author: BARROW, Justice.

text:
    The STATE BOARD OF WATER ENGINEERS et al., Appellants, v. James T. SLAUGHTER et al., Appellees.
    No. 14284.
    Court of Civil Appeals of Texas. San Antonio.
    July 29, 1964.
    Rehearing Denied Sept. 9, 1964.

      Waggoner Carr, Atty. Gen., Austin, for appellants.
    McWhorter, Cobb, Johnson & Cobb, Lubbock, for appellees.
   BARROW, Justice.

This suit was brought by the State of Texas, acting through the Texas Water Commission, formerly the State Board of Water Engineers, and Rudolph Hoefs, against James T. Slaughter and others to enjoin defendants from diverting water from Barilla Creek in Pecos County. Slaughter claimed that he held vested ap-propriative rights in the waters of Barilla Creek which he acquired under the Irrigation Act of 1895 (Texas General Laws 1895, Chap. 21, p. 751), and the trial court sustained his claim. Hoefs lost his rights to Slaughter by prescription and he has not appealed. No rights as riparians are asserted in this appeal.

The State argues that Slaughter (1) failed to comply with the Irrigation Act of 1895, because the State granted flood water rights to Slaughter’s predecessor, and such a grant required the construction of a dam or reservoir for storage of flood waters; that all the waters of Barilla Creek are flood waters; (2) if Slaughter’s predecessor ever had any rights, they were cut off by a failure to file a statement of those rights as later required by Section 14 of the Act of 1913 (Texas General Laws 1913, Chap. 171, p. 358), and the trial court erred in excluding downstream water permits issued to others along Barilla Creek, which permits •would manifest the practice in granting water permits. In our opinion, the trial court correctly construed the Act of 1895 in its judgment, that a dam was not required, that Slaughter held water rights in both the ordinary and flood waters of Barilla Creek; that Slaughter held vested rights under the 1895 Irrigation Act, as distinguished from a license or permit under the 1913 Act, that those rights were not cut off by legislative act, and that the excluded downstream permits were not material to those issues.

Defendants are successors of W. J. and J. A. Burnett to the water rights in controversy on the Lindsey-Slaughter Ranch in Pecos County. Section 6 of the 1895 Irrigation Act authorized the acquisition of appropriative rights by filing and recording a sworn statement in the office of the county clerk which described the works and use of water. On June 21, 1912, the Burnetts filed, in the Irrigation Records of Pecos County, an intention, under the Irrigation Act of 1895, to construct and operate a canal for the purpose of irrigation and stock raising, and to appropriate 200 cubic feet of water per second from Barilla Creek whenever there is water in said creek, including the natural flow, the underflow and the flood waters of Barilla Creek, by use of Burnett Irrigation Canal No. 1. Said canal had a carrying capacity of 200 cubic feet per second of time.

A small diversion dam, hereinafter referred to as “original diversion point,” was constructed by the Burnetts shortly thereafter, and water has been diverted since that time. The declaration of intention stated that the canal was intended to supply water for irrigating 800 acres, but, under the evidence, the most land ever irrigated by the Burnetts or their successors was 100 acres. In 1959, defendants entered into a soil conservation program with the U. S. Agriculture Department and constructed a new diversion channel for the purpose of flooding 516.5 acres. Following that action, this suit was filed wherein plaintiff asserted that irreparable injury would be done unless defendants were required to restore the banks and bed of said watercourse. The trial court found that the Burnetts and their successors had continuously diverted the natural flow, the underflow and the flood waters of Barilla Creek for irrigation and livestock purposes to the extent of 200 cubic feet per second of time, since shortly after the declaration of intention was filed; that the Burnetts had complied with the 1895 Act, and by such compliance had acquired vested property rights in the waters of this creek to this extent; that the 1913 Act requiring registration of the declaration with the State Board was directory only and not calculated to deprive defendants of their vested property rights; that defendants, although continuing to divert water from the “original point,” were also diverting water from another point. The judgment decreed that defendants own vested property rights to appropriate the natural flow, the underflow and the flood waters of Barilla Creek at the “original point” to the extent of 200 cubic feet per second of time, but enjoined defendants from diverting any water in excess thereof, or from any other point in the creek without the approval of the State Board.

The trial court’s decision that Slaughter’s appropriative rights extended to both ordinary and flood waters is correct. The water rights to Barilla Creek were involved in a previous controversy, and its physical characteristics were fully described in Hoefs v. Short, 114 Tex. 501, 273 S.W. 785, 40 A.L.R. 833. The record in the present case establishes that the rainfall in the watershed of Barilla Creek has diminished somewhat since the first case, otherwise the characteristics are the same and therefore will not be described in detail. It is undisputed that this watercourse contains water only after a rainfall in its watershed, which occurs on the average of four to seven times annually. Following such a rainfall water flows for a short time in a defined channel and has economic use and value to the ranchers and farmers located on Barilla Creek.

It was held in the landmark case of Mott v. Boyd, 116 Tex. 82, 286 S.W. 458, that the 1895 Act plainly divided the waters of the rivers of this State into two classes: “First, ‘the unappropriated waters of the ordinary flow or underflow of every running or flowing river or natural stream’; and, second, ‘the storm or rain waters of every river or natural stream * * * within the arid portions of the state.’ ” Storm or rain waters were there defined as those above the line of highest ordinary flow which is the highest line of flow which the stream reaches and maintains for a sufficient length of time to become characteristic when its waters are in their ordinary normal and usual condition, uninfluenced by recent rainfall or surface run-off. See also Hoefs v. Short, supra;. Humphreys-Mexia Oil Co. v. Arsenaux, 116 Tex. 603, 297 S.W. 225, 53 A.L.R. 1147; Sun Underwriters Ins. Co. of N. Y. v. Bunkley, Tex.Civ.App., 233 S.W.2d 153, writ ref.

The trial court construed the Act of 1895- and held that it did not require a dam or reservoir as a condition precedent to the acquisition of the waters of Barilla Creek. This is a correct construction of the language of Section 8 of the Act. Section 1 divides the water into two classes and declares all unappropriated waters the property of the public and may be acquired by appropriation for the uses and purposes provided in the Act. Sec. 2 provides that storm- or rain waters may be held or stored in-, dams, lakes or reservoirs and diverted for stated purposes. Sec. 3 provides that the-ordinary flow or underflow may be diverted’ from its natural channel for the purposes, stated in Sec. 2. Sec. 6 requires every person who has constructed or may construct any ditch, canal, reservoir, dam or lake for-the purposes named in the Act to file for-record with the county clerk a sworn statement showing approximately the number of acres of land to be irrigated, the name of such ditch or canal, where the headgate is. situated, the size and carrying capacity of the ditch, and when the water is to be takeih from a reservoir, dam or lake, the statement above provided for shall show in addition to the ditch and other things provided for, the locality of the proposed dam, reservoir or lake, its holding capacity in cubic feet of water, the acreage and surface feet of land that will be covered and area of watershed. Sec. 7 provides that by compliance with Sec. 6, the right to use of water relates back to when the work commenced, with an additional provision that a failure to file said statement should not work a forfeiture of such theretofore acquired rights or prevent such claimants from establishing such rights in court.

Sec. 8 provides that the right to appropriate the waters of both classes for irrigation purposes may be acquired by filing a sworn statement in writing to be recorded, as provided by Sec. 6, declaring an intention of appropriating such waters. “Said statement shall also show approximately the number of acres of land proposed to be irrigated, the name of such ditch or canal, the point at which the headgate thereof will be situated, the size of the ditch or canal in width and depth, and the carrying capacity thereof in cubic feet per second of time, the name of the person, firm, association or corporation appropriating such water, the name of the stream, and shall attach to such statement a map showing approximately the proposed route of such ditch or canal; and when the water sought to he appropriated or acquired is storm or rain water, the statement above required shall also show or describe the locality of the proposed dam, reservoir, or lake * * *(Emphasis added.)

Appellant urges that this section and particularly the emphasized portion thereof required a different declaration of intention to appropriate storm or rain waters and that same could only be diverted from the storage facilities. A more logical and meaningful construction of this section would be that if the storm or rain waters are to be acquired the storage facilities should be described in the declaration. We see nothing in this Act inconsistent with use of the storm or flood waters for irrigation purposes in the same manner as ordinary flow. To the contrary, the Act contemplates that storm or flood waters would use a ditch or canal in the same manner as ordinary flow or underflow by requiring a description of the ditch or canal. A canal which was so constructed as to divert the ordinary flow or underflow would necessarily divert some storm waters also. It is therefore our opinion that both classes of water were available for this purpose and that by filing the declaration of intention to divert both classes by construction of a diversion channel and subsequent construction and operation of same, the Burnetts acquired rights under the 1895 Act to both classes of water.

