Fort Worth & Western Railroad Co. v. Enbridge Gathering

In Fort Worth & Western Railroad Co. v. Enbridge Gathering, 298 S.W.3d 392, 395 (Tex. App.--Fort Worth 2009, no pet.), a gas corporation sought to condemn property of a rail district pursuant to section 181.004 (Section 181.004 applies to "a gas or electric corporation." See TEX. UTIL. CODE ANN. 181.004.) in order to place a pipeline beneath a railroad track. Enbridge, 298 S.W.3d at 397-98. Based on the language of the Texas Rail District Act, not cited here by Oncor as being pertinent, the court concluded the rail district was a "person" pursuant to section 311.005 of the Code Construction Act and, therefore, its property could be condemned under section 181.004. Id. at 398. Then, the court addressed whether the applicable version of utilities code section 181.005, which specifically stated that gas lines could be laid "over and across" a railway, also gave the gas corporation the right to lay pipelines "under" the rail district's tracks. Id. The court examined: (1) the history of section 181.005; (2) the legislature's objectives for section 181.005 and its predecessor, article 1436; (3) the circumstances under which both versions of the statutes were enacted. Id. at 398-99. Based on that examination, the court concluded that construing the utilities code to exclude placement of gas pipelines under a railroad would "thwart the purpose of the statute." Id. at 399. Then, the court interpreted section 181.005 to authorize placing of a pipeline not only "over and across," which language was in the statute, but also interpreted the section to include authority to construct a pipeline "under" a railroad. The term "under" was not in the statute. Id.