author: REAVLEY, Justice. GREENHILL, Chief Justice, DANIEL, J., DANIEL, Justice,

text:
    Bette REED, Trustee, Petitioner, v. W. C. WYLIE et ux., Respondents.
    No. B-6184.
    Supreme Court of Texas.
    July 8, 1977.
    Dissenting Opinions May 25, 1977, July 8, 1977.
    Rehearing Denied July 27, 1977.

      W. A. Keils, Jr., Teague, for petitioner.
    Life & Bolding, Jack T. Life, Athens, Strasburger, Price, Kelton, Martin & Unis, Leo J. Hoffman, Dallas, for respondents.
   ON MOTION FOR REHEARING

REAVLEY, Justice.

The judgment of the Court of Civil Appeals was affirmed by our judgment on May 25, 1977. The motion for rehearing of Bette Reed, Trustee, is hereby overruled, but the opinion of May 25 is withdrawn and the following opinion delivered in its stead.

The ultimate question in this case is whether a 1950 deed, which reserved to the grantor one-fourth interest “in and to all oil, gas and other minerals on and under the land and premises herein described and conveyed,” reserved one-fourth of the interest in coal and lignite. The trial court rendered a summary judgment in favor of the owner of the granted surface estate, but the Court of Civil Appeals held that the proof did not support a summary judgment and remanded the case for trial. 538 S.W.2d 186. We agree with the Court of Civil Appeals that the summary judgment was unwarranted. We also agree that Acker v. Guinn, 464 S.W.2d 348 (Tex.1971) rules the ultimate issue of the case, but questions raised in the lower courts require that we make certain the effect of Acker v. Guinn before the case proceeds further.

By a deed dated September 30, 1950 W. C. Wylie and wife, Iva Jack Wylie, conveyed 223.385 acres of land in Freestone County to James F. Baker. That deed contained the following reservation:

In addition to the above and foregoing exception there is hereby excepted and reserved to the Grantors herein a one-fourth (V4) undivided interest in and to all oil, gas and other minerals on and under the land and premises herein described and conveyed; and it is hereby expressly agreed and understood that Grantors herein, their heirs and assigns shall have, and they hereby have the right of ingress and egress for the sole and only purpose of mining and operating for oil, gas and all other minerals, on and under said land, and to produce, mine, save and take care of said products, and to take all usual, necessary and convenient means for working, preparing and removing said minerals from under and away from said land and premises.

All of the interest conveyed by this deed to James F. Baker is now owned by Bette Reed, Trustee. The controversy is between Wylie and Reed as to whether Wylie retained the ownership of a one-fourth interest in coal and lignite in this land by virtue of the reservation in the 1950 deed as set forth above. Reed initiated this suit seeking a declaratory judgment and other relief.

By summary judgment the trial court declared that Reed is the owner of “all of the coal and lignite that may be mined and removed” from the land “by open pit or strip mining methods.” Reed, the surface owner, was apparently satisfied with that trial court judgment. Wylie, the owner of the mineral interest reserved by the quoted provision, appealed to the Court of Civil Appeals. The Justices of that Court delivered three opinions. The principal opinion addresses only the inadequacy of the summary judgment proof. A concurring opinion states that the surface owner Reed is not entitled to all lignite “that may be mined by open pit methods” but by the rule of Acker v. Guinn is entitled to “only the lignite that must be removed by such methods.” 538 S.W.2d 189. A dissenting opinion states that the trial court’s judgment should be affirmed but reformed to declare that surface owner Reed “is the owner of all of the coal and lignite that must be mined and removed by open pit or strip mining” 538 S.W.2d 190.

Both parties sought writ of error in this Court. Reed contends that the trial court’s summary judgment was correct and should be affirmed. Wylie argues that Acker v. Guinn does not apply to the particular reservation here or to the substance of lignite. Wylie also is critical of the rule announced in Acker v. Guinn and argues that at the proper time, or here if necessary, it should be reexamined.

Wylie is joined by amici curiae briefs in the criticism of Acker v. Guinn. We are told that the mineral owner should expect to get all of the mineral substances beneath the surface of the land and that the law would afford more certainty in these affairs of titles and business if the ownership of the minerals were vested in that owner subject to the usual limitation that he may not make an unreasonable use of the surface in the production or extraction of the minerals. We are inclined to believe that in most of these cases of unnamed minerals which later become very valuable, the subsequent controversy decides which party will be enriched by a substance which took no part in the intention or bargaining of the parties to the instrument of conveyance. Furthermore, we are not convinced that a rule of law which leaves questions of reasonable use of the surface, in each instance where mineral substances at or near the surface are to be produced, will lead to more certainty and less litigation. But whatever the merits or demerits of the holding in Acker v. Guinn, it was established by this Court six years ago, and those persons who have dealt in mineral and land interests during these years have assumed that what we said in that opinion would continue to be the Texas law. They assumed correctly. We reaffirm the holding and the writing in Acker v. Guinn.

The Rule of Acker v. Guinn

(464 S.W.2d 348, Tex.1971)

The question in Acker v. Guinn was whether an interest in iron ore passed to the grantee in a 1941 deed which conveyed “an undivided V2 interest in and to all of the oil, gas and other minerals in and under, and that may be produced from” a tract of land in Cherokee County. The ore deposits in the area varied in thickness from a few inches to three or four feet and ranged in depths from outcropping on the surface to as much as fifty feet below the surface. There was no question but that the ore must be mined by the open pit or strip method. The Supreme Court affirmed a summary judgment in favor of the surface owner.

The Court wrote that a general intent rather than the specific thinking or intent of the parties should be the inquiry where the instrument itself expresses no specific intent and it can only be supposed. The general intent of a grant or reservation of minerals by a fee owner was taken to be to create an estate in the mineral owner in the valuable substances usually removed from the ground by means of wells or mine-shafts but not by a method which would destroy or deplete the surface. The Court then declared that the following rule was “to be applied in determining whether an interest in the iron ore was conveyed by the deed” in that case:

Unless the contrary intention is affirmatively and fairly expressed, therefore, a grant or reservation of “minerals” or “mineral rights” should not be construed to include a substance that must be removed by methods that will, in effect, consume or deplete the surface estate.

The Court clearly based the disposition of Acker v. Guinn upon this rule and concluded that the conveyance of “all oil, gas and other minerals . . . that may be produced” included no interest in iron ore. The Court might have construed the conveyance to vest ownership of all ore in the mineral owner and allowed the problem of minerals lying near the surface to be met by limiting the implied easement of the mineral owner in the use of the surface for extraction or production of those minerals. That was not the holding in Acker v. Guinn. The substance which can be extracted only by substantial destruction of the surface is owned by the surface owner.

Here, as in Acker v. Guinn, the Court is construing a written instrument. If the instrument had specifically reserved coal and lignite, or if the conveyance had expressly reserved all minerals lying upon the surface or at any depth and including those minerals which may be produced by open pit or strip mining, the intention and effect of the instrument would have been clearly expressed. Furthermore, mineral ores and coal and lignite would ordinarily be reserved to the mineral interest owner by the terms of the Wylie to Baker instrument. That is not true, however, under Acker v. Guinn, if any part of the substance lies so near the surface that to be extracted it “must be removed by methods that will, in effect, consume or deplete the surface estate.” Because it is not expected that the parties to the instrument would have intended the destruction of the surface by the mineral owner in the absence of an expression of that intention, their use of “mineral” in the instrument is not construed to include the near surface substance. Once the instrument is construed to that effect, this particular substance — at whatever depth —is not a “mineral” for all purposes of the instrument.

