author:
TODD, Judge. LEWIS, Judge,
      SHRIVER, Presiding Judge,

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY, Petitioners, v. TENNESSEE PUBLIC SERVICE COMMISSION, Respondent.
    Court of Appeals of Tennessee, Middle Section.
    Jan. 3, 1979.
    Certiorari Denied by Supreme Court March 19, 1979.

      T. G. Pappas and J. 0. Bass, Jr., Bass, Berry & Sims, Raymond Whiteaker, Jr., Gen. Atty., Nashville, for petitioners.
    Eugene W. Ward, Gen. Counsel, Thomas E. Midyett, Jr., Asst. Gen. Counsel, Public Service Commission, Nashville, for respondent.
   OPINION

TODD, Judge.

The Tennessee Public Service Commission denied an application of South Central Bell Telephone Company for a rate increase. South Central filed a petition for review in the Chancery Court. The Chancellor reversed and remanded for reconsideration by the Commission. The Commission has appealed.

A brief chronology of proceedings will contribute to an understanding of the issues on appeal.

A previous application for rate increase was filed on November 4, 1976, and the Commission rendered its decision thereon on May 4, 1977. This former proceeding is referred to in the record and briefs and has some relevance to the present proceeding; however, records of the former proceeding or the results thereof are not a part of this record.

On July 1, 1977 (58 days after the previous decision by the Commission) South Central filed with the Commission a petition for approval of rate increases in the total amount of $92,000,000.00 per year. The petition, itself, specifies no details of the proposed rate increase, but refers to “rates to be filed with the Commission.” The voluminous record does contain a volume entitled, “proposed tariffs”, and an analysis of the revenue expected to be generated by increases in charges for various services identified by code letters, but nothing has been found in the record to show the amount of present rates in conjunction with amount of proposed increase and proposed new rates. In short, this Court has been unable to ascertain from the record the exact amount of the proposed increase in any given size telephone bill. This difficulty is a significant detail but not material or determinative of the questions on appeal.

On December 30, 1977, after extensive investigation and hearings, two of the Commissioners disapproved of the proposed increase and filed a majority opinion. The third Commissioner’s dissenting opinion approved an increase of $32,992,000.00.

On February 17, 1978, the Company filed its Petition for Review in the Chancery Court.

On March 17, 1978, the Chancellor entered an order denying an application of the Company to place the proposed rates into effect pending the final disposition of the cause, or in the alternative, to place into effect increases to the amount of $32,992,-000.00 per year.

On September 26, 1978, the Chancellor entered an order providing:

1. The order of the Commission is declared illegal and void as confiscatory and is vacated and set aside.
2. The cause is remanded to the Commission for setting just and reasonable rates.
3. The Company is authorized to place in effect as of October 6, 1978, all of its proposed rates except pay phone rates and charges for directory assistance.
4. The Company is required to give bond for the refund of any increases not ultimately approved with 8.7% interest.

The Commission appealed from the action of the Chancellor and, pending the appeal, this Court superseded and suspended the part of the Chancellor’s order allowing implementation of proposed rate increases.

Filing of briefs on appeal was completed on November 16, 1978, and; with the consent of counsel, oral argument was specially scheduled and heard on December 1, 1978. The cause has been accorded precedence and its disposition has been expedited to the utmost possible extent by this Court.

The Commission has filed the following assignments of error:

“1. The Chancellor erred in overruling the Tennessee Public Service Commission’s motion to strike portions of the Petition for Review and appendices attached thereto which attempted to bring before the Court the transcript of the deliberative session of the Tennessee Public Service Commission pursuant to TCA 8-4401, et seq.
2. The Chancellor has exceeded his jurisdiction.
3. The Chancellor erred in mandating to the Commission specific test period adjustment methodology and in requiring the Commission to consider and set rates based upon company estimates of future expenses and investment.
4. The Chancellor erred in finding that the Commission's Order did not take into account nor make proper provision for the effect of attrition.
5. The Chancellor erred in finding that the rate of return found by the Commission is not supported by substantial and material evidence.
6. The Chancellor erred in finding that a rate of return can be within the zone of reasonableness but yet not be “fair” and therefore be confiscatory.
7. The Chancellor erred in concluding that the company will earn only 7.5% to 7.6% in 1978.
8. The Chancellor erred in finding and concluding that the Commission’s Order was illegal and void.”

The first assignment of error complains that the Chancellor considered the record of a “deliberative session” of the Commission which was not a proper part of its record of proceedings. However, the Commission fails to point out, as required by the Rules of this court, wherein such action of the Chancellor was prejudicial to the Commission.

T.C.A. § 4-514(f) contains a list of seven (7) classes of items which shall be included in the “record” in a contested (administrative) ease. The making or preservation of a record of the informal conference discussion of a decision is not deemed to be mandatory under ordinary circumstances. However, when the parties are present to hear such discussion or same is recorded by the Commission, counsel have presented no valid reason, and none occurs to this Court, why it is reversible error for the reviewing court to consider such record to the extent that it may be material to the issues on review.

This Court is not impressed that the refusal to strike the record of “deliberative session” resulted in prejudice to the Commission.

The first assignment of error is respectfully overruled.

As to the second assignment of error, counsel has again ignored the Rules of Court which require that each assignment of error specify where in the record the alleged error occurred, wherein the action was erroneous, and wherein the appellant was prejudiced by the alleged error. The 124 page brief of appellant is a ponderous and heavily documented treatise on the subject of utility regulation, but it is not specific as to the second assignment. It is assumed that the gravamen of the assignment is that some aspects of the Chancellor’s decision were outside his prerogatives in review of administrative decisions. If so, the error, if any, should appear from other, more specific assignments.

For lack of specificity and non-conformity with the Rules of this Court, the second assignment is respectfully overruled.

The third assignment likewise lacks conformity to the Rules of this Court, but an effort will be made to deal with the question presented therein.

The order of the Chancellor makes no specific reference to the matters complained of in the third assignment. The only pertinent language in the order is as follows:

“2. This cause is remanded to the Tennessee Public Service Commission for further proceedings for the purpose of setting rates that are just and reasonable for South Central Bell Telephone Company as required and provided by law.” (TR 139-A)

There are no other words in the order which remotely suggest a “mandate”.

The “Memorandum” of the Chancellor, incorporated by reference into his order, under the heading, “The Test Period”, contains the following material statements:

“The Commission contends that there is no accepted rule that a Commission can follow in selecting a test period. The petitioner agrees with that conclusion and so does the Court. Selection of a test period is simply a way accountants go about matching the property of the utility used in serving its customers with the revenues and expenses connected to such service.
However, rates are set for the future. “The propriety or impropriety of a test period or a test year depends upon how well it accomplishes the objective of determining a fair rate of return in the future.” (citing authorities)
The words most often used in the cases are “but also for a reasonable time in the immediate future.” (citing authority) Where the order of the Commission entered on December 30, 1977 sets the rates for the company, the Court is of the opinion that the year 1978 is a “reasonable time in the immediate future” which must be taken into account in the Commission’s order. This does not mean that the year 1978 must be the test period; it simply means that the test period results must be adjusted to take into account known changes that are likely to occur in the immediate future, (citing authority)
The Commission argues that the test period need only be adjusted to take into account the changes up until the time of the order. The Court is of the opinion that the authority cited above answers that contention contrary to the position of the Commission. A rate order which only takes into account the changes that have taken place before the effective date of the order and ignores changes reasonably certain to occur after the date of the order is looking backward and not to the future.
. Only two days after the entry of the Commission’s order the company was obligated to pay increased medical insurance premiums, wages, and unemployment compensation. The wage contract with the Union included increases certain to take place in 1978. The construction program of the company projected heavy expenditures for 1978. Although the Commission seeks to minimize this item due to the control exercised over it by the company management, the Court is of the opinion that the estimated effect of the construction program (both for the last nine months of 1977 and for 1978) should have been included in the rate base. To ignore these expenses and changes reasonably certain to occur fails to follow the basic purpose of rate making; to set rates for the future.” (TR 127, 128, 129, 130, 131)

This Court interprets the quoted language of the Chancellor’s Memorandum to state that the estimated effect of reasonably expected increases in expenses and investment should be taken into consideration in the establishment of a rate structure for the future. So interpreted, it is difficult to conceive how any reasonable person, much less a knowledgeable utilities commission, could differ with the Chancellor’s quoted statements.

The Chancellor did not state that the Commission should set rates based upon company estimates of future expenses and investment. He merely stated that the Commission should take into consideration the estimated effect of reasonably expected expenses and investments. Moreover, there is nothing in the Chancellor’s Memorandum or order which precludes the Commission from refusing to consider any proposed expense or investment which is deemed by the Commission to be unnecessary, improvident or improper. The opinion of the Commission is replete with instances in which the Commission made such determinations as to other matters, and there is nothing in the Chancellor’s Memorandum or order to forbid reasonable determinations as to future expenses and investments.

For the reasons stated, the third assignment of error is respectfully overruled.

The fourth assignment apparently concedes that the Commission was obligated to consider attrition, but insists that proper consideration was given to this aspect of the case.

