text:
    POWELL et al. v. DANCIGER OIL & REFINING CO. OF TEXAS et al.
    No. 13960.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 10, 1939.
    Rehearing Denied Dec. 8, 1939.

      Hardwicke <&: Cheek, of Fort Worth,, for appellants.
    ’ Chas. L. Morgan and W. C. Hock, both of Fort Worth, Ringolsky, Boatright & Jacobs, of Kansas City, Mo., and Morgan, Culton, Morgan & Britain, of Amarillo,., for appellees.
   BROWN, Justice.

Appellants here were the plaintiffs below, and they are the. surviving wife and. the children' of the late G. N. Powell¡ The suit is brought for damages against appel- ■ lees, resulting from their-failure to develop, with reasonable diligence a 320 acre tract of oil land, located in the Panhandle portion of the State of Texas, in Gray County,. Texas,- .

It appears that G. N. Powell and his surviving wife, Sarah Powell, being the fee owners of the lands in controversy, conveyed same, on July 22, 1919, to one J. M. Eldridge, by a general warranty deed, but reserved and retained unto themselves, their heirs and assigns an undivided 7/8ths interest in and to all minerals, lodes, veins, oil and gas and other mineral deposits found or to be found under or within the lines or area of said land, and thereafter, being the owners of such 7/8ths undivided interest in all of such minerals, they did, on July 24, 1929, convey such interest to Danciger Oil & Refining Company of Texas, a corporation, in and under the northeast quarter and the southwest quarter of Section 28, Block B-2, Public School Lands, Certificate 15/3165, issued to the H. & G. N. R. R. Co., situated in Gray County, Texas.

This instrument provides for a cash consideration and for certain sums of money to be paid out of oil, gas and casing head gas that may be produced, saved and sold from the interest of said grantee in such lands, and as a part of the consideration for such conveyance, said appellee covenanted and agreed with said grantors to deliver to the said J. M. Eldridge and his heirs and assigns the undivided l/8th of all •oil, gas -and casing head gas that may be produced and saved from the lands and such instrument of conveyance expressly excepted and reserved to the said grantors and to their heirs and assigns an overriding l/8th interest in and to all of the oil, gas and casing head gas in and under and that may be produced from said lands, and the said grantee covenanted and agreed to permit delivery to the credit of the grantors, free of cost, in the pipe line to which it may connect its wells, an equal l/8th part of all oil produced, saved and sold from the conveyed premises, and to permit the payment to said grantors of l/8th of the net proceeds derived from the sale of gas produced and used off of the premises and to permit the payment to such grantors for gas produced from any oil well l/8th of the net proceeds derived from the sale of gas delivered to a pipe line for the time during which such gas is used, and said instrument further provides that in the event grantee should use the .casing head gas itself for the manufacture of gasoline, or other purposes, then the grantee undertakes to pay .grantors on the basis of l/8th of the customary and prevailing price paid by other casing head plants in the oil fields surrounding the premises involved.

The instrument further stipulates that the grantee shall make reasonable provisions in the way of storage tanks to take care of flush production^ and to connect the well or wells with such storage tanks, and in the event the storage tanks shall prove insufficient to take care of the flush production, the grantee agrees to make reasonable efforts to get the flush production under control, and said instrument further recites that the grantee expressly covenants and agrees that it will protect the premises conveyed against all off-set wells drilled within 330 feet of the property line of the premises conveyed. The instrument further provides that the grantee shall have a right to use, free of cost, gas, oil and water produced on the lands for all operations thereon, but excepts to the grantors their water wells. The instrument further provides that the contract evidenced by the instrument shall extend to and be binding upon the heirs, executors, administrators, successors and assigns of. the respective parties, and it stipulates that the privilege of assigning is expressly allowed to each of the parties.

The last paragraph of this instrument stipulates that it is entered into in pursuance of the reservation in the deed of conveyance to J. M. Eldridge, which was expressly referred to in the fore-part of the instrument, and that the contract is made subject thereto.

The allegations of the petition on which appellants went to trial are clear, concise and specific, and make out a case of failure to reasonably and diligently develop these two quarter sections of land, unless and until the said grantees, who were defendants below, can show what we shall term a reasonable excuse in law for not having drilled more wells than have been already drilled on the premises.

The following facts are set forth in the pleadings and are undisputed in the record.

In October, 1929, defendants drilled and completed three wells Jocated on the northeast quarter of Section 28, which wells were completed as commercial oil wells with initial daily potentials of 400, 200 and 700 barrels a day, respectively. During the four year period, beginning October, 1929, and ending October, 1933, said three wells produced a total of 402,549 barrels of oil.

In September, 1929, defendants drilled and completed one well on the southwest quarter of Section 28, which well had an initial potential or producing capacity of 1070 barrels a day. For the approximately four year period ending October, 1933, it produced 406,705 barrels of oil.

Plaintiffs alleged that during said period each of said wells produced oil and gas in paying quantities and in an amount more than sufficient to enable defendants to realize a large profit from the operation of said wells after all of the expenses of drilling, completing, equipping and operating the same were taken care of; and that the character and productivity of said wells were such as to establish definitely and to defendants’ knowledge that said two quarter sections of land were underlaid with extensive and continuous deposits of oil and gas. That had defendants complied with their obligation to plaintiffs, they would have continued to develop said tracts of land with reasonable diligence by drilling, completing and operating additional wells thereon; and that to have complied with their obligation to plaintiffs, they would have drilled and completed at least one well to each 10 acres, or a total of 16 wells on each quarter section. That had such additional wells been drilled by defendants, each of said wells would have produced oil and gas in paying quantities and in an amount more than sufficient to have paid defendants a reasonable profit on the operation of said wells after all the costs of drilling, equipping and operating same had been taken care of.

Plaintiffs alleged that the additional wells, if drilled prior to November, 1933, as defendants were obligated to do, would have had an average potential or producing capacity of 600 barrels per day, from the production from which wells plaintiffs would have been entitled to receive l/8th of the total oil, gas and casing head gas produced as an overriding royalty.

Notwithstanding all of such facts, defendants waited more than five years before they drilled another well on said land. In the year 1935 they drilled a fourth and a fifth well on the northeast quarter of Section 28, both of which wells had large potentials, and produced oil and gas in paying quantities. The initial potentials of these two wells,were 523 and-1635 barrels a day, respectively.

As to the southwest quarter of Section 28, and in spite of the production of 406,000 barrels of oil from one well thereon in a four year period, defendants waited eight years, or until the year 1937, before drilling another well thereon. Said well was completed with a large potential and produced oil in paying quantities, having a potential of 243 barrels a day. In the year 1938, defendants completed a third well on the southwest quarter of Section 28, after this litigation was instituted, which well was likewise a well capable of producing oil and gas in paying quantities, and had a potential of 129 barrels a day.

The pleadings allege and the facts show that the wells on the northeast quarter of Section 28 down to May 1st, 1938, have produced a total of 615,938 barrels of oil. For the same period, the wells on the southwest quarter have produced a total of 450,249 barrels of oil.

Plaintiffs alleged that had defendants complied with their obligation to drill and complete at least 16 wells on each quarter section of land, said wells would have produced and would have been permitted by the Railroad Commission to produce during the period beginning November, 1933, at least 1,230,000 barrels of oil from each quarter section of land, which oil could and would have been marketed at the posted price for oil from said field, which averaged approximately 97 cents a barrel for said period. Plaintiffs sued for the. difference between the amount of royalty they actually received for the production from said two tracts of land and the amount of royalty they should and would have received, had defendants complied with their obligation to develop said tracts with reasonable diligence, which damages amounted, according to the allegation, to $123,525 as to the northeast quarter of Section 28, and $144,988 as to the southwest quarter of Section 28. Said sums were alleged to be l/8th of the proceeds which would have been received from the additional oil which would have been produced and saved from said two quarter sections of land, beginning with November, 1933, if defendants had complied with their obligation to plaintiffs.

Defendants filed a general demurrer to plaintiffs’ petition which was by the court' overruled. Defendants also filed a special exception to the effect that no implied covenant to adequately develop the prem- • ises was shown to exist. This special exception was overruled, so the question of the existence of defendants’ obligation to plaintiffs is not involved in this appeal.

