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At a Glance:
Title:
Atmos Energy Corporation v. Paul
Date:
March 5, 2020
Citation:
598 S.W.3d 431
Status:
Published Opinion

Atmos Energy Corporation v. Paul

Court of Appeals of Texas, Fort Worth.

ATMOS ENERGY CORPORATION, Appellant

v.

Charles L. PAUL, Appellee

No. 02-19-00042-CV

|

Delivered: March 5, 2020

On Appeal from the Probate Court, Denton County, Texas, Trial Court No. PR-2017-00587, HON. BONNIE J. ROBISON, Judge

Attorneys & Firms

ATTORNEYS FOR APPELLANT: BRETT KUTNICK, JACKSON WALKER LLP, DALLAS, TEXAS.

ATTORNEYS FOR APPELLEE: CHRISTOPHER S. JOHNS & CHRISTEN MASON HEBERT, JOHNS & COUNSEL PLLC, AUSTIN, TEXAS.

Before Wallach, JJ., and Gonzalez, J.1

OPINION

Opinion by Justice Bassel

I. INTRODUCTION

*1 This appeal involves a dispute over the interpretation of a 1960 easement agreement that grants a right-of-way for the grantee to construct, maintain, and operate pipelines over and through 137 acres of property. Appellee Charles L. Paul currently owns a portion of this property. Atmos Energy Corporation, the current owner of the easement, sued Paul for violating the easement agreement after he denied Atmos access to construct a new pipeline.

In a single issue, Atmos appeals the probate court’s granting of summary judgment in Paul’s favor and rendering judgment that Atmos take nothing. Atmos argues that the probate court erred because (1) under standard principles of contract interpretation, the unambiguous easement is a blanket easement that permitted Atmos to construct a new pipeline anywhere on the property, subject to the requirement that the use of the right does not unreasonably interfere with the property rights of the owner of the servient estate, and (2) Paul did not conclusively prove that the new line unreasonably burdened Paul’s property. We agree and reverse and remand.

II. BACKGROUND2

A. The 1960 Easement Agreement granted Atmos, as successor-in-interest to Lone Star Gas Company, a right-of-way and easement to lay multiple pipelines over and through 137 acres of land in Denton County.

In 1960, Atmos’s predecessor-in-interest, Lone Star Gas Company, entered into a right-of-way and easement agreement (the Easement Agreement) with Paul’s predecessors-in-interest. In exchange for ninety dollars, the predecessors granted, sold, and conveyed to Lone Star Gas and its successors and assigns,

the right of way and easement to construct, maintain and operate pipe lines and appurtenances thereto ... over and through the following described lands situated in Denton County, State of Texas, to-wit:

[137 acres.]

TO HAVE AND TO HOLD unto said Grantee, its successors and assigns, so long as such lines and appurtenances thereto shall be maintained, with ingress to and egress from the premises, for the purposes of constructing, inspecting, maintaining, and replacing the property of Grantee above described, and the removal of such at will, in whole or in part.

The said Grantor is to fully use and enjoy the said premises, except for the purposes hereinbefore granted to the said Grantee, which hereby agrees to bury all pipes to a sufficient depth so as not to interfere with cultivation of soil, and to pay any damages which may arise to growing crops or fences from the construction, maintenance and operation of said pipe.... Should more than one pipe line be laid under this grant at any time, the sum of one dollar per lineal rod for each additional line shall be paid, besides the damages above provided for.

B. Lone Star Gas laid Line W in 1960 along the southern border of Paul’s property, and then in 2017, Paul denied Atmos access to install a new Line WD diagonally across his property.

*2 The summary-judgment record reflects that in 1960, pursuant to the Easement Agreement, Lone Star Gas installed Line W, a twenty-four-inch diameter gas pipeline, along the southern boundary of Paul’s property.

At some point, the 137 acres burdened by the Easement Agreement were subdivided. According to the summary-judgment evidence, in 2001, Paul purchased 64 acres of this subdivided property. Atmos, as successor-in-interest to Lone Star Gas, currently owns the right-of-way and easement rights granted by the Easement Agreement.

Atmos alleged that in January 2017, it met with Paul about installing a new pipeline on Paul’s property. The summary-judgment evidence reflects that the new pipeline (Line WD) would enter Paul’s property approximately 950 feet north of Line W on his western boundary line and run diagonally southeast to approximately 575 feet north of Line W on his eastern boundary line. The cropped image below depicts the boundaries of Paul’s property in green, Line W in red, and Line WD in white.3

The Easement Agreement requires the payment of one dollar per lineal rod for any additional lines laid under that agreement. The summary-judgment record evidences that Atmos tendered Paul payment in the amount of $70.31 as payment for Line WD, which Paul rejected.

C. Atmos sued Paul for breach of contract for denying it access to his property to install Line WD.

In July 2017, Atmos sued Paul for breach of contract, alleging that Paul had violated the Easement Agreement “[b]y denying [Atmos] access to the [p]roperty,” “unlawfully interfer[ing] with [Atmos’s] [e]asement rights,” and threatening to delay the construction of the new pipeline. Atmos alleged that it was necessary for Atmos to construct a second pipeline because the demand for gas in Denton County and North Texas greatly increased such that Line W, by itself, could not continue to adequately provide natural gas to all areas that it was originally designed to serve. Atmos alleged that Paul had claimed that the new Line WD was in excess of the rights provided for under the Easement Agreement.

After Atmos filed suit, the parties entered into a “Right of Possession and Use Agreement” (PUA) that allowed Atmos to access Paul’s property to install Line WD, conditioned on the probate court’s ruling on Atmos’s right to use the land.4 Pursuant to the PUA, Atmos has constructed Line WD on Paul’s property.

D. Paul moved for a traditional summary judgment on Atmos’s claim for breach of contract, arguing that he negated the breach element to the claim as a matter of law.

1. In seeking summary judgment, Paul argued that the laying of Line W set the location and width of a single easement envisioned by the Easement Agreement and that Line WD is outside that easement.

Paul filed a traditional summary-judgment motion on Atmos’s breach-of-contract claim. He admitted that he had denied Atmos access to his property. But he argued that he did not breach the Easement Agreement in doing so because (under his interpretation of the agreement), as a matter of law, the Easement Agreement does not permit the installation of the new line, Line WD.

*3 Under Paul’s interpretation, the Easement Agreement is not ambiguous and created only “one ‘right of way and easement’ ” that “allows for multiple pipelines, [but] not multiple easements.” He acknowledged that the Easement Agreement “did not set [the easement’s] location.” But relying heavily on Houston Pipe Line Company v. Dwyer, 374 S.W.2d 662, 665–66 (Tex. 1964) (which we discuss in our analysis), Paul argued that Atmos’s predecessor, Lone Star Gas, set the easement’s location and the maximum pipeline diameter when it laid Line W in 1960. “Thus, when Atmos’s predecessor installed its first pipeline (Line W) along the southern boundary of the Property, this act forever set both the location of the easement and the maximum diameter (24 inches) of any future-laid pipelines within it.” He further argued that “[a]ny subsequent pipelines installed under the [Easement Agreement] must parallel the first pipeline and must be located within this easement.”

