Court of Appeals of Texas, Second District, Fort Worth
LINDEMANN PROPERTIES, LTD. APPELLANT
WARD A. CAMPBELL APPELLEE
THE 97TH DISTRICT COURT OF ARCHER COUNTY TRIAL COURT NO.
WALKER, MEIER, and SUDDERTH, JJ.
OPINION ON REHEARING
Lindemann Properties, Ltd. filed a motion for rehearing and a
motion for en banc reconsideration of our opinion that issued
on December 8, 2016. We deny both motions, withdraw our
opinion and judgment dated December 8, 2016, and substitute
sued Appellee Ward A. Campbell for a declaration that
Campbell's radio-transmission-tower easement terminated
when he removed the original tower and replaced it with a new
one. The trial court ultimately signed a take-nothing
judgment in favor Campbell, concluding that the easement had
not terminated, and awarded him attorney's fees. In what
we construe as three issues, Lindemann challenges the trial
court's findings and conclusions regarding the easement,
the denial of its related request for injunctive relief, and
the award of attorney's fees. We will affirm in part and
reverse and remand in part.
March 7, 1977, Howell E. Smith d/b/a Muleshoe Cattle Company
granted, sold, and conveyed to Campbell's father, A.O.
Campbell, Jr., "an easement or right for the
installation of a radio-transmission tower, consisting of the
tower itself and guy wires as necessary to support the
same." The easement expressly granted the following
Together with the right of ingress and egress over my
adjacent lands to or from said easement for the purpose of
inspecting, maintaining, constructing and removing said radio
transmission tower and appurtenances.
TO HAVE AND TO HOLD the above described easement and rights
unto the said A.O. Campbell, Jr., his successors and assigns,
perpetually, until said radio transmission tower shall be
abandoned and/or removed.
easement did not specify the tower's height or size, but
it stated the following regarding its location:
Said radio transmission tower will be located on a tract 500
feet by 500 feet, the center of which to be determined by the
actual location when installed on the following tract of land
located in the County of Archer, State of Texas, to-wit:
Situated on Lot No. One (1), Block No. Seventy-five (75) ATNC
Subdivision, Archer County, Texas.
Grantor recognizes that the general location as above
described is based on a preliminary survey only and hereby
agrees the easement hereby granted shall apply to the actual
location of said radio transmission tower when located.
original tower was built in 1977 on the Archer County
property referenced in the easement (the
"Property"). It measured 400 feet tall and 18
inches wide, it used 1.5 gauge tubing and multiple guy wires,
and it was serviced by a small building located directly
adjacent to its base. A pipe fence was constructed around the
original tower and the small building.
the original tower was completed, Campbell's father's
company, Haigood and Campbell, used it to facilitate two-way
radio transmissions between a fleet of vehicles. Over the
ensuing years, Haigood and Campbell allowed a number of
tenants to mount "a dish or an antenna or
something" on the tower for their own broadcast
purposes, including the Archer County Sheriff's
Department, the Archer County Volunteer Fire Department,
Jenson Well Service, Bridwell Oil Company, Burns Operating,
Motorola Communications, and SkyBeam Texas. Some paid rent;
some did not.
a successor-in-interest under the easement contract, became
responsible for the original tower in 1990. Although he had
it painted, its lightbulbs changed, and its guy wires
inspected and tightened, he never had a structural analysis
of the tower performed, including before several of the
tenants began using it.
a family limited partnership formed in 2009, owns the
Property on which the easement is located. The Property was
burdened by the easement when the Lindemann family acquired
it in 1983.
early November 2011, Campbell was contacted by Chris Mayo at
Site Property Company (SPC), a broker who was working on
behalf of LKCM Radio Group, L.P. to find a location for
LKCM's broadcasting equipment. After some initial
communications about the tower and LKCM's requirements,
SPC hired an engineer to perform a structural analysis of the
tower to determine whether it could support the additional
proposed loading. The results indicated that it would not;
the tower was overloaded and in "terrible"
condition. SPC then requested a structural report for the
existing loads on the tower, hoping to use it to negotiate
favorable terms for a potential "drop & swap, "
a procedure in which an existing tower is removed and
replaced with "an equivalent tower as far as
configuration and height but meeting current standards."