Rights acquired under the 1895 Irrigation Act were vested rights which the Legislature could not cut off. In Clark v. Briscoe Irr. Co., Tex.Civ.App., 200 S.W.2d 674, Chief Justice McClendon reviewed the historical background of our water laws and said:

“Nor is there any question but that a water right, when acquired and perfected either under the posting or permit system, constitutes a vested interest in or title to the use of the water thereby appropriated.”

In Board of Water Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301, the 1917 Act was held invalid on the ground that it attempted to confer judicial powers upon the State Board of Water Engineers and would deny the parties a judicial determination of their vested rights as appropriated of water. See also, Lakeside Irr. Co. v. Markham Irr. Co., 116 Tex. 65, 285 S.W. 593; City of Anson v. Arnett, Tex.Civ.App., 250 S.W.2d 450; Goodwin v. Hidalgo Co. Water Control & Improvement Dist. No. 1, Tex.Civ.App., 58 S.W.2d 1092; Fairbanks v. Hidalgo Co. Water Imp. Dist. No. 2, Tex.Civ.App., 261 S.W. 542 ; 30 Tex. Law Rev. 669.

The 1913 Act made a radical change in the statutory method of appropriating water by creating the State Board of Water Engineers and introducing procedures for administrative control of waters. It, for the first time, began the issuance of permits or licenses are distinguished from rights. The Act expressly recognized the validity of water rights which had already vested. Sec. 1 declared that the unappropriated waters of all classes, the title to which had not already passed from the State, were the property of the State and thereby subject to the Act. Section 98 provided:

“Nothing in this Act contained shall be held or construed to alter, affect, impair, increase, destroy, validate or invalidate any existing or vested right, existing at the date when this Act shall go into effect.”

Appellant urges that Section 14 of the 1913 Act required owners of water rights acquired under previous statutes to timely record same with' the Board of Water Engineers in order to retain those rights. The State reasons that those who failed to meet these requirements were cut off and lost their rights. Slaughter’s predecessors did not file their declaration, but on the authority stated above and the recognition of existing rights in Section 98, this legislative requirement did not destroy the vested rights.

Appellant relies upon In re Willow Creek, 74 Or. 592, 144 P. 505, 146 P. 475, wherein the Oregon Supreme Court construed the Oregon Water Code of 1909. The Court upheld the constitutionality of the statute which required owners of water rights to assert them before the water board WHEN SERVED WITH NOTICE TO DO SO, and that they would be bound by the board’s determination. The Court expressly held that appropriative water rights were vested rights and could not be taken away by legislative enactment, but could be regulated. It was there held that the Oregon water code properly protected these constitutional rights by the notice requirement and by provision for judicial determination by the circuit court. It should be noted that similar provisions of the Texas 1917 Act were held unconstitutional in Board of Water Engineers v. McKnight, supra.

The trial court properly held that the requirement of Sec. 14 of the 1913 Act, regarding registration of existing rights was directory in that the Act expressly recognized the validity of such rights. Furthermore, the Act could not constitutionally deprive the Burnetts of their vested rights.for failure to record same. Board of Water Engineers v. McKnight, supra; Motl v. Boyd, supra; 28 T.L.R. 940.

The statement of intent which Slaughter’s predecessors filed stated an intent “to appropriate 200 second feet of water from Barilla Creek in Pecos County, Texas, whenever there is water in said creek; and to appropriate all the waters including the natural flow, the underflow and the flood waters now running down or that may hereafter run down said creek up to the amount of 200 cubic feet of water per second of time * * The State says that this is an inadequate description. In our opinion, the words “whenever there is water in said creek” shows, contrary to the State’s contention, that the appropriator had no intent of acquiring a right to 200 cubic feet of water during all the time. The creek flows intermittently, but when it flows, he intended to draw water at that rate. In our opinion, this was an adequate description.

There is, however, a limitation upon the intent. The right is measured and limited by the continued diligent development of the appropriator. The rights which Slaughter’s predecessors acquired under the Irrigation Act of 1895 is measured by the sworn statement showing the number of acres “that will be irrigated,” Section 6, Act of 1895, or “approximately the number of acres of land proposed to be irrigated,” Section 8, Act of 1895, “the acreage of land that will be covered,” Section 8, Act of 1895. While Slaughter’s predecessors acquired a vested right, they irrigated only 100 acres of land, and it was not until 1959 that they proposed the irrigation of additional lands. A reasonable construction of the 1895 Act would be that there must be a continued and diligent development by appropriators under the filing. Hidalgo County Water Control and Improvement Dist. No. 1 v. Goodwin, Tex. Com.App., 25 S.W.2d 813, said that the several laws, including that of 1895, are liberally construed and given such effect as to best promote irrigation and thereby carry out the purpose of the Legislature. It stated that the State must be the one that undertakes any forfeiture or cancellation of water rights held under the several laws. In our opinion, a delay of more that four decades is not such a continued and diligent development, as a matter of law, as was contemplated by the Legislature in enacting the 1895 Act. Slaughter’s rights extend to but not beyond the acreage which he has put to beneficial use by continued and diligent development. In this case, it was 100 acres.

The judgment of the trial court is reformed so that Slaughter may use up to 200 cubic feet of water per second of time when there is water in the Barilla Creek, but for the irrigation of 100 acres only, and as reformed the judgment is affirmed.

      . “Sec. 14. Statement to be Filed with Board, etc. — Every person, association of persons, corporation, or irrigation district, who shall have heretofore filed for record, or shall hereafter, in compliance with the provisions of section twelve, file for record the sworn statement in writing as set out therein, shall, within one year after this Act shall take effect, file in the office of the board a certified copy of such sworn statement and a true copy of the map as described in Section twelve, and in addition thereto, a sworn statement showing wliat has been done under or in pursuance of such filing or statement; what work or construction has been completed or partially completed; what portion of said work is in use and what portion is in possession and not in actual use; what amount or volume of water is being actually taken, diverted or used and for what purpose; and the amount or volume of water, as near as may be, that has been diverted, taken or used, and for what purpose, in each and every year since such original filing was made; and if such water was diverted, taken or used and for what purpose; in each and every year since such original filing was made; and if such water was diverted, taken or used for irrigation, the statement shall show, as near as may be, a description and the area of lands being irrigated at said time, and the number and names of the users and consumers of water at said time. * * *
      “Every person, association of persons, corporation or irrigation district, who has, prior to the first day of January, 1913, actually taken or diverted any water and applied same to any of the uses and purposes named in this Act, and is at the date of the filing of the statement herein provided to be filed, continuing to use and apply such water, who shall, within one year after this Act shall go into effect, file with the board the sworn statement last described in this Section, shall, as against the State, have the right to take and divert such water to the amount or volume thus being actually used and applied; provided, that nothing herein shall be construed to affect or relate to any priority or right as between any claimants, appropriators, or users from any source of water supply.”


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Edwin T. REILLY et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 14245.
    Court of Civil Appeals of Texas. San Antonio.
    July 29, 1964.
    Rehearing Denied Sept. 9, 1964.

      Park Street, James K. Gardner, Carlos C. Cadena, San Antonio, for appellants.
    Waggoner Carr, Atty. Gen., Carroll R. Graham, T. B. Wright, Asst. Attys. Gen., Austin, for appellee.
   MURRAY, Chief Justice.

This is a condemnation suit wherein the State of Texas is seeking to take a portion of appellants’ 183 acre tract of land located in Bexar County, a part of which lies within the city limits of San Antonio, for construction of a new interstate controlled access highway. The tract condemned consists of 18.046 acres, all within the City of San Antonio.

A jury trial was had in the County Court at Law No. 3 of Bexar County, and resulted in a verdict fixing the value of the part taken at $37,886.60, and the damage to the remainder of the tract at $10,500.00. Judgment was rendered in keeping with the verdict and Edwin T. Reilly and wife, Lucille Reilly, have prosecuted this appeal.

The parties stipulated that the State of Texas has the right to condemn the property in question, and that all prerequisites of the law have been complied with up to the time of the trial; that the only issues to be determined are the value of the tract taken and the damages to appellants’ remaining property.

Appellants’ first eight points present the contention that the court erred in excluding evidence (1) of the going price of material excavated from appellants’ property, (2) of the income derived from the excavation and sale of material from appellants’ property, (3) of the cost of hauling material such as excavated from appellants’ property, (4) of the terms of the lease from Lamar Turner to Emil G. Beck, (5) of the number of cubic yards of material excavated from appellants’ property since the beginning of material operations thereon, (6) of the royalty basis for royalty paid under the lease between appellants and Roland Schmidt; (7) that the court erred in sustaining appellee’s motion to suppress evidence No. 1, and (8) in repeatedly instructing appellants to introduce no evidence of income, royalties, going price of material and costs of hauling such material. These contentions are briefed together and will be so considered by us.

