Opinion filed July 21, 2016

In The

Eleventh Court of Appeals 

__________

No. 11-14-00199-CV

__________

WALTER B. SANER, Appellant

V.

BRIDGETEX PIPELINE COMPANY, LLC, Appellee

On Appeal from the 220th District Court

Comanche County, Texas

Trial Court Cause No. CV17313

O P I N I O N

This is a condemnation case. Walter B. Saner owns a tract of land in 

Comanche County. BridgeTex Pipeline Company, LLC instituted condemnation 

proceedings to obtain an easement for a crude petroleum pipeline running across 

Saner’s land. The trial court found that BridgeTex’s proposed taking was for a 

common carrier pipeline, which is a statutorily permitted public use. In one issue, 
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Saner asserts that the trial court erred when it found that the pipeline was for “public 

use” as required by Article I, Section 17 of the Texas constitution.1 We affirm.

Background Facts

BridgeTex is a limited liability company engaged in the location and 

construction of a pipeline in Texas for the transportation of crude petroleum. The 

pipeline is intended to transport crude petroleum from the Permian Basin to the 

Texas Gulf Coast. In January 2013, the Texas Railroad Commission designated 

BridgeTex as a common carrier and granted it a T-4 permit. Pursuant to its 

designation as a common carrier, BridgeTex exercised the power of eminent domain 

and obtained an easement by condemnation across Saner’s real property in 

Comanche County. The special commissioners determined the amount of 

compensation to which Saner was entitled to be $5,930. Saner did not challenge the 

amount of the compensation award in the trial court. Instead, he only challenged the 

commissioners’ finding that the easement was for public use.

The parties litigated the “public use” question in a one-day bench trial. The 

trial court ruled in favor of BridgeTex and entered written findings of fact and 

conclusions of law. Among other things, the trial court found that “BridgeTex is a 

common carrier, the Pipeline will be operated as such, and the taking herein of 

Defendant’s Property for the Pipeline is for a public use.”

Analysis

In one issue, Saner asserts that the trial court erred when it found that the

pipeline built across his property by BridgeTex was for “public use.” “The Texas 

Constitution safeguards private property by declaring that eminent domain can only 

be exercised for ‘public use.’” Tex. Rice Land Partners, Ltd. v. Denbury Green 

Pipeline-Tex., LLC, 363 S.W.3d 192, 194 (Tex. 2012) (quoting TEX. CONST. art. I, 

 

1Saner challenged the constitutionality of various provisions of the Texas Natural Resources Code 

at trial but has not raised these issues on appeal.
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§ 17). The ultimate question of whether a particular use is a public use is a judicial 

question to be decided by the courts as a matter of law. Id. at 198 n.16.

Denbury involved a carbon dioxide (CO2) pipeline company that had been 

granted the power of eminent domain by the Railroad Commission as a “common 

carrier” pipeline company pursuant to the provisions of the Natural Resources Code. 

Id. at 194–95; see TEX. NAT. RES. CODE ANN. § 111.002(6) (West 2011) (applicable 

to pipelines for the transportation of carbon dioxide). The Texas Supreme Court

held that the common carrier permit granted by the Railroad Commission did not 

conclusively establish the pipeline owner’s power of eminent domain. Denbury, 363 

S.W.3d at 195. Instead, the court held that a landowner can challenge the eminentdomain power of the pipeline company by contesting whether the proposed pipeline 

will in fact be public, rather than private. Id.

The court held in Denbury that “[t]o qualify as a common carrier with the 

power of eminent domain, [a] pipeline must serve the public; it cannot be built only 

for the builder’s exclusive use.” 363 S.W.3d at 200 (emphasis added). The court 

explained that “extending the power of eminent domain to the taking of property for 

a private use cannot survive constitutional scrutiny” and that “[t]he Denbury Green 

pipeline would not serve a public use if it were built and maintained only to transport 

gas belonging to Denbury from one Denbury site to another.” Id. (emphasis added). 

This recognition of what does not qualify as public use is mirrored in 

Section 111.003 of the Natural Resources Code, which denies common carrier status 

to pipelines “that are limited in their use to the wells, stations, plants, and refineries 

of the owner.” NAT. RES. § 111.003 (West Supp. 2015).

After recognizing what does not qualify as public use, the court established a 

test to determine what does qualify as public use for a carbon dioxide pipeline. See

Denbury, 363 S.W.3d at 202. The court held that, “for a person intending to build a 

CO2 pipeline to qualify as a common carrier under Section 111.002(6), a reasonable 
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probability must exist that the pipeline will at some point after construction serve 

the public by transporting gas for one or more customers who will either retain 

ownership of their gas or sell it to parties other than the carrier.” Id. (footnotes 

omitted); cf. Coastal States Gas Producing Co. v. Pate, 309 S.W.2d 828, 833 (Tex. 