Acker v. Guinn stands for the rule that a substance is not a “mineral” if substantial quantities of that substance lie so near the surface that the production will entail the stripping away and substantial destruction of the surface. That being the circumstance, and there being no contrary affirmative expression in the instrument, it controls the construction of the instrument as to the same substance at all depths.

It is improper therefore to declare that the surface owner is entitled to only so much of the substance as may be produced by strip mining or pit mining. We are not dividing the right to produce the substance; we are construing the instrument of conveyance to ascertain the ownership of the substance. Furthermore, the rule of construction does not favor the surface owner simply because it is shown that the substance “may” be produced by strip or pit mining. Instead, the surface estate owner must prove that, as of the date of the instrument being construed, if the substance near the surface had been extracted, that extraction would necessarily have consumed or depleted the land surface.

If the method of production required the removal of surface soil, it is immaterial that devices of restoration or reclamation were available. The thinking or intention or knowledge of the parties, or the lack of knowledge, would also be immaterial. The value of the substance, either on the date of the instrument or at any subsequent date, would not change the rule of construction announced in Acker v. Guinn.

Disposition of Present Case

It cannot be said that the quoted reservation in the 1950 deed affirmatively and fairly expresses an intention to reserve to Wylie an interest in any substance to be found in deposits at the surface level of the land. Wylie argues that by describing “minerals on and under the land” the reservation evidences an intention to include minerals belonging to both the surface and to the sub-surface. We do not agree, because the preposition “on” has traditionally been used in conveyancing to mean more than “on the surface of.” See Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 805 (1940). It is suggested that there was shaft mining for lignite in this area of Texas prior to the date of the 1950 deed. This fact would have no effect if lignite were located at or near the surface of the land being conveyed and if in 1950 this shallow lignite would have been extracted only by a method that would have destroyed the surface of the land.

The record, however, does not prove the depth at which the lignite is located so as to show that the extraction of the lignite would have necessarily removed or destroyed the surface of the land. If lignite lies at the surface of the land, no further proof would be required to establish the title of Reed to the lignite as against Wylie’s claim under the 1950 reservation. Reed, however, presented only an affidavit of a landman for a utility company who stated therein that the coal and lignite will be removed from this land by open pit mining and that it can be recovered only by this method. If this is the expression of an opinion as to mining methods used for lignite mining at certain depths, no qualifications of the affiant are shown, and it has been held by this Court that expert opinion testimony does not establish the fact as a matter of law in support of a motion for summary judgment. Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857 (Tex.1975); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Broussard v. Moon, 431 S.W.2d 534 (Tex.1968).

Movant Reed was not entitled to summary judgment. The Court of Civil Appeals judgment, remanding the cause to the trial court, is affirmed.

GREENHILL, C. J., concurring.

DANIEL, J., dissenting, in which STEAKLEY, J., joins.

GREENHILL, Chief Justice,

concurring.

I agree' with much that the Court has written on motion for rehearing; and I particularly agree with the Court’s conclusion that if lignite lies at the surface of the land, no further proof would be required to establish the title of Reed to the lignite as against Wylie’s claim under the 1950 reservation.

I also agree that under our practice, there was a lack of summary judgment proof as to the location of the lignite; and so I agree with the judgment of remand by the Court.

I disagree, however, with an important holding of the Court which is expressed in its writing that the “surface estate owner must prove that, as of the date of the instrument being construed, if the substance near the surface had been extracted, that extraction would necessarily have consumed or depleted the land surface.” [emphasis supplied]. By this statement, the Court requires, or at least infers, that the surface owner must show that the only method of extracting the mineral, at the time the instrument was executed, would have destroyed or substantially depleted the surface.

Although I agree that the instrument should be construed as of the date of its execution, I believe that the surface owner should prevail if he shows that any reasonable method of production would have destroyed or depleted the surface estate. The Court’s more onerous burden is not required by the holding in Acker v. Guinn, and I believe that the less burdensome requirement I would impose is more in keeping with the reasoning in that case.

The rule of Acker is based on the Court’s reasoning that, “It is not ordinarily contemplated, however, that the utility of the surface for agricultural or grazing purposes will be destroyed or substantially impaired [by production of the minerals conveyed].” 464 S.W.2d at 352. The Court, therefore, stated the general rule to be that when the substance must be produced by surface-destroying methods, then the term “minerals” should not be construed to include that substance absent a showing of an intent to the contrary. Since it was undisputed that the only way to produce the iron ore in Acker was by open pit or strip mining, the Court concluded that as a matter of law the iron ore had not been conveyed in the mineral deed.

In Acker v. Guinn, therefore, this Court did not decide the question of whether a substance passes as a mineral if that substance may be, but does not have to be, mined by surface-destroying methods. In this case, however, the Court has decided that question. By holding or implying that the surface owner must show that the only method of producing the substance would have destroyed the surface, this Court here holds that if there were two methods of production at the time of the instrument, one of which would have destroyed the surface, and the other which would have not, then the substance is a “mineral” which was conveyed to the mineral owner.

Under the reasoning of Acker, I would reach a different conclusion. I would think that a surface owner would not intend to convey away an unnamed substance as a “mineral,” when any reasonable method of producing that substance would destroy or deplete his estate. If strip mining was a reasonable method of recovery at the time of the execution of the instrument, then the surface owner could reasonably expect that method to be used to extract the substance; and he would not intend to convey it as a “mineral” to the mineral owner. Therefore, I would hold that the surface owner need only show that a reasonable method of extraction would have entailed the destruction of the surface. Upon such a showing, the substance would be deemed not to be a “mineral”; and therefore it would not have passed to, or have been retained by, the mineral owner in the instrument.

DANIEL, J., dissents.

DANIEL, J.,

dissenting.

Dissenting Opinion of May 25, 1977.

I concur in the holding of the Court that lignite and coal were not included in the terms of the reservation of a portion of “all oil, gas and other minerals on and under the land” in question, but for additional and different reasons. First, I would apply the rule in Acker v. Guinn, 464 S.W.2d 348, (Tex.1971), to the near-surface coal and lignite which form a part of the surface. I would not extend it, however, to require factual or legal findings as to whether the substance must be mined only by surf ace-depleting processes.

At the outset it should be noted that the plaintiff, Bette Reed, Trustee, sued the defendants, W. C. Wylie and wife, only for the title to “all of the coal and lignite that may be mined and removed by open pit or strip mining methods.” Defendants raised the broad issue of title to deeper coal and lignite by asserting title to Vi of all lignite and coal under the reservation in the deed from Wylie and wife to J. F. Baker and wife, predecessors in title to the plaintiff.

I would hold that Acker v. Guinn should be applied as to the near-surface coal and lignite which may be’ mined and removed from the premises by open pit or strip mining methods without any requirement that the surface owner must prove that such method of extraction was the only method of removing this near-surface mineral at the time of the deed. In my opinion the intention of the parties in Acker was determined by this Court on the basis of the near-surface ore being so much a part of the surface estate that it, like gravel and limestone, “should be considered as belonging to the surface estate and not as a part of the minerals,” rather than because its only method of production must consume or destroy the surface. The latter was only one test of ownership of the ore as part of the surface. The controlling principle was the iron ore’s existence so near the surface that it formed a part thereof rather than a part of the “minerals.”