The Chancellor’s Memorandum states:

“Attrition is a term now familiar to rate regulation since inflation and expansion have become a fact of life. The term describes a decreasing return to the company in the future, at fixed rates, because the cost of building lines and installing telephones will inevitably rise while the income produced by that telephone remains the same. In addition, old lines and telephones are constantly coming out of service as old buildings are torn down, massive relocations are necessitated by construction projects in urban areas, and whole neighborhoods change where telephones were in service. Revenue generated by that investment, which is far below the present cost, is lost. Although generally treated separately in rate orders, perhaps attrition is only one facet of the requirement that a rate order look to the future rather than the present or the past. A forward looking order to forecast the property in use and the revenue it produces is one method of compensating for the effect of attrition. Another is to allow a higher return on the present investment so that an average over the foreseeable future will be just and reasonable.
The Court is of the opinion that the Commission’s order does not take into account nor make proper provision for the effect of attrition on the rates of return allowed in the order
The Court concludes that this effect on the rate of return the company is earning is demonstrated by the fact that the Commission staff concluded that the rate of return the company would earn for the year 1978 was only 7.57%, even though the Commission’s order found the company was earning for the test year, ending March 31, 1977, 8.7%.” (TR 131, 132)

From the naive viewpoint of judicial officers untrained in the intricate mechanics and terminology of utility rate-making, “attrition” appears to be a reduction in rate of return on investment because of increases in expenses and investment without compensating increases in revenue. The Chancellor concluded that the decision of the Commission (to deny any increase) was conclusive evidence that the Commission failed to give sufficient and proper weight to the uncontroverted evidence of probable increases in certain expenses and investment during the effective period of the Commission’s order. This Court does not interpret the Chancellor’s Memorandum or Order to unduly restrict or mandate the acceptance or rejection of any particular projected or forecast change in expenses, investment or income. The Chancellor simply observed that the results reached were inconsistent with the uncontroverted testimony on the subject. While it is true that the Commission, utilizing its own special expertise, may disregard some uncontroverted expert testimony, it is fundamental that the Commission may not arbitrarily and unreasonably disregard uncontradicted testimony. That is, if uncontradicted testimony is to be disregarded, a valid reason for so doing should be stated.

The merits of the Chancellor’s finding that the decision of the Commission was unreasonable and illegal will be discussed in connection with the next assignment.

The fourth assignment of error is respectfully overruled.

The fifth assignment goes to the merits of the appeal.

The brief of appellant states:

“The Commission, in this case, adopted a historical test period for the 12 months ended March 31, 1977. It adjusted for the annualized effects of all known changes occurring nine months subsequent to the test period. It adjusted for attrition. This produced an 8.7% rate of return. The Commission then made an analysis to determine if the company would have a reasonable opportunity to earn this rate of return for the foreseeable future. The Commission found that the company would have such an opportunity. After all of this, the Commission found, based on the evidence in the record, that the 8.7% rate of return was still within the zone of reasonableness.” (AE 68, 69)

Appellant cites the testimony of the expert, Kosh, as follows:

“CHAIRMAN: Are you saying 8.55% is the confiscatory level?
A Just about at that level. You’re just at the edge of it, I would say.
Q But you’re saying 8.55% would not be confiscatory?
A I think it is at the level. I don’t think it’s confiscatory at all. But I think if you go considerably below that you will get into the area of what I call economic confiscation.” (AE 70)

While it is true that there is some testimony that 8.55% is “at the edge of the confiscatory level”, this testimony is not deemed to be substantial evidence that such a rate of return is fair and reasonable. If the Commission is resorting to “brinksmanship” by keeping the Company “on the edge of the confiscatory level”, the Commission is not acting reasonably. This is so for two reasons, (1) a rate “on the edge of confiscation” is not reasonable, and (2) the trend of attrition is clearly such that a rate “on the edge of confiscation” will become confiscatory in a short time by the advance of inflation and attrition.

Thus, the testimony of Mr. Kosh is not deemed to be substantial support for the action of the Commission.

Kosh stated that he recommended a rate of return of no more than 8.9%. This Court does not equate the recommendation of an expert with the factual opinion of an expert. For this additional reason the testimony of Kosh is deemed to be less than substantial support for the Commission’s final order. This view of his testimony is strengthened by the fact that all other testimony in the record supports a higher rate of return.

The fifth assignment of error is respectfully overruled.

The sixth assignment is largely argumentative, and ignores the principle previously stated, namely, that a rate may produce a profit for the present that is acceptable; but, if it is so near the edge of confiscation that the changes in the conditions of each succeeding month are calculated to render the established rate confiscatory, then the established rate is not reasonable.

In other words, a reasonable.rate should not be “on the outer edge of reasonableness,” but should be sufficiently inside the bounds of reason to provide some “cushion”, or room for variation without penalizing the Company.

The expression, “bare bones”, has no proper place in establishing reasonable rates. “Bare bones” rates are not reasonable. A reasonable rate is something more than bare minimum.

The sixth assignment of error is respectfully overruled.

The seventh assignment complains that the Chancellor was of the opinion that the earnings of the Company would not exceed 7.5% to 7.6% in 1978. Again, counsel has ignored the Rule of this Court requiring citation to the record where any alleged error occurred. By searching through the Memorandum and Order of the Chancellor, the following is found in the Memorandum:

“The Commission staff also concluded that the rates in effect under the May 4, 1977 order would produce a rate of return in 1978 at 7.57% on a rate base of $1,860,-464,000.00. The company’s evidence using the same adjustments made by the Commission staff showed a projected rate of return of 7.62% for 1978.” (TR 126, 127) (Emphasis supplied)
“The proof in this record, analyzed and carefully audited by the Commission staff, supports a conclusion that the company will earn only 7.5% to 7.6% on its rate base for the year 1978.” (TR 135) (Emphasis supplied)

No other references to 7.5% or 7.6% are found in the Memorandum or Order. The quotations above are mere references to conclusions of the Commission staff and evidence in the record, and do not purport to be findings by the Chancellor. Even if the Chancellor had stated such findings in his Memorandum, and even if they had been incorrect, the error, if any, would be harmless if the ultimate conclusion stated in the order was correct.

The seventh assignment of error is respectfully overruled.

The eighth assignment of error is a general complaint of the finding of the Chancellor that the order of the Commission was illegal and void.

Agreement has already been expressed herein with the view of the Chancellor that the Commission erred in ignoring the uncontroverted evidence that, during the years 1977 and 1978, substantial increases would take place in certain expenses and investment of the Company without compensating increase in revenue. Disapproval has already been expressed in respect to the apparent policy of the Commission to enforce a “bare bones” (minimum possible) rate of return in the face of an established trend of increase in expenses and investment and of earnings and cost of living generally. This Court does not consider reasonable the expressed policy of the Commission to “squeeze” efficiency and economy out of the Company by maintaining existing rates in the face of rising costs. It is unrealistic and unjust to say to a regulated utility: “We will not allow you a fair profit upon your reasonably anticipated operating statistics. You must derive your profit from economies and efficiencies devised by you to offset normal increases in costs.” This represents a decision based upon speculation, and not substantial evidence.

If the Commission considers all proper factors and arrives at a rate structure which is low, but not unreasonable, the Courts may not reverse on petition for review.

If, however, the Commission, acting upon pure speculation, ignores uncontra-dicted material evidence and refuses to give any weight or consideration to it, and if such evidence is of a kind or character that it would naturally be expected to produce a more favorable ruling if considered, then the Commission has acted illegally and the Courts are authorized to vacate the order of the Commission and to require reconsideration on a proper basis.

On these broad considerations, the eighth assignment of error is respectfully overruled.

It should be emphasized that this Court makes no specific finding of fact as to rates, percentages of fair return or any other factor under consideration in this cause.

The finding of the Commission is analogous (though not identical) to a verdict of a jury. In order for this Court (or any court) to set aside a finding of the Commission, the Court must find as a matter of law (not fact) that the Commission’s order is not supported by substantial evidence, is based upon speculation or is contrary to uncontradicted evidence.

This Court finds as a matter of law that the order of the Commission is contrary to uncontradicted evidence that certain expenses and investments of the Company would substantially increase during 1977 and 1978 and is not based upon substantial evidence but upon speculation. On this basis, the action of the Chancellor invalidating the Commission order and requiring reconsideration is affirmed.

In spite of the inclusion of the Chancellor’s Memorandum in his order by reference, it is not considered that such order was a specific “mandate” requiring the Commission to make any specific findings. Neither does the opinion of this Court nor its decree “mandate” any specific findings by the Commission.

The action of the Chancellor and of this Court have no effect except to declare the order of the Commission invalid because of failure to give consideration to uncontra-dicted evidence of certain increased expenses and investment and speculation as to facts without substantial evidentiary basis, to vacate such order, and to remand the cause to the Commission for reconsideration of all proper factors, including any additional evidence offered, and a redetermination of the issues based thereon.

The Commission insists that its previous decision on May 4, 1977, was designed to and did provide a fair rate of return to the Company during the remainder of the calendar year, 1977, and the entire calendar year, 1978. The Chancellor and this Court disagree. However, 1977 and 1978 have now passed, and any rate structure set hereafter will be effective in 1979 and until approval can be obtained for further adjustments. Therefore, after all of the delay heretofore encountered, justice requires that fair rates be expeditiously established and placed into effect without the time-consuming procedure of a new original application to the Commission.

On remand, the Commission will have the benefit of actual operating experience in 1977 and 1978, rather than estimates and projections. It may then hear evidence of probable changes in revenue, expenses and investment during 1979 and succeeding years. As it has done previously, the Commission has the power to reject and disregard for cause any projected expense or investment which it considers unwarranted. However, it would be unreasonable and illegal for the Commission to require the performance or expansion of services for which reasonable allowance has not been made in fixing rates.

The foregoing disposes of the issues presented by the assignments of error. However, one additional matter before this Court merits discussion, consideration and action. As previously stated, the Chancellor, acting pursuant to T.C.A. § 65-520, authorized the Company to temporarily effectuate its proposed rate increases in their entirety (with certain exceptions); and this Court vacated such action by supersedeas. In so doing, this Court stated:

“T.C.A. § 65-520 authorizes the court having the cause under consideration to permit all or any part of the proposed increase to be placed in effect under bond. .
1. Among the considerations involved in allowance of temporary relief before final decision are:
a. the probability of irreparable harm to the applicant if the relief is not granted.
b. the probability of irreparable harm to the opposite party if the relief is granted.
c. the probability that the temporary relief will be affirmed by the final decision.”

