The Texas Supreme Court recently issued an important opinion in Boerschig v. Rio Grande Electric Cooperative with regard to implied electrical line easements and the scope thereof.
Photo by David Leveque on Unsplash
Background
In 1945, ranchers in Southwest Texas formed a non-profit Rio Grande Electric Cooperative (RGEC) to provide electricity to Co-op members in rural areas. RGEC has condemnation authority and now serves eighteen counties in Texas and two counties in New Mexico.
In 1947, RGEC acquired a document titled “Right of Way Easement” that gave an unspecified corporation the right to place, construct, operate, repair, maintain, relocate, and replace an electric transmission distribution line or system on 5,684 acres owned by the Clamp estate. The document provided that only single poles and appurtenances to form the lease possible interference with farming operations, so long as it does not materially increase the cost of construction. The document was signed by Ogden Dooley, the executor of the estate, but was never recorded in the real property records. Shortly after that, RGEC built an electric distribution line crossing 1.6 miles of the tract described in the document.
In 2002, John Boerschig bought the U-Bar ranch in Kinney, which includes the Clamp estate property. The line could be seen on the property and was marked on a survey prepared for Boerschig’s purchase. In 2021, RGEC notified Boerschig it planned to bulldoze part of the easement, upgrade the line, and move a portion of the line. Boerschig asked RGEC for a copy of the applicable easement. It produced several express easements but none that covered the route at issue. He offered RGEC the right to buy a second easement to build a line elsewhere on his property, but RGEC refused.
Boerschig sued RGEC for trespass. RGEC filed a counterclaim seeking a declaratory judgment that RGEC had a valid express easement or, alternatively, had obtained a prescriptive easement or an easement by estoppel. It attached a copy of the Dooley signed document that was found in RGEC files after the dispute began. Boerschig had never seen the document.
The parties agreed to allow construction of the line on the same footprint of the original line during the litigation, subject to Boerschig reserving his pending trespass claim. The new line was completed in 2014 and included 60 poles rising 37 feet in the air and carrying 7 wires on 2 crossarms. (The prior line included 20 polls, 30 feet above the ground carrying 4 wires on 1 crossarm.)
Lower Court Decisions
The case went to a jury trial. Boerschig testified that the new poles interfered with his farming, ranching, and hunting operations. It made it more difficult to pull equipment with his tractors, he stopped haying one field because there were 6 poles where previously there had only been 1, and his foreman testified he saw cows collide with the poles and fewer deer congregating around them. Boerschig called the new line an “eyesore” and testified it decreased the value of his property. RGEC testified that there was nothing in the new line that would interfere with Boerschig’s use of the land.
In a 10-2 verdict, the jury found RGEC had no written easement or easement by adverse possession. The jury did find, however, that RGEC had an easement by estoppel across the powerline route. The jury also found that the construction of the updated powerline did not exceed the scope of the easement by estoppel.
Boerschig appealed, arguing there was insufficient evidence to support an easement by estoppel. The San Antonio Court of Appeals affirmed.
Texas Supreme Court Opinion
The Texas Supreme Court affirmed in part and reversed in part. [Read opinion here.]
There was sufficient evidence to find an easement by estoppel.
Generally speaking, easements must be in writing and recorded to be legally enforceable. There are some types of implied easements, where the court may impose an easement if certain factors are present even though there is no written document. One such implied easement is an easement by estoppel.
In order for an easement by estoppel to be granted, the person seeking the easement must show: (1) the owner of the burdened estate represented that an easement would be conveyed; (2) the easement holder believed that representation; and (3) the easement holder relied upon that representation to their detriment. The first two elements, representation and belief are fixed at the time of transfer. If the reliance on the representation terminates later, the estoppel terminates as well.
