author: GREENHILL, Justice. SMITH, Justice

text:
    John B. COFFEE et al., Petitioners, v. WILLIAM MARSH RICE UNIVERSITY et al., Respondents.
    No. A-10719.
    Supreme Court of Texas.
    April 27, 1966.
    Rehearing Denied June 1, 1966.
    Bracewell, Reynolds & Patterson, William Key Wilde, with above firm, Wright Morrow, Houston, for petitioners.
    Baker, Botts, Shepherd & Coates, Tom M. Davis, O. Don Chapoton, Alvin M. Owsley, Jr., and Dillon Anderson, with above firm, Houston, for respondents.
   GREENHILL, Justice.

William Marsh Rice created a charitable trust resulting in the establishment of Rice University. Among other things, the trust instrument specified that the institution should be for white citizens and that it should be free of tuition for all students. Rice University and its trustees, hereinafter referred to as Rice, instituted this action for a construction of the trust instrument and for an application of the equitable doctrine of cy pres generally for the elimination of the above limitations. Rice named as defendant the Attorney General of Texas, pursuant to Article 4412a which was enacted in 1959. Two groups intervened: (1) John Coffee et al., generally representing themselves and the class of all Rice alumni (beneficiaries of the trust and donors to it) who opposed change, and (2) Charles Bybee et al., who represented themselves and the portion of Rice alumni similarly situated who favored the position of the trustees of Rice University. There was no objection to either intervention, and the trial for the defense was actually carried on in substance by counsel for the inter-venors Coffee et al. Trial was to a jury resulting in a verdict for Rice. Judgment was entered for Rice upon the verdict.

The intervenors Coffee et al. appealed to the Court of Civil Appeals sitting in Houston. The Attorney General did not appeal. Rice made no complaint of the capacity or interest of Coffee to appeal. It had no point that those intervenors lacked interest or capacity to appeal. Neverthe-.^ less, the Houston court on its own motion held that it had no jurisdiction to consider the appeal because the intervenors did not have sufficient interest to prosecute an appeal. So it declined to consider the case and dismissed the appeal. 387 S.W.2d 132. The narrow question, and the single point of error before us is the correctness of that action. It is our opinion that the conclusion of the Houston Court of Civil Appeals was an erroneous one, and the cause will be returned to that court for a consideration of the merits of the controversy.

The Houston Court of Civil Appeals was of the opinion that Article 4412a made the Attorney General the only party, in the context of this case, who could appeal. Its holding was that the group represented by Coffee lacked a legal interest in the controversy to appeal; and since the Attorney General did not perfect the appeal, the matter was at an end.

The interventions were not contested in the trial courts. So we do not have before us for review any ruling of the trial court on permitting or excluding the interventions. Both groups were permitted to intervene, and the Coffee group was permitted to try the case for the defense. There is a great mass of testimony which fills four volumes. Except for a few isolated questions on cross examination, and an occasional joinder in stipulations of fact, the representative of the Attorney General was silent. The only pleading filed by the Attorney General was a one-page answer in which he neither admitted nor denied the allegations of Rice; he requested the court to require proof and to act in such a manner as to do justice and equity. The real contest came from the intervenors Coffee et al. They filed exceptions to Rice’s pleadings, filed pleas in abatement, motions for instructed verdict, made objections to the court’s charge to the jury, et cetera. The Attorney General filed none. His position was and is that he was neutral in the matter, and simply wanted to see that all groups were heard, the matter fully developed, and justice done.

After the decision of the Court of Civil Appeals, the Attorney General tendered for filing in that court a motion for rehearing. It urged that court to set aside its order and to consider the case on its merits. That motion states:

“It has been the wish of the Attorney General, the nominal defendant herein and necessary party under the provisions of Article 4412a, Revised Civil Statutes of Texas, that the various segments of the public having different views and interests regarding the relief sought by the trustees of William Marsh Rice University should have an opportunity to contest this action if they desired. It was felt that the people could best be served by the Attorney General in seeing that the case was fully developed and that a court and a jury should decide the issues involved in accordance with the law and the evidence. At the beginning, it was agreed that all parties who desired to intervene herein would be entitled to do so and the Attorney General, so long as this course was being followed, would not actively contest this case, leaving such contest to those parties who might have an interest herein. To this end the Attorney General with knowledge and acquiescence of all parties hereto did not seek to either contest or agree to the relief sought by William Marsh Rice University, but rather sought to see that the evidence was fully developed in the court below. After the jury returned its verdict, and at the hearing on Plaintiff’s Motion for Judgment the court was advised that the Attorney General had no objection to Rice University being given some of the relief sought therein although it was felt that the proposed judgment went too far in its scope and effect. At this time the court was informed that the Attorney General would consider the question of appeal and give notice to the court later if he wished to appeal from the Judgment as written.
“Subsequent to the entry of the Judgment but prior to the expiration of the time for giving notice of appeal, a conference was had with attorneys for the intervenors, the Appellants herein, at which time they advised that in their opinion, the Attorney General would not have to be a party to the appeal in order for the Appellants to have a complete hearing on the merits of their appeal from the adverse Judgment in the court below. This decision was reached as the attorneys for the intervenors thought that since their clients had been allowed to intervene and were named as parties for all purposes, had conducted an active contest of the relief sought by William Marsh Rice University, and had raised objections to the evidence presented, they would be entitled both in law and in equity to have this honorable Court hear and determine the grounds of error which they set out as a basis for setting aside the Judgment heretofore entered by the trial court.
“Attorney General Waggoner Carr desires nothing other than to see that this case is fully decided on its merits, both as to law and as to facts, for the protection of the public at large, who are the real beneficiaries of the William Marsh Rice Trust.”

The Court of Civil Appeals, in a per cur-iam opinion which it ordered not published, refused to consider the Attorney General’s motion and stated that it should not be considered as part of the record. The Attorney General, by amicus curiae brief in this Court takes substantially the same position, again stating that “this brief is not intended to be construed * * * as being an argument for or against the position taken by either Petitioners or Respondents concerning the case on its merits.”

In his brief in this Court, the Attorney General states that while Article 4412a makes him a necessary party, it does not make him the only or preclusive party; and that it was not the intention of the legislature to so alter the common law of this State as to prevent the appeal of anyone other than the Attorney General, in the context of this case. Intervenors Coffee et al. take a similar but stronger position.

This leads us to a construction of Article 4412a which states, among other things, that the Attorney General “shall be a necessary party” in any suit “[t]o construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust” or “[t]o depart from the objects of a charitable trust as the same are set forth in the instrument * * * including any proceedings for the application of the doctrine of cy pres * * The Attorney General, in such cases, must be served with process; and any judgment rendered without service upon him is declared void and may be set aside upon his motion. He is authorized to settle and compromise any such suit in or out of court, and no compromise or judgment is binding unless, he is a party and joins therein. He is given discretion in such matters “in the best interest of the public.”

The article does not preclude other parties from the trial or appeal of such cases. It does not require the Attorney General to file an answer or to conduct the litigation. He must be a party, he must be served with citation, and he must be a party to any settlement. Rice contends that the statute makes him the sole representative of the public and persons interested in the charitable trust. Rice construes the Attorney General’s failure to appeal as amounting to an agreement to the trial court’s judgment; and since he can agree to compromises and settlement of litigation, this ended the matter. Rice asserts that intervenors Coffee et al. have no special interest, no legal justiciable interest, no interest different from anyone else of the general public; and that the Court of Civil Appeals correctly decided that it therefore had no jurisdiction to consider the case.

There is much authority outside of Texas that the Attorney General is the representative of the public in suits to enforce or attack a charitable trust or to question the operation thereof. 4 Scott, The Law of Trusts (2d ed. 1956) § 391. While the Attorney General is not regarded as the only person who can bring suit, any other person must have some special .interest in the performance of the trust different from that of the general public. The reason given is that if third parties could bring suit, the charities and their trustees would be subject to undue harassment.

The Attorney General and the intervenors Coffee et al. concede that to initiate any action to enforce or attack a trust, or to initiate any cy pres action, the suit may not be brought by third parties [such as inter-venors Coffee et al.], and that such action must be brought cy initiated by the Attorney General or by the trustees themselves. That point is therefore not before us. Their position is that when the trustees themselves bring the suit and the Attorney General is made a party, and others are made parties or are permitted to intervene, the question of undue harassment of the trustees goes out of the case; and the case may proceed as other civil cases.

