Respondents, Roberta Powell Dwyer et al., plaintiffs in the trial court, instituted *663 this suit on October 3, 1960, against petitioner, Houston Pipe Line Company. The parties will hereafter be designated as in the trial court.
Plaintiffs sought judgment declaring a pipeline easement across thеir land to have lapsed and terminated as a result of defendant removing an 18-inch relatively low pressure pipeline and replacing it with a 30-inch high pressure pipeline, and for judgment removing the easement as a cloud on their title. Plaintiffs further sought to enjoin defendant from further operation of the pipeline, and to recover rental from defendant. In the alternative plaintiffs sought damages. This alternative claim was later withdrawn.
Defendant answered that its rights under the easement agreement entered into between thе parties had not lapsed and terminated. In an alternative cross bill defendant sought to condemn a right of way and easement in the event it should be determined that the right of way easement granted in the 1926 agreement between the parties had lapsed or terminated “ * * * or that for any reason [defendant] does not have a valid subsisting easement for laying, construction, maintenance, inspection, operation, repairing, substitution, replacing and removal of the pipe and pipe line presently on the land for thе transportation of gas.”
Both parties filed motions for summary judgment. Defendant’s motion was granted and plaintiffs’ was denied. The Court of Civil Appeals for the First Supreme Judicial District at Houston, Texas, reversed and remanded for trial “not inconsistent with [its] opinion.”
The duty of this court, where a motion for summary judgment has been granted, is to determine if there are any issues of fact to be tried. See Smith v. Bolin,
The facts giving rise to the present litigation are as follows: On or about March 9, 1926, plaintiffs’ predecessors in title executed and delivered to Houston Pipe Line Company a right of way and easement agreement covering certain рroperties now owned by plaintiffs. This agreement was contained in a printed form prepared by defendant, which the parties changed by several deletions and inter-lineations. Prior to the deletions, the granting clause of the instrument read as follows:
“First party [plaintiffs] * * * dоes hereby grant, sell and convey unto second party a right of way to lay, maintain, operate, repair and remove a Pipe Line for the transportation of gas. * * * ” (Emphasis added.)
The parties struck out the words “and remove” from the granting clause. They also deleted a paragraph in the habendum clause giving thе right to construct additional pipelines over said lands. In another part of the instrument they authorized a removal of the pipeline upon termination of the easement.
The agreement in question contains no specifications for the size of the piрeline. Also, the agreement does not prescribe metes and bounds for the easement, nor does it define a course or direction for the pipe to follow across the land.
As originally constructed, the pipe used in the pipeline was 18 inches in diamеter. This pipeline, laid in 1926, was continuously in operation, serving the area of east Harris County until the latter part of 1959. On or about December 15, 1959, defendant removed the old 18-inch line which it had originally laid, reditched the property and installed a 30-inch pipe along thе same course. During this replacement, the transportation of gas ceased for a few weeks.
*664 We are of the opinion that the evidence outlined above does not raise an issue of fact to be determined by a court or jury. No contention is made in this court to the contrary. A determination of this case depends upon a proper construction of the 1926 agreement entered into between the parties.
It is plaintiffs’ position that in construing the 1926 agreement, the fact that the words “and remove” werе struck from the granting clause should be considered by the Court in order to arrive at the intention of the parties. Plaintiffs contend that the agreement, as changed, authorized the construction, maintenance, operation and repair of one pipelinе only, and did not authorize its replacement or removal except upon termination of the easement as provided in the habendum clause. Plaintiffs insist that upon removal by defendant of its 18-inch line, its rights and easements terminated. Defendant answers that, apart frоm whether it exceeded its rights by replacing the original pipe with larger pipe, it was at least authorized under the agreement to remove and replace the original pipe when the condition of the pipe required such replacement, and thаt such replacement would not terminate its easement.
The deletions made by the parties in the 1926 agreement may be considered by this court in order to arrive at the true meaning and intention of the parties. See Gibson v. Turner,
If plaintiffs are correct in their contention, then defendant’s rights and easement under the 1926 agreement would terminate simply by removing and replacing the original pipe, regardless of its condition, with pipe of any size. The agreement in question does not compel such аn unreasonable result. We hold that the terms “operate” and “maintain” in the granting clause are at least broad enough to include the right to remove and replace the original pipe with pipe of the same size when necessary. See Big Three Welding Equipment Co., Inc. v. Crutcher, Rolfs, Cummings, Inc., supra. Defendant’s easement rights did not terminate by its merely removing the original 18-inch pipe.
Plaintiffs contend in the alternative that if defendant’s easement rights have not terminated, still defendant had no right or easement to construct, maintain and operate the 30-inch line laid across plaintiffs’ land. Defendant answers that if the plaintiffs did not want defendant to have the right to replace and increase the size of the pipe at any time, it was
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incumbent on plaintiffs to provide against such right in the 1926 agreement, аnd that .any doubt or ambiguity in the instrument is to be resolved against the grantor plaintiffs. It is a well-recognized rule of construction that any ambiguity in an instrument granting an easement is to be resolved against the grantor. See Gulf View Courts, Inc. v. Galveston County, Tex.Civ.App.,
Defendant contends that the basic legal principles applicable to this case are that the holder of an easement is entitled to full enjoyment thereof and, when the purpose or object of the easement is stated in general terms, the holder has the right to employ whatever means may be reasonably necessary for its full enjoyment. Defendant asserts that the courts, in applying these principles, have permitted changes to be made in the
means
or
instrumentalities
employed to accomplish the stated general purpose. Although defendant cites many cases as authority for its position, it primarily relies on the case of Knox v. Pioneer Natural Gas Company, Tex.Civ.App.,
The holding in the Knox case cannot be followed in the present case. In that cаse the language of the grant clearly gave the grantee a right in excess of the one actually used, whereas, there is no language in the present agreement which can be construed to permit the grantee a right in excess of the right actually used, that is thе right to increase the size of the pipe in excess of 18 inches in diameter. The present case is more in harmony with the case of Onthank v. Lake Shore & M.S.R. Co.,
If defendant is correct in its contentions that the 1926 agreement authorized an increase in the size of the pipeline every time an increased demand for gas made such enlargement necessary, the extent of the easement could nevеr become fixed or definitely ascertainable. Although there is no limitation on the size of the pipe to be laid, it does not necessarily follow that the parties, for a consideration of $32.00, intended to burden their land
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with-an easement which might be enlarged over and over again, as often as an increase in demands for gas might make it necessary. See Winslow v. City of Vallejo,
The purpose or object of the easement in this case is stated in general terms —transportation of gas by pipeline. Plaintiffs contend that when defendant originally constructed its 18-inch pipeline, it limited and defined the extent of its easement rights under the 1926 agreement. The following general rule is set out in Thompson on Real Property, Perm. Ed., § 681:
“A grant in general terms of a right to lay a pipe for the purpose of conducting water across the land of the grantor without specifying the place for laying it or the size of the pipe is defined and made certain by the act of the grantee in laying down the pipep and after he has once laid the pipe with the acquiesсence of the grantor, the grant which was before general and indefinite becomes fixed and certain and the grantee can not change the easement either by relaying the pipe in another place or by increasing its size.”
This rule is specifically аpplicable to the present case. We hold that when defendant constructed its 18-inch pipeline with the consent and acquiescence of the plaintiff, the extent of defendant’s easement rights under the 1926 agreement became fixed and certain. Sеe Bland Lake Fishing and Hunting Club v. Fisher,
The Court of Civil Appeals’ judgment reversing the trial court’s action in granting the summary judgment and remanding the cause for trial is affirmed, but trial shall he conducted consistent with this opinion.