The jury had evidence that the Dooley document granted an easement for an electric line, the RGEC’s practice was only to build lines where it believed it had an easement covering the route, RGEC built the line in 1947 and maintained it for 65 years continually and without objection. Boerschig did not introduce contrary evidence at trial to dispute the representation made by the Dooley document or RGEC’s reliance on it. Instead, he argues that the Dooley document is not sufficient evidence of a representation because it is not a valid written easement.
The court disagreed. “A writing that fails as an express easement can be some evidence supporting the representation element of an easement by estoppel.” An imperfectly memorialized written easement is relevant to show the intent of the parties. Several other courts, including courts in other states and two Texas appellate courts have reached that same conclusion. Further, the Dooley document provided detailed and specific use of the easement to construct and maintain a powerline, which RGEC did do for 65 years, indicating its reliance on the easement.
Boerschig also relied on the bona fide purchaser statute, which essentially provides that a subsequent purchaser is not bound by prior instruments if they purchase without notice. The most efficient way to provide such notice is by recording encumbrances in the deed record. That was not done here. However, purchasers with actual notice of an encumbrance have no injury, even if the encumbrance was not recorded in the deed records. Boerschig admitted he had actual notice of the powerline when he purchased the ranch both from visual inspection and the survey. He is presumed to have purchased to this property subject to the visible encumbrance.
The Dooley document constituted evidence of a representation, RGEC’s actions indicated its belief that there was a valid easement, and it relied on the representation in constructing the line and maintaining it for 65 years.
RGEC’s use exceeded the scope of the easement by estoppel.
Having concluded that RGEC did have an easement by estoppel, the next question was whether their use complied with the scope of that easement. Boerschig claimed that the line upgrades exceeded the scope of the easement as a matter of law.
Scope of an easement by estoppel
For a written express easement, the scope is determined by the parties’ intentions included in the granting document. The language included in the easement document governs the scope of this type of easement.
For an easement by estoppel, however, there is no such recorded writing to rely on when determining the scope of an easement. These easements are strictly construed and courts view easements by estoppel as a last resort. The court noted that a person relying on an easement by estoppel “runs a substantial risk that the enforcement will be either unavailable or narrower in scope that a comparable express easement.” The purpose of an easement by estoppel, and thus the scope of such an easement, is limited to preventing injustice by protecting the easement holder’s reliance interest. The scope of an easement by estoppel is fixed by the use that created it. In summary, the scope of an easement by estoppel is limited to the representations made by the landowner and is narrowed by the easement holder’s actual use of the easement in reasonable reliance, and narrowed again if the land has been subsequently sold by the purchaser’s notice of the representations or uses at the time of purchase.
This means that an easement holder seeking to change the actual existing use must provide evidence of the landowner’s specific representations about the nature and extent of the permitted use. The easement holder must also show evidence of the landowner’s specific representations about the nature and extent of the permitted use. Evidence that a subsequent purchaser had knowledge of a current use does not establish knowledge that the easement’s scope would cover a greater degree of future use.
In making this determination, the judge or jury may not speculate about the unexpressed purpose of an easement or whether a change was foreseeable, more burdensome, or different in type or character.
“The right to own property is fundamental, natural, inherent, and inalienable and its protection is one of the most important purposes of government. Courts are not free to give away more of a landowner’s property rights whenever they feel that the societal benefit of an expended use outweighs its burden on the landowner. That judgment is for the other branches of government and entities on which they have conferred condemning authority, and our Constitution demands that the landowner be compensated when a greater easement is taken.”
An easement by estoppel includes “only activities—such as access, repairs, and maintenance of the area—that are reasonably necessary to fairly enjoy the usage rights defined by the representations, reliance, and knowledge.”
Application to this Case
RGEC’s only reliance was on the Dooley document’s representation of an easement to build and maintain a lower voltage electric distribution line that consisted of between 17-20 poles, each standing 30 feet above ground, and carrying 4 wires on a single crossbar. “Allowing RGEC to maintain that use is sufficient to prevent injustice.” RGEC offered no evidence showing that replacing the line with many more and larger poles, wires, and crossarms were necessary to protect RGEC’s investment and reliance on the Dooley document.
