Black Bros. v. State , 1923 Tex. App. LEXIS 373 ( 1923 )

COBBS, J.

On December 8, 1921, the state of Texas, joined by R. G. Brewster, J. Neill Smith, the Inland Oil Company, H. N. Harris, W. H. Lipscomb and J. T. Touhy, individually and as officers and trustees of the Inland Oil Company, as plaintiffs, exhibited' to the Judge of the district court of Travis county, for the Fifty-Third Judicial District, their petition against defendants, A. A. Atkins, W. H. Atkins, John Robbins, Jack Black, John Black, and Will Black, the three latter individually and as composing the partnership firm of Black Bros., R. F. Brown, individually and as the owner and operating under the name of Brown Oil Company, P. A. Chapman, Jr., N. A. Moore, and the Humble Oil & Refining Co.

The petition sounds first in trespass to try title, alleging that the state of Texas owns a certain described portion of the bed of the Clear fork-of the Brazos river in Stephens county, Tex.; that on March 25, 1920, the defendants unlawfully entered upon the land and ejected plaintiff, the state of Texas, and its coplaintiffs, to their damages,⅜ etc.; wherefore plaintiffs pray for title and possession and ask for a writ of possession, etc.

Next the petition avers that on June 16, 1920, the commissioner of the general land office, acting under the Mineral Act of 1917, issued to R. C: Brewster a mineral permit to drill in said portion of the river bed for oil and gas; that Brewster assigned this permit to J. Neill Smith, who contracted with the Inland Oil Company, its' officers, and trustees, to drill a well in the river bed at a. point permitted by the railroad commission under an order made as an exception to rule 37 of the railroad commission.

The petition contains the following:

“That the drilling of a well for oil and gas in a river bed is a very costly operation, much more costly than the drilling of a well on a flat and dry surface, and is attended with great trouble, labor, and danger; that before the actual work of drilling can he commenced a concrete foundation must be built up from the bottom of the river bed to a point several feet above the surface of the water; that the river at the point of said location above described is 12 or 15 feet deep; that said assignees constructed at great expense and labor in said river at said location the form for the placing of the concrete therein; that said assignees and their employees, while só engaged in the above work, were threatened with physical violence and criminal prosecution by the above-named defendants, and each of-them; that defendant A. A. Atkins and other defendants drove the said assignees of the state’s per-mittee, and their employees, away from their work and from the above-described lands, premises, and area, included within said permit No. 7224, with loaded shotguns, and refused, and still now refused, to permit said assignees, or their employees, from continuing with the work of drilling a well for oil and gas at the above-described location; that the said assignees, and their employees, fear that if they return ⅛ the work of so drilling said oil well, or attempt to do so, they will meet with bodily harm and injury from the said defendants, and each of them, and because of said above alleged threats and acts of the said defendants, and each of them, the said assignees find it impossible to secure workmen to work upon said above-described area and proceed with the drilling of the aforesaid oil well, and consequently said land, premises, and area above described will remain undeveloped for a long and indefinite period of time.”

The petition also avers:

“That said river bed, the title to which is in the state, subject to the rights of coplaintiffs, is virtually a closed-in area, surrounded on ail sides by the private property of the adjoining landowners, previously granted to them and their predecessors in title, by the state, and especially is it true that said river bed at this particular location above described is closed in on all sides by the property, and properties, of the defendants, and each of them, and particularly by tl^e property of defendants Atkins and Brown; that the plaintiff and its permittee, and hjs assigns, are entitled to a lawful and legal right of ingress and egress over the lands of the defendants and particularly the defendants Atkins and Brown, and each of them, as a way of necessity in order to go to and from and enter upon the land, premises, and area described above in paragraph 2 of this petition, as the property of this plaintiff (subject to the rights of its coplaintiffs herein); that the said defendants, and each of them, have refused and are still now refusing to permit the state of Texas or its permittee, and his assigns, from so entering upon and' going through their (defendant’s) aforesaid adjoining properties to reach the above-described land, premises, and area owned by plaintiff as aforesaid; that no public road affords access to plaintiff’s said land, and defendants have refused to sell or lease to plaintiff as its permittees, or to grant by contract to plaintiff and its permittees any means of access' over defendants’ said lands, to the land of plaintiff; that it is impossible to develop the said area of this plaintiff unless such right of ingress and egress be granted to plaintiff and its permittee, and his assigns, over the said adjoining lands of said defendants, and .each of them.”