Appellants acquired the land here involved on August 1, 1955, and since that date have been selling material excavated from such tract, including the land condemned by the State. The effect of the trial court’s ruling was to exclude evidence of the profits made by appellants from the sale of such material, consisting of topsoil, fill material and caliche gravel extracted from their land. The top soil, excavated from the entire 18.046-acre tract, was sold separately, and the other material, excavated from depths.varying from ten to thirty feet, was sold and loaded on the trucks of appellants’ purchasers in an unsegregated state. It was low-grade industrial material which was not suitable for use in highway construction by the State of Texas, but was suitable for many other uses. It consisted of a mixture of various types of earth, clay, gravel, limestone, etc., and was used in construction and repair of city streets, in the construction of parking lots, and by contractors in connection with the construction of slabs, curbs, sidewalks and foundations. During the seven or eight years that appellants had operated the pits there was a steady demand for this material, and there is evidence that this demand will continue.

Appellants’ 183-acre tract is located in an area where there are large quantities of the same type of material as is being sold from their land, but appellants contend that they have a unique advantage because the 18.046 acres is located within the city limits, and was being used for the excavation of gravel and other material when taken into the city, and can therefore continue to operate on a non-conforming industry basis, which would not be true of other lands within the city limits. Lands outside the city would be much farther from the market, which would necessitate longer hauls and have other disadvantages.

The State’s experts testified that the highest and best use of the property was for a residential subdivision, except the pits and the areas around the pits, and that similar lands which were being sold for residential subdivisions were selling for more money than lands that were bought and sold for the material business. Appel-lee’s witnesses found numerous comparable • sales of residential subdivision lands and material lands, which they considered and used in forming their opinions of value. Their range of value for the strip taken was from $900.00 to $1,550.00 per acre, based on its highest and best use as a residential subdivision.

Appellants’ expert witnesses testified that, because of the lack of existence of comparable sales, they considered the income and revenue from the property as factors which influenced their opinions of market value. In arriving at a conclusion of the highest and best use of the property, they also considered royalties paid under lease arrangements for extraction of similar material on other properties paid under a lease arrangement with Roland Schmidt during the years 1956 and 1957, the prevailing or “going price” of material excavated from appellants’ land, and the standard and customary rate charged for hauling such material to its destination.

Appellants contend that prior to the trial, the court sustained “Plaintiff’s Motion to Supress Evidence No. 1,” thus preventing appellants from presenting any evidence concerning income, royalties, prevailing or going price of material, or hauling costs-No such motion and order are in the record, but the record does show that the testimony was excluded during the trial. The trial judge indicated that he was of the opinion that he had excluded such testimony before the trial began.

Appellants contend that had such testimony been admitted, they would have shown that the following income was obtained from excavation and loading of material on appellants’ property:

Year Gross Net
1956 $ 47,692.28 $ 32,906.00
1957 62.209.68 37,532.08
1958 105,721.82 67,562.64
1959 104,502.00 63,701.20
1960 82.727.69 50.208.19
1961 61,434.46 40.612.20
1962 86,198.52 53,720.42
TOTAL $550,486.45 $346,242.73

Thus, it would have been shown that over a seven-year period, the property yielded an average gross income in excess of $78,-000.00, and an average annual net income of amost $50,000.00.

In determining the net income for each year, there was deducted from the gross income the actual cost of operation for such year, without consideration of the depletion allowance granted for federal income tax purposes or depreciation of equipment.

The excluded testimony would also have shown that the area developed to the time of trial was begun on the portion of the land bordering Rosillo Creek, where the available material did not extend to a depth as great as in other portions of the property; and that excavations on other portions of the property had not been pushed to full depth because of water or drainage problems. Appellant Reilly testified that this difficulty would be overcome by using a dragline instead of the shovel which had been used. For these reasons, the excavations were to a depth of 12 to 16 feet. Reilly testified that the land being taken by the State contained saleable material to a depth of 33 feet, that portion being the “peak” of the property. Reilly further testified for the purpose of the Bill of Exception that in his opinion the net income recoverable for the material located in the land being taken would be $17,000.00 to $18,000.00 per acre, if excavated to a depth of 30 feet. Test holes dug within the right-of-way indicated that the material was available at least to such depth.

The excluded testimony of the witnesses Tamon, Reyes, Lipscomb and Reinhardt would also have shown that the going price for “pit run” material (excavated and loaded on the purchaser’s trucks at the pit) was .40 per cubic yard for caliche gravel, .30 per cubic yard for fill material, and .50 per cubic yard for topsoil. These prices were for material measured on the truck, or “loose” measure, and did not represent value received for material in place.

The excluded testimony of appellant Reilly would have shown further that the above prices would yield the following net recovery per cubic yard after deducting operating costs: topsoil, .30 to .34; caliche gravel, .24 to 26; and fill material, .18 to .20. His testimony would also have shown that the above prices had remained stable since the beginning of operations.

The court also excluded the amount charged by contractors and truckers for hauling the material. Reilly and Reinhardt would have testified, if permitted, that the charge for hauling was .05 per yard per mile. One of the State’s witnesses, Steb-bins, if permitted to do so, would have testified that the usual hauling cost per mile for a four or five-yard load was $1.00.

Appellants’ witnesses considered all such excluded matters in arriving at their opinion of value, but considered them as factors only. In offering such matters into evidence, appellants stated that such information was being offered only as factors to be considered along with all other facts and circumstances bearing upon value, and not as constituting', in and of themselves, evidence of value. Appellants further suggested that if it were improper to arrive at value by multiplying the price received for material, times the number of cubic yards remaining in place, this could be cured by appropriate instructions in the charge of the court.

We will first consider the action of the trial court in excluding the evidence relating to the profits made over a period of seven years from the excavating business operated by appellants upon the 183-acre tract. Appellants elected to try this case on the theory of market value, so it will not be necessary to discuss other various concepts of value. In Herndon v. Housing Authority of City of Dallas, Tex.Civ.App., 261 S.W.2d 221, the Court, in discussing the admissibility of evidence of gross receipts and profit of the owner’s business conduct-' ed upon property to be taken, said:

“This very question is the subject of an annotation in 7 A.L.R. 163. Here is the rule as stated on page 164 in the annotation :
“ ‘With remarkable unanimity the American jurisdictions hold that evidence of profits derived from a business conducted on property is too speculative, uncertain, and remote to be considered as a basis for computing or ascertaining the market value of the property in condemnation proceedings.’
“The reasons generally given to support the rule are: (1) Ordinarily the amount of profit depends more upon the capital invested, general business conditions, and the trading skill and business capacity of the person conducting it than it does upon the location of the business. Gauley & E. R. Co. v. Conley, 84 W.Va. 489, 100 S.E. 290, 7 A.L. R. 157; and (2) it is only the real estate which is being taken, not the business. The owner may keep his business and continue to operate it at a different location.”

The Court goes on to say that this rule is not to be confused with the rule that permits evidence of profits where a stone quarry is located on the condemned land, in such event the owner may show his profits from the quarry business because it is part of the intrinsic nature of the land itself. In support of this statement the Court cites: Orleans County Quarry Co. v. State, 172 App.Div. 863, 173 App.Div. 990, 159 N.Y.S. 30, and Seattle & M. R. Co. v. Roeder, 30 Wash. 244, 70 P. 498. This statement was not necessary to the decision and was therefore obiter dicta and furthermore the two cases cited do not so hold. These cases go no further than to hold that under such circumstances the market value of the stone or other natural material in place in the land would be admissible.

In 22 Tex.Jur.2d 575, § 173, it is stated:

“However, profits derived from a business conducted on property are too speculative, uncertain, and remote to be considered as a basis, for computing or ascertaining market value of property in condemnation proceedings inasmuch as business profits ordinarily depend on factors other than location, and inasmuch as the owner may keep his business and operate it at a different location.”

This rule is applied only where the whole of the property is taken, and where only a part of the property is taken the rule may be different, but in the case at bar the only claim of damages as to the remaining property was the loss of a fifty-foot strip as a retainer wall.

Appellants cite a number of cases contending that it was error to exclude evidence of the profits derived from their excavation business, but these cases do not sustain their contentions when carefully analyzed. These cases go no further than to hold that the market value of the material in place or in situ may be shown.

Appellee offered evidence of seven comparable sales of land containing gravel and other materials, and appellants have presented no point contending that the court erred in permitting evidence of these sales as not being comparable. While appellants’ value experts testified that they were unable to find any sales of comparable lands, this was insufficient under all the facts and circumstances to establish the fact that there were no comparable sales.

To illustrate, the rule allows evidence to be heard as to the value of the gravel or other material as it lies in its natural state in the ground, sometimes referred to as in place or in situ, and does not allow evidence of the value of the gravel or other material after it is taken from the ground and has become a commodity in commerce. For instance, in State v. Mottman Mercantile Co., 51 Wash.2d 722, 321 P.2d 912, the Court said:

“This error stems from a well recognized and sound general rule, i. e., that it is improper to arrive at a conclusion concerning the value of property which has a mineral content by multiplying the assumed number of cubic yards of material available times a given price per unit. * * *
“However, from the generally recognized rule to which we have referred, the state reasoned that evidence of the present value of gravel, in its natural state, on a cubic yard basis was inadmissible, which is a non sequitur.”