Further, as to this near-surface ore as well as the deep-basin ore (200 to 5,000 feet below the surface), I would hold that coal and lignite were not included in the reservation of lU of “all oil, gas and other minerals,” because neither was named along with oil and gas in the specific enumeration and neither falls within the “catch-all” general phrase “and other minerals.” The latter obviously applies only to oil and gas related minerals which may be extracted through wells drilled into the subsurface of the soil. Not only is lignite coal a solid or hard mineral, different from oil and gas in various characteristics, but its near-surface (from 1 to 200 feet) production by open pit mining necessarily interferes with the other uses of the surface owner, and from this record it is apparent that underground shaft mining of both near-surface and the deep-basin (200 to 5,000 feet below the surface) would place a substantially different burden on the surface owner than the drilling and producing of oil, gas, sulphur and related minerals through well bores.

The phrase “all oil, gas and other minerals” is a common term lifted from oil and gas lease forms used in this State as early as 1919. See Producer’s and other forms in the Appendix to Thuss, Texas Oil and Gas, 2nd Ed. 1929, 453-478. The phrase is frequently used in fee “oil, gas and other mineral” reservations and conveyances. Petitioner Wylie, claiming that “other minerals” in his reservation covers coal, fails to cite any Texas case so holding, and I have found none. The majority of other jurisdictions which have considered the question have held that the phrase “all oil, gas and other minerals” does not include coal. Besing v. Ohio Valley Coal Co., 155 Ind.App. 527, 293 N.E.2d 510 (1973); Wulf v. Shultz, 211 Kan. 724, 508 P.2d 896 (1973); Panhandle Cooperative Royalty Co. v. Cunningham, 495 P.2d 108 (Okl.1971). Cf. Collins v. Coastal Petroleum Co., 118 So.2d 796 (Fla.App.1960).

In Wulf v. Shultz, supra, the Supreme Court of Kansas was called upon to decide whether a mineral lease “grants to the lessee the right to extract coal, clay, gypsum, limestone . . . from the leasehold as well as oil and gas and their derivatives” when the lease is framed as a grant “to dig, drill, operate for and procure natural gas, petroleum and other mineral substances.” The court concluded as follows:

“An examination of the lease leads us to but one conclusion: That the intention of the original parties to the lease was to restrict the scope of the lease to the exploration and production of oil, gas and related minerals.
* * * * ‡ *
“. . . Surely, if the parties had contemplated that the lease was to cover minerals other than oil and gas, or related substances, they would have mentioned them specifically in the lease.”

After making the above holding, the court added that “the rule of ejusdem gen-eris has been applied in cases similar to this both in Kansas and other jurisdictions,” but it recognized that “courts generally have not limited their construction of leases and deeds containing the language ‘oil, gas and other minerals’ to an application of the rule of ejusdem generis,” and the court did not do so in that case. Rather, it used the rule only to test and support its previous construction of a lease which was not contended to be ambiguous by either party.

The question in Panhandle Cooperative Royalty Co. v. Cunningham, supra, was whether a conveyance of an undivided interest “in and to all oil, gas and other minerals” included copper, silver, gold or any other types of metallic minerals or metallic ores lying in, upon or under the land covered by the conveyance. The Oklahoma Supreme Court answered in the negative, stating that the deed granted “the right to prospect for, discover, produce and own oil, gas and other minerals produced as oil or gas or produced as a component or constituent thereof, whether hydrocarbon or non-hydrocarbon, and does not grant any other mineral or the right to produce any other mineral including copper, silver, gold or any other types of metallic ores or metallic minerals.” Concluding that the intention of the parties was unambiguous, the court said: “We did not use ‘ejusdem generis ’ in our interpretation of this deed . . . ,” although the rule was recognized as a proper and useful rule of construction to interpret words of doubtful meaning.

In Besing v. Ohio Valley Coal Co., Inc. of Kentucky, 155 Ind.App. 527, 293 N.E.2d 510 (1973), the question was whether a deed covering “all gas and other minerals” included coal deposits underlying the land described in the deed. The Indiana court considered the phrase “and other minerals” to be ambiguous enough to permit extrinsic evidence which showed that the parties were primarily involved in the oil and gas business and that coal, although known to be present in the area, was not generally considered to be commercially recoverable. Besing, the grantee, cited Acker v. Guinn, supra, for the position that “. . . a general grant or reservation ... of all minerals without qualifying language should be reasonably assumed that the parties intended to sever the entire mineral estate from the surface estate . The court answered this argument in its final conclusion as follows:

“In the instant case there was not a grant of all minerals without qualifying language, but rather a grant of ‘other minerals’ as qualified by the words ‘oil, gas, and’ immediately preceding ‘other minerals’.”

The Indiana court held that the term “and other minerals” was not meaningless, citing the lower court’s finding:

“That as a natural adjunct to the production of oil or natural gas from a drilled oil and/or gas well, certain hydrocarbons which are known as casing head gasoline and casing head gas are also sometimes produced, and in addition to these hydrocarbons, on some occasions sulphur, helium, brine, and carbon dioxide are also naturally produced along with the production of oil and gas from a drilled oil or gas well.”

Professor Kuntz, whose writings were partially followed in Acker v. Guinn, supra, addresses the above stated rule as follows:

. . Since minerals may be severed piecemeal, i. e. both as to type and location, if the language of the instrument indicates a specific intention to do so, then that intention must be given full effect. For example, where the purposes of the grant indicate that a specific type of mineral was intended to be covered, or where there is an enumeration of certain minerals having characteristics in common followed by ‘etc.’, or where the description of the rights or removal are sufficiently specific to indicate that only a certain character of mineral was intended to be covered, then, in such cases, there is a specific intent present and it is expressed, although perhaps not with the desired clarity.”

Although coal of every type and nature is a mineral in the geologic sense, so is every other inorganic species having a definite chemical compound. The term in its general sense has such a broad significance that it could include “any constituent of the earth’s crust.” Gladys City Oil, Gas & Mfg. Co. v. Right of Way Oil Co., 137 S.W. 171, 177 (Tex.Civ.App.1911), affirmed Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg., 106 Tex. 94,157 S.W. 737 (1913). The scientific or technical definition of minerals is so broad as to embrace not only metallic minerals, oil, gas, stone, sand, gravel and many other substances, but even the soil itself. Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994 (1949). That is why cases have continued to arise as to what mineral substances are considered to be a portion of the surface when there has been a severance in general terms or in specific terms followed by general “and other minerals.” A windfall of great proportions often occurs in favor of one who obtains title under unrestricted general terms, but my opinion refers only to the language before us in the Wylie reservation of Vi of the “oil, gas and other minerals.” I fully recognize that a reservation, conveyance, or lease in the terms of “all minerals of whatsoever kind or character,” or similar unrestricted terms would include all minerals (with the exception of those which comprise a part of the surface). Psencik v. Wessels, 205 S.W.2d 658 (Tex.Civ.App.1947, writ ref’d).

Minerals have been a blessing to Texas, but the term has plagued our courts in efforts to determine what is covered by the term in various leases, reservations and conveyances. Much of this is because of the failure to enumerate specific minerals intended to be dealt with, especially when the parties probably had no subjective intent at all concerning minerals known or unknown to them at the time of their dealings.

There was little doubt about what was encompassed in the term “mines and minerals” when they were owned by the sovereign separate and apart from the soil under the civil law of Mexico, which remained in effect in Texas until 1866. The Mining Ordinances of May 22, 1783, promulgated for Mexico by the King of Spain, enumerated the minerals owned by the sovereign and subject to exploration as

“. . . not only the mines of gold and silver, but also those of precious stones, copper, lead, tin, quicksilver, antimony, calmine, bismuth, rock salt and other stoney matter (fossils), be they ores or semi-minerals, bitumen, and liquids (juices) of the earth . . . .” Chapter 6, Section 22. (Rockwell’s Spanish and Mexican Law 54-55).