1958) (holding that “[n]o hard and fast rule can be laid down for determining public 

use . . . each case is usually decided upon the basis of its own facts and the 

surrounding circumstances”). But the Denbury court also provided that “[o]ur 

decision today is limited to persons seeking common-carrier pipeline status under 

Section 111.002(6),” applicable to carbon dioxide pipelines, and that “[w]e express 

no opinion on pipelines where common-carrier status is at issue under other 

provisions of the Natural Resources Code or elsewhere.” Denbury, 363 S.W.3d at 

202 n.28.

Like the pipeline company in Denbury, BridgeTex was designated as a 

common carrier pipeline company by the Railroad Commission. However, 

BridgeTex’s designation as a common carrier pipeline company arose under another 

provision of the Natural Resources Code. Section 111.002(1) provides that a person 

is a common carrier if it “owns, operates, or manages a pipeline or any part of a 

pipeline in the State of Texas for the transportation of crude petroleum to or for the 

public for hire, or engages in the business of transporting crude petroleum by 

pipeline.” NAT. RES. § 111.002(1).

Despite Denbury’s limitation to carbon dioxide pipelines, our sister courts 

have applied its “reasonable probability” test to other provisions of the Natural 

Resources Code, including the provision granting common carrier status to crude 

petroleum pipelines. See Crawford Family Farm P’ship v. TransCanada Keystone 

Pipeline, L.P., 409 S.W.3d 908, 922 (Tex. App.—Texarkana 2013, pet. denied)

(applying Denbury reasonable probability test to crude petroleum pipeline); see also

Crosstex NGL Pipeline, L.P. v. Reins Rd. Farms-1, Ltd., 404 S.W.3d 754, 761 (Tex. 
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App.—Beaumont 2013, no pet.) (applying Denbury reasonable probability test to 

natural gas liquids pipeline). In Crosstex, the Beaumont Court of Appeals addressed 

the self-imposed limitation in Denbury and nonetheless held that “we are not 

persuaded the Court’s reasoning concerning the process of obtaining a T–4 permit 

applies only to carbon dioxide lines.” Crosstex, 404 S.W.3d at 761. Saner expressly 

acknowledges in his brief that Denbury’s reasoning “is broadly applicable to crude 

oil.”

We find the reasoning of our sister courts persuasive. There is no distinction 

between crude petroleum common carriers under Section 111.002(1) and carbon 

dioxide common carriers under Section 111.002(6) that would justify a departure 

from Denbury’s reasonable probability test. See NAT. RES. § 111.002(1), (6). Both 

provisions reference the constitutional “public use” requirement and grant common 

carrier status only when the pipelines are operated “to or for the public for hire.” Id. 

And both provisions are subject to Section 111.003, which, as stated previously, 

denies common carrier status to private pipelines, i.e., pipelines “that are limited in 

their use to the wells, stations, plants, and refineries of the owner.” Id. § 111.003. 

We join our sister courts in concluding that Denbury’s reasonable probability test

applies to other types of common carrier pipelines. Accordingly, to satisfy the 

constitutional “public use” requirement, we hold that, for a person intending to build 

a pipeline under Section 111.002(1), a reasonable probability must exist that the

pipeline will at some point after construction serve the public by transporting crude 

petroleum for one or more customers who will either retain ownership of their crude 

petroleum or sell it to parties other than the carrier. See Denbury, 363 S.W.3d at 

202.

With Denbury in mind, the trial court in this case found that “there is a 

reasonable probability that the Pipeline will, at some point after construction, serve 

the public by transporting crude oil for one or more customers, not affiliated with 
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BridgeTex, who will either retain ownership of their crude oil or sell it to parties 

other than BridgeTex.” This finding is supported by the record. A representative of 

BridgeTex testified at trial that BridgeTex has entered into a transportation services 

agreement with a shipper, who is not an affiliate or subsidiary of BridgeTex, and

that this shipper is obligated to ship 10,000 barrels of crude oil a day through the 

pipeline for seven years. The representative also testified that BridgeTex was in 

negotiations with twelve to fourteen other third-party shippers who may either 

become contract shippers or spot shippers. He explained that the Federal Energy 

Regulatory Commission requires BridgeTex, as a common carrier, to set aside ten 

percent of the pipeline’s capacity for spot shippers, who are essentially walk-up 

customers. He further testified that, although the pipeline was still a couple of 

months away from start-up, BridgeTex had received five unsolicited applications 

from prospective spot shippers and that two of the applications had been approved 

while three were in the process of approval. The representative also explained that 

the pipeline will be connected to seven to ten refineries, not owned by BridgeTex, 

along the Texas Gulf Coast.