In support of his motion, Paul filed an affidavit stating that at some point between 2002 and 2004, he began installing dog kennels south of his barn (where Line W is located) when an Atmos agent told him that he could not place a structure within Atmos’s easement.5 The agent told him that Atmos’s easement was fifty-feet wide. Paul further stated by affidavit that between 2003 and 2004, Atmos installed another pipeline (Line X) parallel to and approximately ten feet south of Line W, between Line W and his property’s southern boundary line. Thus, he argued, Atmos knew that it had to build this Line X within the same right-of-way established by the placement of the original pipeline under the Easement Agreement.

As to the question whether Line WD unreasonably burdens his land, Paul stated in his affidavit that “[t]he location of [Line WD] severely impacts [his] ability to develop the [p]roperty to its highest and best use.” He argued generally that if the Easement Agreement authorized Atmos to “lay any number and diameter of new pipelines in any location on the [p]roperty every time an increased demand for gas made it necessary, the extent of its easement would never become fixed or definitely ascertainable.” Paul contended that “[n]o reasonable buyer would seriously consider buying land that could be spider-webbed with an unlimited number of new pipelines at the drop of a hat”; citing Dwyer, he argued that any interpretation that grants “Atmos such a boundless right [is] unreasonable.”6

2. Atmos responded to Paul’s summary-judgment motion by arguing that the Easement Agreement granted a “multiple pipeline blanket easement” that does not specifically designate where pipelines are to be constructed.

Atmos argued that under governing contract-interpretation principles, the Easement Agreement granted a “blanket easement containing multiple pipeline rights” with “no limitations on where future pipelines can be placed”; it is a “multiple pipeline blanket easement.” In Atmos’s view, requiring all future pipelines to be laid within an arbitrarily imposed fifty-foot-wide area or “single and narrow easement corridor” improperly limits the number of pipelines that could be laid on the property, in direct violation of the express terms of the Easement Agreement.7

*4 Atmos argued that Paul misinterpreted Dwyer stands for the proposition that the location and size of an easement may become fixed once it is installed under a blanket easement that authorizes only one pipeline, that proposition does not apply to the Easement Agreement because it authorized multiple pipelines. In the view of Atmos, single pipeline easements are different from multiple pipeline easements because the latter are “not fixed unless the easement instrument expressly fixes them.” Atmos argued that the Easement Agreement granted the equivalent to “multiple floating easements.”

Atmos also filed an affidavit signed by Drake Miller, an Atmos engineer. As to the incident relating to the dog kennels, Miller stated that he found no record or evidence of (1) an Atmos agent ever stating that the Easement Agreement required Atmos to install pipelines within a fifty-foot-wide area around the existing Line W or that the easement was limited to fifty feet in width, or (2) that any Atmos agent was ever authorized to make such statements. As to Line X, Miller stated that although Atmos does operate a Line X pipeline, it is more than forty miles away from Paul’s property at its closet point. Although Atmos had installed a replacement Line W next to the original Line W, it had never built or operated any other pipeline on Paul’s property other than the new Line WD.

Miller’s affidavit also included an explanation of various factors that went into Atmos’s decision to route Line WD diagonally across Paul’s property. Such factors included, among other things, the location of homes, barns, a creek, a pond, and other pipelines. His affidavit included a map showing certain property boundaries in green, Line W in red, other pipelines in blue, Line WD in white, and yellow tacks for various obstructions:

According to Miller’s affidavit, the route chosen was the “best route to enable Atmos to construct, maintain, and operate Line WD while at the same time limiting the impact on the landowners [including Paul and surrounding landowners] burdened by the existing easements as much as reasonably possible.”

E. The probate court granted summary judgment and entered a final judgment that Atmos take nothing.

The probate court held a hearing, granted Paul’s summary-judgment motion, and entered a final judgment that Atmos take nothing. The probate court also

[found] and declare[d] that (1) the 1960 easement is not a blanket easement covering all of [Paul’s] property; (2) [Atmos] exceeded its rights under the 1960 easement by installing the pipeline known as Line WD in its current location on [Paul’s] property; and (3) [Paul] did not breach the 1960 easement by withholding his consent to the installation of Line WD in its current location on [Paul’s] property.

Atmos now appeals.

III. PRELIMINARY MATTER

We will first address the probate court’s “find[ings]” and “declar[ations]” before turning to the standard of review. Neither party filed a claim for declaratory judgment in the probate court,8 and the probate court’s “findings” and “declarations” do not separate any grounds on which it granted summary judgment from other grounds that Paul asserted in his motion. Thus, the probate court’s findings and declarations constitute findings of fact and conclusions of law that have “no place in a summary judgment proceeding.” See Peebles v. Advanced Wholesale Car Concepts, Inc., No. 05-99-00269-CV, 1999 WL 1212260, at *1 (Tex. App.—Dallas Dec. 17, 1999, no pet.) (mem. op., not designated for publication) (declining to address appellant’s points of error relating to probate court’s findings of fact when granting summary judgment).

IV. STANDARD OF REVIEW

*5 We review a summary judgment de novo. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).

If a defendant, such as Paul, conclusively negates at least one essential element of a plaintiff’s cause of action, then the defendant is entitled to summary judgment on that claim. Van v. Peña, 990 S.W.2d 751, 753 (Tex. 1999).

V. LAW GOVERNING EASEMENT INTERPRETATION

A property owner’s right to exclude others from his or her property is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Marcus Cable, 90 S.W.3d at 700.

The law balances the rights of the parties to an easement by specifying that “[a] servient estate holder [the owner of the underlying fee] cannot interfere with the right of the dominant estate holder’s [the holder of the easement] use of an easement for the purpose for which it was granted or sought.” Severance v. Patterson, 370 S.W.3d 705, 721 (Tex. 2012) (op. on reh’g) (“Because the easement holder is the dominant estate owner and the land burdened by the easement is the servient estate, the property owner may not interfere with the easement holder’s right to use the servient estate for the purposes of the easement.”).

Our primary concern is to ascertain the true intentions of the parties as expressed in the instrument. See Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *6.

*6 We must read an easement agreement as a whole in determining the parties’ intentions and to carry out the purpose for which the easement was created. See Smith, 251 S.W.3d at 823.

The language in an agreement is to be given its plain, grammatical meaning unless to do so would defeat the parties’ intent. DeWitt, 1 S.W.3d at 100.

As specifically applicable to the present controversy, “Texas courts have held the failure to spell out all the terms in an easement with respect to the construction of additional pipelines does not render ambiguous or unenforceable the rights granted.” Strauch v. Coastal States Crude Gathering Co., 424 S.W.2d 677, 681 (Tex. App.—Corpus Christi–Edinburg 1968, writ dism’d)).

An easement’s express terms, interpreted according to their generally accepted meaning, delineate the purpose for which the easement holder may use the property. id.

The emphasis that Texas law places upon an easement’s express terms serves important public policies by promoting certainty in land transactions. Id.

A use that falls outside the assigned purpose of the grant is not permitted simply because it provides a public benefit; permitting that use would circumvent the contracting parties’ intent by disregarding the easement’s express terms and the specific purpose for which it was granted. See Marcus Cable, 90 S.W.3d at 703.

*7 But at the same time, Texas’s public policy “strongly favors freedom of contract.” Rubinstein, 497 S.W.3d at 625.

With these principles in mind, we turn to our analysis of the Easement Agreement.