The report indicated that the tower was not in compliance
with the International Building Code; noted that "during
the field mapping, the tower mast was observed to be visually
'snaking' with significant frame bending around each
guy pull-off level above elev. 200ft"; and recommended
that the tower be replaced "since the strengthening
modifications required [were] too extensive and not
did not remedy any of the tower's structural issues after
obtaining the engineering report, and it continued in
operation. However, soon thereafter, in early 2012, Campbell
began soliciting bids for the construction of a new tower and
negotiating a lease with LKCM to install its broadcasting
equipment on the new tower. In April 2012, Campbell and LKCM
entered into a lease agreement involving a new tower, and in
June 2012, Campbell accepted a quote for the construction of
a new tower.
on the new tower began in October 2012 and concluded on or
about November 8, 2012. The new tower stands 420 feet tall,
measures 36 inches wide at its widest point, uses 2.5 gauge
tubing, and is located within the same pipe fence that was
originally constructed to enclose the original tower and
small building. Whereas the original tower used six guy-wire
anchors, the new tower uses only three, and the wires are
located closer to the tower's base. As was the original
tower, the new tower is serviced by a small building located
directly adjacent to its base.
original tower remained in place and in operation while the
new tower was being constructed. Thus, although the new tower
is located within the same pipe fence as the original tower,
it is not located in the exact same location as the original
tower. The following image shows the location of the new
tower (on the right) in relation to where the original tower
stood (on the left):
hired Gordon Parkey to construct the new tower and to remove
the original tower. According to Parkey, the new tower
"went live" on November 14, 2012. Around the same
time, Parkey also told Tim Lindemann, Lindemann's
representative, that a single antenna continued to operate on
the original tower and that he would not transfer it to the
new tower until he returned from performing another job and
taking a trip to Colorado. Parkey's absence consequently
"drug the time frame out of how long" both towers
stood-and apparently operated-simultaneously. Parkey
deconstructed and removed the original tower sometime in
sued Campbell in April 2013 and sought a declaration that the
easement had terminated, a permanent mandatory injunction
ordering Campbell to remove the new tower and all
appurtenances thereto, and attorney's fees. During the
bench trial that ensued, Tim Lindemann testified that the
easement had terminated because Campbell had built a new
tower, abandoned the original tower, removed the original
tower, and simultaneously used both the original and new
towers. Campbell agreed that the easement provides for the
installation of a single radio-transmission tower, but he
opined that his right to maintain the tower allowed him to
remove the original tower and to construct the new one. The
trial court sided with Campbell. It signed a final judgment
that Lindemann take nothing on its claims and awarded
Campbell attorney's fees through trial in the amount of
$56, 106.19 and conditional appellate attorney's fees.
The trial court entered the following findings of fact, among
13. The Original Tower remained standing until it was
replaced and removed in 2012 due to evidence of structural
. . . .
16. Replacement of the Original Tower was necessary to
maintain a functional tower in the Tract.
17. The Original Tower was removed after it was replaced by
the New Tower.
18. The Original Tower was removed as soon as was practicable
after all transmission equipment was relocated to the New
19. The Original Tower was removed only after it was no
20. The New Tower does not increase the burden on the surface
21. The New Tower does not exceed the scope of the Easement.
22. The building of the New Tower does not effect a
termination of the Easement.
23. No actions of [Campbell] in connection with the
maintenance of the Easement effected a termination of the
24. The Easement has not terminated and is still in
trial court entered the following conclusions of law, among
7. The New Tower does not increase the burden on the surface
8. The New Tower does not exceed the scope of the Easement.
9. The building of the New Tower does not effect a
termination of the Easement.
. . . .
11. [Campbell's] right to maintain included his right to
replace the Original Tower with the New Tower.
12. The removal of the Original Tower after replacement with
the New Tower does not effect a termination of the Easement.
13. The Original Tower was not abandoned; it was replaced.
14. No actions of Campbell in connection with the maintenance
of the Easement effected a termination of the Easement.