If the parties to the deed in question had intended that the mineral known as lignite or coal was to be included in the reservation, it would have been an easy matter to say so. Despite the fact that this particular solid mineral had been mined in the area previously and was at the time under a lignite lease, Wylie, the reserving grantor, did not specify the substance in the reservation. As the deed was written, the reservation should be construed to cover the stated fraction of all oil, gas and other related minerals such as sulphur, helium, carbon dioxide, casing head gas, and distillate, but not lignite, coal, gold, silver or other solid minerals.

Although I reach the same result as the majority with respect to the particular tract under consideration, my reasoning as to non-inclusion of lignite and coal would apply to all leases, reservations, and conveyances which do not mention these substances and which rely solely on the meaning of “all oil, gas and other minerals,” regardless of the depth of lignite or coal. As heretofore indicated, my opinion is limited to the construction of these particular words of the particular instrument under consideration.

With due respect, I question the soundness of the manner in which the majority reached its result and believe that it will lead to ownership uncertainties and litigation almost on a tract-by-tract basis whenever and wherever title to lignite coal is concerned. Land titles will be decided more by inspection for near-surface out-croppings and proof of the necessary method of producing the substance at the time of the deed or lease than by reading the instruments of conveyance or lease.

The rule of the majority would also lead to inequities. For instance, under the majority’s reasoning a reservation, conveyance or lease of oil, gas and other minerals would include coal and lignite if nothing to the contrary was stated and if there was no coal or lignite near the surface, the production of which could be accomplished only by open pit strip mining on the date of the instrument being construed. To demonstrate the problem with this rule, let us suppose that two farmers owned adjoining tracts of 1,000 acres each. Both signed the same form of lease or conveyance of %ths of “all of the oil, gas and other minerals in and under and that may be produced from said land,” to the same grantee or lessee for the same consideration per acre. Assume that both had deep lignite or coal deposits which could be extracted through shaft mining. Assume further that farmer A had no coal or lignite near the surface of his 1,000 acres which could be produced by strip mining, but farmer B had fifty acres of his 1,000 acres on which lignite was close to the surface and could be commercially produced only by depletion or consumption of the surface of that particular fifty acres.

Under the reasoning of the majority, the grantee or lessee would get from farmer A title not only to %ths of his oil and gas but %ths of his coal and lignite. Prom farmer B, his neighbor, the grantee or lessee would get %ths of his oil and gas but none of his coal and lignite — not even any of the deep strata on 950 acres of the land which was not overlaid by lignite on or near the surface. This seems to be an instance of the tail wagging the dog. I suppose the rule would be the same even on a 50,000 acre tract, if any part of the tract had near-surface lignite or coal which could be mined only by open pit or strip mining at the time the instrument was executed. If the lease or deed is worded as in the present case, the title examiner cannot tell from the instrument whether the surface owner or the mineral lessee or grantee has title to the lignite and coal until certain factual determinations are made on the ground and possibly in the courtroom.

My reasoning may not please the mineral owners under “oil, gas and other mineral” conveyances or reservations, but at least it would provide a clear and simple test which can be made by reading the instrument; it is applicable to old as well as new instruments; and it does not depend on factual proof or changing times.

I especially disagree with that portion of the majority opinion which requires as a test of ownership a finding as to whether the near-surface lignite must be recovered by strip or open pit mining. The majority holds that in order to prevail, the surface estate owner must prove that, as of the date of the instrument being construed, the only method of extraction of the substance at near surface depths would have consumed or depleted the surface estate. It is this must prove requirement which places a heavy burden on the surface owner and which will result in lawyers going to the courthouse more often to examine witnesses than to examine deed records.

This case is of such great importance that each of the parties has filed multiple briefs, and fourteen amicus briefs have been filed by prominent law firms from every section of the State. Ten of the amicus briefs support the surface owner in general, but neither they nor the petitioner advocate that the Acker near-surface rule be extended to cover the deeper deposits, and all of them object with vigor against any requirement of proof that surface-destructive processes must be proved as the only means of production in order for the surface owner to prevail as to shallow ore which is part of the surface. Legal issues should not be decided by numbers of briefs filed, but the content of the majority of the briefs is highly convincing on this point. Furthermore, it accords with Professor Kuntz’s statement on this phase of the problem, as follows:

“A rule which requires consideration of the contemporaneous factual or legal setting would create the impossible situation of requiring the title examiner to inquire into the local folk-lore of the area or of requiring the examiner to retain a cata-logued knowledge of the law as to dates of development. In either event, he could never be confident of his conclusion.”

I would reverse the judgment of the Court of Civil Appeals and remand the case to the trial court with instructions to enter a judgment in favor of plaintiff, Bette Reed, Trustee, in accordance with this opinion.

DANIEL, Justice,

dissenting.

I would hold that the surface owner, Mrs. Reed, is entitled to judgment as a matter of law. This is for the reasons stated in my former dissenting opinion and for the additional reasons stated herein with respect to the opinion of the Court this day substituted for its opinion of May 25, 1977. This separate and additional dissent is directed solely against the following sentences on page six of the new majority opinion:

“. . . Furthermore, the rule of construction does not favor the surface owner simply because it is shown that the substance ‘may’ be produced by strip or pit mining. Instead, the surface estate owner must prove that, as of the date of the instrument being construed, if the substance near the surface had been extracted, that extraction would necessarily have consumed or depleted the land surface.” (Emphasis supplied.)

My objections to this burden of proof being placed upon the surface owner are much the same as those stated in the concurring opinion of the Chief Justice. I agree with him that conditioning the surface owner’s title on proof that surface destructing processes were the only means of extracting the near-surface mineral substances at the time of the deed is a departure from the “general intent” reasoning of Acker v. Guinn, 464 S.W.2d 348 (Tex.1971).

In the absence of ambiguity, I construe the “general intent rule” of Acker as one which calls for construction of the mineral grant or reservation as a matter of law from the terms of the written instrument without the aid of extrinsic evidence and fact findings. It was in such manner that in Acker, after considering the ordinary and natural meaning of the terms, the location of the iron ore with respect to the surface, and methods of production and their effect on the surface, we decided that the substance was “quite similar to gravel and limestone”; that it, like gravel and limestone “should be considered as belonging to the surface estate and not as a part of the minerals.” Thereupon, we held in Acker that “as a matter of law no interest in the ore passed by the [mineral] deed.”

In Acker there was no dispute about the nearness of the substance to the surface or its being subject to a method of extraction which would consume or deplete the surface. Neither do I find any dispute between the parties on these physical characteristics of lignite in the present case. It is shown by this record and is commonly known that lignite is a low-grade coal with near-surface deposits occurring from surface outcroppings to 200 feet below the surface in much of the eastern portion of Texas, including Freestone County, and that it is extracted by modern surface-mining methods. Wylie admitted in his post-submission brief that “these substances occur in Texas from points near surface to depths of five thousand feet . .” and that “it is feasible to remove lignite by strip mining methods down to a maximum depth of two hundred feet from the surface.” (Post-Submission Brief of W. C. Wylie, et ux., p. 3.) Furthermore, Mrs. Reed only asked in this suit for a determination of title to “all of the coal and lignite that may be removed ... by open pit or strip mining methods.” Wylie joined issue and tried the case on pleadings, affidavits and briefs which seem to agree that there is near-surface as well as deeper lignite and coal on the land in question.

Under these circumstances I see no need for a remand for the purpose of taking evidence of the location and depth of the near-surface (above the depth of 200 feet) lignite. However, if I am mistaken and there does exist a disputed fact issue between the parties as to such location and depth, the Court has properly remanded for proof thereon. If upon rehearing it is agreed or shown that lignite exists at or near the surface, then the trial court should decide ownership to be in the surface owner as a matter of law, it having been conceded that lignite located above 200 feet is subject to extraction by strip mining methods.