VI. THE PROBATE COURT ERRED BY GRANTING SUMMARY JUDGMENT.

In its sole point on appeal, Atmos argues that the probate court’s granting of summary judgment on its breach-of-contract claim was error. Because Paul’s summary-judgment motion focused on the breach element to Atmos’s contract claim, our review is limited to whether Paul conclusively established that he did not breach the Easement Agreement when he refused Atmos access to install Line WD. To resolve this question: (1) we must interpret the Easement Agreement to determine whether it requires all pipelines to be laid along the same corridor that the original Line W was laid; and (2) if not, then we must determine whether the summary-judgment record conclusively established that Line WD unreasonably burdens Paul’s property. See Marcus Cable, 90 S.W.3d at 701, 703.

Because we conclude that the unambiguous Easement Agreement is a multiple pipeline blanket easement that does not require all pipelines to be laid along the same path as Line W and that Paul did not conclusively establish that Line WD unreasonably burdens his property, Paul did not conclusively negate the essential element of breach to Atmos’s breach-of-contract claim. Thus, the probate court erred by granting summary judgment and entering a final judgment that Atmos take nothing.

A. By its express terms, the unambiguous Easement Agreement granted a multiple pipeline blanket easement.

As an initial matter, there is no dispute in this case about whether the Easement Agreement authorizes Atmos to install a second line. By its express terms, the grant permits the grantee “to construct, maintain[,] and operate pipe lines” and to lay “more than one pipe line ... at any time.” [Emphasis added.] Thus, Atmos’s use of the easement (the installation of Line WD generally) is a purpose for which the easement was expressly granted, and Paul does not contend otherwise. See Taylor Foundry, 51 S.W.3d at 770. The dispute in this case focuses on where Line WD may, or must, be installed.

To answer that question, we look to the Easement Agreement because the original contracting parties’ intentions, as expressed in the grant, determine the scope of the conveyance. See Marcus Cable, 90 S.W.3d at 700–01. Atmos argues that the Easement Agreement is a “blanket easement” over the entire 137-acre tract of land, which includes Paul’s property, and that because the blanket easement allows Atmos to construct additional pipelines across the property in the future, it had the right to install Line WD without regard to the location where Line W was originally constructed. We agree.

*8 Under Texas law, a “blanket easement” is “[a]n easement without a metes and bounds description of its location on the property.” First Am. Title Ins. Co. of Tex. v. Willard, 949 S.W.2d 342, 344 n.2 (Tex. App.—Tyler 1997, writ denied) (op. on reh’g).9 “It is not necessary ... for the easement description to be a smaller area than the entire servient estate.” 2 Tex. Prac. Guide Real Estate Trans. § 15:19. “An easement over an entire servient tract is a ‘blanket easement.’ ” Id. “Blanket easements have been commonly used in Texas history, particularly for long route utility projects such as pipelines and electric power lines.” Id. “The purpose of a blanket easement is for the practical convenience of the easement holder to alter the exact location of the lines during construction.” Id.; see also Cunningham, supra note 9, at 183 (“Historically, it was not uncommon for utilities and other infrastructure developers to obtain from landowners blanket easements that allowed improvements to be located anywhere on the subject property.”). “The flip side of the flexibility provided for a blanket easement is the loss of control of exclusive use which the landowner otherwise enjoys.” 2 Tex. Prac. Guide Real Estate Trans. § 15:19.

Here, the Easement Agreement contains no metes and bounds description specifying the location of an easement on the property. Rather, it conveys “the right of way and easement to construct, maintain and operate pipe lines and appurtenances thereto ... over and through the following described lands situate[d] in Denton County, State of Texas, to-wit”:

137 acres, more or less, out of the A.C. Madden Survey, Abstract No. 852

R.M. Thompson Survey, Abstract No. 1578 and B.C. Barnes Survey, Abstract No. 85

more fully described in deed from Sarah Anna Knox to M.A. Knox recorded in Volume 325, Page 520, Deed Records of said County, to which reference is here made for further description.

The Easement Agreement’s reference to the entire 137 acres (of which Paul’s property is only part) fits squarely within the definition of a blanket easement. See First Am. Title, 949 S.W.2d at 344 n.2.

By its express terms, the Easement Agreement permits the grantee to lay “pipe lines” and “more than one pipe” at “any time.” [Emphasis added.] The Easement Agreement provides initial consideration of ninety dollars and then one dollar per lineal rod for any additional line laid in the future. There is no language limiting the location or width of the lines or requiring that any additional lines be parallel or adjacent to the first line laid. Rather, the Easement Agreement identified the entire 137-acre tract as the property burdened by the servitude.

As a matter of law, the face of the Easement Agreement created an expansible, or multiple line, blanket easement. See Boland, 816 S.W.2d at 845).

Under the plain language of the Easement Agreement, Paul’s predecessors-in-title intended to burden their entire 137-acre tract of land and for the grantee to have the right to lay an unlimited number of pipelines as it may reasonably demand across the entirety of the predecessors’ property by expanding the servitude each time upon the payment of the additional consideration of one dollar per lineal rod. See Phillips Petroleum Co. v. Lovell, 392 S.W.2d 748, 749–51 (Tex. App.—Amarillo 1965, writ ref’d n.r.e.).

B. Atmos’s use of the rights granted under the Easement Agreement, however, may not unreasonably interfere with Paul’s property rights.

*9 The grant of a multiple pipeline blanket easement does not mean, however, that Atmos may use Paul’s property however it deems fit without regard to the burden it places upon Paul’s use of his land.

The majority of states, including Texas, that have chosen to impose limits on existing easement rights adopt some version of the “reasonable necessity test.” See Cunningham, supra note 9, at 188–89. Under Texas law, “[a] grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner.Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *9.

As it pertains to this case, Atmos is restrained by this rule of reasonable necessity when it selects a route for Line WD. What constitutes an unreasonable use of easement rights such that the grantee is unreasonably interfering with the property rights of the servient estate is a question that is inherently fact intensive. Paul expresses fear that Atmos may “spiderweb” his property with numerous pipelines. But we are faced with no actual controversy involving any such threat by Atmos in this case. See Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *9 (“Because landowners purchase properties aware of any encumbrances, and easements are a common encumbrance, landowners are charged with notice of easements that may encumber their property, including easements that do not contain a specific width but instead include general language.”).

*10 Accordingly, we conclude that the Easement Agreement granted Atmos the right to lay additional pipelines anywhere on Paul’s property (which is only 65 acres out of the 137 acres in the grant) “as is reasonably necessary and convenient and as little burdensome as possible to [Paul,] the servient owner,” and that such additional lines do not have to be in the same corridor as Line W. See Taylor Foundry, 51 S.W.3d at 770. We address the question of whether Paul demonstrated that Atmos’s selected route for Line WD unreasonably burdens his property as a matter of law below.

C. Paul’s interpretation of the Easement Agreement is not reasonable.

Before turning to that question (unreasonable burden of Line WD), we explain in detail why we reject Paul’s interpretations of the Easement Agreement that underlie his contention that Atmos did not have the right to lay Line WD outside the corridor where Line W was originally laid. Paul argues that the Easement Agreement created a single path through the property, not a blanket covering all 137 acres. Although Atmos may install multiple “pipe lines,” he argues that it may do so only in this single corridor of reasonable width. He contends that this corridor was fixed when Lone Star Gas laid Line W along the southern boundary of his property.