15. The Easement has not terminated and is still in
argues in its first issue that the easement automatically
terminated when Campbell either removed or abandoned the
original tower. It contends that the plain terms of the
easement authorized the placement of only a single
radio-transmission tower on the Property, that the parties to
the easement objectively intended that it would terminate
upon the original tower's removal or abandonment, and
that the evidence conclusively demonstrates that Campbell
removed or abandoned the original tower. Lindemann also
disputes the trial court's decision to construe the term
"maintaining, " as it is used in the easement, to
include the right to remove the original tower and to replace
it with a new one. Alternatively, Lindemann contends that the
easement terminated because Campbell improperly exceeded its
responds that the right to maintain the original tower
includes the right to replace it when necessary and that the
new tower did not exceed the easement's scope.
Standards of Review
court's findings of fact have the same force and dignity
as a jury's answers to jury questions and are reviewable
for legal and factual sufficiency of the evidence to support
them by the same standards. Catalina v. Blasdel, 881
S.W.2d 295, 297 (Tex. 1994); Anderson v. City of Seven
Points, 806 S.W.2d 791, 794 (Tex. 1991); see also
MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d
660, 663 n.3 (Tex. 2009). We may sustain a legal sufficiency
challenge only when (1) the record discloses a complete
absence of evidence of a vital fact, (2) the court is barred
by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (3) the evidence
offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence establishes conclusively the
opposite of a vital fact. Ford Motor Co. v.
Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal
Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998), cert. denied, 526 U.S. 1040 (1999). When
reviewing an assertion that the evidence is factually
insufficient to support a finding, we set aside the finding
only if, after considering and weighing all of the evidence
in the record pertinent to that finding, we determine that
the credible evidence supporting the finding is so weak, or
so contrary to the overwhelming weight of all the evidence,
that the answer should be set aside and a new trial ordered.
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.
1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d
821, 823 (Tex. 1965). We defer to unchallenged findings of
fact that are supported by some evidence. Tenaska Energy,
Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523
review conclusions of law to determine their correctness
based upon the facts, but we will not reverse because of an
erroneous conclusion if the trial court rendered the proper
judgment. City of Austin v. Whittington, 384 S.W.3d
766, 779 n.10 (Tex. 2012) (citing BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002));
H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 513
(Tex. App.-Fort Worth 2012, no pet.).
Express Easements and Construction
easement is a nonpossessory interest that authorizes a
holder's use of property for only a particular purpose.
Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697,
700 (Tex. 2002). The easement holder's rights are limited
to those that are expressed in the grant. DeWitt Cty.
Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex.
1999). It follows that we apply basic principles of contract
construction and interpretation when considering an express
easement's terms. Marcus Cable, 90 S.W.3d at
700. We give the terms their plain and ordinary meaning when
they are not expressly defined, and we read the terms of an
easement as a whole to determine the parties' intentions
and to carry out the purpose for which the easement was
created. Id. at 701; DeWitt Cty. Elec.
Coop., 1 S.W.3d at 101. We assume that the parties
intended for every clause to have some effect. Koelsch v.
Indus. Gas Supply Corp., 132 S.W.3d 494, 498 (Tex.
App.-Houston [1st Dist.] 2004, pet. denied).
Cannot Construe Only Some Terms
to the easement's use of the terms "a" and
"said, " Lindemann argues that "[b]y its plain
terms, the Easement only authorized the placement of a single
tower on the Property"-the original tower. We certainly
agree that the words "a" and "said" are
singular, but the problem with Lindemann's construction
is that it focuses exclusively on the meaning and effect of
only those terms while completely disregarding the
meaning and effect of other, potentially relevant
terms. Lindemann's contention that the easement
"automatically terminated upon removal or abandonment of
the Original Tower" is similarly premised upon a reading
of only part of the easement contract (the habendum
clause). This erroneous approach patently conflicts with the
well-established requirements that we examine contracts as a
whole and assume that the parties intended for every clause
to have some effect-indispensable rules that have been a
component of our contract-construction standards for decades.