Defendants also filed other special exceptions which will be noted later, a general denial and some special pleadings which are not here material.

At the conclusion of the evidence, the court overruled a motion for directed verdict and submitted the case to the jury. The first question submitted was whether defendants had developed said tracts of land with reasonable diligence. The jury was in disagreement on its answer to this question. The trial court thereupon, instead of declaring a mistrial, instructed the jury to return a verdict for the defendants, and a judgment was entered for the defendants, that plaintiffs take nothing, based on said instructed verdict.

Thereafter, plaintiffs seasonably filed their motion and amended motion for new trial, which amended motion for new trial was by the court considered and overruled; to which action of the court plaintiffs in open court excepted and gave notice of their appeal to the Court of Civil Appeals for the Second Supreme Judicial District. Appeal bond was duly and seasonably filed by plaintiffs, which bond was approved.

This appeal is therefore seasonably brought to this Honorable Court for review of the trial court’s action in refusing to declare a mistrial after the jury was unable to agree in the case, and in refusing to accord to plaintiffs the right to have a jury pass on the controverted fact issues involved.

The question before us is: Did the plaintiffs — appellants here — adduce evidence sufficient to raise issues of fact for determination by the jury?

It is elementary that where the trial court gives an instructed verdict for one litigant, all of the evidence adduced by the opposing litigant must be taken by us as true.

We cannot agree with appellees in their contention that there is no covenant requiring development of the lands in question excepting one to drill offset wells— that there is no implied covenant to develop the lands.

This is said in Stanolind Oil & Gas Co. v. Christian, Tex.Civ.App., 83 S.W.2d 408, 409, writ refused: “It is true that drilling an offset well is in a sense developing the property. But the implied covenant to drill offset wells for protection of the property from drainage is a distinct obligation from the obligation imposed by the implied covenant to develop the property. They are two separate and distinct covenants. The express stipulation against, or the full performance of, the obligation of the lessee to develop the property will not relieve the obligation to prevent drainage.”

In Grubb v. McAfee, 109 Tex. 527, 212 S.W. 464, 465, this is said: “The law implied the obligation from defendant in error to exercise reasonable diligence to continue drilling and mining operations on the land after oil was encountered in the first well”; and in Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27, 29, the Texas Supreme Court said that the following proposition must be regarded as settled by repeated decisions of the Supreme Court: “Where a mining lease provided for oil or gas royalties, and failed to define the lessee’s duty as regards development after discovery of paying oil or gas, the law implied the obligation from the lessee to continue the development and production of oil or gas with reasonable diligence.” The opinion cites prior Supreme Court decisions; Benavides v. Hunt, 79 Tex. 383, 396, 15 S.W. 396; Grubb v. McAfee, 109 Tex. 527, 530, 212 S.W. 464; Texas Pac. Coal & Oil Co. v. Barker, 117 Tex. 418, 6 S.W.2d 1031, 1035, 60 A.L.R. 936; Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039, 1042, 60 A.L.R. 890.

Such pronouncements being the established law of this State, when the obligation arises under a mere lease that expires, as is the custom, after some stated period of time, unless 'the production of minerals, in paying quantities, is had by development within the leasehold period, how much more should it apply in the instant suit, where the grantors own 7/8ths of the minerals in and under the lands and have absolutely conveyed such interests to a grantee, retaining a l/8th overriding royalty, and the purpose of such conveyance is shown, on the face of the mineral deed, to be that of effecting a development of the lands to the end that the owners of the minerals, might profit by receiving their overriding royalty.

In the first instance, the lessee has received a conveyance giving him the right, for a limited time, to develop the property and to receive the major portion of the minerals if, as and when produced, while in the instant case, the grantors have absolutely conveyed, by warranty deed, all the mineral interests owned by the grantors, except the l/8th overriding royalty that is expressly reserved.

We are of opinion that the implied covenant to develop the lands with reasonable diligence is present and there remains nothing but the question of whether or not the plaintiffs have adduced evidence sufficient to take the case to the jury.

'This action arises over lands that are located within practically “proven territory”, and we take it that the measure of damages is finally and definitely established by our Supreme Court, as is reflected in the opinion in Fain-McGaha Oil Corporation v. Owens, 132 Tex. 109, 121 S.W.2d 982.

We think the burden of producing evidence to raise issues of fact for a jury’s findings was met by appellants in full measure.

We had occasion to say in a recent suit, Taubert et al. v. Earle, 133 S.W.2d 145, that we are of opinion that a litigant may make out a prima facie case of damages, in this character of suit, without producing testimony from experts. We base that conclusion on the premise that if it could be shown by even lay witnesses, who are acquainted with the facts, the actual condition of wells near and adjacent to the tract in controversy, such evidence would, in some cases, be sufficient for a jury to predicate a reasonable finding as to the existence of and probable production of oil- in paying quantities.

But the appellants have done all that the decisions in Texas required of them. They introduced evidence showing, without dispute, the initial production and continued existence of every well drilled on the lands involved and on all lands adjacent or near to such lands, situated in every direction from the lands over which the suit arises, and then they produced an expert, educated and trained in such matters, who examined the “logs” of all such wells, and he testified that, in his opinion, the tracts of land in controversy are oil producing in their entirety, and he testified to what he believed, from the facts found by him, the average production would be per well, if the tracts were fully developed.

He was corroborated by other experts. Joseph Danciger, a vice-president of appel-lee, in charge of production, on cross-examination gave the following testimony:

“Q. You do not condemn any of this whole section, do you? A. I would not condemn it, but I would feel mighty shaky in drilling a lot of it.
“Q. All right, what part of it are you going to feel shaky about? A. When the granite is toward the east, the east half of that northeast quarter I think is a very hazardous place to drill.
“Q. All right, the east half of the northeast quarter? A. That is the way it looks to me, yes.
“Q. Now, the ‘Magnolia’ up here in Section 29 and section 30 are just as close to the east edge of the field as you are, aren’t they, Mr. Danciger? Their wells in section 30 and in section 29 are in exactly the same position with reference to the east side of the field as is the east half of the northeast quarter? A. Yes, they may have good wells down there, but that would be no sign that we would have them, although, as I say, we might get some good wells. I don’t know what is under there. It has been explained how erratic that stuff is. You might get a good well where you don’t expect it or get a dry well or little bit of a well where you expect a big one. * * *
“Q. All right, now, Mr. Danciger, how much of it — you say you are very uncertain about the east half of the northeast quarter in spite of what the ‘Magnolia’ did up there immediately north of you ? A. Yes, I would say that would be questionable, although I will say this, that if you drill there, you are liable to find some peculiar condition and get a good well there. I don’t know'. I can’t tell.
“Q. What do you think «.bout the west half of the northeast quarter? A. That looks better.
“Q. Does it look like you will get paying wells over there? A. Yes, it does. It looks like our chances would be better because it is closer in. I might be mistaken, but that is the way it looks to me.”

Being interrogated about the southeast quarter of the very same section, .Mr. Danciger said: “That don’t look so hot to me”, and proceeded to give his reasons, but promptly admitted that he had purchased royalty interests in the southeast quarter from several individuals, in the year 1936. He said he bought it because it was cheap.

'It was shown by this same witness that his’ company owns a greater per cent of the oil in and under the northwest quarter than it .owns in the twc> quarter sections involved in this suit, and that his company had drilled far more wells on such northwest quarter than had been drilled on the lands in controversy.

The witness said the difference in the percentage of oil had nothing to do with the difference in the drilling operations. He was then questioned about the southwest quarter, as follows:

' “Q. Now, tell the jury where on the northeast, you have already excluded the east half of the northeast quarter, but where else, where in -the southwest quarter will you tell the jury you would get-a dry hole? A. 'Well, I don’t know where you would get a dry hole. It may be that there would not be any of them dry. It may be that you would get little showings possibly, and it may be you would get good wells. .
“Q. You just don’t know, do you? A. Absolutely don’t know.
■ “Q. The only way. you can tell is by drilling, isn’t it? A. Correct.”