The majority opinion agrees that if lignite “lies at the surface of the land, no further proof would be required to establish the title of Reed,” the surface owner. This holding for the surface owner as a matter of law as against Wylie’s mineral reservation in the 1950 deed, does not require the surface owner to prove that if the substance had been extracted at the time of the deed that such extraction would necessarily have consumed or depleted the land surface. I would extend the same holding as a matter of law to lignite shown to exist at or near the surface, because that is the only holding which is in accord with Acker v. Guinn.

Method of production was only one of the three tests of Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994 (1949), which led the Court in that case and in Acker to hold as a matter of law that near-surface mineral substances belong to the surface estate unless otherwise specifically provided by the parties. That the near-surface substance was subject to removal by methods which would destroy or impair the surface was an important consideration, but Acker made no requirement of proof that extraction of the substance on the date of the instrument (1941) “would necessarily have consumed or depleted the land surface.” The ultimate and controlling factor was the close physical relationship of the substance to the surface itself. That was our interpretation of Acker when this Court said in Robinson v. Robbins Petroleum Corporation, Inc., 501 S.W.2d 865, 866 (1973):

“. . . When closely related to the surface itself, gravel and limestone and even iron ore have been held not to be embraced by mineral ownership. Acker v. Guinn, 464 S.W.2d 348 (Tex.1971); Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994 (1949); Psencik v. Wessels, 205 S.W.2d 658 (Tex.Civ.App.1947, writ ref.).”

The objectionable sentences in the substitute opinion place undue emphasis on the expression “must be removed” in Acker. Atwood v. Rodman, 355 S.W.2d 206 (Tex.Civ.App.1962, writ ref’d n. r. e.), cited with approval in Acker, affirmed a judgment for the surface owner against the mineral owner for all sand, clay, gravel, caliche and limestone which may be removed by the open pit or quarry method.

The rationale of the Acker and Heinatz decisions that near-surface mineral substances belong to the surface estate is based upon the conclusion from the written instruments that the parties contemplated that the integrity and uses of the surface would be protected from destruction by any and all methods of extraction of near-surface minerals that would destroy or deplete the surface. There is no reason to inject a fact question as to the effect of extraction at the time of the deed or leases, because the “general intent” of the parties to a 1940 deed was not simply to avoid destruction of the surface by methods then available but also to avoid such destruction by any methods that may be devised in the future, because the same risk to the surface owner continues to exist. Why limit consideration of the result of near-surface mineral extraction to the time of the deed? Was the intent to protect the surface from destruction or impairment limited only to the date of the deed? Obviously not.

A great and unnecessary burden is placed upon the surface owner as to near-surface lignite by the requirement of extrinsic proof as to the possible means of extraction at the time of the instrument being construed. This could be difficult or impossible in instances of ancient leases and deeds.

There is a rulé of law that proof of the present existence of an object, thing, condition, or method raises the presumption of its prior existence on a given date. Ross v. Green, 135 Tex. 103, 139 S.W.2d 565 (1940); State v. Macken, 162 S.W. 1160 (Tex.Civ.App.1913, writ ref’d); Eubanks v. Winn, 469 S.W.2d 292 (Tex.Civ.App.1971, writ ref’d n. r. e.); Brice v. Edwards, 260 S.W.2d 132 (Tex.Civ.App.1953, writ ref’d n. r. e.); Rumbo v. Nixon, 241 S.W.2d 983, 985 (Tex.Civ.App.1951, no writ); Johnson v. Charles William Palomba Co., 114 Conn. 108, 157 A. 902, 80 A.L.R. 441 (1932); II Wigmore on Evidence § 437, 413-414 (3rd Ed.); 31A. C.J.S. Evidence § 140, 305-307; 29 Am.Jur.2d 245, 292; 7 A.L.R.3d § 4, 1308.

Although intention of the parties when they executed the instrument is an important determination, our decisions in the past have not been concerned with their subjective intent, knowledge, or attending circumstances. Unless an ambiguity appears, which is not present here, the interpretation of mineral and surface estate conveyances, leases, devises, and reservations has been by consideration of. commonly known factors, and ownership has been determined from the wording of the instruments as a matter of law. That is the only way to insure certainty and stability of land titles. When we condition title on what “must be proved” concerning the result of a method of extraction as of a given date in the past, we base the intention of the parties not upon the language of their document but on matters of fact and opinion evidence. We have been cited no cases by the parties, and the majority cites none, holding that determination of what constitutes a “mineral” within the meaning of an “other minerals” grant or reservation is a fact question, much less a question limited to production methods as of a past date.

By injecting questions of fact which existed at the time of the deed into the determination of the ownership of near-surface lignite, coal and similar substances, Acker is stripped of all of its precedential value as a matter of law; titles will now have to be determined by fact findings on a ease by case basis. It is clear from this record that the status of near-surface lignite and the method by which it will be mined are not going to change from tract to tract or case to case. Yet if title thereto is tried on a case by case factual basis the result may vary according to the testimony of warring “expert” witnesses and the findings of various juries. This leaves the possibility that those who have dealt with surface rights during the past six years on the basis of the rule of law stated in Acker may or may not end up with title' to near-surface mineral substances, depending upon expert testimony and what a jury or judge finds on this newly required ultimate issue.

For instance, if a jury finds that there was some other means of extracting the near-surface mineral without consuming or destroying the surface as of the date of the mineral reservation, lease, or deed, the surface owner loses even though the only reasonable method of such extraction today is by methods which will destroy the surface. This is a result which hardly could have been contemplated by the parties to the Wylie deed. The possibility of such result should be foreclosed as a matter of law, because there is nothing in the Wylie deed and mineral reservation to indicate that such was contemplated by him or his surface grantee. Under such circumstances, it is unreasonable as a matter of law to permit any construction of the deed which would attribute to either party an intent to reserve from the surface grant any mineral substance which then or at any time in the future might result in the consumption, destruction or substantial impairment of the surface.

As indicated, I would hold as in Acker and Heinatz, as a matter of law, that the ordinary and natural meaning of the term “mineral” does not contemplate that the utility of the surface will be destroyed, consumed or substantially impaired, and that substances such as sand, gravel, limestone, iron ore and near-surface lignite are not within the ordinary and natural meaning of the term “minerals” because they form so much a part of the soil that they are within the ordinary and natural meaning of the term “surface estate.” Paraphrasing Acker, I would hold that in terms of location with respect to the surface, methods by which lignite is mined, and the effect of production upon the surface, the substance is quite similar to gravel, limestone and iron ore. Aside from the general reference to “other minerals,” there is nothing in the Wylie deed suggesting an intention to retain in the grantor the right to consume or destroy the surface. It is my opinion that under these circumstances, lignite, like gravel, limestone and iron ore, should be considered as belonging to the surface estate and not as part of the minerals. I would hold that as a matter of law no interest in the lignite coal was retained by the reservation in the Wylie deed.

Accordingly, I would reverse the judgment of the Court of Civil Appeals and remand the case to the trial court with instructions to enter a judgment in favor of plaintiff, Bette Reed, Trustee, in accordance with this opinion.

STEAKLEY, J., joins in this dissent.