Paul contends that his interpretation is the only reasonable one because it: (1) is consistent with the precedent established in Dwyer, 374 S.W.2d at 662–66 (discussed below); (2) is grounded in the generally accepted meanings of the terms “easement,” “right-of-way,” “over,” and “through”; (3) does not render the right of “ingress” and “egress” meaningless; (4) is consistent with the compensation terms of the grant; and (5) is consistent with a requirement in the grant that the grantee pay for damages to growing crops and fences. As we explain below, Paul’s interpretation is not reasonable because he misapplies the case law, misconstrues the nature of easements, and construes the language in the Easement Agreement too narrowly.

1. Paul’s interpretation is based upon a misapplication of Dwyer, which does not involve a multiple pipeline blanket easement.

Relying on his interpretation of Dwyer.

In Id.

*11 The pipeline company laid, in 1926, a line with an eighteen-inch diameter. Id.

The landowners sued to remove the easement as a cloud on their title and to obtain a declaration that the easement terminated as a result of the pipeline company removing the eighteen-inch pipe and replacing it with the thirty-inch pipe. Id. at 662, 666. The issues on appeal were whether the pipeline company had terminated the easement by removing the first pipe and exceeded its rights by installing the larger pipe.

The Supreme Court of Texas concluded that the pipeline company “was not authorized to remove this 18-inch line initially constructed and replace it with a line of substantially greater size.” Id. at 666. Quoting Thompson on Real Property, Perm. Ed. § 681, the court explained,

A grant in general terms of a right to lay a pipe for the purpose of conducting water across the land of the grantor without specifying the place for laying it or the size of the pipe is defined and made certain by the act of the grantee in laying down the pipe; and after he has once laid the pipe with the acquiescence of the grantor, the grant which was before general and indefinite becomes fixed and certain and the grantee [cannot] change the easement either by relaying the pipe in another place or by increasing its size.

Id. at 666.

Paul, applying Dwyer, argues,

The 1960 Easement Agreement does not define the metes and bounds of the easement. But when Atmos’s predecessor laid its pipeline with the acceptance of [Paul’s predecessors-in-title], the easement “which was before general and indefinite” became “fixed and certain.” Dwyer, 374 S.W.2d at 666. Atmos cannot chose a new easement route.

In other words, he argues that there is only one path or corridor for all pipelines to be laid under the Easement Agreement, and that this path or corridor was set by Line W. Dwyer.

We agree that, although not expressly noted by the Dwyer the flexibility to determine a location for the easement as it was laying the pipe with the acquiescence of the owner of the servient estate. See 2 Tex. Prac. Guide Real Estate Trans. § 15:19. The same is true with respect to Line W in the instant case.

*12 But the fact that Dwyer court did not address the question of whether the location of a first line laid under a multiple pipeline blanket easement set the location of additional pipelines laid under the grant; it addressed the location of the one and only pipeline permitted by the grant in that case and, more specifically, whether the easement had been terminated by the pipeline company’s removal and replacement of the first pipe with a larger pipe.

Lovell, 392 S.W.2d at 749–51. The omission of any specific location within the 137 acres for any of the pipelines was deliberate and forward-looking.

Other courts have distinguished Dwyer because it “involved a single line grant,” which is not “applicable to a multiple line grant”).

*13 Williams, 417 S.W.2d at 454–55.

A grant may authorize a use greater than the one actually used, and such prior use does not nullify the greater rights conveyed in the grant. See Id. (quotation marks omitted). Here, the Easement Agreement gives Atmos a right (to lay multiple lines at any time over and through 137 acres) in excess of the one actually used (laying only a single pipeline along the southern boundary line). Atmos still has the greater rights as conveyed in the Easement Agreement, despite the fact that Atmos (and its predecessors) had installed and operated only Line W since 1960.11

Accordingly, Paul’s analysis is grounded in a fundamental misunderstanding of what questions Dwyer.

2. We reject Paul’s argument that the right to lay “multiple pipelines” is distinct from “multiple routes” because it renders provisions of the Easement Agreement meaningless.

To reconcile his interpretation with the language authorizing the grantee to lay “pipe lines” and “more than one pipe line” “at any time” for “one dollar per lineal rod for each additional line,” Paul argues that the “right to lay multiple lines does not imply the distinct right to create multiple routes over the property.” Thus, he argues, although the Easement Agreement permits multiple pipelines, they must all be laid within a single corridor. We disagree.

To support his position, Paul cites our opinion in Id. at 845.

*14 Although the instrument in Boland included the language, “at route or routes selected by Grantee,” nothing in that opinion stands for the proposition that such language must be included in order to interpret an easement as permitting multiple routes. In the Easement Agreement, the right to multiple routes is embodied in the granting instrument itself by virtue of the fact it is a multiple pipeline blanket easement.

The language in Crawford v. Tenn. Gas Transmission Co., 250 S.W.2d 237, 237–41 (Tex. App.—Beaumont 1952, writ ref’d) (holding that instrument authorizing “one or more additional lines of pipe adjacent to and parallel with the first pipe line laid by grantee” with payment of one dollar per lineal rod for such additional lines did not “limit the pipe line operations of the [company] to any specific width” and “any attempt by the courts to limit the [company] to a certain portion of the land would alter the stated purpose for which the grant was made”).

Paul also cites to Cummings does not state that the appellate court limited the scope of the easement grant to a “reasonable width” of sixty feet.

Instead, Id.

*15 We disagree with Paul’s argument that the Easement Agreement permits only a single path or corridor for all pipelines for more reasons than it is unsupported by the cases that he cites. His interpretation also abrogates the provisions identifying the encumbered property as the entire 137-acre tract of land and authorizing the grantee to lay “pipe lines” and “more than one pipe line” “at any time” for “one dollar per lineal rod for each additional line.” Ignoring this language violates the well-established interpretation principles that prohibit us from disregarding the language of the grant. See Lovell, 392 S.W.2d at 750 (“For us to hold ... that the plural language ‘pipe lines’ was intended by the parties to mean only those laid in 1944 under that grant ... would be to completely disregard the language providing: ‘at any time or times’ and the provision for payment of the designated amount per rod for the laying of a pipe line or pipe lines at any time or times.”).

Other courts agree that the interpretation advanced by Paul would require us to abrogate the language of the Easement Agreement. For example, in Id. at 750. Paul’s interpretation likewise requires us to disregard and strike down the similar language in the Easement Agreement.

Similarly, in Id. at 937.

In reversing the trial court’s grant of injunctive relief to the landowners, the appellate court concluded that the trial court erred by “re-defin[ing] the terms of the grant and restrict[ing] the use granted by the instrument.” Harris v. Phillips Pipe Line Co., 517 S.W.2d 361, 362–65 (Tex. App.—Austin 1974, writ ref’d n.r.e.) (holding that Phillips could lay a new line fifteen feet from of an old line because the grant, which permits “pipe lines,” is broad and does not limit the number of lines or specify a width for the expansible easement).

*16 Paul seeks to redefine the nearly identical language in the Easement Agreement in a manner analogous to the landowners’ argument in Childress, 187 S.W.2d at 939–40.