Additionally, the court considered whether Boerschig had actual or constructive notice of facts indicating that the easement would authorize RGEC to triple the number of poles and nearly double the number of wires. The only evidence of Boerschig’s notice was him seeing the original line. There was not evidence he had any notice regarding any potential increase in the scope of the easement.
Tripling the number of poles and adding additional wires was not an activity reasonably necessary to RGEC’s continued use and enjoyment of the line. The purpose of the upgrade was to serve new customers in the future in anticipation of future growth. No one was seeking to shutdown the line or prevent RGEC from continuing its original use and maintenance of the line.
Thus, the easement by estoppel was not broad enough to allow for the line upgrades. RGEC entered Boerschig’s property and upgraded the line without his consent, which constitutes trespass.
Concurring Opinion
Justice Hawkins wrote a concurring opinion noting that there are some close calls related to the scope of an easement and trespass that may be proper only for a jury. This case, however, was not one of those. He noted that RGEC’s expansion was “plainly broader than necessary to protect Rio Grande’s reliance interests from its original investment in the land in the 1940s.” Second, the expansion went beyond any notice Mr. Boerschig had when he purchased the land. He noted that “all we hold is that these particular facts go so far beyond the proper confines of an easement by estoppel that courts must find a trespass as a matter of law.”
Dissenting Opinion
Justice Bland filed a dissenting opinion in which Chief Justice Blacklock, Justice Lehrmann, and Justice Huddle joined.
The dissent began with a review of the history surrounding rural electric cooperatives. The opinion then recounted the evidence from the case including a video showing field planted only on either side of the line’s route and no farming or haying in the area under and around the line even prior to the upgrade.
The dissent then reviewed the burdens of proof at issue in the case. It was RGEC’s burden to prove an easement existed, which RGEC successfully did. The burden for the trespass claim, however, was on Mr. Boerschig. They jury found that Mr. Boerschig failed to carry this burden, answering the question of whether RGEC’s use of the property exceeded the scope of the easement with “no.”
With regard to the scope of an easement by estoppel, the dissenting justices note that under common law, the “manner, frequency, and intensity of an easement’s use may change over time to accommodate technological development” so long as the changes fall within the purposes for which the easement was created. The dissent said the majority ignored this approach and the scope of what is necessary to use land for a powerline, focusing instead on the existing poles and wires when the line was built. The right to use land per an easement by estoppel includes ancillary rights such as the right to make necessary repairs. The dissent offered an example of a line destroyed by a fire—would the majority declare the reliance terminated rather than allow for repair and replacement of the line?
The dissent wrote that the facts regarding scope of use were disputed. The jury found RGEC did not exceed the scope of its authority. The majority took that decision away from the jury. Further, the dissenters note, there are many “similarly imperfect easements that undergird rural Texas’s infrastructure.” The dissenters voiced concern that by classifying every upgrade as a trespass, even if the face of a jury verdict to the contrary, the majority hands a “windfall” to landowners. Instead, the dissenting opinion would rule that the easement right acquired by RGEC must be accompanied by the right to make repairs and improvements along the route. The jury is the proper body to determine whether such repairs or improvements are necessary to continue the use of the easement.
Similarly, the dissent writes that when Mr. Boerschig purchased the property, he did so with actual knowledge of the line. That knowledge not merely that there were a certain number of poles and lines, but that the line route was operational and required maintaining and operating as a powerline route.
In conclusion, the dissenters wrote: “Boerschig made his best case to a jury of his neighbors that Rio Grande’s power line upgrade—to include extra poles to improve the safety and reliability of electrical service—was outside the scope of Rio Grande’s easement. His neighbors simply did not believe him. The Court does. It is not, however, our role to supplant the jury’s credibility determinations.”
