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Tag Archives: Aycock v. Houston Lighting and Power Co.

Transfer of Pipeline Easements Cannot Be For Private Use

10 Friday Jun 2016

Posted by texascondemnation in Pipelines, texas condemnation, texas eminent domain, Uncategorized

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Allen v. Enbridge, Aycock v. Houston Lighting and Power Co., Cantu v. Cent. Power & Light co., Condemnation, Eminent Domain, pipeline, pipeline easements, Private Benefit, private use, Proposed Easement Agreement, Texas Utilities Code, Tyler Court of Appeals

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.

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Luke Ellis and Justin Hodge are partners with Marrs Ellis & Hodge LLP. Justin heads the firm's eminent domain practice in the Houston office. Luke heads the firm's eminent domain practice in the Austin office. Luke Ellis is widely recognized as one of Texas’s top young lawyers—and one of the top lawyers of any age practicing in the area of eminent domain. Mr. Ellis has broad experience and has enjoyed success in many types of civil litigation. Justin Hodge is a trial lawyer who represents Texas landowners in condemnation, eminent-domain, and real-estate lawsuits. He represents landowners in condemnation proceedings, not the governmental authorities or private companies taking property. Mr. Hodge has handled complex condemnation and eminent-domain cases throughout the State of Texas. If you have questions about any of the issues raised in this blog, we invite you to discuss them with us at jhodge@mehlaw.com or lellis@mehlaw.com.

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