Pole Attachment Development (November 13, 2002)
Texas Court Requires Cable Easements

Date: Nov 13, 2002

In a decision with broad implications, the Texas Supreme Court last week ruled that a cable television company must obtain its own easement over private property before stringing wires onto an electric company's poles.

In Marcus Cable Associates, L.P., d/b/a Charter Communications Inc. v. Krohn, No. 01-0291 (Tex. Sup. Ct., Nov. 5, 2002), certain property owners sued Charter for trespass, requesting damages and to have Charter's cables removed. At issue was an easement granted in 1939 to Hill County Electric Cooperative, in which the co-op was granted an easement to use the landowners' property for the purpose of constructing and maintaining "an electric transmission or distribution line or system." Hill County Electric's joint use agreement with Charter required Charter to obtain its own easements and rights-of-way, but Charter had not done so.

Having failed to obtain its own easement, Charter attempted to rely on Hill County's electric service easement. The Texas Supreme Court rejected that argument. The court ruled that a third party's use of an express easement cannot exceed the rights expressly conveyed to the original easement holder, and cable television service very simply is not the same thing as electricity service.

Charter also attempted to invoke a provision of the Texas Utility Code permitting cable companies to install and maintain equipment "over a utility easement." This argument was also rejected. The court ruled that this code provision pertains only to utility easements dedicated for public use, not to easements granted to utilities by private landowners.

This ruling has important implications for utilities as they negotiate joint use agreements. Bargaining positions and potential liabilities are affected, both for attachers and utilities.

For more information, please contact Tom Magee at (202) 434-4128, or via e-mail at magee@khlaw.com.