                                  NO. 12-17-00012-CV

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

PAM MILLER AND TOBE MILLER,                      §      APPEAL FROM THE 1A
APPELLANTS

V.                                               §      JUDICIAL DISTRICT COURT

JASPER-NEWTON ELECTRIC
COOPERATIVE, INC.,            §   JASPER COUNTY, TEXAS
APPELLEE
                      MEMORANDUM OPINION
       Pam Miller and Tobe Miller appeal from a summary judgment rendered in favor of
Jasper-Newton Electric Cooperative, Inc. in the Millers’ suit for declaratory judgment. The
Millers raise three issues. We affirm.


                                         BACKGROUND
       The Millers reside on a thirty-two acre tract of land in Jasper County, Texas. Jasper-
Newton Electric Cooperative, Inc. is a provider of electrical service. In 2005, Tobe Miller
applied for membership, and Jasper-Newton accepted the Millers as members of the cooperative.
Pursuant to their agreement, Jasper-Newton provides electricity to the Millers’ property.
       In 2014, two Jasper-Newton employees entered the Millers’ property without providing
prior notice to the Millers. The Millers confronted the employees, and the employees contended
that they were within their rights to enter the Millers’ property. Later, Jasper-Newton ran an
electric line from the Millers’ property to an adjoining property. The Millers contended that
Jasper-Newton lacked the authority to utilize their property to provide electric service to others,
and Jasper-Newton disagreed. The Millers sued Jasper-Newton seeking a declaratory judgment
that Jasper-Newton held an easement to use the Millers’ property to provide electric service only
to the Millers and could not use the easement to provide electric service to the property of
others.1
           Jasper-Newton moved for summary judgment asserting that it had written permission to
perform the complained of activities. Jasper-Newton contended that, by his execution of certain
documents, Tobe Miller granted Jasper-Newton the right to construct and operate electrical lines
on the Millers’ property without limitation of the use of the lines. Jasper-Newton asserted that
the Millers granted an express easement to Jasper-Newton by submitting their 2005 Application
for Membership and Electric Service and through Jasper-Newton’s Service Tariff which was
incorporated by reference. Finally, Jasper-Newton argued that Tobe Miller also provided a
Right-of-Way Easement to Jasper-Newton in 2007 that likewise authorized Jasper-Newton to
utilize the Millers’ property to provide electric service to the property of others.
           The Millers responded to Jasper-Newton’s motion for summary judgment and filed their
own motion for summary judgment. The Millers read the easements granted to Jasper-Newton
as allowing Jasper-Newton to construct and operate electrical lines on the Millers’ property with
the limitation that the lines provide electricity solely to the Millers’ property. Thus, the Millers
continued to argue that Jasper-Newton exceeded the scope of its easement when it ran an electric
line from the Millers’ property to an adjoining property.
           The trial court granted Jasper-Newton’s motion for summary judgment and denied the
Millers’ motion for summary judgment. The trial court then signed a final judgment ordering
that the Millers take nothing on their claims against Jasper-Newton. This appeal followed.


                                                EASEMENT
           In their first issue, the Millers contend that, properly construed, the easement granted to
Jasper-Newton is limited in scope, authorizing Jasper-Newton to provide utility service only for
the Millers’ property. Accordingly, the Millers argue that Jasper-Newton exceeded the scope of
the easement when it ran a power line from a pole located on the Millers’ property to deliver
electrical services to an adjoining property.



           1
            Initially, the Millers also claimed that Jasper-Newton trespassed on their land. The Millers sought
damages and an injunction against Jasper-Newton. However, the Millers amended their petition and dropped their
trespass claim.




