City Public Service Board of San Antonio v. Karp

585 S.W.2d 838, 1979 Tex. App. LEXIS 3892
CourtCourt of Appeals of Texas
DecidedJuly 11, 1979
Docket16219
StatusPublished
Cited by11 cases

This text of 585 S.W.2d 838 (City Public Service Board of San Antonio v. Karp) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City Public Service Board of San Antonio v. Karp, 585 S.W.2d 838, 1979 Tex. App. LEXIS 3892 (Tex. Ct. App. 1979).

Opinion

*839 OPINION

MURRAY, Justice.

This is an easement case. Ira Karp and wife, appellees, brought an action for declaratory judgment against the City Public Service Board of San Antonio, appellant, to construe the extent and scope of a transformer easement on appellees’ lot and for judgment that appellant is limited in its use of this easement to an underground transformer. Appellees also sought an injunction against appellant to permanently enjoin it from placing an aboveground transformer on this easement. The trial court, without a jury, granted judgment for ap-pellees and restricted appellant’s use of this easement to an underground transformer. From this judgment appellant perfected its appeal to this court.

On May 31, 1975, appellees purchased a lot with a one-family house on it in the City of San Antonio. Appellees’ warranty deed expressly provides: “This conveyance is subject to transformer easement in northwest corner of lot as per plat recorded in Volume 5970, pages 198-199, Deed and Plat Records of Bexar County.” The plat shows a five by five foot transformer easement drawn in the northwest corner of Lot 8, which is appellees’ lot. It is labeled as follows: “5X5 Transí. ESMT.” The plat also provides: “The owner of the land shown on this plat . . . dedicates to the use of the public forever all streets, alleys, parks, water courses, drains, easements and public places thereon shown for the purpose and consideration therein expressed.”

In August 1968 appellant constructed within the designated easement area an underground transformer vault, installed an electric transformer, and covered the vault with an iron grate, which was level with the surface of the ground. Appellees’ residence and eight other other residences in the subdivision receive electric service through this unit. The transformer has been continuously maintained and used on the easement from August 1968 to the date of trial.

The evidence reflects that because of the seepage of groundwater into the transformer vault, the transformer has not provided adequate electric service to the public since this type of transformer cannot withstand the corrosive effects of water and mud. Since 1973 this transformer has caused five outages of electrical service to the area it serves. Four of these outages were caused by water and mud in the vault, and on three of these four occasions it was necessary to completely replace the transformer unit. For these reasons, City Public Service Board established a policy to replace all of the underground transformers (approximately 3,500) presently in use in San Antonio. City Public Service Board decided to make the transformer on appellees’ lot one of its first replacements because of the greater problems presented by this unit.

In February 1978 appellant advised ap-pellees that it intended to construct within the easement a pad-mounted transformer to replace the underground transformer. The replacement unit is a box-shaped metal and plastic transformer that would be attached to a three and a half by three and a half feet concrete slab and would extend about forty inches above the level of the presently existing iron grate. Appellees notified appellant that the proposed construction would be in excess of their easement rights and refused to allow this construction. It was agreed between the parties that no construction would proceed and that appel-lees would commence an action for a declaratory judgment to obtain a judicial determination on the extent and scope of appellant’s easement. The trial court, in entering judgment for appellees, held that because the easement was general, vague and indefinite, future use of the easement is restricted to its initial use.

In its conclusions of law the trial court, relying on Dwyer v. Houston Pipe Line Company, 374 S.W.2d 662 (Tex.1964) and Pioneer Natural Gas Company v. Russell, 453 S.W.2d 882 (Tex.Civ.App. — Amarillo 1970, writ ref’d n. r. e.), held that this *840 easement, which is general, vague, and indefinite on the extent of the burden to be imposed on appellees’ lot, became fixed and definite after the installation and maintenance of an underground transformer with the acquiescence of all parties concerned for ten years. The trial court also held that appellant cannot construct within its easement the pad-mounted transformer or any other structure wholly or partially above ground level because it would exceed appellant's easement rights as fixed by the original construction of the underground transformer.

Appellant primarily contends that based on the undisputed evidence the trial court erred in not entering judgment for the City Public Service Board that its transformer easement, as a matter of law, could be used for the installation of a pad-mounted transformer. In response to appellant’s contentions, appellees argue that this transformer easement (with the exception of the location and size of the easement) is general, vague, and indefinite in regards to the extent of the burden imposed on appellees’ premises. The easement grant contains no express provision for future construction of any structure either below or above ground. Appellees, relying heavily on the holdings in Dwyer and Russell like the trial court did, further contend that when appellant installed the underground transformer in this indefinite easement with the actual or implied consent of the parties and maintained it for ten years, the scope, extent, and limits of the easement were fixed and made certain. Therefore, appellant may not now impose new, additional burdens upon appel-lees’ premises by constructing a pad-mounted transformer on its easement.

The trial court’s and appellees’ reliance on Dwyer and Russell is misplaced. Dwyer involved the interpretation of an easement granted for a pipeline across Dwyer’s property. The granting clause of the easement obtained by the pipeline company read, “First party . . . does 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.” The parties struck out the words “and remove” and also deleted a paragraph in the habendum clause giving the future right to construct additional pipelines over the servient owner’s land for additional consideration. This instrument contained no specifications for the size of the pipeline or the width of the easement, nor did it contain a metes and bounds description of the easement. Because this limited easement was totally silent on its location and boundaries, the trial court held that the pipeline company had no right to remove an eighteen-inch pipeline and replace it with a thirty-inch line since it constituted an additional servitude.

In Pioneer Natural Gas Company v. Russell an easement was granted to West Texas Gas Company for a right-of-way of sufficient width across Russell’s property to lay, maintain, operate, and remove parallel pipelines. This easement contained no express provision for the laying of additional pipelines in the future. Following the granting of this easement in 1928, West Texas Gas Company laid an eight-inch gas transmission line across the property.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
585 S.W.2d 838, 1979 Tex. App. LEXIS 3892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-public-service-board-of-san-antonio-v-karp-texapp-1979.