This witness admitted that ,if additional wells had been drilled on the lands in controversy after November 1, 1933, his company • could have disposed of the oil, at the posted prices.

It was shown, by uncontradicted evidence, that the wells that ha-ve been drilled on the lands in controversy have produced ‘ oil .in paying quantities. .

The plaintiffs below/and appellants here, have met the test of the burden of proof as laid down by the Supreme Court of Texas in Texas Pacific Coal & Oil Co. v. Barker et al., 117 Tex. 418, 6 S.W.2d 1031, 60 A.L.R. 936. We see no necessity in citing any other Supreme Court decision.

The burden of appellee’s argument before us is that appellants having failed to produce á witness, or witnesses, who would testify that if a well is drilled “here” it will produce “so many, barrels per day”, and if one is drilled “there”, it will produce “so many .barrels per day”, and if a well is drilled “yonder”, .it will produce so .many barrels per day, the evidence, as adduced, is not sufficient to raise an issue for a jury’s findings.

We do not believe a litigant is relegated to any. such exactness in . his proof. In-the very nature'of things,' as-pertain to oil production, such' testimony-is impossible.

We reiterate, the plaintiffs produced the best evidence available and 'this i's all'the law requires, if it be sufficient to raise the issues involved. We hold that it does and did raise the required issues.

. We sustain the first, second, third and fourth assignments of error, 'complaining of the trial court’s action in directing a verdict for the defendants below.

If appellants are entitled to recover damages because of -the failure of appellees to develop the lands with reasonable diligence, the four year statute of limitations applies, Vernon’s Ann.Civ.St. art. 5529, and the plaintiffs having sought to recover damages only from a period within such four year limitation,, their pleading is proper and not subject to the special exception which was sustained by the trial court.

We believe the fifth and sixth assignments of .error are well taken. Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d, 1039, 60 A.L.R. 890.

Appellees attempted to excuse their failure to develop the lands in controversy by offering evidence concerning, economic conditions obtaining in the oil business and stressed an “over supply” of oil, making it unwise for them to engage in. further drilling.

As against such defense, appellants sought to prove-by the said Vice-president, Danciger, how many wells the defendant had drilled in the State of Texas since November, 1933. The trial court refused to permit this evidence to be adduced on the theory that it was “wholly immaterial”, and the court said: “I sustain the objection. I think that would -involve conditions existing elsewhere”'; and, after these observations, the witness said: “Condition's in every ■ field are entirely - different, the potential is different, the price is different, conditions are different, costs are different, the depths are different.” The trial court: ‘T sustain' the objection.” We believe the appellants were entitled to have this evidence before the jury.- -.

It is true that appellees- should be permitted to sh'ow how many such w-ells were drilled because operations 'were' required in order to-hold the leasehold'interest,'if there were any'such, and how man^

wells were drilled as “offsets”, which were required of the lessee, if there were such, but it remains as a fact that stares one in the face, that the drilling of all wells not absolutely required served to further “glut” the market with over-production, and if it can be shown that appellees drilled wells during such period of time when they were not obligated to do so, this fact would most certainly tend to show that appellee’s failure to drill on the lands in controversy was not caused by appellee’s fear of “overproduction”, or because of general economic conditions prevailing in the oil industry at that time.

We sustain the seventh assignment of error. Freeport Sulphur Co. et al. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039, 60 A.L.R. 890.

For the reasons given, the judgment of the trial court is reversed and the cause is remanded.


source: Caselaw Access Project

author: GRAVES, Justice.

license: Public Domain

text:
    BOYLE v. TULLY.
    No. 10921.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 29, 1939.
    Rebearing Denied Dec. 21, 1939.
    Melbourne C. Driscoll, of Houston, for appellant.
    W. M. Streetman, Raymond A. Cook, ‘and Andrews, Kelley, Kurth & Campbell, all of Houston, for appellee.
   GRAVES, Justice.

This much of the able brief for the appellee is adopted as the Court’s opinion in this cause:

“This appeal is from a judgment of the trial court sustaining appellee’s general demurrer to appellant’s eighth amended original petition. Under the facts as alleged in that petition, appellee’s minor child was awarded to its mother 'in a divorce-decree, dissolving the marriage between those two — its parents. Appellant subsequently married appellee’s divorced wife, and, at that time, took appellee’s minor child into his home and furnished her ‘with the necessaries of life in her maintenance, care, education, and general support.’ This action was thereafter brought by appellant to recover the alleged value of the necessaries so furnished; * * * 'nowhere in the petition is there an alle/gation that appellee agreed, or by his acts j ¡ar failure to act impliedly agreed, to re-pay appellant for any amount' expended on the child. Nowhere in the petition is there an allegation that appellant, in furnishing the child with its ordinary benefits, did so involuntarily. Nowhere in the petition is there an allegation that appel-lee has ever refused, upon request, to furnish his minor child with the necessaries of life. The allegations are limited to a statement of appellant’s acts while in loco parentis, and to a general conclusion of law that appellee is liable to repay to appellant in cash an amount alleged to be the value of the necessaries furnished.

“Conceding the general rule stated in appellant’s proposition that ‘a father’s duty to support the child continues notwithstanding divorce-decree awarding custody to mother’, it does not follow that one who fulfills the natural obligations of a stepfather to a minor child thereby acquires a cause of action against the natural father for a cash remuneration.

“* * * The logic of appellant’s proposition is not thoroughly understood. If its purpose is merely to establish the rule that appellee was and is under a continuing ‘duty’ for the support of his child, it cannot be questioned. That rule has long been established. If, however, the proposition is expected to establish that such a ‘duty’ upon a natural father gives a windfall to one who has voluntarily taken the child into his home, it must be severely questioned. * * *

“In the Franks case appellant referred to, the principal question was very similar to the one at hand, whether or not the stepfather had a right to charge his wife for the maintenance of the minor child by a former marriage. The stepfather, after the marriage with the mother, just as in this case, took the child into his home where it was maintained and supported. In neither that case nor the one at bar was there an allegation that plaintiff, by any act, indicated that he was assuming the position of a creditor rather than one in loco parentis. The Court held that by taking the child into his home, he thereby voluntarily assumed the relation of a ■ parent to that child, and that, therefore, whatever he may have done for the child, must be presumed to have been done on .account of such relation, without any expectation of subsequent payment therefor. The Court said this in the case of Franks v. Franks, Tex.Civ.App., 138 S.W. 1110, above discussed:

“ ‘ “A husband is not bound in law to provide for the child of his wife by a former husband, but if he receives such child into his home, and holds it out to the world as a member of his family, he stands to him in loco parentis, and incurs the same liability for his support as in the case of his own child.” * * *

“ ‘In Schouler on Domestic Relations,- p. 378, it is said that: “It is well settled that in the absence of statutes a person is not entitled to the custody and earnings of stepchildren, nor bound by law to maintain them. Yet if a stepfather voluntarily assumes the care and support of a stepchild, he stands in loco parentis, and the presumption is that they deal with each other as parent and child, and not as master and servant — in which case the ordinary rules of parent and child will be held to apply, and neither compensation for board is presumed on the one hand nor for services on the other.” ’

“* * ■ * Appellant argues that he did not ‘voluntarily take ’ the child into his home’. Unfortunately, he is not supported by the allegations of his own petition. On this appeal this Court does not have to determine what unequivocal acts appellant would have had to allege, in order to rebut the presumption mentioned in Franks v. Franks, supra, that a stepfather furnishing' necessaries to a minor child does so voluntarily and as a parent. It is sufficient to point out that no such allegations were in any way made or suggested.”

Appellant’s sole contention that the trial court committed fundamental error in sustaining the general demurrer is overruled.

The judgment will be affirmed.