                                                      2
Standard of Review
       A declaratory judgment granted on a traditional motion for summary judgment is
reviewed de novo. Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). A party
moving for traditional summary judgment bears the burden of showing that no genuine issue of
material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c).
To determine if there is a fact issue, we review the evidence in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could do so, and
disregarding contrary evidence unless reasonable jurors could not. Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
Applicable Law
       Property owners have the right to exclude others from their property but may relinquish a
portion of the right to exclude by granting an easement. Marcus Cable Assocs., L.P. v. Krohn,
90 S.W.3d 697, 700 (Tex. 2002). When property owners grant an easement, they provide a
limited relinquishment of the right to exclude to another who then has a nonpossessory interest
authorizing a use of the property for the particular purposes identified in the easement. Id.
       To determine the scope of an express easement, the court applies basic principles of
contract construction and interpretation.     Id.       When a contract is unambiguous, the court
interprets the contract as a matter of law. DeWitt Cty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96,
100 (Tex. 1999). The contracting parties’ intentions, as expressed in the document, determine
the scope of the easement. Id. at 103. Terms not specifically defined are given their plain,
ordinary, and generally accepted meaning. Krohn, 90 S.W.3d at 701.
       The manner, frequency, and intensity of an easement’s use may change over time so long
as the changes align with the purposes for which the easement was created. Id.; see also Lower
Colo. River Auth. v. Ashby, 530 S.W.2d 628, 632-33 (Tex. Civ. App.—Austin 1975, writ ref’d
n.r.e.) (easement authorized changes in equipment that could increase the electricity-carrying
capacity of the lines). An easement includes “the right to do whatever is reasonably necessary
for full enjoyment of the rights granted.” Whaley v. Cent. Church of Christ, 227 S.W.3d 228,
231 (Tex. App.−Houston [1st Dist.] 2007, no pet.). The threshold inquiry remains whether the
grant’s terms authorize the proposed use, not whether the proposed use results in a material
burden to the property owner. Krohn, 90 S.W.3d at 703.




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Analysis
       The Millers contend that a proper construction of the easement granted to Jasper-Newton
supports their argument that the easement is limited in scope to service only the Millers’
property. We disagree.
       First, Jasper-Newton, a cooperative, is comprised of all of its members who join together
for the purchase and delivery of electric service. A cooperative is defined as “an enterprise that
is collectively owned and operated for mutual benefit.”                See Cooperative, THE AMERICAN
HERITAGE DICTIONARY (New College ed. 1978). The Millers, who wanted to be a part of the
cooperative, were seeking more than electric service. Once Tobe Miller filled out an application
for membership and electric service, and their membership was approved, they became part of
the cooperative.
       Second, when Tobe Miller applied for membership into the cooperative, the Millers
granted Jasper-Newton an easement to the Millers’ property by the terms in the application.
Specifically, the application stated as follows:


               EASEMENTS: Applicant hereby grants the Cooperative, its employees, and
               authorized agents, the right and easement to construct, upgrade, operate,
               remove, repair, and maintain meters, lines, poles, transformers, etc., on the
               premises herein described and in or upon all streets, roads, or highways abutting
               said premises, its lines, and equipment, and will execute and deliver to the
               Cooperative any conveyance, grant, or instrument which the Cooperative shall
               deem necessary or appropriate for said purposes.


       This easement authorizes Jasper-Newton to construct lines on the Millers’ property for
the delivery of electricity. Nothing in the easement limits delivery of the electricity only to the
Millers.
       Third, in the membership application, the Millers agreed to be bound by the cooperative’s
Service Tariff, which is comprised of rate schedules and service rules and regulations. The
Service Tariff stated, “[t]he consumer shall be required to provide easements as required by the
Cooperative to deliver service . . . .” The Service Tariff defined “[e]lectric [s]ervice or [s]ervice”
as including “any and all acts done, rendered, or performed in the delivery of electric power to a
consumer by [Jasper-Newton] operating under the jurisdiction of the [Public Utility]
Commission.”




