

Opinion filed April 1,
2010
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-08-00117-CV 
                                                    __________
 
                    OWEN
FUQUA AND NORMA FUQUA, Appellant
 
                                                             V.
 
               ONCOR
ELECTRIC DELIVERY COMPANY, Appellee

 
                                   On
Appeal from the 35th District Court
 
                                                           Brown
County, Texas
 
                                                 Trial
Court Cause No. CV0705172
 

 
                                                                  O
P I N I O N
            This
is an appeal from a final judgment enjoining Owen Fuqua and Norma Fuqua from
using an airstrip on their property because the airstrip crossed an easement
owned by Oncor Electric Delivery Company.  Owen, an experienced pilot,
sometimes flew his small planes under Oncor’s high voltage power line when
landing on his airstrip, which was perpendicular to the power line with one end
extending under the power line and across the easement.  The trial court
entered a partial summary judgment, finding as a matter of law that Oncor had
an easement across the Fuquas’ land, and a jury trial was conducted to
determine if the airstrip violated that easement.  The jury found that the
airstrip constituted an “obstruction” to Oncor’s easement.  The trial court
subsequently entered a final judgment enjoining the Fuquas’ use of the airstrip
and awarding attorney’s fees to Oncor.  The Fuquas appeal.  We affirm in part,
vacate and remand in part, and reverse and render in part.  
            Norma
Fuqua presents eight issues on appeal, and Owen Fuqua presents the same eight
issues but also adds a ninth issue in his brief.  In the first issue, the
Fuquas contend that their land is not burdened by an easement to Oncor or its
predecessors and that the alleged easement fails to describe the Fuquas’ land. 

            The
trial court concluded as a matter of law that the Fuquas property was burdened
by an express easement recorded in the Brown County deed records in volume 505,
page 569.  The document, which was recorded on May 15, 1963, reflects that an
easement and right-of-way was granted to Oncor’s predecessor, Texas Power &
Light Company (TP&L), by a previous record owner of the Fuquas’ land:  Eula
Byrd, individually and as independent executrix of the estate of W. S. Byrd.  The
easement was obtained for the Dublin to Brownwood transmission line and
purports to cover “Tract No. 38-91.”  Byrd, who also owned the tracts on both
sides of the tract that the Fuquas now own, conveyed the following:
[A]n easement and right of way for an electric transmission and
distribution line, consisting of variable numbers of wires, and all necessary
or desirable appurtenances, and for a telephone line and appurtenances, over,
across and upon Grantor’s land in the R. M. Ferguson Survey, Abstract No. 315,
and Brown County School Land Survey, Abstract No. 41, Brown County, Texas, more
particularly described in [three specific deeds].  
 