Paul also tries to sidestep many of the cases we have cited to explain our interpretation of the Easement Agreement, such as Lovell, by claiming that they deal with whether an existing “easement strip was ‘expansible’ to accommodate new lines, not whether the pipeline company could create new paths anywhere on the property.” This argument misconstrues the nature of a multiple line, or expansible, easement. It is not the size of the original strip, as Paul calls it, that is expanding. Rather, it is the amount of land burdened with an actual pipeline that is being expanded, regardless of any “strips” used for prior pipelines.

Accordingly, we conclude that it is not necessary for a multiple pipeline blanket easement to expressly state that the grantee is entitled to multiple routes in order for the grantee to lay a subsequent line in a location different from the first line laid under the grant in the absence of express language in the grant imposing that limitation. We reject Paul’s argument that the “right to lay multiple lines does not imply the distinct right to create multiple routes over the property” under this Easement Agreement because it is contrary to the very nature of multiple pipeline blanket easements under Texas law.

3. Paul’s interpretation is inconsistent with the plain, ordinary, and generally accepted meanings of “over,” “through,” “right-of-way,” and “easement.”

We now turn to the root cause of Paul’s erroneous interpretation of the Easement Agreement. Paul focuses on the language in the Easement Agreement wherein the grantors conveyed “the right of way and easement” to contend that there was only one (the) path or route granted. [Emphasis added.] He contends that the plain, ordinary, and generally accepted meanings of “right-of-way” and “easement” were, in the 1960s, “a space of conventional width” for one or more lines and a “way” or path, respectively, according to a 1968 version of Black’s Law Dictionary. Paul parses the terms of the Easement Agreement too narrowly and misundertands the nature of easement rights.

First, Paul interprets “right-of-way” to mean “a space of conventional width” by cherry picking a portion of the 1968 definition relating to railroads that stated an easement for tracks is “a space of conventional width for one or more railroad tracks.” Right of Way, Black’s Law Dictionary (4th ed. 1968). But Black’s broader definition of “right-of-way” generally meant “a servitude ... by virtue of which one has a right to pass ... through the estate of another.” Id. (emphases added). “[It] is the right of passage over another [person’s] ground” and “the mere intangible right to cross, a right of crossing, a right of way.” Id. (emphases added). The term connoted the granting of a right to pass through, over, and to cross another’s property; it does not mean a specific path. The definition is the same today. See Right-of-Way, Black’s Law Dictionary (11th ed. 2019) (“The right to pass through property owned by another” and “The right to build and operate a railway line or a highway on land belonging to another”). Thus, the dictionary definition of “right-of-way” was not as narrow as Paul contends.

*17 Second, Paul likewise misconstrues the 1968 definition of “easement” to mean “way” or “path” by picking out the word “way” from a series of definitions of the term easement. Again, the 1968 Black’s Law Dictionary generally defined easement more broadly as “[a] right in the owner of one parcel of land ... to use the land of another for a special purpose not inconsistent with a general property in the owner.” Easement, Black’s Law Dictionary (4th ed. 1968) (emphasis added). Another definition stated that an easement was “[a] privilege, service, or convenience which one neighbor has of another ... as a way over his land, a gate-way, water-course, and the like.” Id. (emphasis added). And, among other things, an easement was defined as “[a] liberty, privilege, or advantage without profit, which the owner of one parcel of land may have in the lands of another.” Id. (emphasis added). Easement has the same meaning today. See Easement, Black’s Law Dictionary (11th ed. 2019) (“An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose....”). Once again, Paul focuses on narrow definitions that support his position while ignoring the more prevalent definitions that undermine his argument. An easement is a nonpossessory interest in real property; it is not simply a synonym for “way” or “path.”

Third, Paul is impermissibly giving the term “the” in reference to “right-of-way” and “easement” controlling effect while disregarding the broader meaning of these terms and the additional plain language of the Easement Agreement permitting multiple pipleines to be laid “over” and “through” the entire 137-acre tract for new compensation. See Coker, 650 S.W.2d at 393. We interpet “the right-of-way and easement” in the Easetment Agreement to mean that the grantors conveyed the right “to construct, maintain and operate pipe lines ... over and through” the 137-acre tract. Our construction gives effect to all provisions in the agreement whereas Paul’s does not.

Paul similarly argues that the terms “over” and “through” generally mean path, not a spiderweb.12 But he again selects a meaning that suits his purposes while ignoring others. “Over” means, among other things, “from one point to another across an intervening space,” “above,” “so as to cover, conceal, or affect the whole surface,” and “from beginning to end.” Over, Webster’s Third New Int’l Dictionary (2002). “Through” indicates, among other things, “from one side to another,” “from one end or boundary ... to another,” “over the whole distance,” and “from beginning to end.” Through, Webster’s Third New Int’l Dictionary (2002). The broader definitions of “over” and “through” embody the entirety of the land identified in the easement—the 137-acre tract.

When we apply the generally accepted definitions of the words, the language “the right of way and easement” “over” and “through” the 137-acre tract does not limit the grantee’s right to use only a single corridor of reasonable width to lay multiple pipelines. The generally accepted meanings of these terms are consistent with our interpretation of the Easement Agreement as granting a multiple pipeline expansible blanket easement above the whole surface, from one end of the property to the other. “The right of way and easement” meant that the grantors conveyed to the grantee the right to pass over and through the property (right-of-way) and to use the 137-acre tract (easement) for the purposes expressly set out in the Easement Agreement. “The” right is exercised and the amount of the servient estate used (and the easement) is expanded every time Atmos pays the “one dollar per lineal rod” for each additional line. See Lindemann Props., 524 S.W.3d at 881 (rejecting landowner’s argument that the easement’s use of “a” and “said” authorized the placing of only a single tower because, although they are singular words, the landowner’s interpretation focused exclusively on the meaning and effect of only those terms while completely disregarding the meaning and effect of others).

*18 Accordingly, we reject Paul’s argument that “the right of way and easement” “over and through” the lands restricted Atmos to a single path that was established by the first line laid for all pipelines laid under the grant because his interpretation is contrary to the generally accepted meanings of these terms.

4. Paul’s contention that our interpretation renders the right of “ingress” and “egress” meaningless is incorrect.

Paul argues that interpreting the Easement Agreement as granting a blanket easement over the entire 137 acres renders the reference to “ingress” and “egress” held by the grantee to be meaningless because these rights are “completely unnecessary and meaningless” if the “right-of-way” and “easement” were the “entire 137 acres.” Again, we disagree.

Paul’s argument mistakes “blanket easement” to mean the existence of an easement that grants unrestricted use of the entire 137-acre tract. This is not what “blanket easement” means. As we explained above, a blanket easement affords the grantee the flexibility to select a route for the pipeline (or other utility) being installed. The grantee does not have a free-ranging use of the remainder of the land described in the granting instrument. In the case of instruments granting the right to lay multiple lines, once the grantee installs a line under the blanket easement, the location of the easement with respect to that line becomes fixed and certain. The grantee still does not have an easement on the remainder of the land described in the granting instrument—it merely has a vested interest in such land to use it for the purposes authorized by the instrument.