See, e.g., Coker v. Coker, 650 S.W.2d 391,
393 (Tex. 1983) ("No single provision taken alone will
be given controlling effect; rather, all the provisions must
be considered with reference to the whole instrument.");
Citizens Nat'l Bank in Abilene v. Tex. & Pac. Ry.
Co., 136 Tex. 333, 338, 150 S.W.2d 1003, 1006 ("It
is not usually proper to consider a single paragraph, clause,
or provision by itself, to ascertain its meaning. To the
contrary, each and every part of the contract must be
construed and considered with every other part . . .
."), cert. denied, 314 U.S. 656 (1941). Of
course, this begs the question whether the easement contract
contains any terms that must be considered in addition to the
terms "a, " "said, " and "abandoned
and/or removed." It does-"maintaining."
"Maintaining" Includes Replacement When Necessary
facts of this case were that Campbell had removed the
original tower and done nothing else, then Lindemann's
simple argument that the easement terminated pursuant to the
habendum clause would control the outcome. But the facts are
not that clear-cut, nor is the analysis. Not only did
Campbell remove the original tower-something the
ingress/egress clause expressly permitted-he also constructed
a replacement tower within the same fenced area that enclosed
the original tower. The question then is whether the easement
afforded Campbell the right to replace the original tower
with the new tower. See DeWitt Cty. Elec. Coop., 1
S.W.3d at 103. The easement expressly grants the holder the
right to "maintain" the radio-transmission tower.
We are not the first court to consider whether the term
"maintain, " as used in an easement contract, may
include the right to replace.
Houston Pipe Line Co. v. Dwyer, Dwyer sought a
declaration that a pipeline easement across her land had
terminated because Houston Pipe Line had removed an
eighteen-inch low pressure pipeline and replaced it with a
thirty-inch high pressure pipeline. 374 S.W.2d 662, 663 (Tex.
1964). The easement's granting clause originally gave the
easement holder the right "to lay, maintain, operate,
repair and remove a Pipe Line for the transportation of gas,
" but the words "and remove" were struck,
although a different part of the instrument authorized
removal upon termination of the easement. Id. Dwyer
argued that as changed, the easement "authorized the
construction, maintenance, operation and repair of one
pipeline only, and did not authorize its replacement or
removal except upon termination of the easement as provided
in the habendum clause." Id. at 664. Houston
Pipe Line countered that even after deleting the term
"and remove, " the remaining terms were
"consistent with the right to remove and replace the
original pipe when conditions make it necessary."
Id. The supreme court agreed with Houston Pipe Line,
reasoning in part,
If plaintiffs are correct in their contention, then
defendant's rights and easement under the 1926 agreement
would terminate simply by removing and replacing the original
pipe, regardless of its condition, with pipe of any
size. The agreement in question does not compel such an
unreasonable result. We hold that the terms 'operate'
and 'maintain' in the granting clause are at least
broad enough to include the right to remove and replace the
original pipe with pipe of the same size when
Id. (emphases added). The supreme court thus held
that if the condition of a pipeline easement is such that in
order to maintain it, replacement is necessary, then the term
"maintain, " as expressly used in the easement, was
broad enough to include removal and replacement.
arguments are indistinguishable from Dwyer's. Like the
supreme court, we decline to unreasonably construe the term
"maintain" without any regard for the condition
of the easement. We therefore review the evidence to
determine whether the condition of the original tower
rendered its removal and replacement necessary. See
original tower was approximately thirty-five years old and in
very poor condition when it was removed and replaced.
Further, although the structural analysis that SPC had an
engineer perform in December 2011 was not for the specific
purpose of assessing the original tower's condition, the
tests nonetheless revealed that it had numerous structural
issues, including snaking of the mast and frame bending
around the guy wires. Indeed, the original tower was
designated a "Class II" tower, but it could not
even pass the test for a "Class I" tower without
some manipulation of the data. The engineer recommended
that the original tower be replaced:
Q. Based on your analysis, correct me if I'm wrong, but
you do not find any way in which the tower that you did the
analysis on could be beefed up, fixed to where it
wouldn't -- where ...