In Georgia Kaolin Co. v. United States 3 Cir. 1954, 214 F.2d 284, the Court said:

“In eminent domain proceedings, the existence of valuable mineral deposits in the condemned land constitutes an ■element which may be taken into consideration if and in so far as it influences the market value of the land. The reason for this rule is said to be that the measure of compensation in such cases is the market value of the land to be condemned, taken as a whole and with due consideration of all the components that tend to make its market value.”

In Seattle & M. R. Co. v. Roeder, 30 Wash. 244, 70 P. 498, the Court said:

“This land has a special value as stone-producing land. The owners, therefore, are entitled to compensation according to its value as such. * * * It is like lands with buildings thereon, or timber land, or lands having any other commodity which is a part of the land itself. * * * If the extent and quality and value of the stone as it lies on the land may not be considered, there would be no way by which the value of the land with the stone could be shown.”

To the same effect is United States v. Land in Dry Bed of Rosamond Lake, S.D. Cal., 1956, 143 F.Supp. 314; National Brick Co. v. United States, 1942, 76 U.S.App.D.C. 329, 131 F.2d 30; United States v. Rayno, 1 Cir. 1943, 136 F.2d 376; Cade v. United States, 4 Cir. 1954, 213 F.2d 138. The other decisions cited by appellants do not sustain them in their contention.

It is clear that sand, gravel and other material should not be valued separate and apart from the land, and when the value of such materials can be properly shown it should be restricted to the market value of such materials in place as they lie in their natural state in the land, and not after they have been severed from the land and thereby converted into a commodity. The value or price of material excavated from appellants’ property would not be admissible for any reason, because after excavation the same becomes personalty. W. B. Johnson Drilling Co. v. Lacy, Tex.Civ.App., 336 S.W.2d 230.

Under the Texas decisions income or profits from a business are admissible in evidence in condemnation cases in only two situations: (1) In those cases where the landowner’s business has been temporarily interrupted because of a denial of access the landowner can recover his loss of profits as an element of damage. Hart Bros. v. Dallas County, Tex.Com.App., 279 S.W. 1111; City of La Grange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243; Gandy v. State, Tex.Civ.App., 293 S.W.2d 534. (2) In those cases where only a part of the landowner’s land is taken, an owner may show loss of profits as an injury to his business, not as a separate item of damage, but as affecting the market value of the remaining land and improvements for the uses to which they were adapted and were being put. City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176; Milam County v. Akers, Tex.Civ.App., 181 S.W.2d 719.

The appellants do not fit in either class of the above cases. There is no pleading or proof as to a temporary interruption of business as a denial of access, and appellants admit that there was no damage to their land not taken or to their business, except for the loss of approximately five acres from excavation because of the necessity to leave fifty feet of lateral support along both sides at the right-of-way.

With the exception of the above two mentioned situations, the Courts have held that business profits are too uncertain, speculative, conjectural and remote to be considered as a basis for computing market value. State v. Parkey, Tex.Civ.App., 295 S.W.2d 457. This Court has held that future profits from a farming operation are of no value in passing upon the question of market value, because they are too speculative. Lower Nueces River Water Supply Dist. v. Sellers, 323 S.W.2d 324.

Testimony as to special royalty payments are inadmissible for three reasons: (1) Because the value of material after the same is excavated is not admissible, (2) for the same reasons that income and profits are not admissible, and (3) because a royalty is nothing more than an option to purchase in the future, and such options are not admissible. State v. Williams, Tex.Civ. App., 357 S.W.2d 799. Appellants’ first eight points are overruled.

Appellants’ ninth, tenth, eleventh and twelfth points present the contention that there is no evidence, and in any event the evidence is insufficient to support the jury’s answers to Issues Nos. One, Three and Four, finding respectively that the value of the land taken was $37,886.60; that the value of the remaining property before the taking was $198,064.80, and after the taking, $187,564.80. We overrule these points because the answers of the jury were well supported by the comparable sales testified to by the witnesses of appellee.

Appellants’ remaining points are overruled because we are of the opinion that if any error is presented by these points it did not amount to such a denial of the rights of appellants as is reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

The judgment is affirmed.


author: ’ NYE, Justice.

text:
    Dr. M. Eugene TEAS, Appellant, v. TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY et al., Appellees.
    No. 54.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 27, 1964.

      Ben N. Ramey, Houston, for appellant.
    Quentin Keith, of Keith, Mehaffy, Mc-Nichols & Weber, Beaumont, Douglas Bergman, Dallas, Walter C. Clemons, Houston, Charles Babb, William Garwood, Austin, Thomas Gee, Waggoner Carr, Atty. Gen., Austin, for appellees.
   ’ NYE, Justice.

This is an appeal from an order denying and refusing Dr. M. Eugene Teas a temporary injunction. The appellees are: Texas State Board of Examiners in Op-; tometry; its members; their attorneys; the Attorney General of Texas; his special counsel; intervenors, N. Jay Rogers, S. J. Rogers and Ellis Camp; arid their attorneys now employed or to be employed in the future.

Appellant’s sworn petition for a temporary injunction alleges that he has a case pending in the district court below wherein the appellees are parties; that they have attempted certain dilatory tactics designed to delay the orderly prosecution of his pending lawsuit; and that, unless enjoined, they will, in the future, impede the orderly disposition of his case by employing additional such tactics.

Appellant further alleges that he filed an amended pleading in his orginal cause of action and at the same time and in anticipation that one or more of the appellees would take action to procure restraining orders or injunctions against him which would delay the trial of his case, made application for a temporary restraining order and a temporary injunction against the appellees which would give him relief from the anticipated delaying tactics of appellees. This temporary restraining order was granted and then dissolved (the record does not indicate whether it was dissolved by operation of law or by action of the trial court.), but the trial court set for hearing the application for temporary injunction on September 16, 1963, at 10:00 a. m. Learning of the dismissal of the temporary restraining order, and fearing that the appellees would file restraining orders or other extraordinary writs on him before the hearing’ was had on the temporary injunction, appellant secured an additional similar restraining order froin another court. Notice was sent to appellees by telegram and this hearing was set likewise on September 16, 1963, at 1:30 p. m., in the same court. There is nothing in the record before us as to the disposition of the prior original temporary injunction or the results of the hearing thereon, if any. The trial court denied this application for temporary injunction.

There is no statement of facts. Appellant perfected his appeal to the Court of Civil Appeals for the First Supreme Judicial District, and by order of the Supreme Court of Texas this case was transferred to this Court.

Appellees filed a motion in this Court to dismiss the appeal for want of prosecution because appellant did not, within thirty days from and after the filing of the transcript in this Court, file his brief or seek an extension of time within which to do so under the requirement of Rule 414, T.R. C.P. Appellees’ motion to dismiss is overruled. No briefs are required in appeals from an order granting or refusing a temporary injunction under Rule 385(d), T.R. C.P.; Dunn v. Patton, 360 S.W.2d 837 (Tex.Civ.App.1962); Hotel & Restaurant E. I. A. & B. I. League v. Longley, 160 S.W.2d 124 (Tex.Civ.App.1942) ; Austin v. Consolidated Casting Co., 246 S.W.2d 273 (Tex.Civ.App.1952).

Rule 385(d), T.R.C.P., provides that when the appeal is from an order denying a temporary injunction, “ * * * the cause may be heard in the Court of Civil Appeals or the Supreme Court on the bill and answer and such affidavits and evidence as may have been admitted by the judge of the court below.”

Appellant offered no evidence and furnished no supporting affidavits in the trial court. The record before us does not contain a copy of his petition setting forth his original cause of action.

We hold that the trial court did not err in refusing to enjoin the appellees from the acts complained of in appellant’s application for injunctive relief. Appellant offered no evidence that the alleged injurious wrong, irreparable in its nature, was immediately threatened. It is within the trial court’s discretion to require proof of a probable right to the relief prayed for. Rule 680, T.R.C.P., states that when the application for temporary injunction “comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction and, if he does not do so, the court shall dissolve the temporary restraining order.” The court inquired of appellant if he had additional testimony to offer in support of the allegations in his application for temporary injunction. Appellant advised the court that he had no such testimony available. Chief Justice Calvert of our Supreme Court said, in the case of Camp v. Shannon, 348 S.W.2d 517 (Sup.Ct.1961), “The applicant has, and in equity and good conscience ought to have, the burden of offering some evidence which, under applicable rules of law, establishes a probable right of recovery. If not, no purpose is served by the provisions of Rule 680, Texas Rules of Civil Procedure, limiting the time for which a restraining order granted without a hearing can operate and requiring a hearing before a temporary injunction can issue. If he cannot or does not discharge his burden he is not entitled to extraordinary relief. Writs of injunction should not issue on mere surmise.”