The location of
the easement was described as beginning at a specific point in the east
boundary line of the property and then continuing in a southwesterly direction
for 9,905 feet to a specific ending point in the east boundary line of a county
road.
            The
Fuquas’ contention is that their tract, though included within the R. M.
Ferguson Survey, Abstract No. 315, and the Brown County School Land Survey,
Abstract No. 41, was not included within any of the three specific deeds
provided for in the written easement but, rather, was located between the
tracts specified in those deeds.  They assert that the description is
insufficient to meet the requirements of the Statute of Frauds.  Tex. Bus. & Com. Code Ann. § 26.01 (Vernon 2009).  
            An
express easement is an interest in land that is subject to the Statute of
Frauds.  Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983).  “To be
sufficient, the writing must furnish within itself, or by reference to some
other existing writing, the means or data by which the land to be conveyed may
be identified with reasonable certainty.”  Morrow v. Shotwell, 477
S.W.2d 538, 539 (Tex. 1972).  Whether an agreement falls within the Statute of
Frauds is a question of law.  West Beach Marina, Ltd. v. Erdeljac, 94
S.W.3d 248, 264 (Tex. App.—Austin 2002, no pet.).  If an easement, though
uncertain, is susceptible to a reasonable construction as to its true intent
and meaning, the easement satisfies the Statute of Frauds.  Id.  When construing
a conveyance, the court does not look at terms in isolation; rather, it must
give effect to all parts of the conveyance and construe the document as a
whole.  Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 789 (Tex.
1995).  Even if different parts of a deed appear contradictory or inconsistent,
the court must strive to harmonize all of the parts and construe the deed to
give effect to all of its provisions.  Luckel v. White, 819 S.W.2d 459,
462 (Tex. 1991).  
            The
court in Compton v. Texas Southeastern Gas Co., 315 S.W.2d 345 (Tex.
Civ. App.—Houston [1st Dist.] 1958, writ ref’d n.r.e.), was faced with facts
similar to the case before this court.  In Compton, a pipeline easement,
which was obtained through condemnation proceedings, specifically included by
reference to prior deeds two of three tracts owned by the landowner; however,
it omitted the middle tract.  315 S.W.2d at 347-48.  The court determined that
the metes and bounds description of the right-of-way was sufficient and that
the omitted tract was included in the general description clause.  Id.
at 349.  The right-of-way was described as being “all that certain tract or
parcel of land lying and being situated in Waller County, Texas, being part of
the Justo Liendo 5 Leagues Grant, being part of [the two tracts specified by
deeds].”  Id.  The Compton court rejected the landowner’s
contention that the reference to the Justo Liendo 5 Leagues Grant should be
ignored and full effect should be given to the description of the two specific
tracts.  
            Likewise,
because we must attempt to harmonize and give effect to all parts of the
document granting the easement, we reject the Fuquas’ contention that we should
ignore the general conveyance language and the description of the easement as
beginning at a certain point and continuing for 9,905 feet to a certain ending
point.  The record established that the beginning and ending points described
in the conveyance from Byrd to TP&L could be identified with reasonable
certainty and that the distance between these two points was 9,905 feet.  The
record also established that this easement crossed the Fuquas’ property.  We
hold that the Statute of Frauds was satisfied and that the trial court properly
determined as a matter of law that an express easement existed across the
Fuquas’ land.  The first issue is overruled.  
            In
the second issue, the Fuquas contend that the injunction should be overturned
because the easement is not in their chain of title and because they were not
parties to the instrument, had no notice of the terms of the easement, and were
good faith purchasers.  The undisputed evidence shows that the above-ground,
high voltage power line was erected in the early 1960s and was open and
obvious; that the Fuquas’ predecessor in title conveyed an easement to Oncor’s
predecessor in 1963; that, pursuant to a title opinion rendered at the time of
the Fuquas’ purchase, the Fuquas were notified of the existence and location in
the county’s records of the easement to TP&L; and that the 1985 deed to the
Fuquas provides that the sale was specifically “made and accepted subject to .
. . [e]xisting easements for utility and water lines.”  The second issue is
overruled. 
            In
the third issue, the Fuquas assert that the terms of the injunction are
overbroad and unreasonable in scope, limiting the Fuquas’ use of their property
beyond the boundaries of the easement.  The trial court enjoined the Fuquas
from utilizing, allowing others to utilize, and continuing to maintain “the
Airstrip on or near the Easement on the Property, which necessarily includes
the superjacent airspace extending horizontally for 200 feet beyond each end of
the Airstrip and then outward and upward for 5,000 feet at a slope of 20 to 1.” 
Among the rights granted in the easement to TP&L were the following:
[T]he right to trim or cut down trees or shrubbery to the extent, in
the sole judgment of the Company, necessary to prevent possible interference
with the operation of said line or to remove possible hazard thereto, and the
right to remove, or prevent the construction of, for a distance of 50 feet on
each side of the actual center of said line, any or all buildings, structures
or other obstructions which, in the sole judgment of the Company, may endanger
or interfere with the efficiency, safety, or convenient operation of said line
and its appurtenances. . . .
 
            The right is reserved by Grantor to use the land within the
100 foot space above described for general agricultural and grazing purposes,
provided such use shall not include the growing of trees thereon or any other
use which might, in the sole judgment of the Company, interfere with the
exercise by the Company of the rights hereby granted. 
 
