George Russell, Kenneth Russell, Suzanne B. Russell, Marjorie Russell and the Universal Ethician Church v. Sam Houston Electrical Cooperative, Inc.--Appeal from 258th District Court of San Jacinto County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-058 CV
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GEORGE RUSSELL, KENNETH RUSSELL,
SUZANNE B. RUSSELL, MARJORIE RUSSELL AND
THE UNIVERSAL ETHICIAN CHURCH, Appellants
V.
SAM HOUSTON ELECTRICAL COOPERATIVE, INC., Appellee
On Appeal from the 258th District Court
San Jacinto County, Texas
Trial Cause No. CV-11,288
MEMORANDUM OPINION

George Russell, Kenneth Russell, Suzanne B. Russell, Marjorie H. Russell, and the Universal Ethician Church, filed a declaratory judgment suit regarding the interpretation of an easement. Sam Houston Electric Cooperative, Inc. has a twenty-foot wide easement for electric transmission and distribution lines on plaintiffs' property. The grant also includes two additional easements. The one at issue here is "for pole guys, tree trimming and access over, under and across a strip of land 40 feet wide . . . ." In granting summary judgment in favor of the Cooperative, the trial court construed the easement to allow the Cooperative to cut the trees, "clear," and maintain the easement. The question presented is whether, under the language of the easement, the Cooperative has the right to clear-cut all trees in the forty-foot trim easement. We conclude it does not.

An easement is a nonpossessory interest that authorizes use of property for only particular purposes. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). The easement holder's rights are limited to those expressed in the grant. See DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex. 1999). An easement holder must exercise the rights granted by the easement in a reasonable manner and with due care. See Sun Pipe Line Co., Inc. v. Kirkpatrick, 514 S.W.2d 789, 792 (Tex. Civ. App.--Beaumont 1974, writ ref'd n.r.e.)

Principles of contract construction and interpretation apply in determining the parties' intentions expressed in the grant. See Marcus Cable Assocs., 90 S.W.3d at 700-01. Words not defined in the instrument are given their plain, ordinary, and generally accepted meaning. Id. at 701. When the language used in the easement agreement can be given a certain and definite meaning, a court must interpret the unambiguous easement agreement as a matter of law. DeWitt County Elec. Coop, 1 S.W.3d at 100.

Three easements are present in this grant. The powerline lies within the twenty-foot easement. On either side are the two "trim" easements. The "trim" easement at issue is a heavily-wooded forty-foot strip. The grant sets out the easements separately and is more restrictive in the rights conveyed with the trim easements. Those rights are described as "trimm[ing] as necessary to prevent falling trees or limbs from striking the electric transmission and distribution lines, to provide access or to install pole guys." Attached to the agreement as "Exhibit A," and "controllingly made a part of this instrument for all intents and purposes[,]" is a drawing of the typical pole configurations and of the measurements of easement boundaries. The drawing includes a dotted line labeled "trim line" that extends upward at a forty-five degree angle away from the base of the pole to the outer edge of the forty-foot easement. This depiction of a trim line is consistent with the grant of a limited right to cut the trees and limbs within the forty-foot easement only as necessary to prevent falling trees or limbs from striking the electricity lines, to provide access or to install pole guys.

Although the trial court's order appears to limit the right to cut trees within the forty-foot easement, the trial court's order also interprets the easement as providing the right to "clear and maintain the easement subject to limitations on the use of defoliants and herbicides." Appellants argue appellee does not have a right to "clear-cut" the forty-foot strip. On this record, we agree.

The easement can be given a definite meaning. We interpret it as a matter of law. The "defoliant or herbicide" provision is as follows:

It is further understood that to clear or maintain the easement herein granted the Grantee shall not apply or cause to be applied any defoliant or herbicide to the trees or natural veg[e]tation thereon but shall in lieu thereof perform such work with portable chain saws, tractor mounted mowers or like equipment.

 

This general paragraph follows the specific easement paragraphs and applies to all three grants. Whether using the twenty-foot easement for the construction of the electric and transmission distribution lines or using the forty-foot easement for "pole guys, tree trimming, and access[,]" the Cooperative is not to use defoliants or herbicides. This provision is not a grant of a right to clear-cut the forty-foot easement in disregard of the "as necessary" limitation.

The right granted to trim trees and limbs within the forty-foot easement is limited. The record does not show that cutting down all trees within the forty-foot easement is "necessary to prevent falling trees or limbs from striking the electric transmission and distribution lines, to provide access or to install pole guys." To the extent the order on this record authorizes a removal of all trees within the forty-foot easement, the order does not properly construe the easement and is not supported by the record.

We overrule appellants' first issue, which complains the trial court did not address the clear-cutting question, because we believe, as appellee argues, the trial court's order does authorize the Cooperative to clear-cut the forty-foot easement. Appellants' second issue, which contends the trial court erred in failing to find the easement language prohibits clear-cutting the forty-foot easement, is sustained. There is no showing that clear-cutting is "necessary" as defined by the easement.

We reverse the judgment and remand the case to the trial court for further proceedings consistent with this Opinion.

REVERSED AND REMANDED.

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DAVID GAULTNEY

Justice

 

Submitted on September 7, 2006

Opinion Delivered November 16, 2006

 

Before McKeithen, C.J., Gaultney and Horton, J.J.