The power of the courts of equity and the power of the Attorney General in matters dealing with charitable trusts have deep roots in our common law. Suits • were brought by the Attorney General in England even before the enactment of Charitable Uses in 1601. Statutes giving him the exclusive authority there were found unsatisfactory, and that power in England was ultimately placed elsewhere. 4 Scott, The Law of Trusts (2d ed. 1956) 2753 et seq. Some of the early opinions of the Supreme Court of Texas set out below relate to charitable trusts and the interest of the beneficiaries. In these cases it has been held that certain beneficiaries, as representatives of a class, did have justiciable interest.

In Tunstall v. Wormley, 54 Tex. 476 (1881), a charitable trust was created by a Methodist congregation to establish a missionary Baptist church. Suit was brought by Wormley for himself and other parties on behalf of an unincorporated Baptist group who claimed the property for their use. The Attorney General was not made a party, and no point was made of that. There was, however, this large body of common law that the Attorney General was the proper representative of the public in charitable trust cases. This Court there said:

“If he [the trustee] abused that trust and attempted to pervert the property to other purposes, and deprived the beneficiaries of the enjoyment of it in the contemplated mode, the courts were open to them for the redress of their grievance. In such case a suit may well be maintained by one or more of the beneficiaries, for the benefit of all, where the parties are very numerous, and equity will interpose to compel the due execution of the trust by the offending or refractory trustee, by divesting him of the property, if necessary, and appoint a new trustee.” [54 Tex. at 481]

Thereafter in Pierce v. Weaver, 65 Tex. 44 (1885), a charitable trust was executed to create and maintain a school of the first class for the white citizens of Sulphur Springs, Texas. A dispute arose because the school came under the operation of the Methodist church. Suit was brought by Pierce for himself and for other white citizens of the town to recover the property, for the appointment of new trustees, and the enforcement of the trust as originally created. Pierce, purporting to represent a class of beneficiaries, was the appellant in this Court. The Attorney General was not a party to the suit. While no point was made of his lack of joinder, this Court obviously considered that it had jurisdiction to consider the appeal because it determined the merits of the controversy.

The shoe was on the other foot in Woods v. Bell, 195 S.W. 902 (Tex.Civ.App.1917, writ refused). There a park was created by charitable trust for the use of Negro citizens of Houston. The trust created a charitable organization to operate the park. Suit was by the trustees, all of whom were Negro. They wanted the City of Houston, under the doctrine of cy pres, to take over the park because the charitable organization was in financial difficulty. This required the appointment of new trustees. The City evidenced its willingness to take over. Many Negroes favored this action, including the Negro trustees. A group of Negro citizens headed by Woods intervened on behalf of those who did not want the park turned over to the City whose management was all white. Judgment was for the trustees, arid the intervenors appealed, as they did in this case. The Court in Woods v. Bell wrote, “From this judgment [of the trial court], the interveners opposing the court’s action excepted and gave notice of appeal, and the case is properly before the court for adjudication.” 195 S, W. at 903, emphasis ours. The Attorney General was not a party to the suit, and no point was made of his absence. But the Court obviously was of the opinion that the intervenors had a justiciable interest and that it had jurisdiction of the appeal initiated by the intervenors. The judgment of the trial court was affirmed.

Similarly in Inglish v. Johnson, 42 Tex.Civ.App. 118, 95 S.W. 558 (1906, writ refused), a charitable trust was created for the female school children of Bonham, Texas. The named trustee was a local Masonic Lodge. A group of girls describing themselves as beneficiaries brought an action to substitute the City for the Masonic Lodge as the trustee and to authorize boys as well as girls to attend the school. The Attorney General was not made a party. It was contended by the defendants that the expressed intention of the settlors could not be changed. The action of the trial court granting the relief was affirmed. No one contended that the Court of Civil Appeals was without jurisdiction or that those purporting to represent “the beneficiaries” had no justiciable interest sufficient to give the court jurisdiction.

Thereafter, the point was urged in several cases that the Texas Attorney General did not even possess the power to interfere in charitable trusts or to bring suit to enforce the same. In Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223 (1935), the Attorney General brought suit to enforce charitable bequests. The testator directed that his property be sold and distributed to “such charities and worthy objects” as his executor should select with the advice of his sister. The estate was valued in excess of $1,700,000. Not all of the testator’s suggested beneficiaries were charitable. The holding of the case was that the Attorney General had no authority to bring the suit. Speaking for the Court, Judge Critz stated that for a court of equity to interfere with a trust, its power must be properly invoked. The Court regarded this trust as private, not charitable. Then by way of obiter dictum, and without reference to any of the cases above set out, he wrote, “The Attorney General only has power to bring such a suit when the trust or donation is to public charity only.” 84 S.W.2d at 228.

Thereafter, Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273 (1942), came to this Court. The testatrix had left a very large estate in trust. The trust was to be used “for worthy-objects of charity, including the support of the Christian religion * * The objects of the charity were to be selected by the trustee. Suit was brought by heirs of the testatrix to have the trust declared invalid because it created a perpetuity, the beneficiaries were too indefinite, and since the beneficiaries were wholly indefinite, no one could police or enforce the trust. The Attorney General intervened, and his right to intervene was contested but upheld. It was said that it not only was his right, but it was his duty to protect and enforce the trust which was declared to be charitable. So the right of the Attorney General to intervene in a case involving a charitable trust was established.

The next in this line of cases cited by counsel for Rice is Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326 (1946). Mrs. Pryor had there left her million-dollar estate in trust to the Frost National Bank, giving it the power to select the beneficiaries. The Attorney General was not made a party, and he did not intervene in the case at any stage. Mrs. Pryor’s heirs attacked the testamentary trust for, among other things, its indefiniteness. It was again asserted that nobody could police the trust; and that if the court took over it would be the court which selected the beneficiaries, not the testatrix or her trustee. By way of answer, this Court said that the courts could select another trustee if the first were unfaithful or neglected to act, and that the selection of the beneficiaries would be the trustee’s selections, not the court’s. Then it stated that, in addition, the Attorney General was available and authorized to bring suit if necessary to enforce the trust.

With the number and size of charitable trusts increasing, the Legislature set about to authorize by statute the intervention of the Attorney General, and to make him a necessary party to suits or judicial proceedings involving charitable trusts as set out in the Act, and to define his powers to settle litigation. The title to the Act [Article 4412a] was, “An Act providing that the Attorney General shall be a necessary party to certain judicial proceedings, settlements and compromise agreements affecting charitable trusts, and authorizing settlements with or without the intervention of a court,” excepting pending litigation, providing a severance clause, and declaring an emergency. Section 6 of the Act casts further light on the legislative purpose:

“It is the purpose of this Article to resolve and clarify what is thought by some to be uncertainties existing at common law with respect to the subject matter hereof. Nothing contained herein, however, shall ever be construed, deemed or held to be in limitation of the common law powers and duties of the Attorney General.”

The emergency clause reads:

“The need for a clarification of possible uncertainties in existing law concerning the powers and duties of the Attorney General with respect to charitable trusts, creates an emergency * [Acts 56th Leg., R.S.1959, Ch. 115, p. 204]

With the narrow question now before us, it is necessary only to say that Article 4412a did not go to the extent of nullifying the general equity powers and jurisdiction of our courts as recognized in such cases as Pierce v. Weaver and Woods v. Bell, discussed above. True, under Article 4412a, the Attorney General must be made a party, and he is authorized to settle litigation involving charitable trusts. He is a necessary party; but the statute does not say that he is the preclusive party or the only party who can appeal. If it be assumed that Article 4412a gives him the power to direct how charitable trust cases shall be tried and appealed, his statement in this Court by amicus curiae brief and in his tendered motion for rehearing in the Court of Civil Appeals shows that he at least approved the appeal on behalf of intervenors Coffee et al.

If it be assumed that the courts can only act. in these cases if the Attorney General is a party, he was a party. Nothing has been done to sever him as a party. He was still a party in the Court of Civil Appeals though it he conceded that he lost his right of appeal. That court had jurisdiction of the subject matter of the suit. The line of cases illustrated by Woods v. Bell, discussed above, recognized that at least under certain circumstances, persons claiming to be beneficiaries had standing to appeal. Conceding the power of the Attorney General to control and settle the litigation so as to terminate cases, no such power was exercised here. To the contrary, the Attorney General wanted the case fully developed all the way, and he wanted the warring factions to carry the battle.