Affirmed.


author: McClendon, chief justice.

text:
    GULF OIL CORPORATION v. YORK et al.
    No. 8952.
    Court of Civil Appeals of Texas. Austin.
    Nov. 22, 1939.
    Rehearing Denied Dec. 13, 1939.
    Joe S. Brown, of Houston-, and Stanley Hornsby, of Austin, for appellant Gulf Oil Corporation.
    Gerald C. Mann, Atty. Gen., and Edgar W. Cale, Asst. Atty. Gen., for appellee Railroad Commission of Texas.
    Clower & Bezoni, of Tyler, for appellees C. C. Crawford and J. C. Hawkins.
    W. A. Keeling, of Austin, for appellees W. S. York and Dewey Lawley.
   McClendon, chief justice.

This is a Rule 37 case. The appeal is from an interlocutory order denying to the Gulf (Gulf Oil Corporation) a temporary writ enjoining drilling of and production from a second well upon a 2.64-acre tract, known as the Hawkins lease, in the East Texas Oil Field, permit to drill which had been granted by the Railroad Commission upon application of appellees York and Lawléy, to whom we refer as applicants. The suit in which the temporary injunction was sought was an appeal from the order granting the permit brought by the Gulf, owner of a lease adjoining the 2.64-acre tract.

The application was made and the permit granted as an exception to Rule 37 “to prevent confiscation of property.” The ground for setting aside the order, as set forth in the verified petition, stated substantially, was that the order was arbitrary, unjust and unreasonable, in that it was made without evidence to support it and upon evidence negativing the fact that the well was necessary to prevent confiscation or to protect the vested rights of the ap7 plicants as owners of the lease upon the 2.64-acre tract. By amendment to the petition, filed upon leave granted, it was alleged that the well as actually drilled was approximately 60 feet from the point at which it .was authorized by the order, which was not compliance, actual or substantial, with the order.

' We are granting the sought temporary injunction upon each of the above grounds upon the following conclusive record showing.

The following map shows the Hawkins, and surrounding leases, the location of well No. 1 on the Hawkins, the proper location of well No. 2 as authorized and its location as actually drilled, and the location. of wells on adjacent leases which had bearing; «pon the issue of drainage from the Hawkins lease:

No. 1 and No. 10 and No. 2 Sexton, and that the No. 2 location is justified as a

There were three applications (two original and one rehearing) for the permit, upon each of which there was a hearing before an “Examiner” for the Commission. These respective hearings were on August 11, 1938, February 14, 1939, and May 8, 1939. The first two applications were denied. The third was granted. The entire record of testimony offered at each of these hearings was introduced in evidence upon the hearing for. temporary injunction, a résumé of which is embodied in the Examiner’s three reports, or “memoranda,” the body of each of which we copy in full:

“August 11, 1938.
“It is the applicants’ contention that the southern end of their lease is being drained by Gulf No. 16 Sexton, General American north offset to the General American No. 1 which they show to be 141 feet south of the common line. Mr. Barron testified that the No. 1 well was not' sufficient to protect the lease from drainage to the south.
“Protestants pointed out that in Case 9613 the No. 1 well was granted in the geographic center of the tract and that it had. been drilled out of location close to the north line. On cross-examination, Mr. Barron testified that when- a drainage picture was drawn by taking the midpoint between wells, the applicant’s No. 1 well had an opportunity to drain a larger area on the offset leases than the offset wells had an opportunity to drain on this lease. According to the density statement submitted by protestants, the average density of the adjoining leases in their entirety is 1 well to 7.10 acres and the density of a circular 8 times area is 1 well to 3.02 acres and the density of a rectangle 8 times area is 1 well to 3.02 acres. Applicants now have a density advantage with 1 well to 2.64 acres, and this additional well would give applicants 1 well to 1.32 acres.
“The spacing desired is:
“141 feet north of the south line; midway between east and west lines.”
“Feb. 14, 1939.
“This lease is located in the East Texas field where the spacing rule is 330 feet from lease lines and 660 feet between wells.
“This same location was denied by the Commission on September 21, 1938. The case was reset upon the showing by applicants that several additional wells had been drilled in the area. Applicants base their claim to this additional well on the ground that their lease is suffering drainage because of the fact that their No. 1 well is 275 feet north ■ of the south line and the General American Well No. 1 is only 141 feet south of that same line. They also pointed out that the Gulf No. 16 is located 219 feet from the southwest corner of this lease, and that the Gulf has crowded its lease lines in other places on the lease, particularly in the case of its No. 14 well which is 100 feet from the General American’s west line.
“Protestants introduced Rule 37 Case No. 9613 to show that well -No. 1 on applicant’s tract was granted by the Commission in the geographical center of the lease which would place it 120 feet from the north and south lines and that the well was actually drilled off location within 57 feet of the north line. If the well had been drilled where it was granted, it would have a 20 foot advantage over the General American No. 1 of which they complain instead of being at a 134 foot disadvantage. Protestants also pointed out that the applicants’ No. 1 well has a 102 foot spacing advantage over the General American No. 1-A to the north. They also pointed out that there was no direct west offset to applicants’ No. 1, so that the situation to the west with the Gulf No. 16 being 219 feet west of the southwest corner was to applicants’ advantage over the normal situation. Protestants called attention that M. S. Barron, geologist, witness for applicants in the former hearing, testified that, considering the spacing all around applicants’ lease, applicants now had a spacing advantage. Gulf introduced density statements showing that the average density of all adjoining. leases is 1 well to 6.32 acres; the density of a square area 8 times the size of this lease is 3.02 acres per well; and the density of a circular 8 times area is 1 well to 2.81 acres, as compared to applicants’ present density of 1 well to 2.64 acres at this time. A second well would give applicants 1 well to 1.32 acres. Protestants contend that the location is not justified on spacing or on density or as an offset.
“The spacing requested is:
“141 feet north of the south line; 230 feet east of the west line.”
“May 8, 1939.
(In longhand: ‘reheard’)
“This lease is located in the East Texas Field where the spacing rule is 330 feet from lease lines and 660 feet between wells. Well No. 2 on this tract has been denied by the Commission on September 21, 1938, and March'25, 1939. A rehearing was granted by the Commission on April 20, 1939.
“Applicants offered the records made at the two former hearings and contended that the second well was justified on the ground of changed conditions. • The changed conditions which applicants pointed out was the drilling of General American Oil Co. Nos, 13, 14, 18, and 19 Sam Williams on the tract adjoining the applicants to the north and east. However, the file covering those wells was introduced and showed that the amended locations for Rióse wells were granted on October 29, 1938, and that wells Nos. 14, 18 and 19 were completed by January, 1939, prior to the second hearing on this No. 2 well. The No. 13 is now being drilled and is located approximately 2000 feet from applicant’s lease.
“Protestants contend that there has been no material change in surrounding conditions which would justify a reversal of the Commission’s former action since the four wells listed as constituting changed conditions had in fact already been granted, and three of them actually drilled prior to the second hearing, after which the well No. 2 was denied. Protestants further pointed out that the motion for rehearing was based on a request to submit further evidence and that no such evidence had been introduced by applicants. Protestants specifically pointed out the testimony of M. S. Barron to the effect that applicants’ No. 1 well had an opportunity to drain more area of the adjoining' leases than the wells on adjoining tracts had an opportunity to drain on applicants’ tract, which was given at the former hearing.
“The spacing desired is:
“141 feet north of the south line; 230 feet east of the west line.”

We have carefully examined the record introduced before the Commission upon the three hearings, the effect of which we find accurately stated in the above Examiner’s reports.- We not only fail to discover any evidence which would give substantial support to a finding that well No. 2 was necessary to prevent confiscation, but find, on the contrary, that the evidence conclusively shows that well No. 1 (even at its improper location) is amply sufficient to protect the vested rights of applicants in securing to them the recoverable oil in place under their land, or its equivalent, which is the full measure of their vested interest. While the evidence shows there was some excess drainage from wells to the south of the lease, it shows conclusively that this excess was more than compensated for by excess drainage of well No. 1 from tracts to the west, north, east, and southeast. If well No. 1 had been drilled at the granted location, 57 feet farther south, the excess drainage from the south would probably have been overcome entirely.