The prayer reads as follows:

- “Wherefore, plaintiff (joined herein as aforesaid by its coplaintiffs) respectfully prays this court that an appropriate order be immediately entered granting said plaintiff a temporary injunction restraining the defendants, and each of them, their agents, officials, assignees, servants, employees or legal representatives, and each of them, from interfering, and attempting to interfere, in any way, manner pr form, with the plaintiff and its permittees, .and his assigns, their agents, assignees, servants, employees, and legal representatives, and either of them, in the drilling, of the aforesaid well for oil and gas at the above-described Smith location, or in the drilling of any oil and gas well, or wells, in the above-described land, premises, and area embraced within said permit No. 7224 and fully described above and in the development of oil and gas on and under said property and area, from threatening and from running off said premises and area, and from attacking said plaintiff and its permittee, and his assigns, their agents, assigns, servants, employees and legal representatives, and either of them, while on or about said premises, from preventing or attempting to prevent in any way or manner said plaintiff and others above named, and each of them, from so drilling, or attempting to drill, and from so developing or attempting to develop said properties, and granting said plaintiff a temporary injunction forcing said defendants, and each of them, their agents, officials,- assignees, servants, employees, or legal representatives, and each of them, to permit the plaintiff herein and its permittee, and his assigns, their agents, assigns, servants, employees and legal representatives, and either of them, to go through and over the property, or properties, adjoining said river bed area, in order to go to and from said river bed area and to and from said Smith oil well location, and to give them the right of ingress and egress thereover, and .restraining said defendants, and each of them, their agents, officials, assigns, servants, employees, or legal representatives, and each of them, from interfering with or preventing, or attempting to interfere with or prevent, said parties, and each of them, from going through and over such adjoining property, or properties, in going to and from said river bed area and said Smith location in said river l?ed area, and from doing any and all of the above acts set forth in the third count of this petition that defendants, and each of them, be cited to appear and answer this petition; that on final hearing hereof, said above prayed for injunction, or injunctions, be made perpetual, and that plaintiff and its coplaintiffs herein have judgment against the defendants, and each of them, for the title and possession of the lands, premises and areas above prescribed, and removing from the plaintiff’s and its coplaintiffs’ title the cloud cast upon it by the claims of the defendants, and each of them, and that plaintiff be adjudged to be the owner, subject to the rights of its permittee, and his assigns, and that they be adjudged to be the owners of their rights and title therein, of the said land, premises and area, free from the claims asserted by the defendants, and each of them, and of the petroleum, oil and natural gas, and other minerals, in and under the same; that a way of necessity be declared and established by the judgment of the court over the lands of defendants adjoining the property described in paragraph 2 hereon, and that a way of ingress and egress be decreed in favor of plaintiff; for writ of possession, and costs of suit, and for general and special relief.”

The district judge, on ex parte hearing, granted a temporary injunction—

“restraining the defendants, and each of them, their agents, officials, assignees, servants, employees or legal representatives and each of them, from interfering and attempting to interfere in any way, manner or, form, with the plaintiff, the state of Texas, and its permittee, and his assigns, their agents, assignees, servants, employees and legal representatives and either of them in the drilling of the well described in plaintiff’s petition at the Smith location described in said petition, and the development of oil and gas on and under said property within said area embraced within permit No. 7224 described in plaintiff’s petition, and from threatening, and from running off of said premises and area, and from attacking officials of the state of Texas, or their agents, and the state’s permittee and his assigns, their agents, assigns, servants, employees and legal representatives, and either of them, while on or about said premises, and from interfering in any manner with the plaintiff, its permittee and his assigns, their agents, assignees, servants and legal representatives and either of them in drilling or attempting to drill for oil and gas, or in prospecting for oil and gas on or under the premises embraced within said permit 7224; said injunction to remain in force and effect until further 'orders of this court herein.”