In a recent case in the Supreme Court of the United States, not cited by either party in this Court, an intervening party, who purported to represent a class of people, was successful in a suit involving a charitable trust. It is Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966). In 1911, a Senator Bacon devised to the mayor and city council of Macon, Georgia, 100 acres in Macon as a park for white people only. The City maintained it for many years but then decided that it could not constitutionally continue to operate the park on a segregated basis. So Newton et al., representing the interests of Bacon, the set-tlor, brought a suit to remove the mayor and councilmen as trustees because they were refusing to carry out the trust as written, and to appoint new trustees. The City answered, asking for a construction of the will. Then the. Rev. E. S. Evans et al. intervened, purporting to represent the Negroes of Macon [who were beneficiaries or potential beneficiaries]. Their position was that the City could not resign because this would constitute “state action” which would permit the park to get into private hands and remain segregated. The plaintiffs then amended to allege that the trust could not be carried out and that the property should revert to the heirs of Bacon. The City expressed its willingness to resign. The trial court permitted the intervention of the Negro group, permitted the City to resign, appointed new trustees, and turned the park over to them. The Negro inter-venors were the appellants in the Georgia Supreme Court which affirmed, and they were the Petitioners in the U.S. Supreme Court which reversed and decided the case in favor of the intervenors.

In the Georgia Supreme Court, 220 Ga. 280, 138 S.E.2d 573, the standing or justi-ciable interest of the Negro intervenors apparently was challenged; and that question must have been decided in favor of the intervenors because the Court took jurisdiction and affirmed. The Court stated that the doctrine of cy pres had not been raised, and it doubted that the inter-venors had the standing [initially] to raise the issue. But the case was not one brought by the intervenors. As here, the case was brought by people having sufficient interest to invoke the power of the Court. The intervenors did the appealing, and successfully. The question of the standing of the intervenors disturbed the Supreme Court of the United States not at all. It never mentioned the question. A majority simply upheld the contentions of the intervenors.

A recent case by the Supreme Court of Minnesota states that while the possible beneficiary there did not have sufficient interest to intervene as a matter of right in a cy pres action, it indicated that such interventions would be permitted within the discretion of the trial court. Sister Elizabeth Kenny Foundation, Inc. v. National Foundation, 267 Minn. 352, 126 N.W.2d 640 (1964).

One final case strongly relied upon by Rice illustrates the narrowness of the point before us and the narrowness of our holding. It is Carroll v. City of Beaumont, 18 S.W.2d 813 (Tex.Civ.App.1929, writ refused). There a corporation conveyed property to the City as a public charitable trust. The City accepted the property and controlled it for many years. Then some stockholders of the granting corporation brought a suit against the City complaining of the operation of the trust. They demanded an accounting and other relief. A plea in abatement was filed by the City, challenging the capacity of the plaintiffs to attack the public charitable trust. The plea in abatement was overruled. On appeal the court wrote, “The right of appellants to maintain this suit was challenged in the trial court by appellees by their plea in abatement. This plea was overruled. In this the court erred. As this holding disposes of the case, it is not necessary for us to discuss any of the other questions presented.” 18 S.W.2d at 820. Therein lies the first distinguishing feature: no plea in abatement or other challenge was filed by Rice or anyone else to the intervention in the case at bar; and as mentioned, the point was not raised in the Court of Civil Appeals.

Next, in the Carroll-Beaumont case, the statement is made that the “subject-matter of the suit being a public charity, no final and conclusive settlement can be made, unless the state is represented * * The State was represented here.

Thirdly, the opinion says that only the Attorney General can bring an action to attack a public trust, with certain exceptions set out in the opinion. This point was conceded by the intervenors Coffee et al. at the outset. The policy behind the refusal to let others bring suit is to protect the trust and the trustees from harassment. Inter-venors agree that they could not have instituted the suit. But the suit was instituted by Rice against the Attorney General, thus properly invoking the equity powers of the court.

Finally, one of the exceptions stated by the Court of Civil Appeals in the Carroll case was that the rule (requiring the Attorney General to bring the suit) would not apply “where the grantor or donor reserves some visitorial power or supervising authority in the instrument creating the trust, even when a public trust.” In the trust indenture before us, Mr. Rice reserved during his lifetime the power to direct and control the investments of the Endowment Fund “and the management of the said Institute.” Then Mr. Rice added a general power of visitation by the courts: “Said Institute when chartered, and in operation, shall be subject to the visitation of any Courts of Justice which now are, or hereafter may be thereunto empowered, for the purpose of preventing and redressing any mismanagement, waste or breach of trust.” Thus Mr. Rice himself reserved, or attempted to reserve, in the trust indenture the general equitable powers of the courts to inquire into any breach of trust or mismanagement. There is no suggestion of any wrongdoing by any trustee; but it is the position of intervenors that the trustees have deviated, or desire to deviate, from the stated purpose of the trust indenture. Without here indicating any agreement or disagreement with intervenors’ position on the merits, it is our opinion that the trust indenture did reserve the full power of the courts to “visit” or inquire into the conduct of the trust, assuming that authority of the court is properly invoked.

Under the record in this case, with Coffee et al. having been permitted to intervene in the trial court, and their intervention not having been challenged, for the purposes of determining justiciable interest we regard them as being in the same position as though they had been named defendants from the beginning. Suppose, for example, that the Trustees of Rice University had brought the suit and had named three defendants or groups of defendants: (1) the Attorney General; (2) Coffee et al., individually and as representatives of their class who favored the continuation of Rice University as provided in Rice’s will; and (3) Bybee et al., individually and as representatives of the class who favored the changes desired by the Trustees. If the status of Coffee et al. and of Bybee et al. as defendants was unchallenged in the trial court, it would be our view that they would have the right to appeal. So here the power of the courts was invoked by Rice itself and the Attorney General was a party to the suit. The inter-venors were permitted to come into the case without opposition and to assume the status of the fighting defendants. The place to have challenged their interest and their right to intervene was in the trial court.

We hold that the Court of Civil Appeals had jurisdiction of the subject matter of the appeal. The judgment of the Court of Civil Appeals is reversed, and the cause is remanded to that court for a disposition of the appeal upon its merits.

SMITH, NORVELL and HAMILTON, JJ., dissent.

SMITH, Justice

(dissenting).

I respectfully dissent. Rice University sought and secured equitable relief in the trial court under the doctrine of cy pres which has been available to trustees of public trusts for centuries, and such doctrine is specifically made available to trustees of public trusts by express provisions of Section 2, Article 4412a, Vernon’s Annotated Civil Statutes of Texas. Section 5 of the Article outlines the duties and responsibilities of the Attorney General in regard to any dispute, claim or controversy of a character described in Section 2 of Article 4412a. There is nothing in the act which even indicates that the Attorney General, having been served with process and having made his appearance as a party, loses his status as a necessary party, as provided by statute, merely because members of the general public, who might be interested in subject matter of the lawsuit, see fit to intervene and align themselves on the side of the Attorney General. It is undisputed that the Attorney General did file an answer and actually participated in the trial of the case. While it is true that the attorneys for the intervenors (Petitioners in this Court) associated themselves with the Attorney General, nevertheless the Attorney General actively participated in the defense of the case.

The ultimate issues before the court were whether Rice University may charge reasonable tuition of its students; and whether Rice University must exclude otherwise qualified students solely because of the color of their skin. These issues, which were thoroughly litigated in the trial court between the Rice University and the Trustees and their allied intervenors on the one hand and the Attorney General and his allied intervenors on the other, arose because the trustees, in the exercise of their judgment, concluded to invoke the doctrine of cy pres through the courts in order to remove the restrictive features provided in the original indenture, dated May 13, 1891, and executed by William Marsh Rice and six other persons chosen by him and named as trustees by him.

This suit was tried before the court and a jury. The petitioners and the Attorney General closed the case without introducing any direct evidence. The respondents introduced all of the evidence and the petitioners cross-examined respondents’ witnesses.

The court submitted special issues to a jury, and thereafter entered its judgment in favor of the trustees and among other things the judgment “ordered, adjudged and decreed, that William Marsh Rice University, and its trustees, now and hereafter, under the law, and notwithstanding the color and tuition restrictions in the indenture of 1891 and in the charter of William Marsh Rice University, may disregard such restrictions, and are no longer bound thereby, in the administration and operation of said University; and said trustees are hereby authorized and empowered to alter or amend the charter of said University, if they wish to do so, in order to reflect therein the provisions of this judgment eliminating the said two restrictions so as to render it practicable for the trustees to achieve the main purpose of William Marsh Rice, i. e., the devolpment of an educational institution of the first class.”