      . Lignite is a low-rank, brownish-black coal that is intermediate in coalification between peat and bituminous coal. Potential statewide quantities at depths of less than 200 feet available to conventional surface mining are estimated at 10.4 billion tons. Deep-basin lignite, at depths of 200 feet to 5,000 feet below the surface, available through in situ recovery methods, brings the total known Texas lignite resources to more than 100 billion tons, with an equivalent on a BTU basis to 277 billion barrels of oil. Kaiser, Texas Lignite: Near-Surface and Deep-Basin Resources, University of Texas Bureau of Economic Geology 1974, Report No. 79, 1-3. It was one of the first mineral resources utilized by early settlers. See “mine de charbon terre” on map accompanying L’H’eritier, Le Champ D’Asile Tableau Topographique et Historique du Texas . . . (Paris, 1819).

      . It was noted in Acker v. Guinn, supra, at p. 352, that hard-mineral mining conducted by the sinking of shafts or tunnels may also require destruction of the surface through the deposit of waste and debris removed to gain access to the ore, but the Court reserved that question, saying that it “will be considered when it arises.” See Clark, Uranium Problems, 18 Tex. B.J. 505.

      . Cases to the contrary are found only in North Dakota, where statutory provisions have played an important part in the conclusions reached. See Christman v. Emineth, 212 N.W.2d 543 (N.D.1973); Abbey v. State, 202 N.W.2d 844 (N.D.1972); MacMaster v. Onstad, 86 N.W.2d 36 (N.D.1957); Adams County v. Smith, 74 N.D. 621, 23 N.W.2d 873 (1946).

      . Although not relied upon in this opinion, the rule ejusdem generis has been used on occasion in Texas cases dealing with mineral rights. See Justice Norvell’s opinion in Knight v. Chicago Corporation, 183 S.W.2d 666 (Tex.Civ.App.) affirmed 144 Tex. 98, 188 S.W.2d 564 (1945), holding that the term “undivided interest,” as used in the provision of a mineral lease would be given a restricted meaning rather than a generic meaning under the rule of ejus-dem generis. See Fleming Foundation v. Texaco, 337 S.W.2d 846 (Tex.Civ.App.1960, writ refd n. r. e.), which applies the rule to a mineral reservation and holds that water is not a mineral included in the reservation. The rule was also applied in Right of Way Oil Co. v. Gladys City Oil, Gas and Mfg. Co., 106 Tex. 94, 157 S.W. 737 (1913), holding that a conveyance of “all the timber, earth, stone and mineral” did not include oil. The rule is recognized as viable in Kuntz, The Law of Oil and Gas, § 13.3 (1962) wherein it is said: “If two or more minerals are enumerated which do have sufficient characteristics in common to provide the genus, then only minerals having such common characteristics will be included.” See Hortenstine, Coal Included in A Grant or Reservation of “Oil, Gas, or other Minerals”?, 30 S.W.L.J. 481, 490-491 (1976), and Note, “Has Ejusdem Generis As Applied to Mineral Deeds Been Accepted in Texas’’?, 2 Tex.Tech L. Rev. 164 (1971). The doctrine of ejusdem generis is a general rule of statutory construction in Texas. See Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269 (1944); Fowler v. Hults, 138 Tex. 636, 161 S.W.2d 478 (1942); Shook v. All Texas Racing Assn., 128 Tex. 384, 97 S.W.2d 669 (1936); Farmers’ and Mechanics’ Nat. Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120 (1911); Clynch v. Bowers, 164 S.W.2d 768 (Tex.Civ.App.1942, no writ); Maryland Casualty Co. v. Scruggs, 277 S.W. 768 (Tex.Civ.App.1925, writ ref’d); Galveston, H. & H.R. Co. v. Anderson, 229 S.W. 998 (Tex.Civ.App.1920, writ refd). It was applied also to the construction of a water contract in Combs v. United Irrigation Co., 110 S.W.2d 1157 (Tex.Civ.App.1937, writ dism’d); to construction of a judgment in Stevenson v. Record Pub. Co., 107 S.W.2d 462 (Tex.Civ.App.1937, writ dism’d); interpretation of a deed restriction in Bryan v. Darlington, 207 S.W.2d 681 (Tex.Civ.App.1947, writ refd n.r.e.); and in construction of a will in Erwin v. Steele, 228 S.W.2d 882 (Tex.Civ.App.1950, writ ref’d n.r. e.).

      . Kuntz, The Law Relating to Oil and Gas in Wyoming, 3 Wyo.L.J. 107, 114 (1949).

      . Sovereign ownership remained in effect when Mexico achieved its independence from Spain in 1821 and when Texas won its independence from Mexico in 1836. When the Republic of Texas adopted the common law in 1840, it specifically provided that such adoption did not apply to “such laws as relate to the reservation of islands, salt lakes, licks and salt springs, mines and minerals of every description . . . .” 2 Gammel’s Laws of Texas 177, 1840. It was not until the Constitution of 1866 that these mines and minerals were released to the owners of the soil. Article VII, Section 39, Constitution of 1866; 5 Gammel’s Laws of Texas 880. Cowan v. Hardeman, 26 Tex. 217 (1862). The same provision was carried forward in the constitutions of 1869 and 1876. State v. Parker, 61 Tex. 265 (1884); Cox v. Robison, 105 Tex. 426, 150 S.W. 1149 (1912). See Hawkins, El Sal del Rey (1947).

      . Affidavits in the present case assert that the parties to the deed in question intended the reservation to include lignite, which was then under a recorded lignite lease, but there was no allegation of mutual mistake or effort to reform the instrument. Under the circumstances, we must construe it as written. See Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800 (1940).

      . Kuntz, The Law Relating to Oil and Gas in Wyoming, 3 Wyo.L.J. 107, 114 (1949). For writings suggesting that Acker v. Guinn should not be so construed or extended see: Comment, Lignite — Surface or Mineral? The Single Test Causes Double Trouble, 28 Baylor L.Rev. 287, 300-312; Is Coal Included in a Grant or Reservation of “Oil, Gas or Other Minerals”?, 30 S.W.L.J. 481, 504-507. See also Surface or Mineral: A Single Test?, Baylor L.Rev. 407, 416-418.

      . See dissenting opinion of May 25, 1977, reported in Tex.Sup.Ct. Journal, Vol. 20, May 28, 1977, pages 330-334. In order to avoid repetition and rewriting, the former dissent is attached hereto with the only changes being those necessary to conform to the substantial and helpful changes made by the Court in its substituted opinion.

      . Kaiser, Texas Lignite: Near-Surface and Deep Basin Resources, p. 3 et seq., Bureau of Economic Geology, Report of Investigations— No. 79 (1974). See also exhibit attached to the post-submission brief of W. C. Wylie showing cross section of Texas Lignite Prospect with a seam of lignite running from surface outcroppings to a depth of 200 feet.


source: Caselaw Access Project

author: DENTON, Justice.

license: Public Domain

text:
    Charles C. STONE, Jr., Petitioner, v. LAWYERS TITLE INSURANCE CORPORATION et al., Respondents.
    No. B-6109.
    Supreme Court of Texas.
    July 13, 1977.
    Rehearing Denied July 26, 1977.

      Prichard, Peeler & Cartwright, C. Edwin Prichard, Jr., Corpus Christi, for petitioner.
    Wood, Burney, Nesbitt & Ryan, James P. Ryan, Kleberg, Mobley, Lockett & Weil, Ernest F. Bogart, Jr., John A. Waller, Corpus Christi, for respondents.
   DENTON, Justice.