Having more adequate opportunity to study the record and having benefit of more comprehensive briefs of counsel since the granting of supersedeas, this Court has found reason to revise somewhat its preliminary findings as to the probability of the approval of a rate increase in the ultimate disposition of the cause.

As previously indicated, in order to find reversible error (illegality) in the order of the Commission, it is necessary for this Court to find (1) error (in ignoring uncon-troverted evidence speculation or lack of substantial supporting evidence) and (2) prejudice (in that the result would probably have been different but for the error).

In short, in order for this Court to reverse the Commission, it is necessary for this Court to find as a matter of law that some rate increase would probably have been allowed if the Commission had given proper consideration and effect to uncontroverted evidence.

This Court has so found.

Consequently and consistently, this Court considers itself obligated in honor and justice to consider and grant some temporary relief based upon what it considers the probability of ultimate approval of some increase in rates.

This Court does not consider that there is a strong probability that the entire proposed increase will be approved. This Court does consider that there is a substantial probability that some rate increase will be ultimately approved.

A statement filed by the Company indicates that the revenues received from local service in the year ending June 30, 1977, was $298,641,000.00.

The Company proposed to increase its revenue by $92,000,000.00 per year by increasing various charges on local service. This would increase the $298,641,000.00 previous annual local revenue by approximately 31%.

The staff of the Commission estimated the “revenue deficiency” (need for increased revenues) during 1978 at $27,994,-000.00. A rate adjustment in this amount would increase the previous annual local revenue by approximately 9.3%.

In view of the computations just stated, the uncontradicted evidence in the record, and the statutory authority granted by T.C.A. § 65-520, this Court deems it proper to authorize a temporary implementation of rate increases not exceeding 10% of existing rates.

It is recognized that if the Commission had given proper consideration to uncontro-verted evidence, and if, as found probable by this Court, the Commission had approved some increase in its order of December 30, 1977, such increase would have been reflected in income and earnings of the Company during the entire calendar year, 1978, which will end before the action of this Court becomes final. It is therefore probable that the Company has already irretrievably lost the benefit of some rate increase for the entire year, 1978. This is a matter for some consideration in allowing a temporary increase and in future rate fixing by the Commission.

The bond, heretofore filed with the Chancery Court, will be continued in effect to guarantee proper refund of increased charges collected but not ultimately approved, with interest, as provided in the Chancellor’s order. The authority granted herein for such temporary increase shall become effective if and when the decree of this Court becomes final by affirmance or failure to timely seek review and shall continue in effect during the further consideration of the cause by the Commission and during the pendency of any further judicial proceedings for review of further action of the Commission on the presently pending application for approval of rate increases.

This Court has given due consideration to the record, the briefs and arguments of counsel, and authorities cited therein, but has refrained from citations of authorities to support general propositions which are well established or conceded in the abstract.

Among such propositions and authorities, with which this opinion is deemed to be consistent, are the following:

The review of the decision of the Commission has been upon the record preserved by the Commission and transmitted by it to the Chancellor. T.C.A. § 4-523, United Inter-Mountain Telephone Company v. Public Service Commission, Tenn.1977, 555 S.W.2d 389; Public Service Commission v. General Telephone Co. of the Southeast, Tenn.1977, 555 S.W.2d 395.

On petition for review, the Chancellor and this Court are limited to a determination of whether the actions of the Commission are unconstitutional or illegal, are arbitrary or capricious, or are unsupported by evidence which is both substantial and material in the light of the entire record. Metro. Government v. Shacklett, Tenn.1977, 554 S.W.2d 601.

Substantial and material evidence is such as a reasonable mind might accept as adequate to support a rational construction and furnish a reasonably sound basis for the action under consideration. Pace v. Garbage Disposal District, 54 Tenn.App. 263, 390 S.W.2d 461 (1965) and authorities cited therein.

In order to be valid, a rate fixed by a regulatory body must be reasonable not only as to the facts in existence on the effective date of the rate but also for a reasonable time in the future. Southern Bell Telephone and Telegraph Company v. The Tennessee Public Service Commission, 202 Tenn. 465, 304 S.W.2d 640 (1957).

This Court has likewise refrained from any discussion of the distressing inefficiency of the ponderous judicial procedure prescribed for review of such administrative decisions, the difficulty of a quasi-judicial-quasi-legislative body undertaking to act (through its staff) as an adversary party and at the same time to render an impartial decision, or the position of thousands of small patrons whose individual interests may not be properly represented and protected in such a large, mass proceeding as this. Such matters are of great concern to the members of this Court, but are immaterial to the merits of this appeal and have received no consideration in the disposition of the appeal.

The order of the Chancellor invalidating the order of the Commission and remanding the cause to the Commission for further consideration is affirmed. The supersedeas heretofore granted in respect to other actions of the Chancellor is now reiterated, and his said other actions (in allowing implementation of the full proposed rate increase and enjoining interference with same) are reversed and set aside.

Effective upon the finality of the decree implementing this opinion and continuing until the final determination of the present cause by the Commission and/or the courts, the Company is permitted to place into effect that part of its proposed rate increases which does not exceed 10% of the previously approved and charged rate for each service.

Affirmed in part, reversed in part, remanded.

LEWIS, J., concurs.

SHRIVER, P. J., concurs in part, dissents in part.

LEWIS, Judge,

concurring.

I agree that the assignments of error are without merit, that the Chancellor’s decree should be affirmed and this cause remanded to the Commission for setting just and reasonable rates.

I also agree that if the Commission had given proper consideration to uncontrovert-ed evidence, it is probable that some increase would have been approved in the Commission’s order of December 30, 1977, and such increase would have been reflected in income and earnings during the entire calendar year 1978. I also agree that it is probable the Company has irretrievably lost the benefit of some rate increase for the entire year 1978.

In the present procedural posture and under the confined facts of this case, I agree that this Court, as a court considering an appeal from an order of the Commission, has the power to permit the Company to place all or any part of the rates into effect under bond (see T.C.A. § 65-520(b)), and I am of the opinion, under these confined facts, we have a duty to authorize such a temporary rate increase.

However, I am compelled to point out that the Chancellor, in his order of September 26, 1978, authorized the Company to place into effect as of October 6, 1978, proposed rates and required the Company to give bond for a refund of any increase not ultimately approved with 8.7 per cent interest.

We superseded and suspended that part of the Chancellor’s order allowing the implementation of proposed rates and, as such, have denied the Company an increase since October 6, 1978. We now say that at least a part of that rate increase is, under the record before us, justified.

If the Company is ultimately successful, as it was in the Chancery Court and as it has been in this Court, it will have been caused to suffer great and irretrievable losses. It has no remedy to recoup these losses. If the Commission finally fixes compensatory rates, it has no authority to make them retroactive.

If the Company had been allowed to put the rates into effect, under bond, pursuant to the Chancellor’s order, and ultimately the increase had not been allowed, there would have been no loss to the utility’s users. They would have received a full refund with 8.7 per cent interest.

The Chancellor’s order came to us with a presumption of correctness. The burden of overturning this presumption was upon the Commission. I was of the opinion in my Dissent from the Majority Opinion, upon Petition for Supersedeas filed October 24, 1978, that the Commission had not carried its burden. I am, at this time, of the opinion that the Commission has still failed to carry its burden.

While I reluctantly concur with the holding authorizing the Company to implement a temporary rate increase not exceeding ten (10) per cent of existing rates, I would have reinstated the Chancellor’s order of September 26, 1978, allowing the Company “proposed rates, except pay phone rates and charges for directory assistance”, because I am of the opinion that T.C.A. § 65-520, the facts of this case and the equities require reinstatement.

As Judge Todd so aptly states, it is “. . . probable that the Company has already irretrievably lost the benefit of some rate increase for the entire year, 1978.” By our approval of only a temporary rate increase, not exceeding ten (10) per cent, and if ultimately, as could very well be under the record, the Company is granted compensatory rates in excess of ten (10) per cent by the Commission, we have compounded the irretrievable loss.

On the other hand, if the Company is allowed to put into effect its proposed rates and they are ultimately denied, the Company’s users do not suffer irretrievable losses. They will receive a full refund, with interest.

SHRIVER, Presiding Judge,

concurring in part and dissenting in part.

In the principal opinion Judge Todd sets forth in chronological order the proceedings before the Public Service Commission and in the courts concerning this rate case, hence, in this opinion I will confine my review to the Chancellor’s decision and the steps taken to have that decision reviewed in this Court and the Supreme Court.

On September 30, 1978, a Petition on behalf of the Public Service Commission was filed in this Court seeking to supersede and suspend the decree of the Chancellor entered September 29, 1978, wherein it was ordered that the proposed rates of the Telephone Company become effective immediately. So as to preserve the status of the matters in dispute until requisite notice to opposing counsel could be given and a hearing had, I, as Presiding Judge, entered an order providing in pertinent part

“Upon application of counsel for the Public Service Commission of Tennessee, it is hereby ORDERED, ADJUDGED AND DECREED:
1. That the effectiveness of the aforementioned Decree entered by Chancellor Ben Cantrell in this cause on September 29, 1978 be and the same is hereby suspended pending a hearing of the Petition for Supersedeas, which is set for hearing and consideration on Thursday, October 5, 1978, at 2:00 P.M. in the chambers of this Court.
2. That all other matters herein are reserved.
This 30th day of September, 1978.
/s/ Thos. A. Shriver Presiding Judge, Court of Appeals”

At the conclusion of the hearing on October 5 an order was entered continuing in effect the Stay Order of September 30, “pending a decision and decree disposing of said Petition for Supersedeas.”