All of the Attorneys, including Waggoner Carr, Attorney General, by Hawthorne Phillips, defendant, approved this judgment as to form except the attorneys for Petitioners, John B. Coffee and Val T. Billups, the allied intervenors of the Attorney General. These intervenors were the only persons dissatisfied with the judgment and the only persons who gave notice of appeal.

To further demonstrate that the Attorney General actively participated throughout the trial, I point out that Waggoner Carr, Attorney General, by his Assistant Attorney General, Hawthorne Phillips, joined the attorneys for Coffee and Billups, in approving their Bill of Exception to the action of the Trial Court in refusing to enter judgment decreeing that “the plaintiffs take nothing by their suit and that all relief sought be denied.”

Regardless of whether the Attorney General was in accord with the judgment, in toto, or whether he thought that the plaintiffs-respondents were entitled to some relief, and regardless of whether or not he felt that the judgment “went too far,” the fact remains that the Attorney General, as the only defendant, did not appeal from the judgment entered by the trial court.

The conclusion is inescapable that the litigation ended in the trial court between all of the parties who had a justiciable interest therein, and the finality of the trial court judgment became certain when the Attorney General did not file a motion for a new trial or appeal from the judgment of the trial court. Since the statute makes the Attorney General a necessary party to litigation of this type, and since the Respondents made the Attorney General the sole party defendant, it naturally follows that private individuals have no legal right to maintain or direct the defense of the suit, nor do they have the power to substitute their judgment for that of the Attorney General in determining the question of whether or not to appeal from an adverse judgment rendered in the trial court. The Court takes the position that since the petitioners were permitted to intervene without their voluntary intervention being challenged, they are to be regarded as being in the same position as though they had been named defendants along with the Attorney General from the beginning. The fact remains that they were not named defendants. Therefore, these petitioners occupy the status, by their voluntary intervention, of being assistants to the only defendant, the Attorney General of Texas. It is wholly untenable to contend that, merely because no plea in abatement was filed, Coffee et al. became defendants with power to override the judgment of the Attorney General, the only real defendant in the case. Coffee et al. have no authority to displace the Attorney General in the exercise of his judgment and decision not to appeal. See Maud v. Terrell, 109 Tex. 97, 200 S.W. 375 (1918); Staples v. State ex rel. King, 112 Tex. 61, 245 S.W. 639 (1922); State ex rel. Hancock et al. v. Ennis, Sheriff, Tex.Civ.App., 195 S.W.2d 151 (1946), wr. ref. N.R.E. While these cases grew out of quo warranto and mandamus proceedings, I contend that they are analogous on the particular, question this Court has under consideration. For example, in the Ennis case, supra, the trial court granted the District Attorney’s motion to dismiss ouster proceedings which had been instituted by the State of Texas acting by and through the duly elected and qualified District Attorney of the 36th Judicial District of Texas. The relators, who had joined in the ouster petition, resisted the motion to dismiss, excepted to the ruling of the court in granting the motion to dismiss, and carried the case to the Court of Civil Appeals as appellants. The paramount question presented by the appeal was: Did the District Attorney have the right or authority to control the course of the litigation, or did the private individuals, as original relators, have the right to prosecute the suit to final judgment in the appellate courts contrary to the desire of the District Attorney to discontinue the case ? The issue was stated by the Court of Civil Appeals thusly: “But the issue here has reference to the asserted right of private individuals to maintain a suit which ‘is emphatically a proceeding on the part of the State,’ despite the action of a proper state official, the district attorney, in requesting a discontinuance.”

In principle, the Court has the same issue here: Do these petitioners, Coffee et al., have the right or authority to appeal, and thereby control the litigation, between Rice University et al. and the Attorney General in concluding to not appeal from a judgment rendered adversely to his position? The Court in the Ennis case answered the question in the negative. It is my view that when the courts speak of “maintaining a suit” it is meant not only the filing of a suit, but the term is meant to include the right of appeal whether the appealing party be a plaintiff or a defendant who is dissatisfied with the judgment. Coffee et al. could not have legally filed this suit in the first instance, nor could they have defended this suit without the Attorney General being a party defendant. Granting that Coffee et al. intervened without objection, and granting further that they thereby attained a status in the lawsuit, the Attorney General being the only party defendant, the acts and services of Coffee et al. were rendered in subordination to the controlling authority of the Attorney General. This being true, the effort to appeal, contrary to the course taken by the Attorney General, was a nullity. Any judgment other than the one of dismissal by the Court of Civil Appeals in this case would have been a nullity. In the case of Akin Foundation v. Trustees for Preston Road Church of Christ, Dallas, Texas, Tex.Civ.App., 367 S.W.2d 351 (1963), no writ hist., the judgment and judgment rolls disclosed the absence of the Attorney General as a necessary party under Article 4412a, supra. The Akin Foundation was seeking a declaratory judgment without the Attorney General being made a party, as required by the statute. The Court, under the authority of Williams v. Steele, 101 Tex. 382, 108 S.W. 155 (1908) and McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957), exercised appellate jurisdiction to the extent of declaring the judgment invalid because of the absence of the Attorney General as a party. The case' was reversed and remanded to the trial court with direction that The Akin Foundation have a reasonable time to effect the joinder of the Attorney General of Texas as a party to the suit. I refer to this case mainly to point out that while the Court of Civil Appeals correctly declined to pass upon the merits of the appeal in the Akin case, the Court of Civil Appeals in this case had no authority or jurisdiction to require the Attorney General to further “maintain the suit” by appeal.

The petitioners, Coffee and Billups, are in no position to challenge the Attorney General’s decision to refrain from seeking a reversal of the judgment of the trial court by way of appeal. In fact these petitioners have failed to present any point or argument that the Attorney General’s conduct in terminating the litigation was in violation of his statutory duty. This Court is concerned with a matter of jurisdiction, and not merely a question of the procedural rights of in-tervenors. The fact that no objection was registered by either party to the entry into the case by both groups of intervenors does not settle the jurisdictional question one way or the other. Certainly, the petitioners cannot successfully assert that merely because they intervened in the case without objection, they thereby became vested with all the rights of the Attorney General, including the right of appeal. Yet, they are here making just such argument. Their position is squarely in the teeth of Section 6 of Article 4412a, supra. The statute does not authorize the Attorney General to delegate the authority vested solely in him. The record reflects that Albert Jones, the First Assistant Attorney General during the trial, and his successor, Hawthorne Phillips, actively participated in the trial. Although the petitioners are to be commended for their zeal and their obviously valuable services in furnishing able counsel to aid the Attorney General, they have no legal authority to overrule the considered judgment of the Attorney General. They have no legal standing in the appellate courts. Even the Attorney General admits that he no longer has any standing in the appellate courts.

Another thing to be considered. The statute expressly authorizes the Attorney General to “join and enter into such compromises, settlement agreements, contracts, and judgments * * *, as in his judgment and discretion may be in the best interests of the public.” If the Attorney General can settle cases without the benefit of a trial court judgment, why should he be prohibited from terminating litigation after a full and complete trial and entry of judgment in the trial court.

Another example of the fallacy of in-tervenors’ position is this: Suppose Rice University had at some time during the proceedings decided to enter into a settlement agreement with the Attorney General and by the terms of such agreement, Rice University either dismissed the suit or a judgment was entered that Rice University take nothing, does anyone think for one minute that the intervenors, the group allied with Rice University, would have the right to break the settlement or maintain an appeal? Certainly not. Neither group of in-tervenors had standing to sue, consequently neither group had the right or authority to maintain an appeal. The right to appeal is determined by the same standard which determines the right of a party to initiate an action. The generally accepted rule is that “appellate courts do not decide cases where no actual controversy exists between the parties at the time of the hearing.” City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638 (1939). There was no actual controversy between Coffee et al., and Rice University in the Court of Civil Appeals.

The petitioners-intervenors’ attempted appeal to the Court of Civil Appeals complained primarily of the ruling of the trial court in denying an instructed verdict in their favor, and in denying them a judgment non obstante veredicto, and rendering judgment in favor of respondents based upon the application of the doctrine of cy pres. Only the Attorney General could appeal from such rulings. In the case of Duffey v. Cross, 175 S.W.2d 637 (Tex.Civ.App.1943, wr. ref. want of merit), the Court, in overruling Duffey’s contention in regard to a judgment denying him a recovery over against Cross, said:

“As to this * * * ruling it is only necessary to point out that Duffey had no justiciable interest in that controversy, since his rights were not in any way prejudiced by that ruling. Only the State could challenge that ruling and it has not appealed.” See City of Chicago v. Chicago Rapid Transit Co., 284 U.S. 577, 52 S.Ct. 2, 76 L.Ed. 501 (1931).

