By Jim Bradbury, James D. Bradbury, PLLC,
and John Luke Broussard, student, Texas A&M University School of Law
In recent years, multiple easement disputes have arisen, pitting rural landowners against utility companies that desire to convert older, smaller lines into much larger high-voltage lines with large towers. Spurred in part by growing power demands across Texas, utility companies have insisted that historical easements give them broad authority to upgrade and modernize their utility lines without express authorization from the landowner or further compensation for the additional burden to the land.
Many of the original easements were granted nearly 100 years ago for very little money. Several of these easement disputes have made their way to the Texas Supreme Court, highlighting growing tensions between private landowners and electric utility companies and the need for clarity from the courts. At the heart of these cases is whether and to what extent the courts may imply terms that grant easements or otherwise expand or broaden the scope of existing easements.
The Court recently heard oral arguments in Boerschig v. Rio Grande Electric Cooperative. The trial court and the San Antonio Court of Appeals determined that a utility company had a valid easement running over John Boerschig’s land even though there was no enforceable, recorded easement. Boerschig bought his property in 2002 to run cattle and hay the property. He assumed that the utility company had permission to build the existing 35-foot-tall wooden pole lines, even though no title documents evidenced an easement’s existence.
In 2012, the utility company entered Boerschig’s property and tore down the wooden poles with bulldozers – destroying trees and topsoil in the process – seeking to install new, industrial lines. The court interpreted a 1947 document to afford an implied easement that gave the utility company the power to upgrade the wooden poles on the land that had been unchanged for 65 years, which included tripling the number of poles on the property and increasing their height by 10 feet. Although Texas law takes a narrow view on implied easements, the lower courts did not merely imply the existing easement, they implied additional terms that broadly expanded the scope of the easement.
If the Supreme Court sides with the utility in this case, it could have far-reaching implications for thousands of landowners who may find large-scale utility upgrades along their properties without their authorization or compensation.
Two other cases involving the scope of utility easements have also made their way in front of the Texas Supreme Court. Wilks Ranch v. AEP is a case pending review in front of the Supreme Court on the issue of whether an easement document prepared in 1927, using the phrase “construct, operate, patrol, maintain, and repair its transmission line,” allows the utility company to institute sweeping modernization and upgrades of its transmission lines after 100 years by installing larger and more powerful lines. A similar question was asked in White v. Pedernales, but the Texas Supreme Court in September declined to grant review of the appellate court’s decision to the landowner petitioners.
Texas courts’ handling of these issues demonstrates the tension that easements created in an earlier technological era pose when utility companies seek to upgrade otherwise untouched utility lines to serve growing rural communities and new energy-hungry clients, like AI data centers. Especially when electric utilities are cloaked with the extraordinary power of eminent domain, the propriety of granting these easements or expansion of easements by implication is far from certain.
Clarity from the courts and the Texas Legislature on the scope and power utility easements grant to their holder is important for protecting the constitutional and property rights of landowners who may be affected by encroaching modernization efforts.