A
trial court generally possesses great discretion in issuing an injunction. 
However, a trial court abuses its discretion by entering an injunction that is
so broad as to either grant a plaintiff more relief than it is entitled to or enjoin
a defendant from conducting lawful activities and exercising legal rights.  Villalobos
v. Holguin, 208 S.W.2d 871, 875 (Tex. 1948); Fairfield Estates L.P. v.
Griffin, 986 S.W.2d 719, 723 (Tex. App.—Eastland 1999, no pet.); see
also Holubec v. Brandenberger, 111 S.W.3d 32, 39-40 (Tex. 2003)
(“injunctions must be narrowly drawn and precise”).  
Oncor
introduced testimony supporting its contention that the airstrip interfered
with the exercise of Oncor’s rights as granted in the easement.  One of the
hazards associated with high voltage power lines is that the electricity jumps
and can electrocute someone even though he is not touching the line.  The power
line crossing the Fuquas’ land is a 138,000-volt line.  The lowest wire is
25-29 feet above the runway, and the small, shield wire is about 50 feet above
the runway.  The placement of the runway underneath the power line impeded the
obstacle-free zone as determined by Oncor engineers using FAA guidelines.  An
Oncor engineer and line design manager detailed various safety risks involving
the runway and testified that the runway constituted an obstruction to the safe
and efficient use of the power line.
An
experienced pilot and instructor who was familiar with the design and
construction of airstrips near power plants and power lines testified that the
Fuquas’ runway constituted an obstacle to the operation of the power line and
was not safe. The FAA determined that the Fuquas’ airstrip was “objectionable”
but that the FAA could not prevent the Fuquas from using the airstrip because
the Fuquas designated the airport as a private-use airport.  The FAA further
advised, “The power line over the runway is a hazard and needs to be removed. 
Once removed or buried, we will remove the objectionable determination.”  
            The
Fuquas presented evidence showing that their airport was not for public use
and, therefore, that they need not comply with FAA regulations.  They also
presented evidence that their airstrip was used only by them, that flying under
the power line is easier and safer than flying over it due to visibility
issues, and that crop dusters regularly fly under power lines. Substantial
evidence regarding Owen’s impeccable credentials as a pilot was introduced and
was not controverted.  The only time Owen flies underneath the power line is
when landing from the north.  He does not fly underneath the power line when
taking off in either direction or when landing from the south.  Owen testified
that there are no regulations prohibiting taxiing, taking off, or landing
underneath a power line.  He also testified that, where the runway was located,
there had been a road since at least 1981. 
            Though
we are concerned about the safety issues involved in landing an airplane near a
high voltage power line, we are constrained to address the issues presented in
this case.  We agree with the Fuquas that the terms of the injunction are
overbroad.  The trial court enjoined the Fuquas from using the airstrip on “or
near” the easement.  The trial court also imposed FAA regulations on the
airstrip and the superjacent airspace even though the evidence showed that the
Fuquas’ private-use airstrip was not subject to those FAA regulations.[1] 
Oncor does not contend, nor does the record indicate, that the Fuquas were in
violation of any applicable ordinance, statute,[2]
or FAA regulation.  The Fuquas own the land, and Oncor has a 100-foot easement
for its power lines.  Pursuant to that easement, Oncor may remove any
obstruction within the 100-foot easement.  The terms of the easement do not
prohibit the Fuquas from utilizing their land or the airspace outside the
easement; however, the injunction does.  The injunction goes so far as to
extend the easement “horizontally for 200 feet beyond” the opposite end of the airstrip,
which is approximately 2,000 feet from the power line, and “then outward and
upward for 5,000 feet at a slope of 20 to 1.”  We hold that the trial court
abused its discretion by including the overly broad language “or near” in the
injunction and by imposing inapplicable FAA guidelines to effectively extend
the boundaries of the easement.  The third issue is sustained.  
            In
the fourth issue, the Fuquas challenge the factual sufficiency of the evidence
in support of the jury’s finding that the airstrip constituted “an obstruction
as that term is used in the easement.”  To address this issue, we must consider
and weigh all of the evidence and determine whether the evidence in support of
the finding is so weak as to be clearly wrong and unjust or whether the finding
is so against the great weight and preponderance of the evidence as to be
clearly wrong and manifestly unjust.  Dow Chem. Co. v. Francis, 46
S.W.3d 237, 242 (Tex. 2001); Pool v. Ford Motor Co., 715 S.W.2d 629, 635
(Tex. 1986); In re King’s Estate, 244 S.W.2d 660, 661 (Tex. 1951).  In
addressing this issue, we must keep in mind that the jury is the sole judge of
the credibility of the witnesses and the weight to be given to their
testimony.  City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).  