The petitioners-intervenors rely upon the cases such as Gibson v. Richter, 97 S.W.2d 351 (Tex.Civ.App.1936, no wr. hist.) and Metcalfe v. McCarty, 301 S.W.2d 263 (Tex.Civ.App.1957, no wr. hist.). These cases merely stand for the proposition that an intervenor, once permitted to intervene, may appeal the judgment of the trial court if, but only if, he has a justiciable interest in the subject matter and the judgment rendered is adverse to this interest. In the Metcalfe case, the intervenor had a monetary interest in the judgment. In the Gibson case, the Court merely said, by way of dictum, that an intervenor is permitted to appeal “from a judgment adverse to his interest.”

The Court seems to rely upon such cases as Tunstall v. Wormley, 54 Tex. 476 (1881); Pierce v. Weaver, 65 Tex. 44 (1885); Woods v. Bell, 195 S.W. 902 (Tex.Civ.App. 1917, writ refused); and Inglish v. Johnson, 42 Tex.Civ.App. 118, 95 S.W. 558 (1906, writ refused) to support its construction of Article 4412a which is to the effect that Coffee et al. are not precluded from perfecting an appeal despite the action of the Attorney General in declining to appeal. My examination of these particular cases leads me to conclude that they have no application to the case at bar. Aside from the fact that the parties, under the circumstances of each case, had a special interest therein separate and apart from that of the general public in the charitable trust, these cases, all decided before the enactment of Article 4412a,- supra, were rendered obsolete after the passage of the Act by the Legislature. These particular cases are completely out of harmony with the manifest intention of the Legislature. The Legislature definitely fixed the control of litigation involving charitable trusts. Just as the Constitution of Texas lodged with the county and district attorneys the duty of representing the State in ouster proceedings, the Legislature by the enactment of Article 4412a definitely designated the Attorney General to act for the public and all classes of beneficiaries to charitable trusts in this State. By implication all others are excluded. Under the statute, which is absolutely controlling in any controversy involving the construction of the terms of a charitable trust, the Attorney General is clothed with the responsibility and authority for conducting litigation involving public trusts. In this proceeding for the application of the doctrine of cy pres, the Attorney General has discharged that responsibility. At least, this Court does not have before it the question of whether or not the Attorney General has discharged his responsibility.

The Court discusses other earlier cases which held that the Attorney General, not only had the right to intervene in a case where he had not been made a party, but that it was his duty to protect and enforce any trust which had been declared to be charitable. The force of the holdings in these cases, aside from being in harmony with Article 4412a, lies in the fact that such holdings, no doubt, influenced the Legislature in placing the responsibility with the Attorney General. The Court’s view in the present case, if adopted, will continue the uncertainty which existed because of conflict of authority prior to the enactment of Article 4412a, supra. In adopting this statute it is convincing that the Legislature intended to put to' rest the troublesome questions raised in the past by persons of the same class, but with different views endeavoring to direct how a charitable trust should be administered.

Rice University and its trustees had the right pursuant to Article 4412a, supra, to file this suit against the Attorney General of Texas. The issues drawn between these parties were tried in the District Court to judgment and the Attorney General determined not to appeal. Therefore, the judgment having become final, the litigation ended then and there. Though petitioners and others intervened at the trial level, they had no standing to maintain this appeal. The opinion of the Court of Civil Appeals is correct and well supported by authority. I would affirm that Court’s judgment rendered herein.

NORVELL and HAMILTON, JJ., join in this dissent.

      . All statutes referred to herein are revised civil statutes of Texas as carried in Vernon’s Annotated Civil Statutes. Arti-ele 4412a was enacted as Acts 56th Legislature, Regular Session 1959, page 203, chapter 115.

      . “See. 2. Por and on behalf of the interests of the general public of this state in such matters, the Attorney General shall be a necessary party to and shall be served with process, as hereinafter provided, in any suit or judicial proceeding, the object of which is:
      “a. To terminate a charitable trust or to distribute its assets to other than charitable donees, or
      “b. To depart from the objects of a charitable trust as the same are set forth in the instrument creating the trust, including any proceedings for the application of the doctrine of cy pres, or
      “c. To construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust, or
      “d. To contest or set aside the probate of an alleged will by the terms of wbicb any money, property or other thing of value is given, devised or bequeathed for charitable purposes.”

      . “Sec. 5. Any dispute, claim or controversy of a character described in Section 2 of this Article, and affecting a charitable trust may be settled or compromised by agreement, with or without the intervention or approval of a court, provided, however, that no such compromise, settlement agreement, contract, or judgment shall be valid or binding unless the Attorney General is a party thereto and joins therein. The Attorney General is expressly authorized to join and enter into such compromises, settlement agreements, contracts, and judgments, as aforesaid, as in his judgment and discretion may be in the best interests of the public.”

      . “See. 6. It is the purpose of this Article to resolve and clarify what is thought by some to be uncertainties existing at common law with respect to the subject matter hereof. Nothing contained herein, however, shall ever be construed, deemed or held to be in limitation of the common law powers and duties of the Attorney General.”

      . Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223 (1935); Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273 (1942); Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326 (1946).


source: Caselaw Access Project

author: GREENHILL, Justice.

license: Public Domain

text:
    Edythe Westerfield BELL, Petitioner, v. Glenn STILL, Respondent.
    No. A-10829.
    Supreme Court of Texas.
    May 18, 1966.
    Rehearing Denied June 22, 1966.
    L. D. Gilmer and James F. Warren, Houston, for petitioner.
    Coy U. Spawn, Jr., Kelley, Ryan & Merrill, Houston, for respondent.
   GREENHILL, Justice.

There having been sufficient votes to grant the application for writ of error in this case, it was brought before us for a review of the correctness of the holding of the courts below. The matter is a difficult one because doubts exist as to the wisdom of a policy under which an independent executor, accused of gross mismanagement of an estate, is not subject to removal by the probate court as any other executor or administrator. This, however, is a matter within the control of the Legislature. It is our opinion that the Probate Code did not change the rule previously existing that the probate court did not have this power unless the independent executor, properly appointed and qualified, was required to post bond and could not or would not do so. We do not have here the question as to whether the district court has this power of removal.

The opinion of the Court of Civil Appeals sets out the facts and correctly declares the principles of law in this case. 389 S.W.2d 605. That opinion is adopted as the opinion of this Court.

The judgment of the Court of Civil Appeals is affirmed.


author: CALVERT, Chief Justice.

text:
    Ralph A. BICKLER, Petitioner, v. Max BICKLER et ux., Respondents.
    No. A-10911.
    Supreme Court of Texas.
    May 18, 1966.
    Rehearing Denied June 22, 1966.

      Sneed & Vine, J. P. Darrouzet, Austin, for petitioner.
    Kuykendall & Kuykendall, Austin, for respondents.
   CALVERT, Chief Justice.

The primary purposes of this litigation between Ralph and Max Bickler, brothers, are to establish the common boundary line of their adjoining residential lots and to adjudicate a claim by Ralph to a driveway easement on and over Max’s property.

Suit was filed by Ralph. He sought a mandatory injunction requiring Max to remove a fence erected across the driveway which prevented Ralph’s use thereof for ingress and egress to and from his residence to a public street. He also sought to establish that the common property line between their respective properties was the western edge of a concrete walkway. In addition, he asked damages for interference by Max with his use of the driveway easement and for injury done by Max to the walkway. Max was permitted to file a trial amendment during the course of the trial and thereby to seek a mandatory injunction requiring Ralph to remove the portion of the concrete walkway which encroached on Max’s property.

Trial was to the court without a jury. The trial court rendered judgment directing that Ralph take nothing by his suit, and that he remove that portion of the concrete walk which extended onto Max’s property. The Court of Civil Appeals affirmed. 391 S.W.2d 106. The case is severed into two causes. We affirm the judgments of the courts below in one, and in the other we reverse the judgment and remand the cause to the trial court with instructions. The questions will be dealt with separately.

The Driveway Easement

Ralph has two bases for contending that the evidence establishes his right to an easement for a driveway on and over Max’s lot. The first is that his right thereto arises out of an estoppel in pais— an easement by estoppel. The second is that when Max conveyed to him the lot he now owns, the deed granted the easement by implication — an implied easement appurtenant. We agree that Ralph’s right to the easement must be upheld on the latter ground; and there is, therefore, no need to consider his claim to an easement by estoppel. The facts which give rise to the implied easement appurtenant, follow.