It is now a well settled rule, established by numerous decisions in this and other jurisdictions, that orders of an administrative board, to be valid, must be supported by substantial evidence introduced at a hearing before the board. Absent such substantial supporting evidence, such orders are arbitrary, unreasonable, and baseless. This doctrine has been many times announced by the Federal Supreme Court. We quote, in this connection, from Interstate Commerce Comm. v. Louisville & N. R. Co., 277 U.S. 88, 33 S.Ct. 185, 186, 57 L.Ed. 431, an early leading case upon the subject:

“But the statute gave the right to a full hearing, and that conferred the privilege of introducing testimony, and at the same, time imposed the duty of deciding in accordance with the facts proved. A finding without evidence is arbitrary and baseless. And if the government’s contention is correct, it would mean that the Commission." had a power possessed by no other officer, administrative body, or tribunal under our government. It would mean that, where rights depend upon facts, the Commission could disregard all rules of evidence and capriciously make findings by administrative fiat. Such authority, however beneficently exercised in one case, could be injuriously exerted in another, is inconsistent with rational justice, and comes under the Constitution’s condemnation of all arbitrary exercise of power.
“In the comparatively few cases in which such questions have arisen it has been distinctly recognized that administrative orders, quasi judicial in character, are void if a hearing was denied; if that granted was inadequate or manifestly unfair; if the finding was contrary to the ‘indisputable character of the evidence.’ ”

This rule has been applied in this state specifically to orders of the Commission upon applications to drill as exceptions to Rule 37. In Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 945, 99 A.L.R. 1107, our Supreme Court, speaking through Mr. Justice Sharp, said: “The decisions of the Railroad Commission on this question must be based upon proof, and must not be capricious of unreasonable. The mere holding of a hearing does not justify its action. If after a hearing the commission acts withbut regard to the evidence, or makes a ruling wholly unsupported by the evidence, it cannot be said to have exercised its discretion. And where it is shown that the commission has abused its discretion, or has acted illegally and issued a permit in violation of its rules, the courts are fully authorized to nullify the permit of the commission and prevent its enforcement. Shupee v. Railroad Commission, 123 Tex. 521, 73 S.W.2d 505; 42 Corpus Juris, pp. 691, 692.”

In Rabbit Creek Oil Co. v. Shell Petroleum Co., 66 S.W.2d 737, 740, this court, speaking through Justice Blair, held: “Rule 37, and particularly the statutes, require the commission to ascertain the facts with respect to waste as that term is used in the statutes before a permit to drill a well as an exception to rule 37 is granted. These duties are mandatory' under the statutes, and, until the commission has ascertained the facts prescribed by these statutes as to waste, it cannot grant a permit to drill a well as an exception to rule 37, and its order granting the permit in " question without ascertaining such facts is -deemed to be unjust, unreasonable, or arbitrary in law. Texas Motor Coaches v. Railroad Comm. (Tex.Civ.App.) 41 S.W. (2d) 1074.”

Again speaking through Justice Blair, this court, in Humble Oil & Refining Co. v. Railroad Commission, 83 S.W.2d 695, held: “Rule 37 and the statutes applicable, article 6014, and particularly article 6029 (Vernon’s Ann.Civ.St.), require the commission to ascertain the aforementioned facts before it grants a permit to drill a well as an exception to rule 37; and its order granting the permits in question without ascertaining such facts would be deemed to be unjust and unreasonable, or arbitrary in law.”

The following quotations are from opinions'of this court (Justice Baugh writing), the first from Empire Gas & Fuel Co. v. Railroad Commission, 94 S.W.2d 1240, 1243, error refused, and the second from Turnbow v. Barnsdall Oil Co., 99 S.W.2d 1096, 1098, error refused:

“Appellant offered in evidence the recommendation of the deputy supervisor of the commission, who heard the evidence on appellee’s application for its permit, and also a transcript of the testimony heard by him, duly authenticated by the reporter for the commission, under its allegation ■ that the commission acted without evidence in granting such permit. This evidence was excluded. In this we think the trial court erred.”
“Oh the first question [the admission in evidence, over objection,. of the transcript of tire proceedings before the Railroad Commission], an'examination of the plaintiff’s petition discloses an allegation, in addition to want of notice and hearing, that, if such hearing were had, ‘there was no evidence introduced at the hearing before the Railroad Commission * * * showing that said two wells, or either of them, were needed to prevent confiscation,’ etc. This is the exact question presented] and decided adversely to the Attorney General’s contention, in Empire Gas & Fuel Co. v. Railroad Commission (Tex.Civ.App.)] 94 S.W.(2d) 1240 (writ refused), and need not be further considered here.”

The' stated ground for the injunction — that the well as drilled was not located actually or substantially as authorized — is sustained under the holding in Railroad Commission v. Magnolia Petroleum Co., Tex.Civ.App., 125 SW.2d 398, error refused.

The order appéaled from is set aside and the temporary injunction granted as prayed for. The clerk will issue the temporary injunction upon appellant’s filing a bond, conditioned and payable as required by law, to be approved by the clerk, in an amount agreed upon by the • parties, or fixed by the court upon hearing, if the parties fail so to agree.

Temporary injunction granted.


author: ALEXANDER, Justice.

text:
    CAIN v. CAIN.
    No. 2182.
    Court of Civil Appeals of Texas. Waco.
    Nov. 23, 1939.
    Rebearing Denied Dec. 21, 1939.

      Purl & Pearson, of Corpus Christi, and W. B. Halbig, and Frank Vaughan, both of San Antonio, for plaintiff in error.
    Sidney P. Chandler, of Corpus Christi, and Ñaman, Howell & Boswell, of Waco, for defendant in error.
   ALEXANDER, Justice.

This suit was brought by J. Wilbur Cain against Norma Cain for divorce, for partition of their community property, and for custody of their minor child, Nell Kel-leen Cain. A trial before the court without a jury resulted in judgment in favor of the plaintiff for divorce and for partition of the community property, but the defendant was awarded the custody of the minor child, subject to certain limitations. Each of the parties sued out a writ of error.

Mrs. Cain, the defendant, contends that the judgment of the trial court is invalid because it was rendered after the expiration of the term at which the trial was begun and no valid order was entered extending the term. The trial was begun during the May 1938 term and the introduction of evidence was concluded on June 22nd. The court took the case under advisement and on June 25th, the last day of the May term, entered an order reciting that the court was in the midst of the trial of said cause and ordering the term extended “until the conclusion of such pending trial.” Final judgment was rendered on July 18th. The order extending the term of court appears to have been made in compliance with the provisions of R.S. art. 1923, and was therefore valid. 11 Texjur. 805; Gulf, C. & S. F. Ry. Co. v. Muse, 109 Tex. 352, 207 S.W. 897, 4 A.L.R. 613.