On October 11, we filed an Opinion and Decree wherein, inter alia, we observed that the Commission had filed “Notice of Appeal” from the Chancellor’s decree pursuant to T.C.A. § 4-524 and we mistakenly assumed that we might, therefore, allow the ease to be presented on the merits. We considered that the previous stay order was continued in effect and proceeded to hold that the Chancellor’s decree was final in substance and therefore subject to appeal as a matter of right.

Upon application to the Supreme Court for a writ of Supersedeas to Nullify and set aside the Court of Appeals’ decree of October 11, wherein Judge Lewis had filed a dissent, an Opinion and Order by Mr. Justice Harbison, concurred in by Justices Cooper and Brock, was filed holding that the Chancellor’s decree was final and appeala-ble arid saying that the issue regarding the Chancellor’s decree placing into effect the proposed rates “is now pending before the Court of Appeals as a result of the filing before it of a Petition for Supersedeas by the Public Service Commission on September 29, 1978.” [Emphasis supplied]

Chief Justice Henry filed a separate Opinion concurring in part and dissenting in part stating, “I respectfully dissent from so much of the majority opinion as holds that the decree of the Chancellor is final.” After discussing the purpose and function of supersedeas and insisting it is not a proper method of procedure in this case his opinion says, “We first treat the decree of the Chancellor as being final for purposes of this discussion. A simple appeal would obliterate the Chancellor’s decree. For reasons heretofore pointed out, the decree has not been so nullified.” (Emphasis supplied).

By addendum it was pointed out that, while this matter was not before the appellate courts on appeal, “ — [it] is appealable at this time” but that no appellate court had up to that time considered the correctness of the Chancellor’s action in placing the rates in effect under bond.

Mr. Justice Fones in his partial dissent agreed with the Chief Justice that the Chancellor’s decree of September 29, 1978, was not a final decree but he reached a different result in applying the principles governing supersedeas in this case. He states, “Unquestionably the Writ of Super-sedeas has as its sole purpose the preservation of the status quo.”

On October 18, 1978, following the filing of the foregoing Opinion and Order of the Supreme Court, and the separate partial dissents as above noted, our Court filed an Opinion and Order, Lewis dissenting, noting that the Supreme Court order stated, “The effect of our ruling today is to return this case to that court” (Court of Appeals) “for disposition of that issue” (placing the rates in effect under bond by the Chancellor) “and any other issues which may bear upon the resolution of the Petition for Supersede-as.”

Our Order stated:

“It is thus seen that the petition filed by the Telephone Company seeking to have the cause removed from this Court and to stay and superseded the Orders of this Court in this cause was denied and the cause left pending in the Court of Appeals on Petition for Supersedeas..."
“Thus, it would seem that the decree entered October 2, 1978 suspending the effectiveness of the Chancellor’s decree of September 28, 1978 pending a hearing and consideration of the Petition of the Commission for Supersedeas, and especially this Court’s Stay Order entered October 5, 1978 is still in effect.”

We then took note of the fact that on that date, October 18, 1978, the Chancellor, pursuant to Motion of the Telephone Company, entered a decree amending his decree of September 29, 1978, by enjoining the Commission, its agents and representatives from attempting to enforce its order of December 30, 1977, or from interfering with the putting into effect the proposed rates. The said decree also granted the Commission an appeal to the Court of Appeals.

We were thus confronted with what appeared to be an anomalous situation. The only way this case has been before the Supreme Court up to this time is by Petition of the Telephone Company for Super-sedeas to set aside the orders of the Court of Appeals which had simply issued a stay order to preserve the status quo until the application for supersedeas could be heard and determined. After a third Petition for Supersedeas was filed in the Supreme Court and heard by that Court, another and last order was entered November 8, 1978 Per Curiam (with dissent by the Chief Justice joined in by Justice Fones), which Per Cu-riam Order is as follows:

“ORDER
On October 26,1978, South Central Bell Telephone Company filed in this Court a petition, requesting the Court to supersede an interim order of the Court of Appeals. The appeal of the case is pending on its merits in that Court.
In our opinion, the petition fails to demonstrate a sufficient basis for the extraordinary relief requested, and it is accordingly denied at the cost of the petitioner.
Enter this 8th day of November, 1978.
PER CURIAM”

It thus seems that, although the Supreme Court consistently denied the Petitions for Supersedeas and refused to interfere with the jurisdiction of the Court of Appeals, it, nevertheless, apparently, issued certain instructions to the Court concerning our consideration and decision of the issues involved.

Whether the said pronouncements or instructions be regarded as extra jurisdictional and in the nature of dicta, or otherwise, we respect them and certainly have not intentionally ignored them although we did not interpret them as “Mandates” concerning our procedure and ultimate decision of the issues involved.

ABUSE OF DISCRETION

No reference to the question of abuse of discretion is made in the final Per Curiam Order of the Supreme Court of November 8,1978, wherein it is stated: “The appeal of this case is pending on its merits in that Court.”

One reference was made to that issue in a previous order of the Court denying super-sedeas. However, the Chief Justice in his dissenting opinion of November 8th discusses the question at length and notes that the Court of Appeals had not addressed that subject in its previous orders in this case.

Now addressing this question, it was my conception and that of Judge Todd as we considered the Petition of the Commission for Supersedeas, that the final decree of the Chancellor wherein he reversed and set aside the Commission’s order, was based squarely on the facts as he found them and on his conclusions of law, and was, in no sense, a mere matter of exercising his discretion. Our preliminary examination of the record together with the briefs and arguments of counsel led to the conclusion that the stay order previously entered should remain in effect pending a hearing and determination on the merits regardless of whether the question of judicial discretion or abuse thereof was involved.

This was true because, on its face, the complex rate structure proposed by the Company and sought to be put into immediate effect by the Chancellor, appears to be highly discriminatory, preferential and lacking in uniformity. If this is true, it would seem to follow that the Chancellor’s action was erroneous and, if his action was merely the exercise of his judicial discretion, I would have to say that it might reasonably be characterized as an abuse of discretion.

On the other hand, considering the Chancellor’s action in granting the Company’s motion to enter an amendatory decree on October 18, 1978, enjoining the Commission, its agents and representatives from attempting to enforce its order of December 30, 1977, or from interfering with the putting into effect the proposed rates, this action was taken while the case was pending in the Court of Appeals on the Commission’s Petition for Supersedeas and while this Court’s stay order was in effect ordering the preservation of the status of matters involved pending further action.

In these circumstances, it seems that propriety would have impelled the Chancellor to refuse to entertain the motion for injunction and, certainly, if the injunction meant what, on its face it appeared to mean, it was improper and I do not hesitate to hold was an abuse of discretion.

THE MERITS

We begin our deliberations concerning the merits of this case by remembering that rate making of a public utility such as the Telephone Company is a legislative function which has been delegated by the Legislature to the Public Service Commission. Hence, the primary duty of regulating and fixing rates to be charged telephone subscribers by the Company rests with the Commission and not with the courts. When the Commission, pursuant to its statutory power and duty hears evidence and reaches a decision fixing rates to be charged by the utility, that decision is binding on said utility unless, on appeal to the courts the presumption of correctness is overcome by a showing that the decision of the Commission is arbitrary, capricious or illegal and/or that it will result in economic confiscation of the company’s property.

As to the factual grounds of the Commission’s decision, the courts, in applying the statute, T.C.A. §§ 65-501, et seq., if the order is supported by any material, substantial evidence it will not be set aside or disturbed by the reviewing court. Thus, even though the court may not agree with the conclusions reached by the Commission on the facts appearing in the record, it will not substitute its judgment for that of the Commission in the absence of a clear showing of capriciousness or arbitrariness. McCullom v. Southern Bell Tel. Co., 163 Tenn. 277, 43 S.W.2d 390; R. R. Co. v. Pub. Utilities Commission, 38 Tenn.App. 212, 271 S.W.2d 23; Hoover Motor Exp. Co. v. R. R. & Pub. Utilities Com., 195 Tenn. 593, 261 S.W.2d 233.

Section 65^401, T.C.A., defines Public Utilities as including telephone, telegraph or any other like system dedicated to public use.

Section 65 — 404 vests control and regulation in the Public Service Commission.

Section 65-422 prohibits any regulation, practice, or measurement which is unjust, unreasonable, unduly preferential or discriminatory.

Section 65-514 makes preferences to any person or locality unlawful.

Section 65-520, Change of utility rates, fares, schedules — Suspension—Bond—Refunds, inter alia, provides that any increase or change placed in effect pursuant to this subsection (b) under bond may be continued in effect by the utility pending a final determination by the Commission or, if the matter be appealed, by final order of the Appellate Court. In the instant case, there was no increase or change put into effect by the Commission. The statute continues:

“In the event that all or any portion of such rates or charges have not been placed into effect under bond before the commission, the court considering an appeal from an order of the commission shall have the power to permit the utility to place all or any part of said rates or charges into effect, under bond.”

While the Court had the power to permit the utility to place all or any part of the said rates or charges into effect under bond, in my view of the matter there was not a proper exercise of discretion on the part of the Chancellor to order the rates or charges placed in effect if, as is seen in this record, the proposed rates, on their face, appear to be excessive and/or discriminatory.

Section 65-521 prohibits unjust rates, schedules or classifications. It provides:

“65-521. Unjust rate, fare, schedule or classification prohibited. — No public utility shall
Make, impose, or exact any unreasonable, unjustly discriminatory or unduly preferential individual or joint rate, or special rate, toll, fare, charge, or schedule for any product, or service supplied or rendered by it within [the] state.”