In 1909 Max and Harry, another Bickler brother, owned a tract of land fronting North on West Sixteenth Street in the City of Austin. In that year Max and Harry executed a written partition agreement under the terms of which, as corrected by a subsequent writing in 1915, a lot out of the tract fronting 152 feet on Sixteenth Street and 276 feet in depth was set aside to.Harry, and an adjoining lot on the East, fronting 104 feet on Sixteenth Street and 276 feet in depth, was set aside to Max. The remainder of the original tract lying East of Max’s lot was continued in joint ownership.

In 1915 Max and Harry conveyed the most easterly part of the jointly owned remainder to Sam Sparks. The Sparks lot fronted 124 feet on Sixteenth Street and was 175 feet in depth. This conveyance left Max and Harry as joint owners of a strip between Max’s lot and the Sparks lot 4 feet in width and a lot approximately 101 feet deep and from 124 to 135 feet in width lying South of the Sparks property and, except for the 4-foot strip, cut off from access to Sixteenth Street by that property. In 1915 the several children of Mrs. Martha Bickler, a widow, including Max, Harry and Ralph, entered into an oral agreement for the erection of a house on this remaining lot for use by Mrs. Bickler. The agreement was incorporated in a formal writing in 1916, after the completion of the house. Mrs. Bickler lived in the house until her death in 1937. Ralph was living in the house with the ’ mother when the written agreement was executed in 1916 and has continued to live therein at all times since, having purchased the house and lot from Max and Harry in 1949.

The undisputed evidence establishes conclusively that a well-defined driveway from Sixteenth Street South across Max’s lot to the lot purchased by Ralph was in existence and use when the grant to Ralph was made, and that the same had been open and used continuously by the owners of the lot and those occupying the house and their guests and business invitees since at least as early as 1915. The use of the area as a driveway was continued by Ralph until Max erected a fence across it in 1963.

From this recitation of the undisputed facts, it is apparent that all of the use requirements of the driveway for the establishment of an implied easement appurtenant except that of necessity, existed when the grant to Ralph was made. See Drye v. Eagle Rock Ranch, Inc., Tex.Sup., 364 S.W.2d 196, 205-209 (1963); Howell v. Estes, 71 Tex. 690, 12 S.W. 62 (1888). In Drye we listed the use requirements as follows: “1. The use must be apparent, in existence at the time of the grant. * * * 2. Its use must have been continuous — so that the parties must have intended that its use pass by the grant. * * * 3. Its use must be necessary to the use of the dominant estate. * * 364 S.W.2d 207-208. We also recognized in Drye that a use is “continuous” “if no further act of man is necessary to its continuous exercise * * *.” 364 S.W.2d 208. The evidence in the record before us establishes that the use of the driveway was at all relevant times both apparent and continuous. The only question remaining is whether use of the driveway is necessary to use of the dominant estate.

It is admitted that use of the driveway was necessary to use of the lot until it was sold to Ralph in 1949. The Court of Civil Appeals held, however, that use of the driveway by Ralph was not necessary at the time of the conveyance to him in 1949, and is not now necessary because in 1944 Ralph acquired another easement which the Court concluded he had a right to use as a driveway between Sixteenth Street and his lot. We disagree with the conclusion, and hold that Ralph has no legal right to use the additional easement for ingress and egress to and from such lot.

The facts surrounding Ralph’s acquisition of the additional easement follow. In 1921 Sam Sparks conveyed a part of his lot to N. A. Stedman. The part conveyed fronted 60 feet on Sixteenth Street, was 160 feet in depth, and adjoined the 4-foot strip easterly of Max’s lot. In the same instrument Sparks dedicated an 8-foot strip over his remaining land, adjoining and for the full depth of the lot conveyed, in the following language:

“ * * * for a passage way between the property conveyed to said Stedman and our property eastward thereof, such passage way to be used by ourselves, heirs and assigns and by said Stedman, his heirs and assigns in common; and the easement of said Stedman, his heirs and assigns in said passage way shall be perpetual, but the dedication of said passage way shall not have the effect of granting any rights to the general public therein.”

The deed was corrected in 1930, but the dedication of the passageway easement was not changed. The Stedman lot and easement were conveyed to S. M. N. Marrs in 1930.

In 1922 Sparks conveyed a strip 15 feet in depth and 60 feet in width, lying just South of the Stedman lot, to Mrs. Jacob (Martha) Bickler. Ralph inherited an interest in this lot at the death of his mother in 1937, and thereafter purchased the interests of some of the other children.

In 1944 Ralph purchased a 20-foot strip off of the South end of the Marrs lot, together “with all the rights in respect to” the 8-foot passageway easement as had been conveyed by Sparks to Stedman. It is this easement which the Court of Civil Appeals has held Ralph has a right to use for ingress and egress to and from the lot purchased by him from Max and Harry. The conveyances described and the areas in controversy are shown on the attached sketch.

16TH STREET

ABCD Max’s lot

EBCHGF Max and Harry to Ralph — Ralph’s lot

EIGF Max and Harry to Sparks

EJLK Sparks to Stedman

JMNL Sparks to Stedman easement

FKNO Sparks to Mrs. Bickler

KLQP Marrs to Ralph

BRST Driveway easement

FEBU Walkway

Our holding that Ralph has no legal right so to use the Sparks passageway easement rests on the rule of law stated in 2 Thompson on Real Property, 1961 Replacement Ed., S6S-566, § 386, in this language:

“Rights of way granted or reserved are appurtenant to the dominant tenement, and can be used only for the purposes of that tenement. * * * One having a right of way appurtenant to specified land cannot lawfully use the way to reach another tract owned by him to which the way is not appurtenant. * * * The way is granted for the benefit of the particular land, and its use is limited to such land. Its use cannot be extended to other land, nor can the way be converted into a public way without the consent of the owner of the servient estate.”

For another statement of the rule, see note, Ann.Cas.l917A, 1250-1251, where we find this language:

“Where, in connection with a transfer of property, an easement is granted for the benefit of that property over lands of the grantor, the easement is presumed to be appurtenant to the granted premises, and in the absence of words creating a more extended right the grantee or his successor in interest is not entitled to use the easement for the benefit of other premises owned by himself or another.”

As further authority for the rule, see 3 Tiffany, Real Property 323-324, § 803; 25 Am.Jur.2d 482-484, § 77; Davenport v. Lameson, 21 Pick. (Mass.) 72 (1838); Stearns v. Mullen, 4 Gray (Mass.) 151 (1855); Ball v. Allen, 216 Mass. 469, 103 N.E. 928 (1914); Schmoele v. Betz, 212 Pa. 32, 61 A. 525, 108 Am.St.Rep. 845 (1905); Barbaresos v. Casaszar, 325 Mich. 1, 37 N.W.2d 689 (1949).

Inasmuch as the Sparks easement cannot legally be burdened with a use for the benefit of the lot purchased by Ralph from Max and Harry, use of the driveway easement over Max’s lot is still necessary to the use of the dominant estate, and the trial court erred in failing to require Max to remove his fence insofar as the same prevents Ralph’s use thereof. As stated in Drye, an easement appurtenant “ * * * generally takes the form of a negative easement: the owner of the servient estate simply may not interfere with the right of the owner of the dominant estate to use the servient estate for the purpose of the easement.” 364 S.W.2d 207.

Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637 (1958), and Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622 (1950), cited by Max, are not in conflict with our holding here. Our denial of a way of necessity in Duff v. Matthews was directly related to proof that there was another way to plaintiff’s lot which he had a legal right to use. Denial of a way of necessity in Othen v. Rosier rested on failure of the plaintiff to discharge his burden of proving that he had no other way of access.

The Boundary Line

The boundary question arises out of the descriptive words, “more or less,” used in a call for distance in the deed from Harry and Max to Ralph.

We have noted that when Harry and Max conveyed the easterly lot fronting 124 feet on Sixteenth Street and with a depth of 175 feet to Sparks, title to a narrow strip, 4 feet in width, between that lot and the lot partitioned to Max was left in Harry and Max. This strip was improved and used as a walkway from Sixteenth Street to the residence built for Mrs. Martha Bickler in 1915 on the lot purchased by Ralph in 1949.