The defendant assigns as error the failure of the trial court to file findings of fact and conclusions of law as is now required by Revised Statutes, art. 2247, as amended by Acts 1931 42nd Leg., p. 118, ch. 76, sec. 1, Vernon’s Ann.Civ.St. art. 2247. As above stated, final judgment was rendered on July 18th. A motion for new trial was filed on July 22nd, but it does not appear that the motion was ever acted upon. The judgment was entered in the Minutes on September 13th. On the last named date defendant filed a written request for the filing of findings of fact and conclusions of law. On the same day the court entered an order granting the request, but did not at any time thereafter file such findings and conclusions. The defendant filed her petition for writ of error on October 12th, and service thereon was completed October 28th. The plaintiff filed, his petition for writ of error on October 27th, and service thereon was completed November 2nd. On December 8th the defendant filed in the lower court a notice to the trial judge that findings of fact and conclusions of law had not been filed in accordance with her previous request and the defendant therein again requested that such findings be filed. The trial judge signed an order on December 8th, reciting that the last above mentioned notice had been called to his attention October 12th. Revised Statutes, art. 2247, as amended, reads as follows: “When demand is made therefor, the Judge of a District or County-Court thirty days before the time for filing transcript in the cause shall prepare his findings of fact and conclusions of law in any case tried before the Court. If he shall fail so to prepare them, the party so demanding, in order to complain of the failure, shall, in writing, within five days after such period, call the omission to the attention of the Judge, whereupon the period for due preparation and filing shall be automatically extended for five days after such notification.” The time for filing the transcript in the court of appeals began to run on completion of service of citation in error and expired sixty days thereafter. Revised Statutes,- art. 1839, as amended, Acts 1933, 43rd Leg., p. 142, ch. 67, Vernon’s Ann.Civ.St. art. 1839. As above stated, service of citation on defendant’s petition for writ of error was completed on October 28th, and on plaintiff’s petition for writ of error on November 2nd. We will use the last above named date for the purpose of determining when the trial judge should have been notified the second time to file his findings of fact and conclusions of law because that date is more favorable to Mrs. Cain than would be the date of October 28th. Since service was completed on November 2nd on the plaintiff’s petition for writ of error, the time for filing transcript in the court of appeals expired on January 1st. Under the provisions of Revised Statutes, art. 2247, as amended, the trial judge had until December 2nd (thirty days prior to January 1st) in which to file his findings of fact and conclusions of law, and upon his failure to do so, the defendant had five days thereafter, or until December 7th, in which to give the second notice provided for in the statute. . If the second notice was called to the attention of the trial judge on October ■12th, as recited in the judge’s order, it was made prior to the expiration of the thirty day period allowed the trial judge for the filing of his findings of fact and conclusions of law and was therefore too soon. If the second request be considered as having been given on December 8th, the date on which the judge signed the order reciting that the matter had been called to his .attention on October 12th, it came too late because it was given after the expiration of the five day period allowed for the second notice. It has been held that a compliance with the provisions of Art. 2247, as amended, is essential in order to authorize a reversal on account of the failure of the trial court to file such findings. 41 Tex.Jur. 1260; Eaton v. First National Bank, Tex.Civ.App., 85 S.W.2d 268; Gourley v. Eastman, Tex.Civ.App., 70 S.W.2d 305. For these reasons, this assignment must be overruled.

The defendant challenges the sufficiency of the evidence to authorize the granting of a divorce in favor of the husband. There was evidence that on two different occasions' Mrs. Cain had struck her husband, once with a chair and another time with a stew pan; that' she had purposely embarrassed her husband in public many times; that she had mutilated her clothes and provoked an argument between her husband and a neighbor by accusing the neighbor of destroying the clothes;’ and that she was extremely careless in her own personal hygienic habits. It would serve no useful purpose for us to set out the evidence any more in detail, but it is sufficient to say that it was ample, if believed by the court, to justify the granting of the divorce, Yosko v. Yosko, Tex.Civ.App., 97 S.W.2d 1023; Hyatt v. Hyatt, Tex.Civ.App., 111 S.W.2d 341; McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459; Burns v. Burns, Tex.Civ.App., 76 S.W.2d 821; Parks v. Parks, Tex.Civ.App., 55 S.W.2d 242.

In December 1936, the plaintiff J. Wilbur Cain’s mother and father deeded to J. Wilbur Cain and his sister, Lena Frances Cain, certain lots in the city of Corpus Christi, referred to in the statement of facts as the “downtown property.” This deed was executed after the marriage of the plaintiff and defendant and for that reason the defendant contends that the property was community property and that the trial court should have awarded her a one-half interest therein. The deed re-, cites a cash consideration of $1Q and “the further consideration of the love and affection which we bear for the said J. Wilbur Cain and Lena Frances Cain” and the further consideration that the grantees assumed and agreed to pay an outstanding indebtedness against the property in the sum of $10,000. The deed was accompanied by a letter from the father and mother to the children, which showed unmistakably that the property was a gift from the parents to the children. Under these circumstances, we think the lots in question became the separate property of the said J. Wilbur Cain and his sister, and that by reason thereof the court did not err in awarding it exclusively to the plaintiff J. Wilbur Cain. Leinneweber v. George, Tex.Civ.App., 95 S.W.2d 478, 479; White v. Hebberd, Tex.Civ.App., 89 S.W.2d 482; Janes v. Gulf Production Co., Tex.Civ.App., 15 S.W.2d 1102; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620.

The plaintiff complains of that part of the judgment which awards the custody of the minor child to Mrs. Cain. In matters of this kind, the welfare of the child is the paramount issue. We recognize that the evidence above referred to tends to reflect to some extent on Mrs. Cain’s suitableness to care for the child, but the record also reflects that the plaintiff’s character is likewise not without its blemishes. There was evidence that at times he drank intoxicating liquor to excess and on one occasion indulged in conduct unbecoming to a married man. The trial court was apparently attempting to make the best of a difficult situation and we cannot say as a matter of law that error was committed in awarding tho custody of the child to the mother. The child is a girl only five years of age. It is generally held where other things are equal, preference should be given to the mother in awarding the custody of the child, especially where it is of tender years, and this rule prevails notwithstanding the divorce may have been granted to the father. Swift v. Swift, Tex.Civ.App., 37 S.W.2d 241, par. 6, and authorities there cited. The record discloses that Mrs. Cain has heretofore suffered with tuberculosis, but that at the time of the trial the disease was in an arrested state. The plaintiff has expressed a fear that the minor child may contract the disease if allowed to remain with her mother. There was testimony to the effect that the child was in no danger of infection so long as the disease was in an arrested state. The trial court, in the decree awarding the custody of the child to the mother, provided for monthly physical examinations of both the mother and the child for a period of eighteen months in the future, and this ought to be sufficient to properly protect the health of the child. If conditions should change in the future, the jurisdiction of the trial court may be invoked for a reawarding of the custody of the minor child. This assignment is overruled.

There is no error in the judgment of the court allowing a fee of $600 to the attorneys who represented Mrs. Cain in the suit. It is not contended that the suit was not defended in good faith. It does not appear that she has sufficient separate property to pay the fee. In addition to the matter of the divorce and the custody of the child, the title to considerable separate property was involved, and the fee of $600 is therefore not unreasonable. 15 Tex.Jur. 653, 655.

We have considered all other assignments and find no reversible error.

The judgment of the trial court is affirmed.


author: LESLIE, Chief Justice.

text:
    CLARK v. CITY OF EASTLAND.
    No. 1950.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 10, 1939.

      • Jack W. Frost and R. L. Rust, both of Eastland, for appellant.
    Frank Sparks, of Eastland, for appellee.
   LESLIE, Chief Justice.

; Mrs.. Alice C. Clark instituted this suit against the. City of Eastland, a municipal corporation, for damages to her health and homestead property resulting from an alleged maintenance by the City of its dump ground adjoining her property.' The defendant entered a . general denial and alleged certain special 'defenses. ■ .

' At a trial before- the court and jury, judgment was rendered in favor ■ of the defendant'’’tul the jury’s answer to special issu'és. ■

In response to some of the issues the jury found that the odor or smoke cpm-plained of did not materially interfere with the'physicál comfort of the plaintiff residing on her property, injure her health or property. And, in response to - the last issue inquiring the amount of damages or injury, if any, the jury answered “none.”' Other facts necessary to reflect the disposition made of the different assignments of error will be stated in the discussion of the same.

The first' and second propositions pertain to the admission of testimony, the assignment challenging the ruling of the court in admitting in evidence,.over plaintiff’s objection, Mrs. Clark’s rendition of her property at a valuation of $150. The assignment is to the effect that counsel for defendant propounded to Mrs. Clark, Mr. C. L. Noble and Mr. Kelley the question “Did not Mrs. Clark render the property for $150?” If such question was propounded to either of the witnesses, neither that fact nor the ruling of the court is perpetuated by a bill of exception in the old form, or a Q & A or narrative record.

The plaintiff alleged that the market value of her homestead, prior to the city’s use of the adjoining land as a dump ground, was $2500, and its reasonable rental value was $300, and that the dump ground as-used by the city had destroyed the cash market value of her property, as well as its rental value. Therefore, if any implications are to be drawn from the record sustaining the assignment that such question was asked, then such evidence was ap-' parently offered as a declaration against interest, Mrs. Clark having alleged the market value, offered evidence to'that effect and further-testifying that “I rendered my house for taxes. I have rendered it for taxes since my husband’s death.”