            The
record shows that the evidence on this issue was controverted.  Oncor offered
testimony that the airstrip itself constituted an obstruction.  Oncor’s
transmission engineering line design manager testified that the asphalt
airstrip itself was objectionable because Oncor’s trucks, while driving on the
easement, would have to cross the airstrip and would damage the asphalt runway
thereby creating a safety hazard.  Oncor also offered testimony that the
airstrip as defined in the jury charge, meaning the runway and its usage,
constituted an obstruction to the operation of the power line.  The Fuquas
offered testimony indicating that the airstrip did not constitute a building,
structure, or obstruction and did not interfere with the power lines.  As the
judge of the credibility of the witnesses, the jury was free to believe the
testimony that the airstrip constituted an obstruction.  After reviewing all of
the evidence, we cannot hold that the evidence is insufficient to support the
finding or that the finding is so against the great weight and preponderance of
the evidence as to be clearly wrong and manifestly unjust.  The fourth issue is
overruled.  
            In
the fifth issue, the Fuquas assert that the trial court erred in charging the
jury that the term “airstrip” as used in the jury charge includes both the
runway “and its usage.”  We must review an allegation of jury charge error for
an abuse of discretion.  Tex. Dep’t of Human Servs. v. E.B., 802
S.W.2d 647, 649 (Tex. 1990).  A trial court abuses its discretion if it acts in
an arbitrary or unreasonable manner without reference to any guiding rules or
principles.  Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).  In its
petition, Oncor sought to enjoin, among other things, the use of the airstrip. 
Although the terms of the easement in this case did not specifically limit the
landowner’s “usage” of the property, it has been held pursuant to common law
that a landowner has no right to “use” his property in such a way as to
interfere with an easement holder’s reasonable use and enjoyment of the
easement.  Still v. Eastman Chem. Co., 170 S.W.3d 851, 854-55 (Tex.
App.—Texarkana 2005, no pet.).  We cannot hold that the trial court acted
arbitrarily without reference to any guiding rules or principles when it
charged the jury consistent with the petition and common law. The fifth issue
is overruled.  
            In
the sixth issue, the Fuquas complain that the trial court erred in refusing to
instruct the jury on the issue of the Fuquas’ lack of notice of the terms of the
easement.  In the seventh issue, the Fuquas argue that the trial court erred in
refusing to admit evidence regarding their lack of notice of the terms of the
easement.  The Fuquas assert that they were good faith, or bona fide,
purchasers because they did not have notice of the terms of the easement.  
To
be a bona fide purchase, the purchase must have been made for valuable
consideration and without notice, either actual or constructive, of the adverse
claim.  Cleaver v. Cundiff, 203 S.W.3d 373, 378 (Tex. App.—Eastland 2006,
no pet.) (citing F.J. Harrison & Co. v. Boring & Kennard, 44
Tex. 255, 263 (1875)).  Notice is sufficient if it would lead an ordinarily
prudent man to inquire into the matter.  Id.  Owen testified that he
knew the power lines were there at the time he purchased the property in the
mid-1980s.  The evidence established that the power line was open and obvious,
that the Fuquas were aware of the high voltage power line and poles crossing
the property when they purchased it, and that the deed to the Fuquas was
expressly made subject to existing utility easements.  The Fuquas’ alleged lack
of notice of the specific terms of the easement does not alter the fact that
they had notice of the existence of the easement and, therefore, could not be
bona fide purchasers.  The trial court did not err in refusing to admit
evidence or instruct the jury on the issue of the Fuquas’ notice of the
specific terms of the easement.  The sixth and seventh issues are overruled.  
            In
the eighth issue, the Fuquas assert that Oncor waived the right to attorney’s
fees by failing to submit them to the jury for determination.  The record shows
that Oncor requested and the trial court awarded attorney’s fees incurred from
the inception of the suit until the date of the order granting Oncor’s motion
for partial summary judgment.  After conducting a post-verdict hearing on the
contested issue of attorney’s fees that had been incurred prior to the summary
judgment order, the trial court in its final judgment awarded reasonable and
necessary attorney’s fees for that time period in the amount of $59,755.75
pursuant to Tex. Civ. Prac. & Rem.
Code Ann. ch. 37 (Vernon 2008).  Section 37.009 provides that “the court
may award costs and reasonable and necessary attorney’s fees as are equitable
and just” in a declaratory judgment proceeding.  Pursuant to Section 37.009,
the judge is to determine whether an award of attorney’s fees is equitable and
just; however, even when declaratory relief has been determined by summary
judgment, the issue of whether attorney’s fees are reasonable and necessary is
a question of fact for the jury to determine when the jury is the trier of
fact.  City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex.