An easement authorizes its holder to use another’s property only for a “particular purpose.” Marcus Cable, 90 S.W.3d at 700. Because “blanket easements” do not equate to easements over the entire property regardless of where a line is actually installed, instruments like the Easement Agreement grant the grantees the incidental right of ingress and egress so that the holder of the easement can reach the line it has installed. Here, the pipelines installed do not cover the entirety of Paul’s property. The right of ingress and egress expressly grants Atmos the incidental right to enter and exit the premises, including the portion were no pipeline is located, “for the purpose of constructing, inspecting, repairing, maintaining, ... replacing,” and “remov[ing]” each pipeline. See Egress, Black’s Law Dictionary (11th ed. 2019) (“The act of going out or leaving” and “The right or ability to leave; a way of exit”); Ingress, Black’s Law Dictionary (11th ed. 2019) (“The act of entering” and “The right or ability to enter; access”). So while “the right of way and easement” granted Atmos the right to “construct, maintain[,] and operate pipe lines and appurtenances thereto” over and through the 137-acre tract, the right of ingress and egress delineates the incidental purposes for which Atmos may enter Paul’s property under the grant (i.e., to construct, inspect, repair, maintain, replace, and remove the pipelines).

Accordingly, we reject Paul’s argument that interpreting the Easement Agreement to mean that additional lines laid under the grant are not tied to the location of Line W, the first line laid, renders the right of ingress and egress meaningless. Our interpretation continues to give effect to all terms in the grant, including the right of ingress and egress.

5. Paul’s interpretation impermissibly requires us to rewrite or ignore the compensation terms of the Easement Agreement.

*19 Paul next argues that the amount of compensation in the Easement Agreement (ninety dollars) supports his interpretation that the Easement Agreement provides for only a single corridor or path rather than “a grant of power to consume the entire 137 acres.” He cites Dwyer, 374 S.W.2d at 665–66. Paul also argues that the consideration of one dollar per lineal rod is a “pittance” and does not evidence an intent to give “the pipeline company the right to effectively take the entire property.” This is not persuasive.

First, the initial ninety dollars was the consideration that Lone Star Gas (Atmos’s predecessor) paid in exchange for the multiple pipeline blanket easement vesting it with an interest in the 137 acres and the installation of the first pipeline. Atmos must pay one dollar per lineal rod for each additional pipeline laid. By calling this subsequent consideration a “pittance,” Paul is essentially asking us to ignore or render meaningless this language, which we cannot do. See Smith, 251 S.W.3d at 823.

Second, Paul is taking his quotation from Dwyer, 374 S.W.2d at 666).

Third, Paul is overstating the implications of a multiple pipeline blanket easement, as we discuss more specifically below. Atmos is not “consum[ing] the entire 137 acres” or “effectively tak[ing] the entire property” by claiming the Easement Agreement is a blanket easement. Atmos merely has the right to determine a reasonable route for additional pipelines, if it installs additional lines under the Easement Agreement. Our ruling does not alter the fact that Atmos may not turn its nonpossessory interest in Paul’s property into a possessory one. See Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *9.

Accordingly, we reject Paul’s argument that the consideration set forth in the Easement Agreement requires us to interpret the grant as requiring all lines laid under it to be in the same corridor as Line W.

6. Paul’s interpretation impermissibly turns a damages provision into a controlling provision that limits the property that may be burdened by the Easement Agreement.

*20 Finally, Paul points to the language in the Easement Agreement requiring Atmos “to pay any damages which may arise to growing crops or fences from the construction, maintenance and operation of said pipe” to argue that the “parties only intended the easement to be a single lane through the back farmland” where it would “only impact crops or fences.” He contends that under Atmos’s reading, Atmos could lay a pipeline even through his house and barn. The implication that Paul draws from the damage provision is illogical and ignores the remaining language of the grant.

Paul cites no law supporting his position and provides no explanation as to why the damages provision should be given a controlling effect. Paul’s use of the damages provision is contrary to the well-established principle that no provision taken out of its context within all the agreement’s terms will be given controlling effect. See Coker, 650 S.W.2d at 393.

We recognize that “general provisions of the easement ... cannot override other, more specific provisions of the easement that spell out in detail the parties’ respective rights.” Smith, 251 S.W.3d at 823.

Further, the fact that the grantor is not required to maintain crops and fences in any specific location in perpetuity (when the property description contains no reference to crops and fences) bolsters our conclusion that this damages provision does not limit the location of pipelines. Interpreting this Easement Agreement as wedding the location of pipelines to the location of movable crops and fences is not reasonable because, among other reasons, it contains no description of where such crops and fences are located or that any such items even existed at the time. Moreover, Paul owns only a portion of the 137 acres. There is no summary-judgment evidence as to the location of any crops, fences, houses, or barns, if any, in 1960 anywhere along or within the 137 acres.13

Finally, the omission of houses and barns in the Easement Agreement’s damage provision cannot be construed as evidencing an intent that the pipelines be laid only where no such structures exist. “[E]asements must be construed most strongly against the grantor, and most favorably to the grantee, so as to confer the largest estate which a fair interpretation will permit.” 124 Tex. 190, 76 S.W.2d 471 (Tex. [Comm’n Op.] 1934) (“It is especially the rule applicable to the construction of grants that a deed will not be construed to create an estate on condition or limitation unless language is used which, according to the rules of law, from their own force, imports a condition or limitation or the intent of the grantor to make a conditional estate is otherwise clearly and unequivocally indicated.”). Thus, if the parties intended to limit the location of pipelines to where the grantor had crops and fences, then they needed to state so expressly in the instrument. They did not.

*21 Accordingly, we reject Paul’s argument that the fact that the Easement Agreement requires the pipeline company to pay for damages only to “growing crops or fences” evidenced the original contracting parties’ intent that all pipelines laid under the grant would be in “a single lane through the back farmland.”

D. We can construe the Easement Agreement as a matter of law because it is not ambiguous.

Both parties assert that their interpretation of the Easement Agreement is the only reasonable one; neither party contends that the Easement Agreement is ambiguous. Paul, however, half-heartedly makes one ambiguity argument, which we must address.

Paul briefly contends “at worst ... the easement agreement is ambiguous” and cites Harrington to argue that the Easement Agreement is ambiguous, we disagree with that case’s holding.

The Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *8 (“The use of a general easement without a fixed width is a strategic decision that does not render an easement ambiguous or require a court to supply the missing term.” (citing Restatement (Third) of Property (Servitudes) § 4.10 (2000))).

In another section of his brief, Paul makes another argument suggesting that the Easement Agreement is ambiguous. He argues that the probate court’s ruling must be affirmed because Atmos “failed to challenge [his] construe-against-the-drafter ground for awarding judgment,” and he had argued in the probate court that any ambiguity must be resolved in his favor because Atmos drafted the agreement. We disagree. Paul moved for summary judgment on only a single ground: “As a matter of law, the 1960 Easement Agreement does not cover the New Pipeline.” Paul’s construe-against-the-drafter argument was merely a rule of construction that he advanced in connection with his ambiguity arguments; it was not an independent ground for summary judgment. Atmos adequately addressed this argument in its opening brief by arguing that the Easement Agreement is not ambiguous and that easements are to be construed most strongly against the grantor, and most favorably to the grantee, so as to confer the largest estate that a fair interpretation will permit. See Gladewater, 59 S.W.2d at 354. As Atmos also points out on appeal, there is no summary-judgment evidence demonstrating who drafted the agreement to support Paul’s argument.