As declarations against interest, there was no error in the admission of this testimony under the circumstances of-this case as may be seen from the following au-. thorities: • Boyer & Lucas v. St. Louis, S. F. & T. R. Co., 97 Tex. 107, 76 S.W. 441; Gulf, etc., Co. v. Koch, Tex.Civ.App., 144 S.W. 1035; Ft. Worth & D. C. R. Co. v. Hapgood, Tex.Civ.App., 201 S.W. 1040; Ft. Worth & D. S. P. R. Co. v. Gilmore, Tex.Civ.App., 13 S.W.2d 416; 17 Texjur.' p. 458, § 173, and numerous authorities cited in the foot note..

By the third proposition the contention is made that there is a conflict in the answers of the jury to special issues 1 and 2, thereby destroying any basis for a judgment, and that the court erred in not granting a new trial by reason thereof.

Special issue No. 1 was as follows: “Do you find from a preponderance of the evidence that offensive odors or stifling smoke caused- by defendant in maintaining its dump ground on the 17.56 acre tract described in plaintiff’s petition came upon plaintiff’s property and/or in contact with plaintiff since the 26th day of April, 1936?” This was answered “Yes” by the jury.

Special issue No. 2 was as follows : “Do you find from a preponderance of the evidence that such offensive odor or stifling smoke, if any, were such, as would materially interfere with the physical comfort of plaintiff residing on her property or injure her health or property?” This was answered “No” by the jury.

These issue's followed the plaintiff’s pleadings and she made no objection to the form and manner of their submission. The “and/or” question thus answered leaves considerable doubt as to what, if anything, the jury found in response thereto.

Discarding the second “or” the jury may have intended to find that either said odors or smoke came upon plaintiff’s property and in contact with plaintiff since the 26th day of April, 1936. Discarding the “and” the jury may have intended to find that either the odors or smoke (1) came upon plaintiff’s property since the 26th day of April, 1936, (2) or came in contact with the plaintiff since the 26th day of April, 1936. In substantial respects the submission and verdict is like that considered in Riske et al. v. Rotan Groe. Co., 37 Tex.Civ.App. 494, 84 S.W. 243, 244, wherein it was said: “Like the first, the sixth special issue presented two questions to the jury, viz.: (1) Was the sale of the stock of goods to the defendant Riske made for the purpose of defrauding creditors? or (2) was it made to secure the payment of a valid and existing debt? Instead of answering these questions separately, the jury gave one general answer in the negative, which leaves it uncertain as to what answer they intended to make. If they intended to give a negative answer to the first question, then the plaintiff was not entitled to any judgment against the defendant Riske.”

But the. question here raised is one Of conflict, and we do not believe that vice necessarily inheres in the verdict. By the answer to issue No. 2 (considered in connection with its answer to issue No. 1) the jury may have intended to find (1) that the odor or smoke did not materially interfere with the physical comfort of the plaintiff residing on her property, (2) that the odor or smoke did not injure her health, or (3) did not materially injure her property. If by its verdict the jury meant that the odor or smoke came upon her property and in contact with the plaintiff but did not materially interfere with her physical comfort, injure her health, or property (as found in issue No. 2), the jury was but making a finding in accordance with their estimate of the testimony, exercising their function in judging the facts proved, the credibility of the witnesses and the weight to be given the testimony. The same is true under other sup-posable findings which the jury made in response to the issues submitted in the alternative manner pointed out. Some of the supposed findings in response to the respective issues could be true and still no material conflict exist. 41 Tex.Jur. p. 1226, § 361.

Further, in the manner of submission followed, the distinction between nuisances affecting property and nuisances affecting personal enjoyment was disregarded. As stated in 46 C.J. p. 668, § 32: “When taking into consideration the locality, it is important and very desirable to consider whether the acts complained of in any particular case cause an injury to property or only to the personal comfort of the complaining party. With regard to the latter, whether the acts complained of may or may not be denominated a nuisance may depend greatly upon the circumstances of the place where the thing complained of actually occurs, and the person complaining of a personal annoyance may have to submit, in the interest of the public generally, to the discomforts usually incident to the circumstances of the place and the trades carried on around it. But the same rule does not apply where the injury is to property ⅜ ⅜ ⅜ *

However, ■ as stated no objection was' made to the form and manner of the submission of the issues and we merely pass upon the question of conflict in the answers to the issues, finding that such doe? not necessarily exist. .

The fourth and fifth propositions challenge the ruling of the court in refusing to sustain a special exception to the defendant’s pleading to the effect that it (the city) used its refuse and disposal ground “in the same manner and in the same degree of care that all other municipalities in West Texas” used theirs. The point made is that such pleadings did not set forth “the correct legal standard of conduct.” In portions of her pleadings the plaintiff alleged that “defendant is and has at all times been negligent in so using same (dump ground) for the purposes above stated.” The allegations complained of seem to relate to testimony believed to be admissible under a general denial on material issues in the case, and they do not appear to be offered as setting forth a complete defense or standard of conduct amounting to such. Passing over for the present the fault incident to alleging evidence (a question not raised here), the materiality and admissibility of evidence of conduct and usage of others, is upheld in Moore v. Coleman, Tex.Civ.App., 195 S.W. 212; Texas Law of Evidence (McCormick & Ray) p. 906, § 698, and cases there cited.

In the Moore case it was held, in a suit to restrain the operators of a cotton gin as a nuisance, that evidence that the ordinary cotton gin makes and scatters dust, dirt and lint and makes a certain amount of noise in its operation, was admissible. By analogy, we think the pleadings here stated a character of testimony admissible, even under a general denial, on issues raised by the plaintiff’s pleadings. With this we think the proposition might well be overruled as immaterial and harmless. Williams v. Rodocker, Tex.Civ.App., 84 S.W.2d 556.

Bearing directly upon admissibility and materiality of the testimony (reflected by the pleading), from the opinion in Cameron Compress Co. v. Whitington, Tex.Com.App., 280 S.W. 527, 528, cited by the text on Evidence, we take the following concerning the usage and conduct of others as evidence: “Such conduct of others in the same, business — i. e., under similar circumstances, in respect to the methods and facilities employed — is provable along with other facts showing the ‘tendency of the thing as dangerous, defective, or the reverse.’ But it is evidence, and not more (except in rare instances), and the jury is at liberty (if there be evidence of contrary import) to find negligence despite the proof of custom. That function remains in the jury because the substantive law has prescribed the standard of conduct whereby existence, or absence of negligence must be determined, and that standard remains unchanged by proof of the conduct of others similarly situated. Yet, while the standard of conduct remains fixed, and (as fixed) determinative of the question of liability, the evidence of the relevant customary practices of others is admissible because it throws some light on the nature of the thing in question; i. e., ‘it indicates what is the influence of'the thing‘on the ordinary person in that situation.’ Wig-more, Id. When the essential predicate has been laid, the proof ought to be received as evidence; but, once admitted, it should not be allowed to fix the ‘rule of conduct by which the jury are to be limited and governed.’ Maynard v. Buck, 100 Mass. 40. Despite expressions of some apparent meaning to the contrary which may be found in our cases, we believe this rule and its application so as to permit the proof of custom alleged (but not as conclusively establishing negligence or the reverse) has ample support in Texas adjudications.” Citing many authorities.

We have thus written because the appellant insists that the challenged pleading set up “an incorrect legal standard of conduct.” It may be the authenticated records in this case do not clearly reflect the contentions presented but the matters excepted to in the pleadings are believed to be such as might be introduced in evidence, and, as pointed out, the ruling of the court should not, .in any event, be regarded as prejudicial error. If error at all, it was immaterial and should not work a reversal of the judgment. In its answer to more than one issue submitted, the jury, in effect, found that the plaintiff had suffered no injury .or monetary damages. We have read the entire statement of facts and find the evidence abundantly supports the verdict. The finding that no damages were suffered is not challenged by the plaintiff as being contrary to all the evidence or as against the great weight and preponderance of the same.