                                                      4
       Fourth, Tobe Miller granted Jasper-Newton an express easement “to place, construct,
operate, repair, maintain, relocate, and replace . . . an electric transmission or distribution line or
system . . . .” By agreeing to the easement which used the phrase “electric transmission or
distribution line or system,” the Millers clearly acknowledged that the Jasper-Newton power
lines on their property were part of a system. They further acknowledged that those lines could
be used to transmit or distribute electricity to their property or could be used as part of a system
to transmit or distribute electricity to other members of the cooperative.
       The Millers unambiguously authorized Jasper-Newton an easement to use the Millers’
property to provide electricity to the Millers or to other members of the cooperative. Thus, the
Millers’ easement to Jasper-Newton authorizes the work that Jasper-Newton performed when it
ran a power line from a pole located on the Millers’ property to deliver electrical services to an
adjoining property. See Krohn, 90 S.W.3d at 703.
       Jasper-Newton’s use of the easement here has always been for electric service. Its use of
the easement to provide electric service to an adjoining landowner thus furthers the purpose of
the easement. See id. at 702 (held that use of an electric easement to distribute cable television is
not authorized because it does not further the particular purpose for which the easement was
granted).
       The Millers argue that “[i]f an easement is intended where [Jasper-Newton] can use [the
Millers’] property to service other property, the document containing the easement should so
reference.” But, as we have stated, the plain wording of the documents indicates that the Millers
agreed to more than the provision of electric service to them. They agreed to be part of a
cooperative and to allow their property to be used for the benefit of the Jasper-Newton electric
system. See Parks, 1 S.W.3d at 100.
       The Millers also emphasize use of the phrase “on the premises” in the application’s
easements paragraph in an attempt to limit the easement to Jasper-Newton activities that would
benefit the Millers’ property. However, the plain meaning of the easement places no such
limitation on Jasper-Newton. Instead, Jasper-Newton is authorized by the easement to conduct
any of the above-referenced work on the Millers’ property so that it can deliver electricity to its
members. See Whaley, 227 S.W.3d at 231.
       Finally, the Millers rely on certain language just under the title of the 2007 Right-of-Way
Easement which includes the name of the county, the grantor, and a map number. They contend



                                                  5
that inclusion of the phrase “To Serve: Tobe H. Miller” excludes service to other property. We
construe this information as identifying the property to which the easement applies. It does not
address the scope of the easement granted. As explained above, the easement granted authorizes
work on the Millers’ property for electricity that serves the Millers and that serves the Jasper-
Newton electricity system.
         The trial court did not err in interpreting the easement to authorize Jasper-Newton to
deliver electrical services to the property adjoining the Millers’ property via an electrical line
located on the Millers’ property. See Parks, 1 S.W.3d at 100. Accordingly, the trial court
properly granted Jasper-Newton’s motion for summary judgment. See Lillis, 471 S.W.3d at 449.
We overrule the Millers’ first issue. Because resolution of this issue is definitive, we need not
address the Millers’ second and third issues. 2 See TEX. R. APP. P. 47.1.
                                                   DISPOSITION
         Having overruled the Millers’ first issue, we affirm the judgment of the trial court.

                                                                             BRIAN HOYLE
                                                                                Justice


Opinion delivered July 31, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




         2
           In their second issue, the Millers contend that the trial court erred when it denied the Millers’ motion to
strike exhibit D2 to Jasper-Newton’s motion for summary judgment. Exhibit D2 was three pages from a book
entitled Standard Handbook for Electrical Engineers. In their third issue, the Millers contend that the trial court
erred when it denied the Millers’ motion for leave to file a second supplemental response to Jasper-Newton’s motion
for summary judgment. Nothing in Exhibit D2 or in the Millers’ second supplemental response affects our analysis
and determination that the easement the Millers granted Jasper-Newton authorized Jasper-Newton to run a power
line from a pole located on the Millers’ property to deliver electrical services to an adjoining property.


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 31, 2017


                                         NO. 12-17-00012-CV


                         PAM MILLER AND TOBE MILLER,
                                  Appellants
                                     V.
                  JASPER-NEWTON ELECTRIC COOPERATIVE, INC.,
                                   Appellee


                                  Appeal from the 1A District Court
                             of Jasper County, Texas (Tr.Ct.No. 34552)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellants, PAM MILLER AND TOBE MILLER, for which execution may issue,
and that this decision be certified to the court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