After hearing the evidence, the court rendered judgment in favor of appellees for the relief prayed for. Parts of the decree are as follows:

“And it further appearing to the court that the lands owned and claimed by the defendants entirely surround the portion of the rivers bed of the Clear fork of the Brazos river gt and near the point where the permittees of the state of Texas are preparing to drill an oil well, the point where said well is located being described as follows: (Here’follows the description of the point where the proposed oil well was to be drilled as designated by the said order of the railroad commission.) It is obvious from the map that the lands of Black Bros, do not surround the point at all.”

The judgment then continues:

“And it appearing to the court that the plaintiff, the state of Texas, its agents, permittees and lessees, have no means of ingress and egress to or near said point where the site of said well is located except over the lands of defendants, the court is of the opinion and finds that plaintiff, the state of Texas, is entitled to a way of necessity over and across said lands for the benefit of itself, its employees, agents, permittees and lessees.

“It is therefore ordered, adjudged and decreed by the court that the plaintiff, the state of Texas, have and recover judgment of the defendants, A. A. Atkins, Jack Black, John Black, Will Black, and the firm of Black Bros,, composed of the three individuals last named, and R. F. Brown, P. A. Chapman, Jr., N. A. Moore, and the Humble Oil & Refining Company, a private corporation, for the title and possession of the following described land,- to wit: (Then follows the description of the river bed area by metes and bounds as described in the said mineral permit issued by the commissioner of the general land office to R. C. Brewster.”

Next the judgment recites:

“It is further ordered, adjudged and decreed in accordance with the agreement of the parties hereto that the above described land and area covered by said mineral permit includes no more than the actual bed of said river lying between the first banks and does not embrace or include any portions of the patented lands contiguous thereto or fronting on or calling for said Clear fork of the Brazos river as a boundary.”

Next it seems to be adjudged that the co-plaintiffs of the plaintiff, state of Texas, have judgment validating the said mineral permit and that they, together with the state of Texas, have the right Under said permit to develop the river bed for oil and' gas. Next:

“It is further ordered, adjudged and decreed by the court that the plaintiff, the state of Texas, have an easement for the purpose of ingress and egress of its servants, agents and employees, permittees and lessees, including the coplaintiffs herein and their assigns, over and across the lands of the defendants and each of them to and near to the point in said river bed where its permittees have located the site of an oil well hereinabove described for the purpose of prospecting for, drilling and operating oil and gas wells, or for other purposes reasonably necessary for the utilization of said area, provided, however, that such right of ingress and egress shall be exercised in such manner as not to unnecessarily injure such lands or unnecessarily interfere with the use thereof by defendants.”

The temporary injunction is then dissolved as to every one except A. A. Atkins.

The following paragraph then occurs:

“It is further ordered, adjudged and decreed that this judgment shall in no way interfere with, jeopardize or be in bar of any riparian rights which any of the defendants herein, o.r their assignees, may have as riparian owners or proprietors of lands adjoining the river, in or to the waters of the Clear fork of the Brazos river or the uses thereof, nor shall this judgment preclude the defendants, or either of them, or their assignees, from hereafter asserting such rights, it being expressly decreed and adjudged that any questions as to any riparian rights of the defendants, or either of them herein or their assignees, were and are not determined or adjudicated in this case.”

A writ of possession is awarded to plaintiff, the state of Texas.

There was also a written agreement filed by the parties as to certain facts. Appellants Black Bros, have filed a printed brief, so has appellant Brown and appellant Atkins, but there is no brief for appellees on file.

We dispose of all the questions raised and bring the discussion down to the one material one that controls the disposition of the case as we view it. A much better understanding of the case would have been had of the lay of the lands if there had been prepared and filed a map showing only that portion of the river, the place where the oil well was to be sunk, together with the contiguous surveys and the other ones through and over which the so-called way of necessity was to traverse, rather than the entire county map. In the bed of the Clear fork of the Brazos river,, the state issued to appellee a mineral permit to prospect and bore for oil and gas. This river runs through Stephens and other counties t in Texas until it empties its waters into the waters of the deep blue sea, the Gulf of Mexico.