The beginning point of the metes and bounds description of the property conveyed by Harry and Max to Ralph is the northwest corner of the lot conveyed to Sparks. The first call is as follows: “thence westerly with the north line of our tract a distance of three feet, more or less.” The second call was along a southerly course for a distance of 276 feet. The last call is northerly from the southwest corner of the Sparks lot and along its western boundary to the place of beginning. It thus appears that although the strip owned by Harry and Max. lying between the Sparks lot and Max’s lot was 4 feet in width, their deed to Ralph conveyed a strip “three feet, more or less” in width.

In 1960 Ralph constructed a concrete walkway over the strip. The walkway was 4.8 feet in width at its northern end abutting on Sixteenth Street and 4.08 feet in width at its southern end. The evidence reflects that the concrete walkway is the same width as was the walkway which had been in actual use for many years. In view of this fact, Ralph argues that the descriptive call in his deed, “a distance of three feet, more or less,” should be held to establish the western boundary of the strip and the eastern boundary of Max’s lot at the western edge of the concrete walkway. He also argued in the courts below that the boundary for which he contends had been fixed by acquiescence. The trial court and Court of Civil Appeals rejected both arguments, held that the words “more or less” should be disregarded, and fixed the boundary at a distance of 3 feet from the western boundary of the lot conveyed by Harry and Max to Sparks. Ralph does not complain in this Court of the holding of the Court of Civil Appeals that the boundary was not fixed by acquiescence. He contends only that the court erred in holding that the words “more or less” have no legal significance in a call for distance and should be disregarded. We agree with Ralph that the words “more or less” may have legal significance in a call for distance, but we do not agree that the trial court was required to extend the distance of the first call to the western edge of the concrete walkway.

The words, “more or less,” are frequently used in conveyances to qualify statements of quantity and descriptive calls for distance. In both situations they perform essentially the same function; they relieve exactness. In Wooten v. State, 142 Tex. 238, 177 S.W.2d 56, 58 (1944), we recognized that the words “more or less” when added to an estimate of the quantity of land conveyed do have legal significance, and that they “are taken as prima facie evidence that the parties intended to risk a not unreasonable gain or loss in the estimated quantity.” See also Rich v. Ferguson, 45 Tex. 396 (1876). The Court of Civil Appeals recognized the rule of Wooten but held that it has no application to situations in which the words are used to qualify calls for distance. It cited Humble Oil & Refining Co. v. Luther, Tex.Civ.App., 40 S.W.2d 865 (1931), no writ history, in support of its holding. In that case the court held that the word “about” in a distance call — “thence about 50 varas * * *”— should be disregarded. We have no quarrel with the actual holding in that case, but we do not understand the rule to be that qualifying words such as “about,” “approximately,” and “more or less” in distance calls should always be disregarded.

In Ingelson v. Olson, 199 Minn. 422, 272 N.W. 270, 273, 110 A.L.R. 167 (1937), the Court said that words such as “about,” “approximately,” and “more or less” denote “estimate, not exact precision,” and continued:

“Estimate is used in order that the intention of the parties shall not he defeated by attempted precision, which at the time is not possible. They are words of safety and precaution, intended to cover some slight or unimportant inaccuracy, for an adjustment, if necessary, of distance or quantity

In that case the Court was dealing with field notes in which distance calls were qualified by the words “approximately” and “more or less.” See also Russo v. Corideo, 102 Conn. 663, 129 A. 849 (1925); Salyer v. Poulos, 276 Ky. 143, 122 S.W.2d 996 (1939); 11 C.J.S. Boundaries § 4, p. 541; 6 Thompson on Real Property, 1962 Replacement Ed. 643, § 3056.

Usually calls for distance which are qualified by words relieving exactness also call for a monument or adjoinder as a terminus. In such situations the general rule for construction of instruments of conveyance requiring that a call for distance yield to a call for a monument or adjoinder, 9 Tex.Jur.2d 500, Boundaries, § 22, will ordinarily relieve exactness in the entire distance call and render the qualifying words meaningless. But distance calls do not always call for a monument or adjoinder as a terminus. When they do not do so, qualifying words relieving exactness should he disregarded unless the evidence establishes that the intention of the parties to the instrument would thereby be defeated. As an example of a case in which qualifying words would not he disregarded, let us consider that A owns a residential lot fronting North 100 feet on Sixteenth Street with a depth of 150 feet, bounded on the East by a lot owned by B and on the West by a lot owned by C. A wishes to sell and D wishes to buy the lot. They go upon the ground where A correctly points out the corners and boundary lines. A believes the lot is only 99 feet in width. The metes and bounds description of the lot contained in the deed conveying the lot to D calls for the northwest corner of B’s lot as the point of beginning and then continues as follows: “thence West along the south line of Sixteenth Street for a distance of 99 feet, more or less; thence south 150 feet; thence East 99 feet, more or less, to the southwest corner of B’s lot; thence along the western line of B’s lot to the place of beginning.” With only the recited facts in evidence before a court, it is hardly thinkable that the court would hold that the words “more or less” should be disregarded as a matter of law, thus putting D to the task of prevailing in a reformation suit as the only alternative to limiting the width of the lot to 99 feet and leaving title to a useless strip, 1 x 150 feet, in A. Cf. Goodloe v. Wallace (Ky.), 269 S.W.2d 718 (1954).

In this case Ralph had the burden of establishing that by use of the words “more or less” the parties intended that the distance call for 3 feet be extended beyond that distance. Intention of the parties is ordinarily a fact question. The trial court made extensive fact findings, but did not find that the parties intended that the distance call for 3 feet should be extended or that the strip it bounded should be wider. On the contrary, the court found that the deed to Ralph “granted a strip of land three (3') feet wide extending from West 16th Street south to the main body of land described in said deed.” There is no basis in the evidence for holding that the court was required to find otherwise. There is no evidence that a 3-foot walkway from Sixteenth Street to the main body of the property is not adequate for the purpose, and no evidence that all property west of that distance is not useful to Max. Establishment of the common boundary at the western edge of the concrete walkway would extend the 36-inch distance call on Sixteenth Street by 21.6 inches. We hold that the trial court did not err in rendering judgment requiring Ralph to remove in a workmanlike manner that part of his concrete walkway west of a line three feet distant from the Sparks property as established by the survey of Marlton O. Metcalfe. We agree with the holding of the Court of Civil Appeals that the trial court did not err in permitting Max to seek a mandatory injunction by trial amendment.

Damages

Ralph sought by his suit to recover damages because of interference by Max with his use of the driveway easement. The trial court’s judgment denied him a recovery of damages. He had no point of error before the Court of Civil Appeals complaining of the denial of damages, and his claim therefor has been abandoned.

Judgment

The cause of action of Ralph Bickler for establishment of an easement on and over the lot owned by Max Bickler for a driveway is severed from the remainder of the suit, and the judgment of the trial court and Court of Civil Appeals that Ralph Bidder take nothing in such severed cause is reversed, and the cause is remanded to the trial court with instructions to hear evidence therein, if necessary, and to render judgment establishing the boundaries of the easement and requiring Max Bickler to remove any and all obstructions to a reasonable use thereof. In all other respects the judgments of the courts below are affirmed. Costs in all courts are adjudged one-half to Ralph and one-half to Max.

STEAKLEY, J., not sitting.

      . Emphasis added in the 3>rye opinion.

      . Emphasis ours throughout unless otherwise indicated.


author: NORVELL, Justice.

text:
    Milton O. ACKERMANN et ux., Petitioners, v. Ernestine VORDENBAUM, Respondent.
    No. A-11101.
    Supreme Court of Texas.
    May 25, 1966.
    Rehearing Denied June 22, 1966.
    Jandt & Jandt, Seguin, for petitioners.
    Threlkeld, Saegert & Saegert, Seguin, W. James Kronzer, Houston, for respondent.
   NORVELL, Justice.

Upon an appeal from an order dismissing this cause, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the plaintiff, Ernestine Vordenbaum. The Court of Civil Appeals held that the trial court erred in overruling the plaintiff’s motion for summary judgment and rendered judgment for the plaintiff in accordance with Rule 434, Texas Rules of Civil Procedure. 393 S.W.2d 927. We affirm.

The plaintiff in the trial court was the appellant in the Court of Civil Appeals and is the respondent here. We will use the trial court designation of the parties.

Two questions are involved, namely, (1) Did the trial court err in dismissing this cause?, and, if that question he answered in the affirmative, (2) Was the Court of Civil Appeals correct in rendering judgment for the plaintiff or should the cause have been remanded for another trial ?

