524 S.W.3d 873
Tex. App.2017Background
- In 1977 an easement granted the right to install "a" radio-transmission tower (with ingress/egress to inspect, maintain, construct, and remove the "said" tower) on a 500' x 500' tract; habendum clause provided the easement lasted "until said radio transmission tower shall be abandoned and/or removed."
- The original tower (400 ft, 18 in) was built in 1977 and used by multiple tenants; Campbell succeeded to the easement interest in 1990.
- A 2011 engineering report showed the original tower was structurally deficient and recommended replacement; Campbell negotiated a lease with LKCM and built a new tower (420 ft, 36 in) within the same fenced area in late 2012.
- The new tower was constructed while the old tower remained standing and operating; the old tower was removed in December 2012 after equipment transfer was complete.
- Lindemann sued for a declaration that the easement terminated upon removal/abandonment of the original tower and sought injunctive relief; the trial court found the easement remained in effect, awarded attorney’s fees to Campbell, and Lindemann appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal or abandonment of the original tower terminated the easement | The habendum clause’s language ("said radio transmission tower" "abandoned and/or removed") authorizes only one tower and mandates automatic termination upon removal/abandonment | The easement’s grant of rights to "inspect, maintain, construct and remove" (esp. "maintain") includes the right to replace the tower when necessary | Majority: "maintain" can include replacement when necessary; evidence supported necessity; easement did not terminate on replacement/removal |
| Whether Campbell exceeded the easement’s scope by replacing the tower with a larger/taller tower in a slightly different location and briefly operating both towers | Lindemann: size increase, relocation (~18 ft), and simultaneous operation exceeded the grant and fixed the easement’s terms at the original tower’s dimensions/location, triggering termination or scope breach | Campbell: replacement was necessary for maintenance, the new tower stayed within the fenced tract and did not materially enlarge the easement’s boundaries; limited simultaneous operation served public safety | Majority: size/height increase did not alter the tract boundaries and relocation was insubstantial; simultaneous operation was justified; no scope breach |
| Whether Lindemann was entitled to permanent injunctive relief ordering removal of the new tower | Contingent on showing the easement terminated or scope was exceeded | Contingent on easement surviving and scope being within grant | Because court held easement survived and scope not exceeded, injunction was denied (issue overruled) |
| Whether trial court abused discretion in awarding unsegregated attorney’s fees to Campbell | Lindemann: some fees pertained solely to trespass (unrecoverable) and must be segregated from recoverable fees | Campbell: fees defending trespass were intertwined with easement defense and thus need not be segregated | Court: trial court abused discretion by awarding unsegregated fees; remand for new trial on attorney’s fees only |
Key Cases Cited
- Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662 (Tex. 1964) ("maintain/operate" in a grant can include removal and replacement when necessary, but replacement cannot enlarge the easement boundaries)
- Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697 (Tex. 2002) (scope of an express easement is determined by the grant’s terms; use must serve the easement’s express purpose)
- Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) (party seeking fees must segregate recoverable from unrecoverable fees; exception for discrete services that advance both claims)
- Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991) (fees need not be segregated when claims arise from same transaction and services advance essentially the same facts)
- Ford Motor Co. v. Castillo, 444 S.W.3d 616 (Tex. 2014) (standards for legal sufficiency review of findings)
- DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96 (Tex. 1999) (apply contract-construction principles to easements; holder’s rights limited to those expressed)