

assembly. They point us to the Texas Supreme Court’s recent observation in regard

to an easement that nothing passes by implication except what is necessary to enjoy

the rights expressly granted. Marcus Cable , 90 S.W.3d at 701 . The Koelsches also

point out that the subordinate clause expressly requires that the pipelines be buried.

Relying principally on Consolidated Foods Corporation v. Water Works and Sanitary

Sewer Board , 319 So.2d 261, 264-65 (Ala. 1975), they argue that the subordinate

clause renders the terms “upon, over, under and through” in the granting clause a

“mere prepositional litany” denoting a right of ingress and egress across appellants’

property. Alternatively, they argue that the “upon, over, under, and through”

language should be construed as referring only to the relative position of the buried

pipelines with respect to each other; that is, they argue that the easement permits

some pipelines to be laid above others under the ground.

In sum, the Koelsches argue that since the right to construct and relocate an

above-ground block valve assembly was not expressly granted and is inconsistent

with the subordinate clause’s requirement that the pipeline be buried, Industrial Gas

trespassed and harmed their land when it relocated the block valve assembly to

another part of the easement. We disagree.

The granting clause expressly conveys the right to “lay, operate, renew, alter,

inspect and maintain two pipe lines . . . upon, over, under and through” the land. The

right to build a pipeline block valve assembly above the land and the right to maintain

and renew the block valve assembly in connection with the operation of the pipeline

are naturally encompassed by the plain language of the granting clause as rights

necessary to the enjoyment of the easement. Therefore, the Koelsches’ reliance on

Marcus Cable as support for their position that nothing passes by implication in an

easement except when it is necessary to enjoy the rights expressly conveyed is

misplaced. See Marcus Cable , 90 S.W.3d at 701 .

Moreover, this interpretation of the granting clause is consistent with the

subordinate clause and gives meaning to and harmonizes the instrument as a whole.

It does not follow from the requirement in the subordinate clause that the pipelines

themselves be buried that every appurtenance necessary to the operation, maintenance

and renewal of a buried pipeline must likewise be buried, and any such construction

would render the words “upon, over, under, and through” meaningless. As the

Alabama court itself recognized in Consolidated Foods , “The language, ‘in, upon,

along and across, is not inconsistent with ‘under the ground.’” 294 Ala. at 264 . The

difference between this case and Consolidated Foods is that the right conveyed by the

granting clause here is not merely a right of ingress of egress but a broader express

right to “lay, operate, renew, alter, inspect and maintain” the pipelines.

Because Industrial Gas’s construction of an above-ground block valve

assembly and the placement of the assembly on a different portion of the easement

fall within the rights conveyed, we hold that the relocation was permitted by the

easement conveyance and could not, as a matter of law, constitute trespass or inverse

condemnation.

CONCLUSION

The trial court did not err in granting Industrial Gas’s motion for summary

judgment and denying the Koelsches’ motion for partial summary judgment. We

overrule both issues presented for review. Given our disposition, we need not address

Industrial Gas’s arguments regarding a prescriptive easement.

We affirm the trial court’s judgment.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Bland.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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