2000); Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex. 1998).  
            The
record in this case shows not only that Oncor failed to request that the issue
be submitted to the jury but also that Oncor affirmatively requested that the
judge, rather than the jury, determine the issue of the reasonableness and
necessity of attorney’s fees.  The Fuquas objected, correctly asserting that
the reasonableness and necessity of attorney’s fees was an issue of fact for
the jury.  In accordance with Oncor’s request, the issue was not submitted to
the jury.  Under these circumstances, we agree with the Fuquas that Oncor has
waived its claim to the recovery of attorney’s fees.  See Tex. R. Civ. P. 279 (which provides
that, upon appeal, all independent grounds of recovery “not conclusively
established under the evidence and no element of which is submitted or
requested are waived”); University of Tex. at Austin v. Ables, 914
S.W.2d 712, 717 (Tex. App.—Austin 1996, no writ).  The Fuquas’ eighth issue is
sustained.  
            In
the ninth issue, Owen complains of error in the denial of his motion to recuse
or disqualify Judge Stephen Ellis.  See Tex. R. Civ. P. 18b.  We must review the denial for an abuse
of discretion.  Tex. R. Civ. P.
18a(f).  The record shows that William Bell had written the title opinion that
was issued when the Fuquas purchased the property in 1985.  When this fact came
to light during a hearing on the temporary injunction, Judge Ellis stopped the
proceeding and notified all parties that he had been Bell’s law partner but
that he had not been involved in the matter and that he had no knowledge of it. 
At that time, Judge Ellis offered to “recuse” himself from serving in this
case.  Judge Ellis asked in open court if there was an issue with him serving
as the judge in this case.  Owen, who was representing himself pro se and was
on the witness stand at the time, did not voice any objection.  The attorneys
for Oncor and Norma affirmatively stated that they had no objection.  However,
two months later – after Judge Ellis had issued a temporary injunction against
the Fuquas – Owen filed a motion for disqualification and, alternatively,
recusal of Judge Ellis.
The
matter was assigned to and heard by Judge John G. Hyde.  Judge Hyde conducted a
hearing and denied Owen’s motion.  Owen contends that Judge Ellis was
disqualified pursuant to Rule 18b(1).  He does not contend that Judge Ellis was
constitutionally disqualified pursuant to Tex.
Const. art. V, § 11.  Rule 18b(1) provides in part that judges shall
disqualify themselves in all proceedings in which “(a) they have served as a
lawyer in the matter in controversy, or a lawyer with whom they previously
practiced law served during such association as a lawyer concerning the matter;
or (b) they know that, individually or as a fiduciary, they have an interest in
the subject matter in controversy.”  The record does not support the contention
that either Bell or Judge Ellis had any direct interest in the subject matter
of this suit.  Furthermore, according to the record from the hearing, Bell did
not serve as counsel to a party to this suit but, rather, represented the bank
that conveyed the property to the Fuquas.  See In re O’Connor, 92 S.W.3d
446, 448-49 (Tex. 2002).  Nor, is the matter in controversy in this case the
same as that at issue in 1985.  See id.
Owen
contends that Judge Ellis should have recused himself pursuant to Rule 18b(2)
because Bell was a material witness concerning the proceeding and because Judge
Ellis had an interest in the proceeding due to a possible allegation of
malpractice on the part of Bell.  The record does not show that Bell was a
material witness, that Bell committed malpractice, or that Judge Ellis had any
interest in the subject matter of the proceedings at issue in this case.  We
find no abuse of discretion in the denial of Owen’s motion for disqualification
or recusal.  The ninth issue is overruled.  
            The
judgment of the trial court is vacated insofar as it permanently enjoined the
Fuquas from maintaining, utilizing, and allowing others to utilize the airstrip
“near the Easement on the Property, which necessarily includes the superjacent
airspace extending horizontally for 200 feet beyond each end of the Airstrip
and then outward and upward for 5,000 feet at a slope of 20 to 1,” and the
cause is remanded to the trial court for the entry of a permanent injunction in
accord with this court’s opinion. The judgment of the trial court is reversed
with respect to the award of attorney’s fees to Oncor, and we render judgment
that Oncor take nothing on its claim for attorney’s fees.  In all other things,
the judgment of the trial court is affirmed.  
 
 
                                                                                                JIM
R. WRIGHT
                                                                                                CHIEF
JUSTICE
 
April 1, 2010
Panel consists of:  Wright, C.J.,
McCall, J., and
Strange, J.




                [1]See 14 C.F.R.
§§ 77.21(c), 77.23, 77.25. 
 


                [2]The parties note
that Tex. Health & Safety Code Ann.
§§ 752.004-.005 (Vernon 2003) restrict activities within six feet of a high
voltage overhead line.  Nothing in the record suggests that the Fuquas ever
came within six feet of the power line.