The trial court is clothed with broad' discretion in determining whether a temporary injunction should or should not be-issued. Its order should not be overturned' unless there is a clear abuse of discretion. Railroad Commission v. Shell Oil Co., 146-Tex. 286, 206 S.W.2d 235 (1947) ; City of Corpus Christi v. Gilley, 379 S.W.2d 84-(Tex.Civ.App.1964, wr. ref. n. r. e.). The-record does not reflect an abuse of discretion in this case.

The judgment of the trial court denying the temporary injunction sought by the appellant is affirmed.

Affirmed.


text:
    Vernle WALKER, Independent Executrix of the Estate of J. L. Walker, Deceased, Appellant, v. CENTRAL FREIGHT LINES, INC., et al., Appellees.
    No. 14256.
    Court of Civil Appeals of Texas. San Antonio.
    July 29, 1964.
    Rehearing Denied Sept. 9, 1964.
    Moursund, Ball & Bergstrom, San Antonio, R. Dean Moorhead, Austin, Kelley, Looney, McLean & Littleton, Edinburg, Felts & Robinson, Austin, for appellant.
    George Nokes, Waco, Carl Wright Johnson, Nat L. Hardy, San Antonio, for ap-pellees.
   MURRAY, Chief Justice.

This suit involves the equitable remedy of specific performance of a master contract, consisting of three separate contracts, dated June 30, 1956, whereby Central Freight Lines, Inc., agreed to purchase stock, or shares of stock, of three other Texas corporations, to-wit: Alamo Express, Inc., Alamo Cartage Co., and W. & H. Investment Co., from J. L. Walker and Louis E. Hart, Sr. The parties will hereinafter be referred to as “Central”, “Express”, “Cartage”, “W. & H.” “Walker” and “Hart”.

The suit began as an action for rescission of the contract, but by cross-action Central and W. W. Callan, hereinafter referred to as “Callan”, sought the specific performance of the contract and damages, and the suit was actually tried on the cross-action. Walker owned sixty per cent of the stock in the three corporations, Express, Cartage and W. & H., and was general manager of them, while Hart owned the other forty per cent of the stock.

Walker died before the trial began and his wife, Mrs. Vernie Walker, Independent Executrix of his estate, was substituted as a party in his place. The suit was filed September 5, 1958. The issue of specific performance was severed from the issue of damages and the cause was tried on June 24, 1963, before a jury on the former issue only. The jury did not answer the first two special issues submitted, and answered the remaining special issues generally favorable to Walker. Issue No. 1 related to whether the instruments contained all the agreements, and Issue No. 2, whether the instruments were executed and unconditionally delivered to the respective parties on June 30, 1956. Walker contended that they were delivered upon the condition that the notes were to be secured “to his satisfaction.”

The trial court granted a motion for judgment non obstante veredicto on behalf of Central and Callan, awarding them specific performance of the contract, and Mrs. Walker has prosecuted this appeal. Hart did not appeal and is an appellee herein.

It will be noticed that there was a period of seven years between the making of the contract and the trial of this case. What happened during that period is important. By the terms of the contract Central agreed to purchase the stock of “Express”, “Cartage” and “W. & H.” for a total consideration of $2,000,000.00 for the stock in the three corporations, $1,200,000.00 of this to go to Walker for his stock, and $800,000.00 to Hart for his stock. $500,000.00 of the total consideration was to be paid in cash, and the remaining $1,500,000.00 was to be in the form of long-term promissory notes to be executed and issued by Central; of which notes $900,000.00 was to go to Walker and $600,000.00 to Hart. What Walker was to receive can be broken down as follows :

The document concerning Express provides in Paragraph 3 thereof, as follows:

“It is agreed that this contract shall be immediately submitted to the Interstate Commerce Commission for approval, and all parties agree to cooperate and to use due diligence to secure said approval, and that this contract is subject to such approval. In the event that this contract is approved only in part or in the event any restriction is placed thereon by the Interstate Commerce Commission, the Buyer, at its option may consummate this contract or may declare the same void.”

The document pertaining to Cartage and W. & H., each provided in paragraph 3 thereof, as follows:

“It is agreed and understood that this contract is contingent upon the consummation of that certain contract entered into by and between Central Freight Lines, Inc. and the Sellers herein dated June 30, 1956, for the sale to said Central Freight Lines, Inc., of the capital stock of Alamo Express, Inc., and if for any reason that said contract is not consummated, this contract shall be null and void.”

Central is and, at all times material, was a carrier and subject to the provisions of the Federal Interstate Commerce Act, it is therefore clear that this contract could not be consummated without permission of the Interstate Commerce Commission, hereinafter referred to as I.C.C.

In keeping with the provisions of paragraph 3 of the Express contract, Central filed a petition to the I.C.C. for approval and authority to consummate the contract on June 30, 1956. A hearing was had before an examiner for I.C.C. on October 17, 1956. All parties to the contract appeared except Walker. The petition was opposed by Brown Express, Red Arrow Freight Lines and Union Truck Lines (who were connecting carriers with Express). After the hearing the Examiner made his report recommending that Central be given the permission sought, but on August 6, 1957, the I.C.C. denied the permission upon the ground that the issuance of $1,500,000.00 unsecured notes would result in over-capitalization of the business. Soon after the order was made, Walker wrote a letter to Callan, president and principal stockholder of Central, and to Central, stating that he wanted to abide by this decision, and that he would not agree to the filing of any motion for a rehearing. A few days later he sent a telegram to I.C.C., stating that he was not consenting to the filing of a motion for a rehearing and that no application of any kind should be considered that was not signed by him. Central and Callan obtained an extension of time for filing a motion for a reconsideration and timely filed the same, but based upon the assignment of the W. & H. contract to Callan. On September 4, 1957, Central executed an assignment of the W. & H. contract to Callan, who assumed the obligation of Central.

On January 22, 1959, I.C.C. made a new order wherein it undertook to eliminate the purchase by Central of the W. & H. stock and to approve issuance by Central, ■on conditions therein stated, of only $750,-*000.00 in notes needed for the purchase by 'Central of Express and Cartage stock, and there was no authority granted for Central to issue an additional $750,000.00 in notes needed for the purchase by Central of the W. & H. stock. On the contrary, said order required as a condition that the W. & H. purchase be accomplished by new direct contract between Callan and Walker with the result that Central would not have to issue any notes in any amount in connection therewith.

Thereafter, on February 26, 1959, Central and Callan filed a petition for modification •of the order of January 22, 1959, which was granted by an order of I.C.C. on June 4, 1959, reading as follows:

“It is ordered, that the said report .and order of January 22, 1959, be and they are hereby, modified by substituting in lieu of the above described condition: (1) That W. W. Callan shall furnish a bond or other security approved by the Commission in an .amount and form which will insure his ■financial responsibility under the assignment of September 4, 1957, of the ■contract of June 30, 1956, for the purchase by Central Freight Lines, Inc., of the capital stock of W. & H. Investment Company. * * *
“And it is further ordered, that, as ■expressly modified hereby, the said order of January 22, 1959, shall be effective on July 13, 1959.”

Even after this modification Central had not been given permission to issue the $1,-500,000.00 in unsecured notes it needed to consummate the original contract, $900,--000.00 of which would go to Walker and $600,000.00 to Hart.

On August 8, 1960, Walker filed a special statutory civil action, being Civil Action 2364 in the U. S. District Court, for ihe purpose, among other things, of testing the validity of I.C.C.’s order of June 4, 1959. This case came on for trial on October 7, 1961, and when it became apparent that I.C.C. had not authorized Central to issue the necessary notes to carry out the original contract, or at least the matter was left in doubt, the “Three Judge Federal Court” before which the matter was being heard, on February 19, 1962, remanded the cause temporarily so that I.C.C. might clear up this matter.

On November 3, 1961, Central and Cal-lan filed a new petition with I.C.C., seeking authority to issue the $1,500,000.00 in promissory notes to enable Central to consummate the original contract of June 30, 1956. On February 19, 1962, I.C.C. authorized Central to execute, issue and deliver notes as required by the original contract, provided Callan would immediately purchase notes in the sum of $750,000.00. These notes would be payable to Walker and Hart, and they would be the ones to determine whether such notes were for sale, and at what price. Neither Central nor Callan had sought such authority from I.C.C. at any time between August 6, 1957 and Nov. 3, 1961.

Thereafter, on September 11, 1962, the “Three Judge Court” rendered judgment upholding the orders of I.C.C., which action was affirmed by the Supreme Court of the U. S. on March 16, 1963. Walker v. United States, D.C., 208 F.Supp. 388; 372 U.S. 526, 83 S.Ct. 887, 9 L.Ed. 965.

The I.C.C. does not pass upon the private right of the parties to a contract but simply grants or withholds permission for the carrying out of such contracts.