*22 Accordingly, we reject Paul’s ambiguity argument and conclude as a matter of law that the Easement Agreement is not ambiguous because it can be given a certain, definite meaning and is susceptible of only one reasonable interpretation. For all the reasons set forth above, Paul’s predecessors-in-title agreed to a multiple pipeline blanket easement. Atmos is authorized to install Line WD, an additional line, under the Easement Agreement, and the new line’s location is not defined by the location of Line W, the first line laid. See Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *8 (“Consistent with the recognition of general easements in Texas, courts have long been reluctant to write fixed widths into easements when the parties to the easements never agreed to a particular width.”).

E. Because the Easement Agreement is not ambiguous, we cannot look to extrinsic evidence to vary its terms or to create an ambiguity. The parties’ disputes about the location of Line X and statements made by an Atmos agent regarding the width of an easement are irrelevant.

In an attempt to support his interpretation of the Easement Agreement, Paul goes beyond its four corners to argue that evidence of Atmos’s past conduct evidences the “parties’ intended meaning of the agreement.” Specifically, he argues that “the use of the pipeline easement confirms the parties’ intended meaning of the agreement.” He points to the installation of Line W along the southern boundary of his property in 1960, the alleged more recent statements of Atmos’s agent about the easement being a fifty-foot strip of land running with Line W and that Paul could not build dog kennels within that strip, and the installation of Line X ten feet away from and parallel to Line W. Other than the location of Line W, Atmos disputes these facts.

The evidence on which Paul relies is inadmissible parol evidence because, as we conclude above, the Easement Agreement is not ambiguous. See Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 453 (Tex. 2015) (op. on reh’g) (rejecting a party’s acquiescence to disputed fee as informing the meaning of a disputed contract term because “[a] party’s interpretation of an agreement is parol evidence and cannot be used to create ambiguity or show motive”).

*23 Thus, facts about the location of Line X and statements made by an Atmos agent about the width of the easement are not admissible to ascertain the intent of the parties, to create an ambiguity, or to vary the terms of the Easement Agreement. See Nat’l Union Fire Ins. Co., 907 S.W.2d at 520. This evidence is immaterial, and we cannot consider it when interpreting the Easement Agreement.

Moreover, the evidence relating to the location of Line X and the statements of an Atmos agent would not change the outcome even if it had been uncontroverted, although it was. At the time the Atmos agent supposedly told Paul that the easement was a fifty-foot strip of land running with Line W, the only pipeline that Atmos had installed at that time was Line W. Under Paul’s evidence, Atmos installed Line X after these events. At best, the agent’s comments were nothing more than evidence of his understanding about the width of the easement that Atmos claimed was reasonable and necessary to maintain and operate Line W. It was not a comment about the width of an easement with respect to any other pipelines because no other Atmos pipelines existed yet. His statements do not constitute limitations on Atmos’s rights under the Easement Agreement, nor do they demonstrate that what Atmos did later with respect to Line WD contradicted what the agent said.

The same is true with respect to Line X. Even if the evidence had been uncontroverted that Atmos installed a new Line X ten feet away from and parallel to Line W, it would not mean that Atmos had no right to lay Line X, Line WD, or any other line on any other reasonable location on Paul’s land under the Easement Agreement. As the Supreme Court of Texas has acknowledged, a grant may give a grantee a right in excess of the one actually used. See Kachina Pipeline Co., 471 S.W.3d at 453. The language of the Easement Agreement still controls the scope of the conveyance.

Accordingly, we reject Paul’s argument that Atmos’s alleged prior actions (in installing Line X along the same path of Line W and in stating, through an agent, that its easement was fifty-feet wide) may be used to interpret the Easement Agreement as limiting the location of Line WD to the same corridor as Line W. The evidence is inadmissible to vary the terms of the Easement Agreement or to create an ambiguity because the grant is unambiguous.

F. Paul’s arguments about whether Atmos may “spiderweb” or “consume” his property are not persuasive.

Like in the probate court, on appeal Paul makes numerous statements about the potential consequences of reversing the probate court’s summary-judgment ruling. He argues that under Atmos’s interpretation, “it has the right to take all of Paul’s property,” it may create a “spiderweb covering the entire property,” that his predecessors-in-title “implicitly gave away the farm[ ] and the ability to develop it,” and that Atmos may “lay its pipelines anywhere on Paul’s property, even through Paul’s house and barn.” He further contends,

Atmos’s spiderweb reading ... would have terrible implications far beyond this case. Landowners across Texas would wake up to find that decades-old easement agreements ... prevent them from developing their property, ... decimate the value of their land, ... render their land unsuitable as collateral for loans, and ... give pipeline companies a massive windfall by enabling them to lay new lines along new routes for pocket change.14

*24 Other than citing Section 111.0194(a) of the Texas Natural Resource Code, Paul cites no authority to support his predictions.15 We do not consider these arguments relevant or persuasive.

We are sympathetic to Paul’s concerns. But we are guided by long-standing precedent of Texas law governing multiple pipeline blanket easements. We must be wary of working a sea change in precedent, especially one that disturbs the principles of property law. See Couch v. S. Methodist Univ., 10 S.W.2d 973, 974 (Tex. Comm’n App. 1928, judgm’t adopted) (“[P]ublic policy ... favors the utmost liberty of contract and freedom of land titles from conditions or restrictions which would work a forfeiture or materially impair their values.”). Our interpretation of the Easement Agreement changes nothing about the status of that law.

Paul’s protection comes from the fact that Atmos remains bound by Texas’s version of the rule of reasonableness, which we discuss above. 374 S.W.2d at 665.16

*25 This court is precluded from rendering void by judicial decree the rights Paul’s predecessors granted to Atmos. It is the function of the legislature to declare the public policy of this state.17 See Town of Flower Mound v. Stafford Estates Ltd. P’ship, 135 S.W.3d 620, 628 (Tex. 2004) (“Generally, the State’s public policy is reflected in its statutes.” (quotation marks omitted)). Our interpretation of the Easement Agreement is consistent with well-established Texas law governing property rights, contract interpretation, and the freedom of contract.

We cannot alter the express terms of the Easement Agreement based on Paul’s fears about a hypothetical future. It is not the function of this court to judicially insert a limitation upon the location of all pipelines that may be (or have already been) laid under all easements worded like the Easement Agreement, let alone to do so retroactively. Today, we are asked to decide only whether Paul conclusively established that he did not breach the agreement as a matter of law by refusing Atmos access to his property to install Line WD.

Accordingly, for all the foregoing reasons, we hold that as a matter of law, the plain language of the Easement Agreement unambiguously evidenced the original contracting parties’ intent for the grantor to convey to the grantee a multiple pipeline blanket easement that does not require all pipelines laid under the grant to be laid in the same corridor as the first line laid.

G. Paul did not conclusively establish that Atmos’s installation of Line WD unreasonably burdens his property.

*26 We now turn to the question of whether Paul conclusively established that the route selected by Atmos for Line WD unreasonably burdens his property. See San Jacinto Sand Co., 426 S.W.2d at 344–45. We conclude that (1) Paul did not raise this issue in his summary-judgment motion and (2) even if he had, he did not carry his summary-judgment burden.

