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Texas Supreme Court Reviews the Scope of Easements

By ERIC ADAMS

In a recent decision, Marcus Cable Associates, L.P. d/b/a Charter Communications, Inc. v. Krohn [90 S.W.3d 697 (Tex. 2002)], the Texas Supreme Court addressed whether an easement that permits its holder to use private property for the purpose of constructing and maintaining “an electric transmission or distribution line or system” allows the easement to be used for cable television lines. The Supreme Court held that it did not. The Supreme Court further held that section 181.102 of the Texas Utilities Code, which grants cable companies the right to install lines on a “utility easement,” does not apply to private easements like the one at issue in this case.
In 1939, the respondents’ predecessors in interest granted an easement to Hill County Electric allowing the company to use their property for the purpose of constructing and maintaining “an electric transmission or distribution line or system.” In 1991, Hill County Electric entered into a joint use agreement with a cable television company. The agreement allowed the cable company certain rights, but it did not warrant or assure any right-of-way privileges or easements. The cable company was responsible for obtaining its own easements. In 1998, the Krohns sued the cable company claiming that the company did not have a valid easement and had placed its wires over their property without their knowledge or consent.
The Krohns asserted a trespass claim and a negligence claim for failing to obtain their consent before installing the cable lines. The Krohns sought an injunction ordering the wires’ removal and actual and exemplary damages. As a defense, the cable company asserted that it had a right to use Hill County Electric’s easement under their easement and under statutory law. The cable company filed a summary judgment based on its defense of the agreement conferring its right to use the easement and section 181.102 of the Texas Utilities Code, which was granted. The court of appeals reversed, holding that neither allowed the cable company to use the easement.
The Supreme Court reviewed the common law as it pertains to easements. It determined that Hill County Electric’s easement was an express easement. The threshold question for the cable company’s argument was whether Hill County Electric’s easement permitted the Krohn’s property to be used for the purpose of installing cable-television lines. The cable company argued that it could use the easement under the language of the easement because easements must be interpreted to anticipate and encompass future technological advances, public policy and no increased burden to the servient estate. The Supreme Court found that these arguments ignored the fundamental principles that govern express easements. Therefore, under common, law the cable company could not use the easement.
The Supreme Court next turned to the argument that section 181.102 of the Texas Utilities Code gave the cable company the right to use the easement. The cable company argued that the right to use “utility easements” applied to them in this situation. The court analyzed the language of the statute, holding that section 181.102 does not cover private-easement grants that are negotiated between owners of private property and individual utility companies. Thus, the case was reversed and remanded to the trial court for further proceedings.
In a dissenting opinion, Justice Hecht reviewed the history of television and analyzed the language of the statute and the easement itself. He concluded that the easement in the present case should be shared with the cable company if the servient estate is not additionally burdened. He argued that the Krohns did not show any additional burden.
Eric Adams practices with the law firm of Mehaffy & Weber, P.C.

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