North Texas Municipal Water District v. Jennie Ball A/K/A Jenny Tissing and Jeffrey Tissing
466 S.W.3d 314
| Tex. App. | 2015Background
- In 1980 Helen Lewis granted North Texas Municipal Water District (District) a 30-foot permanent easement to construct, operate, and maintain water pipelines; Lewis reserved use of the easement area "except for the purposes of erecting buildings or permanent structures." The District agreed to pay for damage to crops or fences from pipeline work.
- The Tissings owned a subdivided parcel across which the Easement runs. In 2013 they built a roughly 10-foot high structure (concrete-filled galvanized posts, concrete/stone base, cedar pickets) located within the Easement and costing about $22,000–$23,000.
- The District demanded removal; the Tissings refused. The District sued for declaratory and injunctive relief alleging the structure was a prohibited permanent structure and interfered with the Easement; the Tissings counterclaimed that the structure was not permanent and/or was a permitted fence.
- The trial court denied a temporary injunction (calling the structure "more in the nature of a fence"), granted the Tissings' summary judgment and denied the District's motion, and dismissed the District's claims.
- On appeal the Court of Appeals reviewed both parties' summary judgment motions and the summary judgment evidence (photos, depositions, survey, and District engineers' affidavits) bearing on the structure's physical character, location, cost, and impact on the District's ability to maintain/excavate the pipeline.
Issues
| Issue | Plaintiff's Argument (District) | Defendant's Argument (Tissings) | Held |
|---|---|---|---|
| Is the structure a "permanent structure" prohibited by the Easement? | Structure is continuous, anchored in concrete, costly, and obstructs pipeline access — therefore permanent. | Structure is a fence (temporary/permissible) and not a prohibited permanent structure. | Held: Structure was designed as a continuous fixture and is a permanent structure under the Easement. |
| Does the Easement allow an exception for fences despite the prohibition on permanent structures? | No — the fence-payment clause only addresses compensation for damage and does not create a right to install permanent fixtures that defeat the Easement. | The Easement's reference to "fences" shows an intent to permit fences and to require compensation if District damages them. | Held: The Easement contains no exception allowing permanent fences; fence-payment language does not override the prohibition on permanent structures. |
| Was the Tissings' no-evidence summary judgment procedurally proper and supportable? | (N/A — District opposed) | Tissings moved for no-evidence SJ and for judgment on their declaratory claim. | Held: Tissings' no-evidence motion was defective for failing to identify elements, but their motion is reviewed as a traditional SJ on their own declaratory claim; overall trial court erred in granting Tissings' judgment. |
| Is injunctive relief (mandatory removal) appropriate, and should attorney's fees under the Declaratory Judgment Act be addressed? | Mandatory injunction necessary because removal is required for District to access/repair pipeline; remand for attorney's fees under Tex. Civ. Prac. & Rem. Code § 37.009. | Opposed to injunction and sought to preserve structure pending final ruling. | Held: Mandatory injunction requiring removal is appropriate; remanded to trial court to enter injunction and determine attorney's fees. |
Key Cases Cited
- DeWitt Cnty. Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96 (Tex. 1999) (rules of contract construction apply to easement agreements)
- Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) (interpretation seeks parties' intent and harmonizes all provisions)
- Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009) (standards for traditional summary judgment)
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary judgment burden and review)
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (when competing summary judgments are filed, appellate court may render judgment it should have rendered)
- Harris Cnty. v. S. Pac. Transp. Co., 457 S.W.2d 336 (Tex. Civ. App. — Houston 1970) (injunctive relief proper to halt interference with easement rights)
- Eidelbach v. Davis, 99 S.W.2d 1067 (Tex. Civ. App. — Beaumont 1936) (limitations accrue differently for permanent vs. temporary obstructions)