In the Brief and Argument filed by counsel for the Commission in support of its Petition for Writ of Supersedeas, it is asserted, “This is the largest utility rate increase ever requested or granted in the State of Tennessee. Examples of the magnitude of this increase for residence one-party lines and business one-party lines, respectively, are: Chattanooga 41% (Residence) '40% (Business); Clarksville 47% (Residence) 49% (Business); Knoxville 41% (Residence) 40% (Business); Lynchburg 69% (Residence) 85% (Business); Memphis 40% (Residence) 39% (Business); Murfreesboro 47% (Residence) 49% (Business); Nashville 41% (Residence) 40% (Business); Springfield 58% (Residence) 65% (Business).”

We have searched this voluminous record for evidence supportive of the above quoted argument and data showing the effect of the proposed rates as applied to the various localities mentioned. Much of the record in the seven or eight volumes of tariffs and other exhibits are well nigh unintelligible to one who is not trained in the rate-making process. However, in the testimony of witnesses and the various exhibits I have found evidence supporting the above quoted statement and figures.

For example we find among the exhibits certain estimated monthly increases per line ranging from $1.85 to $20.40. In Book III, Ex. 5 “Data Supporting Filing T.P.S.C. Docket U 6493 July 1977,” various rate groups are listed showing “Present IFB rates,” also there are schedules showing “Proposed IFB rates” along with proposed revenues as compared with existing revenues and many variations are to be observed in the schedules as they apply to the several groups.

In this volume rate changes in the proposed schedule as compared to the existing schedule of charges are shown as they apply to various cities and towns in Tennessee and these together with other evidence in the record support the above quoted statements made in the Brief and Argument of counsel for appellant.

This being true, it appears to me that the proposed rates, on their face, are unduly preferential and discriminatory. In view of these facts how can it be successfully argued that the proposed rates are just and uniform across the State as is required by the statutes of Tennessee?

For the reasons indicated I conclude that the Chancellor's decree putting the proposed rates into effect should be reversed.

Accordingly, I concur in the opinion written by Judge Todd in overruling Assignments 1, 2 and 3 for the reasons given therein.

As to the fourth assignment, I do not fully agree with the Chancellor’s conclusions regarding attrition and the alleged lack of consideration given it by the Commission, hence, I do not fully agree with Judge Todd’s conclusions concerning the assignment. However, I would not reverse the Chancellor on this assignment alone.

I would sustain Assignment No. 5 which charges error in finding that the rate of return found by the Commission is not supported by substantial, material evidence.

I would also sustain Assignment No. 8 which charges error in concluding that the Commission’s Order is illegal and void.

As to Assignment No. 6, it seems to me that if a rate is found to be within the range and zone of reasonableness it is illogical to hold that, nevertheless, it is confiscatory.

In Southern Bell Tel. & Tel. Co. v. Pub. Serv. Com., 202 Tenn. 465, 304 S.W.2d 640, it was held:

“What is a reasonable rate of return for utility is not necessarily any particular figure or decimal point but is one that is in the zone of reasonableness.”

Concerning Assignment No. 7,1 think the Chancellor’s conclusion as to the rate of return to the Company afforded by the rates in effect is not fully supported by the record. However, I do not find it necessary to discuss and pass on these two assignments (6 and 7) in view of my decision as to the other assignments.

MY CONCLUSION

Thus it is that I concur in the results stated in the last two paragraphs of Judge Todd’s Opinion, as follows:

“The order of the Chancellor invalidating the order of the Commission and remanding the cause to the Commission for further consideration is affirmed. The supersedeas heretofore granted in respect to other actions of the Chancellor is now reiterated, and his said other actions (in allowing implementation of the full proposed rate increase and enjoining interference with same) are reversed and set aside.
“Effective upon the finality of the decree implementing this opinion and continuing until the final determination of the present cause by the Commission and/or the courts, the Company is permitted to place into effect that part of its proposed rate increase which does not exceed 10% of the previously approved and charged rate for each service.”


source: Caselaw Access Project

author: SAM D. JOHNSON, Justice.

license: Public Domain

text:
    H. H. STORMS et ux., Petitioners, v. Grady TUCK, Jr. et al., Respondents.
    No. B-7672.
    Supreme Court of Texas.
    March 21, 1979.
    Rehearing Denied April 17, 1979.

      Joe Mike Egan, Jr., Kerrville, for petitioners.
    Joe Grady Tuck, Kerrville, for respondents.
   SAM D. JOHNSON, Justice.

This case involves the construction of an easement. Mr. and Mrs. Storms, plaintiffs below and petitioners here, filed this suit seeking injunctive relief and cancellation of a cloud on title to land owned by them, the asserted cloud being an easement owned jointly by Tuck, Smith, Walters, and Graham, defendants below and respondents here. The trial court ruled in favor of the defendants, holding that Tuck, et al. owned a valid easement by virtue of both a written grant and the doctrine of estoppel in pais. The court of civil appeals affirmed on the ground of estoppel. 566 S.W.2d 16. We reverse the judgment of the court of civil appeals in part, affirm in part, and remand the cause to the trial court for rendition of a proper judgment.

The diagram reproduced below will be useful in understanding the facts of this case.

Mr. and Mrs. Storms owned 848 acres of land in Kerr County. The land lies about one-half mile east of the state highway that runs between Bandera and Kerrville. In 1971 the Stormses built a house in the northeast corner of their land. In order to reach the Bandera highway from the house, they constructed a fifty-foot-wide private road on their property. The road ran along the northern border of their and their neighbor’s land for nearly one and one-half miles, to the point where it intersected the highway.

On December 21, 1976 the Stormses sold the house that they had constructed, which was their home, and ten acres of land surrounding it to Mrs. Mills. As part of the transaction, they granted Mrs. Mills an easement over the one-and-one-half-mile-long road in the following terms:

“THAT WE, H. H. STORMS and wife, JULIA STORMS, . . . have GRANTED, CONVEYED, and by these presents do GRANT and CONVEY unto the said RUTH MILLS, ... her heirs and assigns, the free and uninterrupted use, liberty, privilege and easement of passing in, on, upon and along a certain way [describing the bounds of the easement] . . . together with free ingress, egress and regress to and for the said RUTH MILLS, her heirs and assigns, and her tenants, by foot, with carts, wagons, carriages, automobiles and other vehicles, horses, mules or livestock, as by her shall be necessary or convenient at all times and seasons forever, in, along, upon and out of said way; TO HAVE AND TO HOLD all and singular the rights and privileges aforesaid unto her, the said RUTH MILLS, her heirs and assigns, to her proper use and behoof, in common, however, with Grantors herein, the said H. H. STORMS and wife, JULIA STORMS, their heirs and assigns.”

The easement as described in the conveyance covered not only the one-and-one-half-mile-long existing road, but also included a fifty-foot-wide strip of land running down the western border of the ten acres. At the time of the conveyance, however, this additional fifty-foot-wide strip of land was not a roadway. It was nothing more than a part of the pasture on which were located several cattle pens owned by the Stormses. This additional fifty-foot-wide strip of land will be referred to as the unimproved portion of the easement since it was not part of the one-and-one-half-mile-long roadway.

Less than two months after her purchase, Mrs. Mills sold her ten acres to two separate parties on February 16, 1977. She sold the house and 9.24 acres to the Teals, together with “all her right, title and interest in and to that one certain easement,” that being the easement granted by the Stormses to her. On the same day, Mrs. Mills sold the remaining 0.76 acres to the defendants Tuck, et al. This remaining tract of land was fifty feet wide and six hundred sixty feet long, running along the southern boundary of the ten acres. The conveyance included “an undivided interest in and to that one certain easement” from the Stormses.

The importance of this second conveyance lay in the fact that Tuck, et al. owned 1,100 acres of land adjoining the Stormses’ and Mrs. Mills’ land. The record does not indicate the date on which Tuck, et al. purchased or obtained title to the 1,100 acres. Sometime after the purchase of the 0.76 acres, Tuck, et al. brought in road building equipment and turned the 0.76-acre tract into a road, fifty feet wide and six hundred sixty feet long. In addition, Tuck, et al. built a road over the fifty-foot-wide unimproved portion of the easement running down the western border of the ten acres. The total cost of this roadway was nearly $6,000.

On two or three occasions during the building of this roadway, Mr. Storms came out and watched the construction. During this time, at the request of one of the co-defendants, Graham, Storms agreed to move his cattle pens, which were on the unimproved portion of the easement on the west side of the ten-acre tract. On another occasion, Storms pointed out to the construction crew the boundaries of the unimproved portion of the easement in order to keep them from building the road on land not contained in the easement grant. Since the roadbed on the southwestern end of the easement was built up some five feet off the ground, Tuck, et al. built a ramp and gate there to allow Storms access to his southern pastures, and did this at Storms’ request. After the roadwork was done, the bulldozer operator removed a tree stump from the one-and-one-half-mile-long road, again at Storms’ request. Mrs. Storms did not go on the land until after the roadwork was completed. The only contacts between the Stormses and Tuck, et al., therefore, were the two or three times described.

At no time prior to the filing of this lawsuit did the Stormses protest the building of the road either across the 0.76 acres or upon the unimproved portion of the easement. The Stormses filed suit on March 10, 1977, three weeks after Tuck, et al. had bought the 0.76 acres. They prayed for alternative forms of relief. First, they sought cancellation of cloud on title to their property through the extinguishment of the easement to reach the 0.76 acres. In the alternative, should the court decide that the easement gave Tuck, et al. the right to reach the 0.76 acres, the Stormses prayed for an injunction prohibiting Tuck, et al. from using the easement to go beyond the 0.76 acres and onto Tuck, et al.’s 1,100 acres. The trial court and the court of civil appeals ruled against the Stormses on both points, holding instead that the easement gave Tuck, et al. the right not only to reach their 0.76 acres, but also to go beyond it to their 1,100 acres. We are in agreement with the trial court and the court of civil appeals only to the extent that the easement will allow Tuck, et al. to reach the 0.76 acres.