Let us return now to a consideration of what was happening in the State Courts. On September 5, 1958, Walker had filed this suit seeking to terminate or rescind the contract which forms the basis of this litigation. On October 15, 1960, appellant (Walker), who had instituted the suit and who had answered defendants’ cross-action and had appeared at hearings on exceptions, filed a petition for removal to the U. S. District Court for the Western District of Texas, San Antonio Division, being’ Civil Action No. 2893. This suit was later remanded to the State Court.

On October 15, 1960, in Civil Action No. 2364, in the U. S. District Court, Walker obtained an order temporarily restraining the Judge of the 131st District Court of Bexar County from proceeding with the trial. Walker later obtained an order from the U. S. District Court temporarily restraining Central and Callan from proceeding with the prosecution of their cross-action. The case at bar finally went to trial on June 24, 1963.

One of the all-important questions here presented is whether or not appellees committed an anticipatory breach of the original contract by assigning the contract as to W. & H. to Callan, so as to render the contract unenforceable as against Walker. Walker contends that after the order of I.C.C. on August 6, 1957, Central repudiated the contract and committed an anticipatory breach and Walker became entitled to terminate the contract.

The contract was executed on June 30, 1956. The petition to the I.C.C. for approval and authority to consummate the contract was filed July 10, 1956, which was within a reasonable time under the circumstances. On August 6, 1957, I.C.C. entered an order refusing permission to consummate the contract on the ground that the execution of the notes in the total sum of $1,500,000.00 by Central would result in over-capitalization of the business. Thereafter, Central assigned that part of the contract relating to W. & H. to Callan and filed a motion for a reconsideration with the I.C.C., seeking approval not of the original contract but of a new contract wherein Callan would sign the notes to the extent of $450,000.00. Central did not ask I.C.C. to reconsider its holding that for Central to sign notes in the total amount of $1,500,000.00 would result in over-capitalization of that business, and that holding still stands. The I.C.C. on January 22, 1959, conditionally approved the request of Central and Callan, that Callan be permitted, as assignee of the contract with W. & H., to sign the notes relating to this part of the contract, provided, in effect, that such arrangement would be agreeable to Walker. This arrangement fell through because Walker would not agree to accept notes signed by Callan in place of those signed by Central. Not until November 3, 1961, did Central and Callan file a new petition with I.C.C., under a new number, seeking permission for Central to sign the notes for the purchase of the W. & H. stock, which was granted by I.C.C. on February 19, 1962. Thus, for more than four years Central had abandoned the original contract and had been seeking permission from I.C.C. to consummate a new and different contract. It is unreasonable to presume that Central expected to sign and remain responsible to Walker and Hart on notes in the sum of $1,500,000.00 even though I.C.C. had flatly denied Central permission to sign such notes on the ground it would amount to an over-capitalization of the business, a holding in which Central acquiesced by not challenging such holding in its motion for a reconsideration before the I.C.C., but only requesting the approval of a new and modified plan. Thus, for a period of over four years, Central made no attempt to secure permission from I.C.C. to consummate the original contract but was offering a modified plan. Under such circumstances Walker was entitled to repudiate the original contract and to refuse to be further bound by it. Western Oil Sales Corp. v. Bliss & Wetherbee, Tex.Civ.App., 299 S.W. 637; Galbreath v. Reeves, 82 Tex. 357, 18 S.W. 696. An obligation which calls for a personal obligation, such as the signing of an unsecured note, cannot be assigned without the consent of the payee of such note. 49 Am.Jur. p. 173, § 150; Anno. 138 A.L.R. p. 219. It is true that during the delay Walker filed one lawsuit seeking to rescind and cancel the contract, and another challenging the order of the I.C.C., but this would not excuse Central for its lack of diligence. Corzelius v. Oliver, 148 Tex. 76, 220 S.W.2d 632; Witte v. Barry, Tex. Civ.App., 16 S.W.2d 548.

The jury found and the record supports the findings that Central had not at all times been ready, willing and endeavoring to carry out its obligations and had not exercised due diligence to secure the approval of I.C.C., as provided in the contract of June 30, 1956, and therefore Central was not entitled to the equitable remedy of specific performance. Ratcliffe v. Mahres, Tex.Civ.App., 122 S.W.2d 718, writ refused; 38 Tex.Jur. 711, § 42; 138 A.L.R. p. 217. By reason of the nature of the subject matter and the provisions of the contract, great diligence was required in executing the contract. It is true that no time was fixed within which the contract was to be performed, but where none is specified, a reasonable time is intended. English v. Underwood, Tex.Civ.App., 5 S.W.2d 1033; Abernathy v. Florence, 51 Tex.Civ.App. 573, 113 S.W. 161. Central, by submitting the modified plan, waited an unreasonable length of time to consummate this contract and is not now entitled to the equitable remedy of specific performance. I.C.C. in making its final order stated that the reason it was not sooner granted was that Central and Callan had not asked for it.

A party is not entitled to the equitable remedy of specific performance unless he shows that he has diligently and timely performed or complied with all of his obligations, and this is true though the other party has stated he will not carry out the contract. Corzelius v. Oliver, supra; Witte v. Barry, supra; Terrell, Atkins & Harvin v. Proctor, Tex.Civ.App., 172 S.W. 996; Brown v. Binz, Tex.Civ.App., 50 S.W. 483.

In view of the above holdings, we do not deem it necessary to pass upon other points presented by the parties.

The judgment, insofar as it grants specific performance against Walker, is reversed and judgment here rendered that Central and Callan take nothing as against Walker.

Louis E. Hart, Sr., having prosecuted no appeal, the judgment as to him is affirmed.

      . On the other issues the jury found as follows:
      No. 3: That Central was not all times ready, willing and endeavoring to carry out its obligation as provided in the contract.
      No. 4: That Central is now ready, able and willing to carry out its obligation as provided in the contract.
      No. 5: That Central did not use due diligence in securing the approval of the I.C.C. of the contract.
      No. 6: That Walker did not fail to cooperate in obtaining the approval of I.C.C. of the contract.
      No. 7: That the acts and conduct of Walker did not contribute to cause the delay in securing the approval of I.C.C. of the contract.
      No. 8: That Walker did not at all times after October, 1956, repudiate his obligation to accept the unsecured notes of Central, as provided in the contract.
      No. 9: That Callan is now and at all times material hereto has been ready, able and willing to carry out his contractual obligation as provided in the assignment to purchase the stock of the W. & H. Investment Co.
      No. 10: That the facts and circumstances do not show that the performance of the contract is necessary to fairly, justly and adequately protect the rights of Hart.
      No. 11: That the facts and circumstances do not show that the performance of the contract is necessary to fairly and adequately protect the rights of Central.


author: SHARPE, Justice.

text:
    TEXAS STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS et al., Appellant, v. DALTON, HINDS & O’BRIEN ENGINEERING CO., et al., Appellee.
    No. 60.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 27, 1964.

      Waggoner Carr, Atty. Gen., of Texas, Pat Bailey, Asst. Atty. Gen., Austin, Billy E. Lee, Sp. Asst. Atty. Gen., Houston, Joe B. McMaster, Sp. Asst. Atty. Gen., Georgetown, Joe Resweber, County Atty., Houston, for appellant.
    Ben H. Rice, III, and Wm. McDonald, of Vinson, Elkins, Weems & Searls, Houston, for appellee.
   SHARPE, Justice.

This is an appeal from a take-nothing judgment rendered against appellants, who were plaintiffs in the trial court, based upon the granting of appellees’ motion to withdraw the case from the jury and to render judgment for appellees, made when appellants had rested their direct case.

Appellants sought a permanent injunction against the individual appellees, Dalton, Hinds, O’Brien and McCune, based upon alleged violations by them of the Engineering Registration Act (Article 3271a, Vernon’s Ann.Tex.St.), praying that further violations of said Act be prohibited. The suit was filed on Jan. 18, 1961. After several preliminary hearings it went to trial on August 19, 1963 on appellants’ third amended original petition, filed August 3, 1963, and appellees’ third amended original answer, filed August 12, 1963. The trial was concluded and judgment entered on August 22, 1963.

Appellants urge nine points of error which are replied to by seven counterpoints on the part of appellees. It is apparent that the case turns basically on the action of the trial court in withdrawing the case from the jury and in rendering judgment in favor of appellees, pursuant to appellees’ motion for such relief. Such question is presented by appellants’ point nine and appellees’ first counterpoint, and will be first determined by us after a brief discussion of certain background matters.