At the point where the exploit is to be made for the search for oil, or other minerals, the stream has an average width of 30 feet, and hence is declared to be a navigable stream over which no line of any survey may cross; nor could any person or corporation locate but one-half of the survey fronting thereupon. R. S. 5338. It is too well known, as a part of the history of Texas, that that statute was enacted in pursuance of the state’s public policy to prevent large landowners appropriating all the water fronts in this dry and arid county, by locating lands wholly along the river fronts, to the detriment of the general public.

But we shall not discuss the validity of the title to the one holding the mineral rights as against the right, title, and interest of the owner of the adjacent survey to go to the center of the stream, or the constitutionality of the mineral act as urged. The courts will not pass upon constitutional questions when it does not become necessary to do so, as in this case.

The live and essential question involved here is: Does the state of Texas, or the appellees, holding a mineral right as urged, have a way of necessity over appellants’ land, and, if so, by what right and title? All the appellants owned'and acquired their title to the lands in question in fee simple from grants under Texas, the sovereign, prior to Texas or any one else. Texas parted with her public domain without reservations of any kind, prior to the mineral law, the basis of appellee’s title. She never made reservations of any kind upon the lands of appellants so as to impress thereupon ways of necessity so that any one could be authorized to take or use the lands for a highway, and thus impress burdens of any kind for the purposes and uses attempted. There is a rule of necessity, when' a grantor sells part out of his inclosed lands, surrounded by other tracts, that gives an implied right of egress and ingress to his ven-dee, but then that way should be one clearly defined.

Some of the lands here which the ap-pellee seeks to traverse are remote from the river. The petition itself is bad in making no definite description of the proposed route.

No application was ever made to the commissioners’ court of the county to condemn any defined road. That court alone has that constitutional authority. See section 18, art. 5, Constitution. See Title 119, c. 1, R. S. Roads are divided into three classes, first, second, and third. Arts. 6872, 6873,. and 6874. Article 6876, Revised Statutes, contains the following:

"Where one or more persons live within an inclosure either or all of them may petition the commissioners’ court for a third-class road or neighborhood road to their nearest trading points, mills, gins, school and church houses and county seats, and the courts shall open such roads, as hereinafter provided in the opening of third class roads.”

By virtue of the Constitution and the statutory provisions above noted, the commissioners’ court is made a court of general jurisdiction for the establishment of roads. Bexar County v. Terrell (Tex. Sup.) 14 S. W. 62; Allen v. Parker County, 23 Tex. Civ. App. 536, 57 S. W. 703; Howe v. Rose (Tex. Civ. App.) 80 S. W. 1023; McCown v. Hill (Tex. Civ. App.) 73 S. W. 851; Gaines v. Newbrough, 12 Tex. Civ. App. 466, 34 S. W. 1048; Haverbekken v. Corryell County (Tex. Com. App.) 247 S. W. 1086.

We understand the common-law doctrine concerning rights of way by necessity, but the facts in this case do not bring it within that rule. Sassman v. Collins et al., 53 Tex. Civ. App. 71, 115 S. W. 337; Pearne v. Coal Creek Mining & Mfg. Co., 90 Tenn. 619, 18 S. W. 402; United States v. Rindge (D. C.) 208 Eed. 611.

In condemning a road and locating it, as said in Haverbekken v. Corryell County, supra:

"The power of the commissioners’ court to locate highways must be invoked by proper and sufficient petition, one statutory requisite of which is that it shall specify the beginning and termination of the proposed road.”

There is no such general right known as a way of necessity‘ to drive <frer, upon, and appropriate to the use of another, private lands without some privity in estate; such property right in lands of the true owner is protected from such trespass, damage, taking, and injury by the Constitution and laws of this state. If properly condemned and taken, then adequate compensation of course would be required to be- paid therefor.

There is no privity in estate shown here between appellants and appellees, and it makes no difference whether any of the lands of appellants are adjacent to the proposed oil well or not. Appellees did not acquire any right, title, or interest in the oil land from and under appellants, and no right of ingress or egress to and from the oil well upon appellants’ lands can be implied, inferred, or held to exist, in fact, from any reason shown in .this record, pleaded or proven.

We find no merit in appellees’ contention, and the judgment of the trial court is here reversed and rendered for appellants.