For the reasons assigned the judgment of the trial court is affirmed.


author: HAWKINS, Presiding Judge.

text:
    Ex parte GALLOGLY.
    No. 20855.
    Court of Criminal Appeals of Texas.
    Dec. 20, 1939.
    Leake, Henry & Young, of Dallas, and Martin, Moore & Brewster, of Fort Worth, for relator.
    Ellis Arnall, Asst. Atty. Gen., of State of Georgia, Herschel E. Smith, Asst. Atty. Gen., of State of Georgia, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

This is an original application for bail pending appeal .to the Court of Criminal Appeals from an order of a District Judge remanding relator in an extradition proceeding.

Relator had been convicted in the State of Georgia in two cases of murder, a life sentqnce in the penitentiary having been assessed in each case. He escaped from the penitentiary, came to Texas and then surrendered himself to the Sheriff of Dallas County, Texas. The Governor of Georgia issued a requisition to the Governor of Texas seeking relator’s return to the State of Georgia. The requisition was honored and the Governor of Texas issued an extradition writ directing that relator be delivered to the agents of the State of Georgia to be returned to said state. Relator then obtained from the Hon. Grover Adams, Judge of the Criminal District' Court of Dallas County, Texas, a writ of habeas corpus upon an averment that he was illegally restrained of his liberty. Upon a hearing Judge Adams remanded relator to the agents of the State of Georgia. Relator gave notice of appeal from said judgment to the Court of Criminal Appeals of Texas, and requested said trial judge to fix bond for relator to the end that he might be released from custody pending said appeal. The trial judge denied the request that bail be allowed. Relator now presents to this court an original application for writ of habeas corpus contending that he is entitled to bail pending said appeal and that this court should fix the amount of bond and order his release upon giving same, and that he should go at liberty until this court determines the validity of the judgment in the habeas corpus proceeding.

Relator predicates his contention that he is entitled to bail pending appeal on an Act of the 40th Legislature, 1927, page 66, Ch. 43, Sec. 1, and appearing in Vernon’s Ann.Tex.C.C.P., Vol. 3, as Art. 857a. For convenience it will be hereafter referred to as such article. It reads as follows: “In any habeas corpus proceeding in any court or before any judge in this State where the defendant is remanded to the custody of an officer and an appeal is taken to an Appellate Court, the defendant shall be allowed bail by the court or judge so remanding the defendant, except in capital cases where the proof is evident. The fact that such defendant is released on bail shall not be ground for a dismissal of the appeal except in capital cases where the proof is evident.”

Section 2 of the original Act reads as follows: ’ “The fact that under present laws very frequently a defendant must lie in jail for a long period of time while an appeal is taken to an appellate court from an order or judgment remanding the defendant to the custody of an officer and in many cases this is true where the offense is a minor one, creates an emergency and an imperative public necessity that the Constitutional rule requiring bills to be read on three several days in each House be suspended and said rule is hereby suspended and that this Act shall take effect and be in force from and after its passage, and it is so enacted.”

Relator takes the position that the application given said Art. 857a in Ex parte Anderson, 133 Tex.Cr.R. 589, 113 S.W.2d 551- — an extradition case — is binding on this court and is direct authority supporting his request for bail. It will be observed that Anderson was not an escaped felony convict. It was sought to return him to the State of Minnesota to answer a felony charge there pending against him. The presumptions of innocence were still operative in his favor. Here the judgments of conviction against relator upon two charges of murder with life imprisonment in each case entirely change the presumption. Said judgments are presumptively correct and have fixed relator’s status as a convicted felon. So the question here is, should the statute invoked be so construed as to entitle relator to be enlarged on bail while his record on appeal is being prepared for submission to this court for us to determine thereon whether he go back to Georgia to continue serving the sentence there imposed? We think the Anderson case is not controlling here.

In Section 11, Article 1 of the Bill of Rights, Constitution of the State of Texas, Vernon’s Ann.St., it is provided: “All prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.”

In 1874 it was provided in the Code of Criminal Procedure that when a defendant appealed in any case of felony he should be committed to jail until the decision of the Supreme Court could be made, the Supreme Court of the State at that time having jurisdiction in criminal as well as civil matters. In Ex parte Ezell and Ivey, reported in 40 Tex. page 451, 19 Am.Rep. 32, it is disclosed that Ezell and Ivey had been convicted of a. felony in the District Court of Travis County, Texas, and had given notice of appeal to the Supreme Court. They made application for bail after conviction to the district judge and upon refusal they applied to the Supreme Court for a writ of habeas corpus; their contention being that under the provision of the Bill of Rights heretofore quoted that they were entitled to bail pending their appeal and that the statute referred to was unconstitutional as infringing upon the provision of said Bill of Rights. Notwithstanding the inclusive language found in the Bill of Rights to the effect that “all prisoners” should be entitled to bail the Supreme Court held that it had reference only to prisoners before conviction of felonies and that such unconvicted were alone those designed by such provision to be secured the absolute constitutional right of bail. Judge Roberts in the opinion construing the provision of the Bill of Rights in question quoted, in part, with approval from an opinion of the court of North Carolina to the effect that such provision evidently related to prisoners before conviction “for after conviction there is no such thing as proof and presumption.” The court denied the application of Ezell and Ivey for bail.

Under our present Code of Criminal Procedure Art. 815 permits bail pending appeal where punishment of accused has been assessed at confinement in the penitentiary for any period of fifteen years or less. In the event punishment be assessed at a term of more than fifteen years accused upon appeal could make the same application for bail under the same provision of the Bill of Rights as was invoked by Ezell and Ivey. If accused should attempt to present the matter by application for writ of habeas corpus to a- trial judge and were remanded without bail, then upon notice of appeal to this court he could present exactly the same contention as relator in this case urges; that because it was an appeal in a habeas corpus matter Article 857a of the Code of Criminal Procedure was applicable, and notwithstanding the restriction of Article 815, C.C.P., heretofore referred to, he would be entitled to release upon bail pending a hearing of his appeal. It is significant, we think, that in enacting Article 857a the Legislature adopted the same language found in Sec. 11, Art. 1 of the Bill of Rights, to the effect that the defendant remanded under a writ of habeas corpus should be allowed bail “except in capital cases where the proof is evident.” This language itself, in the light of the 'holding in Ex parte Ezell and Ivey, supra, would justify this court in reaching the conclusion that the Legislature had in mind the release upon bail of parties appealing in habeas corpus proceedings prior to felony convictions.

Illustrations of the unsoundness of relator’s contention, we think, might be multiplied. While it is true that the convictions dealt with in the present instance are those occurring in a sister state, yet the judgments of convictions under such circumstances are entitled to the same faith and credit as must be awarded to judgments in our own courts. An accused convicted in the district court of our cton state of a felony and sentenced to the penitentiary for fifty, or seventy-five years, or for life, and while serving such term, might present an application for writ of habeas corpus to the trial judge and be remanded to the penitentiary authorities after a full and fair hearing thereof, and with no semblance of merit in his application, yet give notice of appeal to this court, and because it was a proceeding in habeas corpus he could under relator’s contention here invoke Article 857a and insist that the trial court or the Court of Criminal Appeals should turn him out 'of the penitentiary on bond while this court was determining whether or not he ought to remain in the penitentiary.

In Ex parte Roark, 124 Tex.Cr.R. 374, 61 S.W.2d 833, and Ex parte Crawford, 134 Tex.Cr.R. 508, 116 S.W.2d 748, it was held that notwithstanding the liberality of the language in the Bill of Rights, Section 11, Art. 1 (supra), an insane party was not entitled to bail pending appeal. Art. 857a, C.C.P., was not discussed in either of the opinions. It might be contended, however, that if a party adjudged to be insane should seek enlargement through a writ of habeas corpus presented to a trial judge, and, although remanded to the custody of the asylum authorities upon evidence which showed him to be violently and dangerously and homicidally insane he could request bail and if denied it by the trial judge, he could because it was a habeas corpus proceeding, invoke the provision of Art. 857a, C. C. P., and insist that he be enlarged upon bail while this or some other appellate court was determining . whether he should in fact remain in the asylum.

It follows from what has been said that we do not believe that the article in question has application in the present instance where relator has escaped while serving a term on felony conviction in a sister state.

The application for bail is refused.