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Local land dispute heads to Texas Supreme Court

Local land dispute heads to Texas Supreme Court

Bowie County residents, SWEPCO battle over property easements, 1949 agreement

December 16th, 2018 by Lynn LaRowe in Local News

A case filed on behalf of three Bowie County landowners against Southwestern Electric Power Co. over easements is headed to the Texas Supreme Court.

When SWEPCO negotiated easements in 1949 for property between New Boston and DeKalb, Texas, the right-of-way conveyances did not contain descriptions of exactly how much land along transmission lines the utility company would have the right to control. Historically, the company used 15 feet on each side of the transmission poles for a total 30-foot easement.

But when SWEPCO decided to modernize and rebuild transmission lines in 2014, the company sent landowners letters to landowners along the transmission line route that indicated the company wanted much more of the properties and offered to pay them $1,000. With the help of Texarkana lawyer David Glass and Donald Capshaw and Dallas lawyer Tiffany Gilbert, several Bowie County landowners filed suit and the case was assigned to 202nd District Judge John Tidwell.

SWEPCO fought the landowners, claiming the 1949 easements gave them unfettered rights to the properties and claiming that the trial court did not have jurisdiction.

"SWEPCO also filed counterclaims against the appellees, and two of their wives, alleging that under its interpretation of the deeds, the appellees had trespassed. Some of the trespasses alleged by SWEPCO included the construction of a dwelling house, allowing trees to grow, and constructing and maintaining a pond within the 100-foot easement SWEPCO claimed was necessary to utilize and maintain the transmission lines," states an opinion handed down in June by the 6th District Court of Appeals in Texarkana.

Tidwell sided with the landowners and found that the 30-foot easement was reasonable. SWEPCO appealed, and in June, the appellate court too sided with the landowners, finding that once SWEPCO built and maintained the transmission line it became "fixed and certain."

Glass who represented the landowners during a bench trial before Tidwell, is managing the case through the appellate courts.

"This is a classic case of David versus Goliath. The utility company tried to shove the landowners aside but they stood their ground. This controversy is unfortunate, but SWEPCO picked the wrong people to push around," Glass said. "Land is a valuable resource and this group of landowners chose to fight to protect their property."

SWEPCO is now asking the Texas Supreme Court to review the case. The state's highest court has yet to rule whether SWEPCO's petition for review will be granted.

A number of groups such as Texas Farm Bureau, Texas Southwestern Cattle Raisers Association, Texas Cattle Feeders Association, Texas Land & Mineral Owners Association, Independent Cattlemen's Association of Texas, Texas Forestry Association, Texas Wildlife Association, Texas Poultry Federation, Plains Cotton Growers Inc., Texas Corn Producers Association and South Texans' Property Rights Association filed briefs in support of the landowners. Various utility companies including CenterPoint Energy, Oncor Electric Delivery Company LLC, and Electric Transmission Texas LLC filed briefs in support of SWEPCO. Glass noted that Electric Transmission Texas is jointly owned by American Electric Power Co., the company that owns SWEPCO.

"This is a pivotal case to solidify landowner rights when faced with unwarranted encroachment upon their property," Glass said.

In a letter to the high court, the groups supporting the landowners warn that allowing SWEPCO to claim blanket easements based on loosely-worded, decades-old documents would set dangerous precedent.

"Power and gas companies show up to these properties waving a 70-year-old piece of paper that says they have unlimited access to use the property, coercing landowners into allowing their property to be taken, damaged and destroyed for a pittance or nothing at all as compensation," the amicus letter states. "Landowners are left vulnerable after relying on the historic use and size of easements on their land when companies suddenly determine to expand."

The Texas Supreme Court has set briefing deadlines in the case for January and February.

llarowe@texarkanagazette.com

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