In their first point, the Stormses argue that Tuck, et al. have no right even to reach the 0.76-acre tract, whether by the written easement grant or the doctrine of estoppel in pais. We look first to the words of the written grant to discover what restrictions, if any, are placed on the use of the easement. Those terms, set forth above, reveal the grant of an easement in very broad and general language, with no restrictions on its use other than it be used for “ingress, egress and regress.” We agree with the conclusion of the court of civil appeals on this point: “[T]he easement appurtenant was for the entire 10 acres and for any portion thereof.” 566 S.W.2d 16 at 18. [Emphasis added.]

Having concluded that Tuck, et al. have the right to utilize the easement to reach their 0.76-acre tract, we must now consider whether the easement may be further utilized for access to the 1,100 acres. On this point, we hold that Tuck, et al. may not utilize the easement for the benefit of the adjoining 1,100 acres.

With regard to the terms of the written easement grant, the decision of Bickler v. Bickler, 403 S.W.2d 354 (Tex.1966), is dis-positive.

“ ‘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.’ ” 403 S.W.2d 354 at 359.

Indeed, Tuck, et al. do not seriously dispute this point. It appears to be conceded that they will win, if at all, by the doctrine of estoppel in pais.

The doctrine of estoppel in pais as it relates to easements is a legal theory the exact nature and extent of which has not been clearly defined. While it is frequently applied in a few definite categories of suits involving land, the authority for its application outside those categories is “rare and nebulous.” Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex.1962). As generally stated, the doctrine holds that the owner of land may be estopped to deny the existence of an easement by making representations that have been acted upon by a purchaser to his detriment. Drye v. Eagle Rock Ranch, Inc., supra. The doctrine generally is resorted to as an exception to the statutes requiring a writing. Note, 13 Baylor L.Rev. 180 (1961). Being a creature of equity, it seeks to prevent injustice and to protect innocent parties from fraud.

At the outset, we would note that this ease differs in two significant aspects from the traditional case asserting an easement by estoppel. First, in the traditional case, there generally is no written grant of an easement; instead, there is a parol grant or a representation that an easement already exists. In the instant case, however, we are faced with an express written grant of an easement. Secondly, in the traditional case, the issue revolves around the very existence of the easement. By contrast, this case entails the scope of an easement; its existence is not questioned. Tuck, et al. reason, however, that the existence and the scope of the easement are inseparable; the easement exists, if at all, for the benefit of the 1,100 acres. The Stormses, on the other hand, argue that this distinction is all important. Although their words and conduct might be construed as harmonious with and supportive of Tuck, et al.’s right to build the road pursuant to the terms of the written easement grant, the Stormses argue that nothing they said or did estops them from complaining about the improper use of the easement. Keeping these distinctions in mind, then, the question before us is whether the Stormses, by words or conduct, represented to Tuck, et al. that the easement to reach the 0.76 acres could also be utilized for the benefit of the 1,100 acres, which led Tuck, et al. to build the road connecting the 0.76 acres (and incidentally the 1,100 acres) to the one-and-one-half-mile-long roadway.

Essential to the creation of estoppel is that the misrepresentation be communicated to, believed, and relied upon by the innocent party. No one has suggested and the record is devoid of any evidence indicating that the Stormses ever told anyone that the easement could or could not be used for any purpose whatsoever. There is nothing to suggest that Tuck, et al. were prompted to buy either the 1,100 acres or the 0.76 acres by any statement or conduct of the Stormses. It is equally obvious that Tuck, et al.’s decision to build the road over the 0.76-acre tract and the unimproved portion of the easement was one of their own making, completely uninfluenced by the Storms-es. The record reflects that the first contact between the Stormses and Tuck, et al. came when Mr. Storms went out to observe the road building already in progress. Mrs. Storms did not see the road until it was completed and never talked to any of the defendants. It is clear, therefore, that all investment decisions had already been made when Mr. Storms entered the scene and observed the roadway construction work. Consequently, there is no support for the argument that Tuck, et al. relied to their detriment upon representations of the Stormses when making their initial decisions to buy the land and build the road. As a result, their case for easement by estoppel is seriously prejudiced. At best, Tuck, et al. can claim that the Stormses are estopped because they induced Tuck, et al. to continue the roadway project already begun.

In this connection, Tuck, et al. make much of the fact that the Stormses remained silent and voiced no protest until completion of the road, at which time they could reap the benefit of Tuck, et al.’s labors. The implication here is that Tuck, et al. would have halted work on the roadway had they known of the Stormses’ objections. It is argued that silence itself can be a form of misrepresentation. While this is a correct rule of law, it is not applicable to this case. The principle of estoppel by silence arises where a person is under a duty to another to speak, but refrains from doing so and thereby leads the other to act in reliance on a mistaken understanding of the facts. A. R. Clark Investment Company v. Green, 375 S.W.2d 425 (Tex.1964). The duty to speak does not arise until the silent party is himself aware of the facts. Cf. Richey v. Miller, 142 Tex. 274, 177 S.W.2d 255 (1944) (no duty to speak when ignorant of the facts), with Barksdale v. Allison, 210 S.W.2d 616 (Tex.Civ.App.—Eastland 1948, no writ) (duty to speak when aware of facts).

The question is therefore presented: was there a duty on the part of the Storms-es to speak out and protest the building of the road? We cannot say that there was. Whatever might be speculated, the record does not show when the Stormses became apprised of Tuck, et al.’s intention to use the easement to reach the 1,100 acres. There is nothing to indicate whether the Stormses understood these intentions from the beginning and purposely remained silent until the road was built, or whether they learned of the planned use of the easement on one day and filed suit the next. Without such knowledge, they could raise few legal objections to the building of the roadway. They certainly could not have prevented Tuck, et al. from turning the 0.76 acres into a road, since Tuck, et al. owned the fee simple title to that land. Nor could they protest the mere building of the road on the unimproved portion of the easement, since Tuck, et al., as easement owners, would be entitled to such rights as were incident, essential, or necessary to the enjoyment of the easement. Bickler v. Bickler, supra, at 207. The Stormses could not object to the building of the road for the benefit of the ten acres or any portion thereof. Their only complaint could lie against the use of the easement to benefit the 1,100 acres, which is exactly the complaint of this lawsuit. Accordingly, we hold that the silence of the Stormses did not create an easement by estoppel.

As a part of this argument, Tuck, et al. rely on the fact that they expended a considerable sum of money in building the road on the servient estate. For authority, they cite the following sentence from the Drye opinion:

“The doctrine of estoppel in pais has been applied when the seller allows the purchaser to expend money on the ‘servient’ tract, as for example a drainage ditch across the grantor’s land, or a house or other structure which encroaches on the land of the ‘servient’ estate.” Drye v. Eagle Rock Ranch, Inc., supra, at 210.

This is a correct statement of the law; however, the factual context of the types of cases referred to must be understood. Those cases generally present situations wherein the owner of the servient estate has verbally promised to convey an easement, has verbally granted an easement, has stated that an easement exists when in fact it does not, or has remained silent in the face of a duty to speak, in reliance on which the other party expends money in making improvements. See, e. g., Harrison v. Boring, 44 Tex. 255 (1875); North Clear Lake Development Corp. v. Blackstock, 450 S.W.2d 678 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.); Harris v. Rabe, 375 S.W.2d 919 (Tex.Civ.App.—Waco 1964, no writ); Union Properties Company v. Klein, 333 S.W.2d 864 (Tex.Civ.App.— Eastland 1960, writ ref’d n. r. e.); Carleton v. Dierks, 203 S.W.2d 552 (Tex.Civ.App.—Austin 1947, writ ref’d n. r. e.). The doctrine of estoppel then prevents the owner of the servient estate from asserting the statute of frauds as a defense in denial of the existence of the easement. Not involved are situations such as the instant case where the aggrieved party spends money for improvements on his own land and on the servient estate pursuant to a written grant.

Tuck, et al. next argue that the Stormses made affirmative misrepresentations about the easement by cooperating in the building effort. This cooperation took the form of Mr. Storms moving his cattle pens and pointing out the boundaries of the unimproved portion of the easement. It is important to keep in mind here that Storms was merely following the terms of the written easement grant. Had Storms remained silent and allowed the road to be built over parts of his land not contained in the written easement grant, or had he directed such construction, then Tuck, et al.’s position would be more persuasive. Under the facts in this record, however, Storms’ conduct makes no case of misrepresentation or fraudulent inducement. See Pioneer Natural Gas Company v. Russell, 453 S.W.2d 882, 886-87 (Tex.Civ.App.—Amarillo 1970, writ ref’d n. r. e.).

Finally, Tuck, et al. argue that the Stormses are estopped from denying the validity of the easement becaúse they have accepted the benefits of the roadway by having a gateway and ramp built and a tree stump removed from the one-and-one-half-mile-long road. Before Tuck, et al. built the road on the unimproved portion of the easement, Mr. Storms had driven his truck across his land and from time to time across portions of the unimproved easement property on the west side of the ten-acre tract in order to reach his southern pastures. Since the roadbed was built up some five feet off the ground, a ramp was necessary in order for Storms to continue to have this access. In that sense, therefore, the Stormses did not benefit from the ramp; they only retained a right of access that they had previously enjoyed. The removal of the tree stump from the one-and-one-half-mile-long road was a matter of minimal consequence. At most, it presents an acquiescence to the building of the road, as opposed to its use to reach the 1,100 acres.