The record reflects that on July 18, 1960, the Attorney General of Texas rendered an opinion to the Secretary, Texas State Board of Registration for Professional Engineers, on the question of whether a corporation using the words “engineering company” in its name is in violation of Section 1 of the Engineering Registration Act, when the in-corporators have not been duly registered or exempted under the provisions of such act. The opinion reflected that Dalton, Hinds & O’Brien Engineering Company of Houston, Texas, had filed Articles of Incorporation with the Secretary of State on June 20, 1957, and none of the said three persons who were named as incorporators and directors were registered as Professional Engineers under the laws of Texas. In summary, the said opinion of the Attorney General held as follows:

“Article 2.01B(2), Texas Business Corporation Act, does not prohibit incorporation for the practice of professional engineering where the actual practice is carried on only by registered professional engineers.
“Section 1 of the Engineering Registration Act (Article 3271a, Vernons Civil Statutes) does not prohibit using the words ‘engineering company’ in its name where the incorporators and members have not been duly registered or exempted under the act.”

The correctness of such opinion is not questioned in this case.

In some instances we will refer to the parties as they appeared in the trial court. The plaintiffs consisted of the Texas State Board of Registration for Professional Engineers, Texas Society of Professional Engineers and certain chapters and subdivisions thereof, and a number of individuals who are Registered Professional Engineers. The defendants included the individuals hereinabove named along with Dalton, Hinds & O’Brien Engineering Company, Inc. However, it was made clear, on March 19, 1962, that plaintiffs were not seeking relief against the said corporation.

Appellants’ point number nine is as follows :

“The trial court erred in discharging the jury and rendering judgment for defendants, since there was in the case evidence of probative force to sustain a verdict for plaintiffs by the jury.”

Appellees’ first counterpoint, in reply to-appellants’ point number nine, reads as follows:

“There is no competent evidence which-would raise an issue made by appellant’s trial pleadings upon which a permanent injunction could properly have been granted.”

We sustain appellees’ first counterpoint. In paragraphs I through VII of appellants’’ last amended petition, hereinafter more fully discussed, there was an attempt to allege conduct on the part of appellees as a basis for the requested permanent injunction. Considering the evidence in the light most favorable to appellants, it was not sufficient to support the grounds asserted, and, in some instances, even if such grounds had been proved, a permanent injunction would not have been required or authorized.

In paragraph I of said amended petition it is alleged, in substance, that in the year 1957, about four years before this suit was filed and six years before it was tried, Dalton, Hinds & O’Brien Engineering Company, Inc., distributed a brochure containing drawings representative of the work of said corporation, tending to disclose secret process details developed by Phillips Chemical Company and Phillips Petroleum Company, without their consent, which appellants say constituted misconduct in the practice of professional engineering and violation of duty of safeguarding property. It was further alleged that in 1955 Phillips Chemical Company had let a prime contract to Tellepsen Petro-Chem Constructors, who had subcontracted certain work to Dalton, Hinds & O’Brien Engineering Company, then a partnership. Tellepsen had entered into a written secrecy agreement with Phillips and, in turn, entered into a similar agreement with Dalton, Hinds & O’Brien Engineering Company. The last mentioned agreement was in evidence but the first one, between Phillips and Tellepsen, was not. Counsel for appellants attempted to develop testimony as to processes which had been tendered by Phillips to Dalton, Hinds & O’Brien, during the course of construction on the Phillips work and that they had published a brochure referring to same. Ap-pellees’ objection that the contract between Phillips and Tellepsen had not been offered and that it would be the best evidence as to what was secret, was properly sustained. It was further shown by the witness McLaughlin, who was an employee of Tellep-sen at the time of the Phillips work, that the brochures in question had been returned to him about the middle of the year 1957. Appellants have failed to show by the statement of facts or otherwise what the. answer of said witness would have been in connection with questions concerning such alleged secret processes. Aside from the failure to produce the Phillips-Tellepsen agreement there was a complete failure to produce other competent evidence supporting any disclosure of secret process details developed by Phillips as was alleged in paragraph I of the petition. The evidence offered by plaintiffs, therefore, failed to raise any issue for jury determination concerning the. allegations of paragraph I of their petition.

In paragraph II of appellants’ amended petition it is alleged, in substance, that in connection with the contract between Tel-lepsen, referred to in paragraph I of said petition, Dalton, Hinds & O’Brien, then a partnership, performed the structural engineering and drafting of all work on Line E of the Borger butadiene plant for Phillips. Chemical Company; that although Tellep-sen checked all engineering work done by Dalton, Hinds and O’Brien, it did not supervise the same; that the structural engineering work was done by Homer A. Dalton and G. L. Hinds, with no supervision by a registered professional engineer, constituting the practice of the profession of engineering in violation of Article 3271a, Section 23, V.A.T.S. Appellants failed to prove such allegations by competent evidence. There was no direct testimony that Dalton or Hinds had done such work, and the circumstantial evidence, referred to as the "pattern of operations” by counsel for appellants, was not sufficient to raise a jury issue as to the allegations of paragraph II of the petition.

In paragraph III of appellants’ petition it is alleged, in substance, that Homer A. Dalton personally designed, in detail, a 24 inch overhead vent condenser line, including spring supports, coming off the tower at the Light Ends of the Furfural Unit, in connection with work done for Humble Oil Company at its Baytown Refinery, pursuant to a purchase order of Humble dated July 5, 1957; that such work was done by Dalton without supervision or assistance from anyone else in his company; that all engineering work was checked by registered professional engineers employed by Humble, but no engineer for Humble supervised the work done by Dalton, Hinds & O’Brien on said job; that such conduct constituted the practice of the profession of engineering by Dalton. Appellants failed to prove such allegations and have not briefed or argued the same on this appeal. No issues were presented in the trial court or in this court on account of the allegations contained in paragraph III of appellants’ amended petition.

Paragraphs IV, V, VI and VII of appellants’ amended petition involve allegations concerning brochures allegedly published and circulated by appellees in the years 1955, 1956, 1957, 1958 and up to the month of August 1959. In substance, such allegations are that appellees published and circulated such brochure and solicited business on the basis of same, in violation of Section 1 of Article 3721a, V.A.T.S., because Dalton, Hinds, O’Brien and McCune, the officers of the company, as well as other employees of the firm, were represented to have years of experience in various fields of engineering proficiency, when, in truth and in fact, they were not registered professional engineers with experience of any field of engineering. It was alleged that the publishing of said brochures and the descriptions therein contained tended to convey the impression that each individual defendant was a professional engineer, when they were not such, constituted a violation of law. Each of the brochures offered in evidence specifically names and identifies as such the registered engineers employed by the Company. While it is doubtful that said brochures might convey the impression contended for by appellants, the issue as to whether they did so does not control this appeal because of another reason which requires approval of the ruling of the trial court. The evidence is undisputed that the complained of brochures have not been used since the month of August 1959. It is further shown that on August 27, 1959, the Secretary of the State Board wrote appel-lees questioning their right to practice professional engineering and that immediately thereafter the appellees acted to remove any question concerning the said brochures. Appellants concede this at page 12 of their brief, after referring to the date of August 28, 1959, in the following language:

“Also from that momentous day, following the posting of the letters from the State Board, the Company had a new brochure which apparently does not and cannot mislead or deceive the public as to the professional qualifications and experience of members and employees of the company.”

Under such circumstances the trial court correctly ruled that no issues of fact for the jury were raised with reference to the said brochures. At the time the suit was filed the said brochures had not been used for about a year and a half, and at the time of trial they had not been used for a period of four years. There was no evidence showing a threat or probability that the said brochures would be used again.

This is not a case where a statute specifically authorizes an injunction upon a showing of certain facts. Counsel for appellants have briefed and argued the case on the basis that an equitable injunction was sought. In this case, the most that the evidence established was fully completed acts concerning said brochures, a cessation of use of same long prior to the suit, without any showing of intent on the part of the defendants to resume such conduct, and without a showing of a threat or probability of future wrongful acts or of legal injury to the plaintiffs.

Plaintiffs’ last amended petition did not complain of any other allegedly wrongful acts on the part of defendants after the month of August, 1959, and there was no direct allegation or proof that there was any probability of the resumption of such acts. Under such conditions it is apparent that there was a total failure to make out a case for permanent injunction, and it was the duty of the trial judge to instruct a verdict or to render judgment in favor of appellees. San Antonio Public Service Company v. Long, 72 S.W.2d 696, 698 (Tex. Civ.App.1934, n. w. h.); Spears v. City of Houston, 136 Tex. 218, 150 S.W.2d 74 (1941); 31 Tex.Jur.2d, Injunctions, Secs. 22-23, pp. 67-70 ; 56 Tex.Jur.2d, Trial, Sec. 214, pp. 554—558; Texas Practice, Vol. 6, Injunctions, Sections, 329, 333-335.

Appellants’ remaining points, numbers 1 through 8, do not present reversible error, but, on the other hand, tend to buttress the correctness of the trial court ruling that ap-pellees were entitled to judgment in their favor.