Charles C. Stone, Jr., the purchaser of a tract of land in Nueces County, filed this suit for damages resulting from the existence of a pipeline easement inside the boundaries of the tract of land purchased. Stone sued Lo-Vaca Gathering Company in trespass to try title to determine the validity of the easement; Isabel B. Weil Good-stein, the seller of the land, for breach of warranty; Lawyers Title Insurance Corporation on an owner’s title policy covering the tract of land for damages sustained due to the failure of the policy to show the pipeline easements as exceptions; Lawyers Title Agency of Corpus Christi, Inc. and Eli Lipner, its President, who countersigned the title policy for fraud and negligence in failing to show the pipeline easements as an exception to the policy and in a mortgagee’s title binder; and Joe B. Weil, Jr., the real estate agent who negotiated the sale, for fraud.

The trial court granted an interlocutory take-nothing judgment in favor of Lo-Vaca, which became final when the final judgment was rendered. No appeal was taken from this portion of the judgment. Stone took a non-suit as to Isabel Goodstein during the trial. At the conclusion of the plaintiff’s evidence, the trial court granted instructed verdicts for Lawyers Title Agency of Corpus Christi, Eli Lipner and Joe B. Weil, Jr., and rendered judgment for the plaintiff for $2,789 as damages under the terms of the title policy against Lawyers Title Insurance Corporation. The court of civil appeals, by a majority opinion, affirmed the portion of the trial court’s judgment in favor of Lawyers Title Agency of Corpus Christi, Lipner and Lawyers Title Insurance Corporation, and reversed and remanded that portion of the judgment in favor of Weil. 537 S.W.2d 55. We reverse and remand as to petitioner’s alleged cause of action against Lawyers Title Agency and Lipner.

Stone, desiring to construct a mobile home park, contacted Weil concerning the purchase of a tract of land out of a certain 70 acre tract in Nueces County owned by Mrs. Goodstein. Stone was interested in a particular 18.639 acre tract in the Southeast corner of the 70 acre tract. A twenty-five foot strip of land adjacent to the south boundary line of the 18.639 acre tract was excluded from the tract Stone proposed to purchase because of several oil and gas pipelines that were known to be located in that strip. On February 19, 1971, Stone entered into a contract with Mrs. Goodstein to purchase the tract, and it was conveyed to him by warranty deed dated March 11, 1971 for a cash consideration of $55,917.00. No exceptions or reservations appear in the deed. On March 12, 1971 Lipner, acting as President of the Title Agency and as agent for Title Insurance Corp., issued an owner’s title policy to Stone which insured the title to the land in the amount of the purchase price. In addition, a Mortgagee’s Title Policy Binder on Interim Construction Loan in the amount of $370,000.00 was issued to the Corpus Christi Savings and Loan Association for the benefit of Stone. Neither the owner’s title policy nor the binder made mention of the pipeline’s easements of record.

Stone obtained a commitment from the Federal Housing Administration to insure a loan of $397,000.00. The commitment was based upon the construction of a mobile home park containing 147 spaces. In June 1971, when the Park was approximately 80% complete, it was discovered that a high pressure gas pipeline lay some four feet inside the southern boundary line of the tract purchased by Stone. Subsequently, several other pipelines were discovered inside the southern boundary line of the tract. It was determined that these pipelines were in easements in a strip of land approximately 25 feet in width just north of the south line of the 18.639 acre tract. In order to comply with regulations of the FHA concerning the proximity of residential structures to live pipelines, Stone was required to redesign the park following the discovery of live pipelines within the boundaries of the tract that he had purchased. The redesigned park contained only 129 spaces, which caused the FHA to reduce its commitment to Stone to $318,500.00.

Stone contends that the court of civil appeals incorrectly affirmed the trial court’s action in instructing a verdict against Stone in favor of Lipner and Lawyers Title Agency on Stone’s cause of action for fraud. The court of civil appeals correctly stated the general rule regarding the elements of actionable fraud: (1) that a material representation was made; (2) that it was false; (3) that when the speaker made it he knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the party; (5) that the party acted in reliance upon it; (6) that he thereby suffered injury. Oilwell Division, United States Steel Corporation v. Fryer, 493 S.W.2d 487 (Tex.1973); Wilson v. Jones, 45 S.W.2d 572 (Tex.Com.App.1932, holding approved).

The court of civil appeals has held that there is no evidence, supported by proper pleadings, to support a judgment against either Lipner or Lawyers Title Agency for fraud. In Stone’s Fifth Amended Petition, upon which he went to trial, he alleged that, in the preparation for the closing of the real estate transaction called for in the contract of sale, an employee of the Lawyers Title Agency made an examination of the title to the property, and wrote a title opinion which listed the pipeline’s easements, in question, as an encumbrance upon the property. It was further alleged that this title opinion was delivered to Lipner shortly after it was written. Stone made the following allegations concerning the representations made by Lipner to Stone:

COUNT I
. On March 12, 1971, or within a few days just prior thereto, the Defendant ELI LIPNER called the Plaintiff by telephone and stated that JOE WEIL was in his office and that there was some confusion over pipeline easements, and asked the Plaintiff if he knew of any pipeline or easement on the property. The Plaintiff replied that he did not know of any, but that Mr. LIPNER was the one who was supposed to be able to search the records out. Mr. LIPNER then hung up without divulging the details of the confusion. Later that same day or the next day or two thereafter, JOE WEIL came to see the Plaintiff and told him that everything was straightened out and that Mr. LIPNER was mistaken as to where the pipeline easement was. To verify that the matter was straightened out, the Plaintiff telephoned Mr. LIPNER either on or just prior to March 12, 1971, and asked if everything was squared away. Mr. LIPNER replied that it was, and that there would be no exceptions in the Title Policy.
. Also, the statement made by Mr. LIPNER either on or just prior to March 12,1971, when he told Mr. STONE that everything was squared away concerning the pipe-lines coupled with the fact that Mr. LIPNER then caused to be issued through LAWYERS TITLE AGENCY OF CORPUS CHRISTI, INC., an Owner’s Policy of Title Insurance (attached as “Exhibit A”) and a Mortgagee’s Title Policy Binder on Interim Construction Loan, neither of which contained any mention of pipeline easements, plus the further fact that Mr. LIPNER approved for transfer of title the Warranty Deed from ISABEL B. WEIL (GOODSTEIN) which also did not mention any pipeline easements, constituted common law fraud on the part of ELI LIPNER and LAWYERS TITLE AGENCY OF CORPUS CHRISTI, INC., constituted representations on their part that the title to the land Plaintiff was buying was not burdened with pipelines or pipeline easements. These representations were made with the intention that they be acted upon by the Plaintiff in the manner reasonably contemplated, (i. e., he would close the transaction, take title to said property and construct an FHA insured mobile home park thereon). Plaintiff rightfully relied upon the truth of said representations which were of material facts. These statements and acts were willfully made and done by each of the three Defendants and they knew, or in the exercise or reasonable care they should have known, the falsity of their statements and acts.

It is well established that in the absence of special exceptions, the petition will be construed liberally in the pleader’s favor. Gulf, Colorado and Santa Fe Railway Company v. Bliss, 368 S.W.2d 594 (Tex.1963); Hanley v. Oil Capital Broadcasting Ass’n, 141 Tex. 243, 171 S.W.2d 864 (1943). The court of civil appeals concluded that the statement in the pleadings quoted above, could be read as alleging nothing more than that Lipner stated “there would be no exceptions” which in and of itself was not a misrepresentation of fact. This conclusion was reached by reasoning that the term “squared away,” a general allegation, was limited by the specific allegation “there will be no exceptions in the title policy.” Although the rule that a special allegation controls over a general allegation was correctly stated, we think the application of the rule was misplaced. The allegation that Lipner said everything was “squared away,” is simply not a general allegation and is not limited by the further allegation that he said “there will be no exceptions in the title policy.”