The question that might be asked at this point is what else could have prompted the actions of Tuck, et al., if not the conduct of the Stormses? Additional facts appearing in the record may prove illuminating. Tuck is a realtor who, along with the other co-defendants, admittedly bought the 1,100 acres as a speculative investment. The pleadings, proof, and written briefs made it clear that Tuck, et al., at least at the outset, believed the one-and-one-half-mile-long private road built by the Stormses in 1971 was a county road. In this belief they were mistaken and at trial, therefore, they were forced to fall back on the doctrine of estop-pel in pais. In the Drye opinion this court recognized that the doctrine of easement by estoppel has been applied to a “narrow band of cases.” 364 S.W.2d 196 at 210. This case does not fall within that narrow band.

The trial court and the court of civil appeals both denied the Stormses relief in any form. By our judgment, we grant the relief prayed for by the Stormses in part and deny it in part. The Stormses are entitled to an injunction permanently restraining Tuck, et al. from utilizing the easement for the benefit of the 1,100 acres. The Stormses are not entitled, however, to an injunction restraining Tuck, et al. from utilizing the easement for the benefit of the 0.76 acres, nor are they entitled to extin-guishment of the easement. This cause is remanded to the trial court for rendition of a judgment in accordance with this opinion.

      . The Teals are not a party to this lawsuit and no question is raised concerning the validity of their easement.

      . There is some dispute over this matter. Storms claims that it was a private deal between the bulldozer operator and himself, done as a favor. Co-defendant Graham claims that it was done solely in response to a request made by Storms. There is no dispute that it was done only after completion of the road and as the bulldozer operator was leaving the premises.

      . There would appear to be three definite categories of suits in which the doctrine will apply: (1) dedication of a street, alley, or square; (2) conveyance with reference to a map or plat; and (3) expenditures by the owner of the al- • leged easement for improvements on the ser-vient estate. Drye v. Eagle Rock Ranch, Inc., supra, at 209 10.

      . Indeed, one writer has unequivocally stated: “An easement is not created by equitable es-toppel except in cases of fraud.” 1 G. Thompson, Real Property § 355 at 573 (1939). Tuck, et al. claim that this is a classic case calling for the hand of equity to act. To quote their brief: “. . Petitioners’ [Stormses’] action throughout this case have [sic] been conducted in bad faith, with the intent to enrich themselves through others’ money, and with unclean hands.”

      . Even then there may be no duty to speak out if the other party has equal access to the facts. Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834 (Tex.1968). Of course, the relationship of the parties may be of critical importance as where there is a fiduciary relationship, or the silent party by reason of his superior knowledge and judgment of the subject matter lulls the other party into an uncritical acceptance of his silence.

      . The Stormses’ original petition alleged that the road was not completed and prayed for injunctive relief prohibiting any further construction work. Tuck, et al.’s answer, filed one week later, alleged that the road was already built.

      . Perhaps this serves to highlight the different perspectives of the parties. Tuck, et al. claim that Mr. Storms’ silence indicated his acquiescence to the intended use of the easement. Mr. Storms argues that his silence indicated his acceptance of Tuck, et al.’s right to build a road in conformance with their easement rights, but did not compromise his right to complain of an improper use of the easement. One writer has suggested that the doctrine of estoppel by silence has narrow limits: “Ordinarily, . one’s mere acquiescence in the making of improvements by another for the purpose of making a use of the latter’s land, which involves a violation of a natural right appertaining to the former’s land, involves no estoppel to deny the existence of an easement in diminution of such natural right. Furthermore, the fact that an owner observes others using a way he has opened across his land for his own use, doing so in a manner not tending to injure or interfere with his use of the way, does not imply that he is yielding anything of his ownership or that the use by the others is hostile to his ownership.” 3 H. Tiffany, The Law of Real Property § 801 at 318 (3d ed. B. Jones 1939 & Supp.1978).

      . Tuck, et al. apparently planned to subdivide the land. By the time of trial, just four weeks after the purchase of the 0.76-acre tract, they had a contract of sale pending for a part of the tract, contingent upon obtaining access to the Bandera highway.


author: BARROW, Justice. McGEE, Justice,

text:
    Ronald D. WERNER, Individually a/n/f of Teri Rene Werner, Relator, v. Honorable George MILLER, Judge, Respondent.
    No. B-7791.
    Supreme Court of Texas.
    March 21, 1979.
    James H. Brannon, Houston, for relator.
    Vinson & Elkins, Raybourne Thompson, Jr., Houston, for respondent.
   BARROW, Justice.

Relator seeks a writ of mandamus requiring respondent, the Honorable George Miller, Judge of the 113th Judicial District Court of Harris County, to vacate interlocutory orders dated March 14, 1978 and July 19, 1978 and to enter an order compelling International Harvester Company, defendant in a products liability suit brought by relator, to answer certain interrogatories. The question presented is whether entry of the July 19, 1978 order which superseded the March 14 order was a clear abuse of discretion by respondent. We hold that it was not and deny the mandamus.

Werner filed suit against International Harvester on October 24, 1977 seeking to recover damages for injuries sustained by his minor daughter when her right leg came in contact with the rotary blade of a lawn tractor allegedly designed, manufactured and sold by defendant. It was alleged that the injuries were caused “by the negligence and defective design and manufacture on the part of the Defendant.” Commencing shortly after the suit was filed, the attorneys for both parties have expended a great deal of personal and judicial time in unsuccessful efforts to require the opposing attorney to reveal the names of his expert witnesses first. Both parties filed two sets of interrogatories and at least three hearings have been held before the trial court without the names of any potential expert witnesses being revealed.

Following the third hearing, Judge Miller entered the order dated July 19, 1978 which provides for, discovery in the following manner:

“[T]he party setting the cause for trial shall designate, thirty (30) days prior to filing written trial setting of this cause, such experts as he may wish to call as testifying witnesses. It shall be the responsibility of the party wishing to set the cause for trial to file with the papers of this cause and serve upon opposing counsel written designation of experts reflecting the name, address and area of expertise of said expert thirty (30) days prior to the filing of written trial setting of this cause by said party. Upon receipt of the designation of the party wishing to set this cause for trial, the other party shall, within two (2) days of the date of service of said designation, designate, in writing, filed among the papers of this cause and served upon opposing counsel, experts who may testify in his behalf in the captioned matter. Experts not designated as provided by this Order shall not be allowed to testify.”

We do not believe that this order setting up a timetable for orderly discovery proceedings was an abuse of discretion. To the contrary, it breaks the procedural logjam and permits discovery. It is fair to both sides and easy to administer. Only testifying experts need be identified and those, disclosed almost simultaneously, at a date certain, well in advance of trial.

It is well settled that Texas discovery rules provide that a party may be required in his answers to interrogatories to identify each person whom he expects to call as an expert witness at the trial and to state the subject matter on which the expert is expected to testify. This broad right to discovery is limited under Texas discovery practice by the “work product” limitation which has been a part of our Texas Rules of Civil Procedure from their inception. This limitation, which differentiates the Texas discovery practice from the Federal practice, protects from disclosure the mental impressions and opinions of experts used solely for consultation and who will not be witnesses in the case. This limitation was expressly recognized by this Court in Allen v. Humphreys, 559 S.W.2d 798 (Tex.1977); Barker v. Dunham, 551 S.W.2d 41 (Tex.1977); and Houdaille Industries, Inc. v. Cunningham, 502 S.W.2d 544 (Tex.1973). Furthermore, it has been held that the names of experts used only as consultants are irrelevant and immaterial. Boyles v. Houston Lighting and Power Company, 464 S.W.2d 359 (Tex.1971).

The principal question before us in this proceeding, which was not involved in Barker or Houdaille, is at what stage of the proceedings must a party “positively aver” that an expert consultant will not be a witness? This declaration obviously should be made in sufficient time to permit the opposing party to discover the reports, factual observations, and opinions of the potential expert witness. On the other hand, the party employing the consultant must be given sufficient time to develop his case so that an intelligent decision can be made regarding the use of the expert. This right was respected by the parties and this Court in Allen v. Humphreys, supra at 804. To hold otherwise would prevent either party from employing a consultant to investigate an accident without the risk of furnishing a potential expert witness or at least a theory of recovery or defense to the opposing party. One party should not be allowed to benefit unduly from the other party’s diligent preparation. This would impede, not aid, discovery.

The decision of when to require a party to aver that the expert will not be a witness is properly left to the discretion of the trial judge who is in the best position to supervise the progress of the case. Judge Miller was exercising that supervision in entering the order of July 19. His order permitted discovery; it did not prohibit discovery as was the case in Barker.

We recognize that full discovery proceedings including the taking and transcribing of depositions might require more than thirty days. Judge Miller undoubtedly had this in mind when he required the designation of experts to be made at least thirty days prior to that party’s written request for a trial setting. Under the Harris County District Court local rules, the request for a trial setting does not grant a specific trial date, but merely places the cause upon the general trial docket. We were informed by counsel for relator at oral argument that the date for the actual trial is now some two years from the time it is placed on the docket. Irrespective of the accuracy of this prediction, the trial court is in the best position to determine if the timetable allows sufficient time for discovery.

This Court is concerned over the great loss of time and judicial resources through “discovery gamesmanship” of both parties in this cause. However, we believe the supervision of the trial docket is properly left to the discretion of the trial judge. This Court does not have the time or the personnel to supervise the trial dockets of this state. It is primarily our function to review causes decided by the fourteen courts of civil appeals and not to stand behind the trial judges as an umpire to immediately second-guess the numerous decisions necessarily made by a trial judge during the course of a trial. Norvell and Sutton, The Original Writ of Mandamus in the Supreme Court of Texas, 1 St. Mary’s L.J. 177, 183, 184 (1969).