The first question presents little difficulty. The action was in trespass to try title in which the grounds of recovery were specifically alleged. The plaintiff alleged that on December S, 1951, she executed a deed conveying one and one-fifth acre of land out of the G. Malpaz Survey No. 67 in Guadalupe County, Texas to the defendants, Milton O. Ackermann and wife, Erne-lie Ackermann, in which she reserved a life estate and a vendor’s lien, said lien being reserved “until the above described obligations are fully complied with according to their intent and purpose when this deed shall become absolute”. The consideration for this deed was that the Ackermanns “take care of and provide the meals for the grantor (Mrs. Vordenbaum) as long as she lives”. These were the obligations referred to in the vendor’s lien clause. The plaintiff asserted the agreement to support had not been carried out, but had been abandoned and consequently she was entitled to recover upon the superior legal title retained by her in the deed above mentioned.

Plaintiff’s Second Amended Original Petition in the forepart thereof contained a number of exceptions directed against defendants’ answer. These exceptions were followed by a repleading of her cause of action. The defendants moved to “strike from the record the document called the second amended original petition for the reason that the same is not in compliance with Rules 46 and 69 of the Texas Rules of Civil Procedure”. Apparently the motion to strike was heard on May 21, 1964, but the order sustaining the same was not signed by the trial judge until December 14, 1964. It appears that on the same date the order was signed, the defendants made a further motion in which they requested the trial court to dismiss the case for want of prosecution because plaintiff had failed to amend her second amended original petition. The trial court sustained the motion to strike the second amended original petition and then dismissed the case. The order of dismissal was not based upon the theory that the plaintiff had failed to prosecute her case, but on the contrary recites that as “plaintiff desires to stand on her pleadings and not to replead the same after having a reasonable opportunity to do so, it is further ordered that this cause be and the same is hereby dismissed, * * * »

Undoubtedly, the second amended original petition was defective in the particulars pointed out by defendants’ motion and we do not know why plaintiff did not amend her defective petition. However that may be, the only pleading which was stricken was the second amended original petition and if plaintiff decided not to file another amendment, such decision did not render the cause subject to dismissal. As pointed out by the Court of Civil Appeals, the trial court did not order a repleader and plaintiff had violated no order of the court. The ground set forth in the motion to strike related to form rather than substance and it was not contended that the petition failed to state a cause of action. We have no true analogy between the action taken here and the now outmoded general demurrer practice (Rule 90), in which a dismissal could be ordered upon a refusal to amend after a court had held that the petition stated no cause of action. We hold that the order of dismissal was erroneous and must be reversed.

This brings us to a consideration of the second question, that is, whether an order of rendition or remand constitutes the correct disposition of the case. This largely depends upon whether an appellate court having held that an order of dismissal was improper may then examine a trial court’s action in overruling a summary judgment. In Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958), we held that:

“If the only order in the trial court is one overruling a motion for summary judgment, then that order is interlocutory and no appeal will lie therefrom. But when, as in this case, both parties file motions for summary judgment and one such motion is granted, then the trial court’s judgment becomes final and ap-pealable, and on appeal the Court of Civil Appeals should determine all questions presented. If reversible error is found, the court should render such judgment as the trial court should have rendered, Rule 434, and if the case is brought to this court and the judgment of the Court of Civil Appeals is reversed, we should render such judgment as that court should have rendered. Rules 501 and 505. Rogers v. Royalty Pooling Co. [Tex., 302 S.W.2d 938] is overruled.”

In the Tobin-Garcia case, the appeal was from an order granting a summary judgment based upon the defendants’ motion. We held that the order granting such summary judgment was erroneous and that after having made such holding, we were authorized to review the trial court’s action in overruling the plaintiff’s motion for summary judgment. In the present case, an order of dismissal was appealed from instead of an order granting a motion for summary judgment.

This circumstance squarely raises the question of whether the Tobin-Garcia rule is a comparatively narrow one having application only to that situation wherein both parties have moved for summary judgment, or whether it should be applied broadly as applicable to all cases in which a motion for judgment has been overruled and thereafter an appealable judgment has been rendered. In Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1959), the Tobin-Garcia rule was thus broadly stated: “We held (in Tobin v. Garcia) that where there was a final judgment rendered in a cause, which was appealable (and was appealed), the appellate court could act upon a denied motion for summary judgment, if the point has been properly preserved”. Although in McBride, both sides had filed motions for summary judgment, the Court of Civil Appeals in the present case took the language of McBride as indicating that this Court intended the Tobin-Garcia rule to apply to all cases wherein an appealable judgment (including a dismissal, or judgment rendered at the conclusion of a conventional trial upon the merits), had been entered subsequent to the overruling of a motion for summary judgment. The broader interpretation of the rule would undoubtedly lead to the expeditious disposal of lawsuits in cases where it appears that a litigant whose motion for summary judgment had been overruled was clearly entitled to prevail, and undoubtedly this factor was considered by the Court of Civil Appeals in rendering judgment in the case. However, there are other considerations which must be taken into account in determining whether to adopt a narrow or broad interpretation of the Tobin-Garcia doctrine.

When both sides file motions for summary judgment, each litigant in support of his own motion necessarily takes the position that there is no genuine issue of fact in the case and that he is entitled to judgment as a matter of law. While it does not necessarily follow that when both sides file motions for summary judgment there is no genuine fact issue in the case, it does indicate that the legal controversy is one which generally turns upon an interpretation of some rule of law and both sides are prepared to present their respective contentions with reference thereto.

However, when we have a case in which a motion for summary judgment is overruled and thereafter, — perhaps years thereafter, the suit is removed from the trial court docket by dismissal or a judgment following a conventional trial on the merits, a different situation is presented. In such instances a review of the overruled motion for summary judgment could result in judgments which would be patently unjust. Motions for summary judgment do not always disclose all the pertinent facts relating to a case and the same may be said as to answers and defenses to such motions. Generally, the facts are more fully developed upon a conventional trial than they are by the affidavits and depositions relied upon to support or defeat a motion for summary judgment. It would seem incongruous for a court, upon finding that a judgment following a full and complete conventional trial should be reversed because of the admission of improper evidence, to then review the action of a trial court in overruling a summary judgment, particularly if it appears from the evidence adduced upon the conventional trial that there were genuine issues of fact in the case even though the summary judgment record might not reflect this situation because of an incomplete development of the facts.

In Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670 (1955), this Court pointed out that the general rule was that an order overruling a motion for summary judgment was interlocutory in nature and hence not appealable. In speaking of the practice later sanctioned in Tobin v. Garcia, it was said:

“True, where there is an appeal from that part of the court’s order which grants summary judgment, it might be convenient to allow the appellate court to review also the part refusing summary judgment and itself to render summary judgment on the latter issue, if it concludes that the trial court ought to have done so. At the same time, since such a practice would be by way of exception to a general rule, any benefits might well be outweighed by the resultant confusion.”

Undoubtedly, the rule of practice adopted by Tobin v. Garcia is an exception to the general rule that an order overruling a motion for summary judgment is not subject to review upon appeal. Compare, Brown v. Aetna Casualty & Surety Co., 135 Tex. 583, 145 S.W.2d 171 (1940). Such rule was recognized in the interest of the prompt disposal of causes and its operation has generally been attended with satisfactory results. However, the rule should not be so broadened as to produce confusion or injustice. Thomas de Quincey once intimated that many a man could trace his downfall to some murder he thought little of at the time. However, our system of practice should not permit the downfall of a cause because of an overruled motion for summary judgment, which in the light of a conventional trial on the merits appears to have been defectively defended against by insufficient pleadings, depositions or affidavits. Many of the considerations militating against the review of a trial court’s action overruling a motion for summary judgment after the case has been tried in the conventional manner before judge or jury are also applicable when the final judgment appealed from is one of dismissal. The safer rule is one restricting the Tobin-Garcia doctrine to its factual situation and that disclosed in Gulf, Colorado & Santa Fe Ry. Co. v. McBride, that is, to cases in which motions for summary judgment have been filed by all of the real parties at interest and the appeal is prosecuted from a judgment granting one or more of them.

Accordingly, the judgment of the Court of Civil Appeals is reformed to provide for a remand and a reinstatement of the case on the trial court’s docket rather than a rendition of a judgment for the plaintiff. As so reformed, the judgment of the Court of Civil Appeals is affirmed.

      . The action was instituted by Ernestine Vordenbaum, who is advanced in years. She was joined by her grandson, Wilbur Paul Vordenbaum, as next of kin and temporary guardian, while the suit was pending in the trial court.