The Texas Supreme Court rejected the right of a utility to acquire property as a "common carrier" because of the lack of control of the common carrier.
As noted in the Michigan Hathcock case, from the earliest times, the notion of a right of a private utility to acquire is premised upon regulation of the utility by the local service commission.
The Texas Supreme Court understood the issue and denied a pipeline company’s right to condemn because it was not appropriately regulated.
The Supreme Court of Texas disagreed, reversing the appeal court and remanding the case to the district court for further proceedings. The court’s holding was based on two principal conclusions. First, the court held that the commission’s grant of a T-4 permit for a common carrier pipeline, while establishing a prima facie presumption of common carrier status, does not conclusively establish that the pipeline is, in fact, a common carrier. Instead, the court characterised the commission’s permit grant as a "clerical" act that in no way endeavoured to determine whether the pipeline would operate as a common carrier, and that this clerical act did not preclude landowners from challenging the common carrier designation.