It cannot be said from the record before us that Judge Miller clearly abused his discretion in making the order of July 19,1978. We, therefore, deny the writ of mandamus.

Dissenting opinion by McGEE, J., joined by POPE, JOHNSON and CAMPBELL, JJ.

McGEE, Justice,

dissenting.

I respectfully dissent. The clear language of our rules of civil procedure as well as the policy in this state favoring broad discovery require a prompt disclosure of the requested information in this case.

As a threshold matter, I believe a further exposition of the facts will be helpful to an understanding of this case. On January 25, 1978 Werner filed the following interrogatories:

30. Please state the name, address, and field of expertise of all experts you have consulted in relation to this lawsuit.
31. As to each expert named in answer to the preceding Interrogatory, or to any other expert, do you positively aver that he or she will be used solely for consultation and will not be called as a witness?

Harvester filed objections to these interrogatories, contending that the information sought was privileged and not subject to discovery. Werner, in turn, filed a motion to compel Harvester to answer the interrogatories. On March 6, Judge Miller sustained Harvester’s objections, and accordingly signed the order on March 14. Wer-ner then filed the following interrogatories on March 7:

32. Have you consulted with any expert who will be called as a witness in this case?
33. If your answer is “yes” to the preceding Interrogatory, state the full name, address, and field of expertise of each such expert.
34. Have you consulted with any expert in this case whom you might use as a witness or whom you do not know yet if you will use as a witness?
35. If your answer is “yes,” state
(a) the number of such experts consulted, including your employees who are also experts, and
(b) the date each expert was first consulted, and
(c) the name and address of each such expert.

On April 19, Harvester filed a motion to compel both parties to designate only testifying experts on a date to be set by the trial court. In response, Werner filed a motion on May 23 to compel Harvester to immediately answer Interrogatories 32, 33, 34 and 35. On July 19, Judge Miller denied Werner’s motion to compel answers and granted Harvester’s motion to designate only testifying experts. This order specifically provided that 30 days prior to the filing of the written trial setting the party setting the cause for trial must designate the experts he planned to call as testifying expert witnesses. Any expert not designated according to the provisions of the order would not be allowed to testify.

The questions presented by this proceeding are: (1) whether the trial judge abused his discretion in refusing discovery of consulting experts, and (2) whether the trial judge abused his discretion in delaying discovery of testifying experts until 30 days prior to the filing of the written trial setting. If a clear abuse is found, it is doubtless that a writ of mandamus may issue in a discovery proceeding to correct the trial judge. See, e. g., Allen v. Humphreys, 559 S.W.2d 798, 801 (Tex.1977); Barker v. Dunham, 551 S.W.2d 41, 42 (Tex.1977); Houdaille Industries, Inc. v. Cunningham, 502 S.W.2d 544, 546 (Tex.1973).

A majority of the court relies on Boyles v. Houston Lighting and Power Company, 464 S.W.2d 359 (Tex.1971) for the proposition that names of experts used only as consultants are irrelevant and immaterial. That case is inapposite to discovery in Texas. Boyles was an eminent domain proceeding in which counsel for the condemnor asked the landowner’s expert appraisal witness on cross examination if he knew the names of other appraisers who had examined the property on behalf of the landowner. The trial court held the question improper, but the court of civil appeals reversed. On appeal this court affirmed the trial court holding, reasoning that the names were not properly admissible as evidence. Id. at 361. The case turned entirely upon this evidentiary problem and no question of pretrial discovery was involved.

In this state, pretrial discovery is not governed by the common law rules of evidence. Tex.R.Civ.P. 186a. More importantly, under our rules of civil procedure it is not a ground of objection to discovery that the requested information will not be admissible at trial as long as the information sought appears “reasonably calculated to relate to the discovery of evidence admissible at such trial.” Tex.R.Civ.P. 186a; see Tex.R.Civ.P. 184. Rule 168 specifically provides that interrogatories may relate to any matter which can be inquired into under Rule 186a. Tex.R.Civ.P. 168. Rule 186a provides in pertinent part:

Unless otherwise ordered by the court as provided by Rule 186b, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons, including experts, having knowledge of relevant facts. It is not ground for objection that the testimony will not be admissible at the trial of the cause in which the deposition is taken if the testimony sought appears reasonably calculated to relate to the discovery of evidence admissible at such trial. . . . Provided, however, that subject to the provisions of the succeeding sentence, the rights herein granted shall not extend to the work product of an attorney or to communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation, or defense of such claim, or the circumstances out of which same has arisen, and shall not require the production of written statements of witnesses or disclosure of the mental impressions and opinions of experts used solely for consultation and who will not be witnesses in the case or information obtained in the course of an investigation of a claim or defense by a person employed to make such investigation. Provided, further, that information relating to the identity and location of any potential party and of persons, including experts, having knowledge of relevant facts, and the reports, factual observations and opinions of an expert who will be called as a witness, are discoverable.

Tex.R.Civ.P. 186a. [Emphasis added].

Under this rule, and particularly the italicized proviso, it is clear that the identity and location of all experts possessing knowledge of relevant facts is discoverable. Id.; see W. Jordan 1 Modern Texas Discovery § 1.08, at 42 (1974). It is only the written statements, factual observations, mental impressions and opinions of the consulting expert that are subject to the work product exclusion incorporated into Rule 186a.

Moreover, in two recent opinions handed down by this court we specifically held that the proponent of discovery is entitled to a positive averment from the deponent if the expert in question would fulfill only a consulting role. Allen v. Humphreys, 559 S.W.2d 798, 802 (Tex.1977); Barker v. Dunham, 551 S.W.2d 41, 44 (Tex.1977). Again, this descriptive designation does not invade the work product, but it does minimize surprise and inform the proponent that certain named experts may or may not be deposed depending on their testifying or consulting capacity. See W. Jordan, supra at 42. See also Sea Colony, Inc. v. Continental Insurance Co., 63 F.R.D. 113, 114 (D.Del.1974).

In accordance with Allen and Barker and a literal interpretation of Rule 186a, I would hold that an interrogatory may properly inquire into the identity and location, as well as the testifying or consulting capacity, of any expert possessing knowledge of relevant facts. To deny discovery of this matter flies in the face of this authority and constitutes an abuse of the trial court’s discretion.

The second issue is whether the trial judge abused his discretion in delaying discovery of testifying experts until 30 days prior to the filing of the written trial setting. The majority holds that “when to require a party to aver that the expert will not be a witness is properly left to the discretion of the trial judge . . . .” I disagree. This is not an ordinary case involving issues of discretionary docket management; this is a discovery case. Our rules of civil procedure provide definite, set procedures for answering interrogatories and, if necessary, for enlarging or shortening the time to answer.

Specifically, Rule 168 provides in pertinent part:

The party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within the time specified by the party serving the interrogatories which specified time shall not be less than 30 days after the service of the interrogatories, unless the court, on motion and notice and for good cause shown, enlarges or shortens the time.

Tex.R.Civ.P. 168 [Emphasis added]. There is absolutely no indication in the present record that good cause was either alleged or shown to justify an enlargement of time to answer. Without such a showing, the trial judge abused his discretion in refusing to order Harvester to immediately answer the interrogatories.

Like our other discovery rules, Rule 168 is designed to achieve a speedy and just disposition of litigation with the least possible expense to the litigants. See Tex.R.Civ.P. 1. Written interrogatories have been characterized as the most efficient of the discovery tools because “they allow both parties to gather salient information with a minimum investment of time and expense,” particularly during the earlier phases of pretrial preparation. Sales & Perdue, The Law of Strict Tort Liability in Texas: Investigation & Discovery, 14 Hous.L.Rev. 157, 175 (1976-77). Thus, discoverable information inquired into by way of interrogatories should be forthcoming unless the deponent has shown good cause for delay.

The respondent contends before this court that the delay was necessary to allow the litigants time to decide which experts would be called to testify. Even if this contention had been properly presented to the trial court, it is nonetheless without merit. In Barker v. Dunham, supra, the deponent of discovery resisted the oral deposition of one of its experts, contending that he did “not know yet” whether he would call the expert to testify. We held that the proponent’s discovery efforts could not be delayed by such indecision and reasoned that the policy of broad discovery favored allowing oral deposition in the absence of a positive averment that the expert would fulfill only a consulting role. 551 S.W.2d at 44; accord, Allen v. Humphreys, 559 S.W.2d 798, 802 (Tex.1977). Similarly, the discovery of an expert’s identity and location cannot reasonably be delayed simply because a litigant remains undecided as to what capacity the expert will fulfill.

Therefore, I would hold that the proponent of appropriately phrased interrogatories is entitled to a speedy discovery of the identity, location and capacity of the deponent’s experts in accordance with the provisions of Rule 168 relating to time for answers. If the deponent is unable to positively aver that the expert in question will be used solely for the purposes of consultation, the proponent will be further entitled to depose the expert as if he were a testifying expert. To hold otherwise encourages an unnecessary hiatus in trial preparation, including delay in further discovery efforts. While keeping the proponent in the dark, such delay also impairs the speedy disposition of litigation, increases expense, and ultimately wastes valuable judicial resources. In my opinion the trial court clearly abused its discretion by rendering its July 19 orders denying Werner’s motion to compel immediate discovery and granting Harvester’s motion to compel discovery of testifying experts 30 days prior to the filing of the written trial setting.

For the reasons stated I would issue the writ of mandamus. '

POPE, JOHNSON and CAMPBELL, JJ., join in this dissent.

      . Any error in this or any other superseded interlocutory order would be properly reviewable by appeal.

      . All relevant dates fall within the year 1978 unless otherwise indicated.