Appellants’ points 1 and 2 assert that the trial court erred in ordering them to amend their first amended original petition so as to allege the particular facts constituting violations of the engineering registration act by each individual defendant (point 1); and in ordering them to amend their second amended original petition by striking therefrom paragraphs VIII and IX (point 2). The trial court properly sustained a number of special exceptions to each of appellants’ first amended and second amended original petitions. The allegations complained of by such special exceptions were too general and did not give fair notice. Appellants do not point to any particular exception or ruling of the lower court in their brief and argument here. Instead, they contend, generally, that it was error for the trial court not to permit them to plead the statutory language involved and its violation by appellees so that proof of any violation of the statute tracked could be offered. The only authorities cited are Rules 45(b) and 47(a) Texas Rules of Civil Procedure. Appellants’ contention is not well taken. A pleading in terms of statutory language and violations thereof in general terms might not in many cases give fair notice to the person affected and, in many instances, would leave him to guess as to what he has allegedly done or left undone. In a suit for permanent injunction it is particularly important that the pleadings should definitely and particularly identify the nature of the wrongful acts done or threatened and the persons committing or threatening to commit the same. Allegations of fact in a suit for injunction should be direct, certain and particular and leave nothing to inference. The petition should contain specific fact allegations showing a right in the pleader, the wrong done by the defendant, and the resulting injury. 31 Tex.Jur.2d, Injunctions Sec. 125, pp. 240-242; Rule 682, T.R.C.P.; Texas Practice, Vol. 6, Injunctions, Secs. 333-335. Appellants’ points 1 and 2 are overruled.

Appellants’ point number 3 asserts that the trial court erred in rejecting plaintiffs’ offer into evidence of plaintiffs’ exhibit number six. Said exhibit was a partial transcript of questions, answers and comments made at a meeting of the State Board on September 4, 1959, when appellee Hinds appeared before it. The exhibit was produced by Colonel Green, Secretary of said Board. The witness admitted that the said transcript was not complete and was not accurate in all respects. It was inadmissible for such reason even if it had otherwise constituted competent evidence. Appellants’ contention that the exhibit was admissible under Article 3737e, V.A.T.S., is not well taken. The exhibit is not of the kind which is contemplated by such statute and, even if it had been otherwise admissible, a proper predicate was not laid. See McCormick & Ray, Texas Law of Evidence (2d Edition), Vol. 2, pages 116 et seq., Vol. 1, pp. 734 — 739. Further, an examination of the exhibit shows that much of it consists of hearsay and unsworn testimony by various persons. In any event said exhibit was inadmissible as a part of plaintiffs’ direct case. The trial court ruled that he would admit those portions which were admissions against interest, but appellants did not thereafter make a further offer in such connection. Appellants’ point number 3 is overruled.

Appellants’ point number 4 asserts that the trial court erred in rejecting plaintiffs’ offer to read the applicable law to the jury as a predicate to showing why this case was before the court and the reasons for seeking specific relief by injunction. Counsel for appellants attempted to offer in evidence for the consideration of the jury portions of Article 3271a, V.A.T.S. This, of course, was improper. The matter of stating the law to the jury and giving definitions in connection therewith at the appropriate time was within the- province of the judge, and counsel for appellants was so advised at the time he took a bill of exception in connection with the said ruling of the court. The trial court ruled correctly on this point. City of Dallas v. Firestone Tire & Rubber Co., 66 S.W.2d 729, 733 (Tex.Civ.App.1933, writ refused); Daniel Lumber Co. v. Settlemire, 256 S.W.2d 922 (Tex.Civ.App. 1953, wr. ref. n. r. e.). Appellants’ point number 4 is overruled.

Appellants’ point number 5 asserts that the trial court erred in rejecting the testimony and evidence showing that defendant Dalton and defendant Hinds were not registered engineers, although each had sought registration. The record shows a stipulation that Dalton and Hinds were not so registered. This was the ultimate, material fact. Whether said appellees had sought registration did not have any possible relevance to any issue in the case and was properly excluded. Appellants’ point number 5 is overruled.

Appellants’ point number 6 asserts that the trial court erred in rejecting evidence on the breach of the secrecy agreement between Dalton, Hinds & O’Brien Engineering Company and Tellepsen Petro-Chem constructors. This question has here-inbefore been partially discussed in connection with appellants’ point 9 and paragraphs I and II of appellants’ third amended original petition. The agreement between Tellepsen and Dalton, Hinds & O’Brien was in evidence but the secrecy agreement between Tellepsen and Phillips was not. It is difficult to see how it could be determined that something that Phillips had developed was secret, or fell within its agreement with Tellepsen, without having the secrecy agreement between Phillips and Tellepsen in evidence. The allegations of appellants’ pleading to the effect that appellees had in 1957 circulated a brochure which tended to disclose secret process details developed by Phillips were not attempted to be proved other than by the agreement between Tell-epsen and Dalton, Hinds & O’Brien and by certain questions to the witness McLaughlin, to which objections were sustained. The record does not show an offer of proof or what the answers to such questions would have been and no error is presented in such connection. Garcia v. Lacey, 316 S.W.2d 183 (Tex.Civ.App. 1958, n. w. h.). Under the circumstances appellants’ point number 6 is without merit and is overruled.

Appellants’ point number 7 asserts that the trial court erred in rejecting evidence of the faulty engineering work done by defendants on the Phillips chemical company project. There was no allegation in appellants’ trial pleadings that appellees had been guilty of faulty work in connection with the Line E project for Phillips. The issue made by the pleadings was whether appellees Dalton and Hinds had done the structural engineering work on Line E without the supervision of a registered professional engineer. This matter has hereinbefore been partially discussed in connection with appellants’ point number 9 and paragraph II of appellants’ amended petition. Under their point 7 appellants say that the trial court erred in excluding certain testimony of the witnesses McLaughlin, Ford and Ballew. In such instances appellants developed the testimony of the said witnesses on bills of exception which appear in the Statement of Facts. Aside from the fact that the said faulty work was not alleged by appellants in their trial pleadings and the apparent immateriality of same, it appears that the excluded testimony of said witnesses did not identify the persons who did the work in question and there was not sufficient evidence to raise and support an issue that any of ap-pellees did the same. Under the circumstances, the trial court correctly overruled appellants’ point number 7.

Appellants’ point number 8 asserts that the trial court erred in rejecting plaintiffs’ trial amendment and the evidence offered thereunder. The proffered trial amendment, in substance, alleged that in October 1956, appellee Dalton had ordered the witness Ballew, who was then an employee of Dalton, Hinds & O’Brien, to affix his professional seal on certain drawings of structures made for Humble Oil & Refining Company by employees of Dalton, Hinds & O’Brien Engineering Company, which drawings were outside Mr. Ballew’s field of engineering proficiency and not supervised by him. The incident involved in the proposed trial amendment took place over three years prior to the filing of the suit and almost seven years before the time of trial. The amendment did not purport to cover anything that had been developed in the evidence, but related to an entirely new subject. Further, the testimony developed on bill of exception in connection with the attempted trial amendment showed that some of the allegations therein made were not supported by the witness Ballew; particularly since he testified that the drawings in question were within his engineering specialty of structural engineering. The evidence further established that Mr. Ballew had left the employ of Dalton,' Hinds & O’Brien in the month of October 1956, and had not since been employed by them. Between the filing of the suit in 1961 and the trial in 1963 the trial court had sustained a number of special exceptions to appellants’ petitions and amendments were thereafter filed. The third amended original petition of appellants was the fourth pleading filed by them, due in part to such preliminary rulings. Appellants were placed on abundant notice that appellees were insisting that they be advised as to the specific charges against them, as was their right. The trial judge properly overruled appellants’ proferred trial amendment. There was no abuse of discretion in connection vrith such ruling. Ellis v. Michigan Realty Co., 138 S.W.2d 880 (Tex.Civ.App. 1940, writ refused). Appellants’ point number 8 is overruled.

The record shows that the attorneys of record for the plaintiffs-appellants are the County Attorney of Harris County, Texas, and one of his assistants, and the Attorney General of Texas, one of his regular assistants and two special assistants. However, the record further shows that the trial court proceedings as well as those in this court were actually conducted by a Houston attorney who had been designated as Special Assistant Attorney General in this case, and had been employed and compensated by plaintiffs, other than the State Board.

Article 3271a, V.A.T.S., which creates the State Board of Registration for Professional Engineers, is an important piece of legislation. Section 17 of said Act provides that “A firm, or a co-partnership, or a corporation, or a joint stock association may engage in the practice of professional engineering in this State, provided such practice is carried on by only professional engineers registered in this State.” The opinion of the Attorney General of Texas, heretofore mentioned, recognizes that ap-pellees are legally entitled to operate their engineering business and use their names in an engineering company, where the actual practice is carried on only by registered professional engineers. In the case presented here there was not sufficient evidence of violations of the said Act and a proper basis for an injunction was not established. We have passed only upon those questions which were directly presented to us for decision herein. However, it is apparent that in a proper case where violations of said Act can be proved by competent evidence, a person suffering damage on account thereof or having a justiciable interest would be entitled to appropriate relief.

The judgment of the trial court is affirmed.