Irrespective of the holding in Denbury and the evidence offered at trial 

satisfying its reasonable probability test, Saner challenges whether the pipeline built 

across his property is for public use. He contends that the pipeline is not for public 

use because “[o]nly crude oil producers will use the pipeline.” Saner contends that 

“public” should be defined as “everyone or the masses.” He asserts that the Texas 

constitution requires what he refers to as “actual use” by the public. Actual use by 

the public, according to Saner, is exemplified when “[a] member of the general 

public is a customer and he uses the electric line grid system that goes all the way to 

house [sic] when he plugs in an appliance.” Saner explains that “[s]o when a 

transmission line comes to a house and connects to the house, one can pull off the 

transmission line as much electricity as needed as a member of the general public. 
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This is what is contemplated by the phrase ‘public use’ in the Texas Constitution.”

Saner asserts that the pipeline is not available for public use because there are “strict 

requirements [that] tend to exclude the public from use” and “[t]he minimum use 

requirement on this pipeline is a 50,000 barrel shipment.”

BridgeTex asserts that Saner’s definition of “public use” conflicts with settled 

law. We agree. In Housing Authority of City of Dallas v. Higginbotham, the Texas 

Supreme Court addressed the constitutionality of condemning land for governmentfunded low-income housing. 143 S.W.2d 79, 84 (Tex. 1940). The appellant in 

Higginbotham challenged the taking because the housing would not be available to 

the public generally but only to persons of low income. Id. at 84. The court held

that “[t]he question of whether or not in a given case the use is a public one depends 

upon the character and not the extent of such use.” Id. The court further stated that: 

It is immaterial if the use is limited to the citizens of a local 

neighborhood, or that the number of citizens likely to avail themselves 

of it is inconsiderable, so long as it is open to all who choose to avail 

themselves of it. The mere fact that the advantage of the use inures to 

a particular individual or enterprise, or group thereof, will not deprive 

it of its public character.

Id. More recently, the Texas Supreme Court held that a taking of property in 

downtown Austin by eminent domain for a “chilled water loop” was constitutional 

when: 

[T]he chilled water service is available to any customer that applies, 

though pricing for the service is determined by the cost of connecting 

the customer to the chilled water loop. While district cooling may be 

limited in its geographic scope, it is available to all who apply and agree 

on pricing with the City. We hold that the district plant here was 

serving a public use.

City of Austin v. Whittington, 384 S.W.3d 766, 784–85 (Tex. 2012). 

In the case before us, Saner does not deny that, per Federal Energy Regulatory 

Commission requirements, 10% of the pipeline’s capacity will be reserved for 
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“walk-up” spot shippers, but takes issue with the apparent 50,000 barrel minimum 

shipping requirement. In addressing the constitutional requirement of “public use,” 

we do not find any meaningful way to distinguish the 50,000 barrel minimum 

shipping requirement from the low-income requirement in Higginbotham or the 

costs imposed in City of Austin. Accordingly, we conclude that the pipeline’s 50,000 

barrel minimum shipping requirement does not violate the “public use” requirement

of the Texas constitution. But our inquiry does not end here.

Saner also asserts that, “[e]ven if two or five, or a hundred crude oil producers 

join together using a private pipeline to maximize their profits, this still does not 

constitute ‘public use’ as contemplated by the Texas Constitution” because “[c]rude 

oil producers are not the public under the Texas Constitution.” He further claims 

that “it is not the case that by virtue of (either claimed or proven) common carrier 

status it can be assumed that the ‘public use’ requirements of the Texas Constitution 

have been met.” We do not find Saner’s interpretation persuasive.

The evidence offered at trial supported the trial court’s findings that a 

reasonable probability exists that the pipeline will at some point after construction 

serve the public by transporting crude petroleum for one or more customers who will 

either retain ownership or sell it to parties other than BridgeTex. Accordingly, the 

trial court did not err when it determined that the pipeline built across Saner’s

property was for “public use” as required by Article I, Section 17 of the Texas 

constitution. We overrule Saner’s sole issue.

This Court’s Ruling

We affirm the judgment of the trial court.

July 21, 2016 JOHN M. BAILEY

Panel consists of: Wright, C.J., JUSTICE

Willson, J., and Bailey, J.