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hi-enbridge-wisconsin-leak

– Enbridge pipeline under construction. Photo Courtesy of CBC.com.

In Allen v. Enbridge G & P, L.P., Enbridge G & P brought condemnation action against the Allens for the purpose of securing two easements, one permanent and one temporary, from the landowners. Enbridge required the easements for the installation and maintenance of a pipeline which would carry natural gas products. A permanent easement of 50 feet in width would contain the pipeline and a 25-foot easement would be used as a temporary workspace. At the special commissioners’ hearing, Enbridge was awarded the easements. Mr. and Mrs. Allen filed objections, and the proceeding was brought to the trial court.

On appeal, Mr. and Mrs. Allen brought two issues, the second of which concerned the ability of the easement holder both to maintain the benefits and burdens of the Plaintiff and Defendants, and allow an assignee to do likewise. Paragraph X of Enbridge’s Second Amended Petition contained the following:

“The benefits and burdens of this Permanent Easement shall be binding upon and shall ensure to the benefit of Plaintiff and Defendants, and to their respective successors and assigns.”

Mr. and Mrs. Allen argued that this language allowed Enbridge to assign the property for private use, rather than strictly public use, and was therefore in violation of the constitutional prohibition against private use takings. The Tyler Court of Appeals found that though “certain easements may be assigned to a third party, that third party’s use cannot exceed the rights expressly conveyed to the original easement holder.” Cantu v. Cent. Power & Light co. It also found that “companies possessing the right to condemn private property for a public use cannot do what they please with the land condemned, but only what is reasonably necessary to carry out the purpose for which the land is taken,” and that “anything beyond this is not the taking of private property for public use, but the taking of private property for private use.” Aycock v. Houston Lighting and Power Co.

Because the language in the Second Amended Petition permitted Enbridge to assign the easement without restriction, the Court of Appeals modified the trial court’s final judgment by restricting the easement’s assignment only to an assignee that qualifies as a transporter of natural gas as defined in Texas Utilities Code, Section 121.001(a).”

In summary, landowners should diligently look at the language of the pipeline company’s proposed easement to make sure it cannot be transferred for a private benefit.

To view the case, click here.