Paul based his motion solely on his contention that the Easement Agreement does not cover Line WD—a position that we reject above. When Paul moved for summary judgment, he did not argue in the alternative that if the Easement Agreement permits Atmos to install Line WD outside the corridor of Line W, then the location of Line WD unreasonably burdens his estate. Paul raised his unreasonable-burden argument for the first time in his summary-judgment reply. But “new grounds for summary judgment asserted by a movant in a reply ... are not properly considered on appeal.” Sanchez v. Mulvaney, 274 S.W.3d 708, 711 (Tex. App.—San Antonio 2008, no pet.) (“[A] movant may not use a reply brief to meet the specificity requirement or to assert new grounds for summary judgment.”). Because we resolved the interpretation question against Paul and because Paul did not address the reasonableness question in his motion, he failed to conclusively establish as a matter of law that he did not breach the Easement Agreement by denying Atmos access to install Line WD. Thus, we conclude that the trial court erred by granting a take-nothing summary judgment against Atmos.

We reach the same result even if we construe the arguments in Paul’s summary-judgment motion as fairly including a challenge to whether Line WD unreasonably burdened his property. He submitted an affidavit wherein he referred to a map showing Line WD’s location on his property:

He then simply testified by affidavit, “the location of [Line WD] severely impacts [his] ability to develop the [p]roperty to its highest and best use,” without explanation.

Paul’s testimony is not competent summary-judgment evidence because it is conclusory. See Jimmie Luecke Children P’ship, Ltd. v. Pruncutz, No. 03-03-00388-CV, 2005 WL 910144, at *3 (Tex. App.—Austin Apr. 21, 2005, pet. denied) (mem. op.) (holding that affiant’s statement that “the highest and best use of the property would be to maintain it as one large tract” was conclusory because it presented “his subjective beliefs and conclusions without providing supporting facts”). Paul did not submit any summary-judgment evidence on any attempted development of his property that was thwarted by Line WD. To the contrary, the summary-judgment evidence reflects that pursuant to the PUA (which is not part of the record), Paul allowed Atmos access to his property to install Line WD after Atmos filed suit.18

*27 Moreover, the Miller affidavit offered controverting testimony explaining the many factors that Atmos considered when deciding upon the route of Line WD, including—as Paul’s own image shows—planning around obstacles such as Paul’s barn and home. Thus, even if Paul did submit competent summary-judgment evidence, a genuine issue of material fact existed regarding the reasonableness of route Line WD, precluding summary judgment on this basis. See Van, 990 S.W.2d at 753.

For the above reasons, we conclude that Paul did not meet his initial summary-judgment burden to conclusively establish as a matter of law that Line WD unreasonably burdens his property. Tex. R. Civ. P. 166a(b), (c).

Because the Easement Agreement does not require Line WD to be laid in the same corridor as Line W, and because Paul failed to conclusively establish that the route of Line WD unreasonably burdens his property as a matter of law, we conclude that the probate court erred by granting summary judgment and rendering a take-nothing judgment against Atmos. We sustain Atmos’s sole issue.

Atmos requests that we remand this case for further proceedings. Accordingly, we will reverse the judgment of the probate court and remand this case for further proceedings.

VII. CONCLUSION

Having sustained Atmos’s sole issue, we reverse and remand this case to the probate court for proceedings consistent with this opinion.

Footnotes

1 The Honorable Ruben Gonzalez, Jr., Judge of the 432nd District Court of Tarrant County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to Tex. Gov’t Code Ann. § 74.003(h).
2 We draw these allegations and facts from the parties’ live pleadings and the summary-judgment evidence. We refer to allegations in the pleadings only to more clearly outline the context for this dispute; we do not consider them evidence supporting summary judgment. See Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).
3 The blue lines depict a pipeline owned by an unrelated entity.
4 Atmos initially asserted a claim for violations of the Texas Utilities Code and requested a temporary injunction. It nonsuited these claims after the parties entered into the PUA. Atmos also asserted an alternative claim for condemnation; the parties agreed to sever that claim into a separate action pursuant to the PUA.
5 The probate court sustained Atmos’s objection to excerpts from Paul’s deposition that Paul untimely filed on the day of the summary-judgment hearing. Paul does not challenge this ruling on appeal. Thus, we do not consider these excerpts on appeal.
6 Paul also cited Tex. Nat. Res. Code Ann. § 111.0194. We address this statute in our discussion below.
7 Atmos filed excerpts from Paul’s deposition wherein he had called the easement a “blanket easement.” It also attached Paul’s responses to Atmos’s request for admissions wherein Paul had admitted that “the Easement does not purport to expressly provide for a defined area on the [property] in which a pipeline must be laid.”
8 Paul erroneously requested summary judgment on Atmos’s claim for declaratory judgment in his summary-judgment motion; but Atmos asserted no such claim. Paul likewise did not assert a declaratory-judgment claim and, consequently, did not request that the probate court make any specific declarations in his summary-judgment motion.
9 See also Megan M. Cunningham & Thomas J. Dougherty, Unbounded Interests: The Limits of Blanket Easements, Pratt’s Energy Law Report, Jun. 2018, Vol. 18-6 at 184 (citing Law Easements, § 7.4 (2018)).
10 On March 2, 2020, Atmos filed Appellant’s Unopposed Motion for Leave to File Post-Submission Letter Brief Regarding New Opinion from the Texas Supreme Court, requesting leave to file a post-submission letter brief to apprise this court of Southwestern Electric Power Company. Because this opinion addresses that case, the motion is denied.
11 The same is true even if we assume that Atmos installed Line X parallel with and ten feet south of Line W, as Paul contends.
12 Paul cites no “authority” for this proposition and instead offers an illustration by quoting a song: “Over the river, and through the wood, to Grandmother’s house we go; the horse knows the way to carry the sleigh through the white and drifted snow.” His analogy is both unhelpful and inapt. Among other things, while a horse carrying a sleigh may make or follow a path along its journey, neither the making nor following of a path defines “over” and “through.” The horse may make or follow any path “over” the river and “through” the woods, including by making or following a spiderwebbed path, by making or following one of many different paths, or by making a new path.
13 Some instruments may specify a location for an easement by referencing movable objects or landmarks, such as a fence, existing at the time of the grant. Nothing in our opinion should be construed as rendering such easements invalid or ambiguous.
14 The Texas Farm Bureau filed an amicus brief arguing that Atmos’s theory of easement interpretation is unreasonable because it “threatens countless Texas landowners with the possibility [and extreme degrees of uncertainty and unpredictability] that new pipelines can pop up anywhere on their property at any time” without fair compensation, if any.
15 id. § 111.0194(a). The plain language of the statute does not retroactively render void multiple pipeline blanket easements or require all pipelines laid under such an easement to be laid within the same fifty-foot-wide corridor.
16 See Vinson v. Brown, 80 S.W.3d 221, 228 (Tex. App.—Austin 2002, no pet.) (same).
17 Some states have passed legislation prohibiting or inhibiting blanket easements created after a certain date. See, e.g., Tex. Nat. Res. Code Ann. § 111.0194.
18 Paul admitted in response to a request for admission, “Atmos currently uses part of [his] land under [the PUA] that is conditioned on the Court’s rulings on Atmos’s right to use the land, either under the Easement (as Atmos contends) or through its power of eminent domain (which [Paul] insists is the only possible basis for Atmos’s continued use of the land).”
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