Pleadings are sufficient under the Rules of Civil Procedure if they give fair and adequate notice to their adversary. Osteen v. Crumpton, 519 S.W.2d 263 (Tex.Civ.App.1975, writ ref’d); McCamey v. Kinnear, 484 S.W.2d 150 (Tex.Civ.App.1972, writ ref’d n. r. e.); Rule 45 Texas Rules of Civil Procedure. Stone’s pleadings as contained in the Fifth Amended Petition were sufficient to support a cause of action for fraud against Lipner and Lawyers Title Agency.

The court of civil appeals has held that there was no evidence supported by pleadings, that Lipner ever represented to Stone that there were no easements on the property. Although there was evidence admitted on this point, the court questioned the effect of the portion of the evidence and held that other portions should have been excluded as being outside the pleadings. Stone testified concerning representations made by Lipner to Stone in a telephone conversation which took place either March 10th or 11th, 1971, as follows:

Q All right. Now just prior to the closing of this transaction on March the 12th of 1971, did you have any conversations with Mr. Lipner or Mr. Weil about pipelines in this 18.639 acres of land?
A . Mr. Lipner called me and asked me if I knew of any pipeline easements on the property that I was purchasing, and my words were to the effect that, “My Lord, Eli, I don’t know of anything out there. That’s your job. You’re supposed to be the one that’s being paid to search the title,” and he hung up. Shortly thereafter Joe Weil came up to the office and told me that Eli was confused and that he had it all straightened out. That there wasn’t any easements there. There wouldn’t be any exceptions in the policy. I called Eli Lipner to confirm that, and he did. That was the reason why I entered into the contract . ******
Q Now, what was the substance of the conversation when you called Mr. Lip-ner?
A I wanted to find out from Mr. Lipner personally if Mr. Weil was conveying the correct information concerning the easements, and Mr. Lipner said that it’s true, that there was confusion. “I found out that there were no easements on the property. There will be no exceptions made.”

The trial court overruled the objection of Lipner’s counsel that this evidence was at variance with the plaintiff’s Fifth Amended Petition. The court of civil appeals held that this evidence should have been excluded, and reasoned that in light of the objection there was no implied consent to a trial of the issue outside of the pleadings, and if this evidence had been excluded there was no evidence of a misrepresentation. We do not believe that there was a variance with the pleadings and, if so, it was not a material variance. The testimony of Stone that Lipner stated “I found out that there were no easements on the property” was within the pleading’s of Stone, quoted above, even though the exact words were not quoted in the pleadings.

In order for a variance to be fatal it must be substantial, misleading and prejudicial departure from the pleading. Orgain v. Butler, 478 S.W.2d 610 (Tex.Civ.App.1972, no writ); Glens Falls Insurance Company v. Vetrano, 347 S.W.2d 769 (Tex.Civ.App.1961, no writ); Lumbermen’s Insurance Corporation v. Jones, 311 S.W.2d 873 (Tex.Civ.App.1958, writ ref’d n. r. e.). There is nothing in the record to indicate that Lipner was misled, surprised or prejudiced by this evidence. This is particularly true in view of the fact that Lipner filed no special exception that the pleadings were too general or ambiguous.

Mr. Stone further testified concerning his conversations with Lipner as follows:

Q Mr. Stone, was there any conversation or any use of a term like “squared away” in your conversation with Mr. Lipner?
A Yes, there was.
Q Do you recall how that was used or exactly what was said?
A Well, it was first used in vain. That everything was in apple pie order. Everything was squared away. He knew what he was doing. ******
He (Lipner) said that he and Joe Weil had resolved the confusion. That he knew now where the easements were. They were not in the property that I purchased. Words to that effect.

The court of civil appeals stated that the statement “everything was squared away” would not support an inference that Lipner misrepresented the existence of easements on the property. When this statement is taken in the context of the other testimony it seems clear that it would reasonably support an inference that Lipner misrepresented a material fact. The court also took the view that Stone’s testimony “that he (Lip-ner) knew now where the easements were” was nothing more than Stone’s interpretation of what Lipner said. We think the statement at most indicates that Stone was paraphrasing Lipner’s language. The statement clearly constitutes some evidence that Lipner represented that there were no easements on the property.

The court below further held that there was no evidence that Lipner knew any representations that he made to be false, or that he made them recklessly without any knowledge of its truth. It is undisputed that Lipner’s chief title examiner had prepared a title opinion which indicated that the land involved was encumbered by the easements in question. Lipner testified that although he did discuss with the title examiner the question of whether certain covenants which apparently encumbered the land should be excepted from the policy, he did not discuss with the examiner the appropriateness of eliminating the easements in question from the policy prior to the time he personally eliminated them. Nor did Lipner examine the take-off cards at his office which would have revealed the easements. This testimony is uncontradict-ed despite the fact that the testimony of Stone, set out above, indicated that Lipner was confused on the very point, i. e. where the easement should have been included. Instead, Lipner testified that he relied upon the facts given to him by Mr. Weil, the real estate agent, to the effect that the pipelines and easements were limited to the twenty-five foot strip bordering the property purchased by Stone.

We .think the above facts reasonably call for an inference of knowledge of falsity on the part of Lipner or they are sufficient to raise a fact issue on the question of whether Lipner recklessly made a statement as a positive assertion without knowledge of its truth. By relying solely on what Mr. Weil had told him, and disregarding the title opinion and the take-off cards, it can be said that Lipner recklessly represented a fact without knowledge of its truth.

Finally, the court below held that there was no reliance by Stone on the misrepresentations of Lipner. It seems clear that the testimony of Stone as to his conversation with Lipner, set out above, was some evidence of reliance. The testimony indicates that Stone was depending on Lipner to conduct a title search, that Stone in fact called Lipner back to ascertain if the property did contain any easement. Additionally, Stone testified that he would not have closed the deal if he had known of the easements. He testified, “I relied on Mr. Lipner and Mr. Weil 100%. If there had been any doubt, any question in the mind of Charles C. Stone, Jr. that he was purchasing a piece of property that was encumbered with easements, I would not have entered into the contract.” The context of the question and subsequent testimony clearly establishes that Stone was referring to the final closing.

Viewing the evidence in the light most favorable to the plaintiff below, as we are required to do, we hold there was evidence of actionable fraud against Lipner and Lawyers Title Agency of Corpus Christi, and that therefore the court of civil appeals erred in holding that an instructed verdict for these defendants was properly granted.

We think the court of civil appeals correctly reversed and remanded that portion of the trial court’s judgment in favor of Weil. The record shows that all elements of fraud in the alleged cause of action against Weil were properly pleaded and that there was evidence of actionable fraud against him.

The judgment of the court of civil appeals which rendered a take nothing judgment against Lipner and Lawyers Title Agency of Corpus Christi, Inc. is reversed, and that cause is remanded to the trial court for a hearing on the merits. In all other respects, the judgment is affirmed.


author: PER CURIAM.

text:
    Elwood ROSS, Petitioner, v. Alvin B. WALKER, Respondent.
    No. B-6730.
    Supreme Court of Texas.
    July 13, 1977.
    Berman, Fichtner & Mitchell, W. W. Mitchell, II, Dallas, for petitioner.
    Robert O’Donnell, Dallas, for respondent.
   PER CURIAM.

Elwood Ross sued Alvin Walker to recover the amount due him under the terms of a loan agreement. Trial was before a jury and, based on its answers to two special issues, the trial court rendered judgment for Ross. The Court of Civil Appeals has reversed and remanded. Walker v. Ross, 548 S.W.2d 447 (Tex.Civ.App.—Fort Worth 1977).

The principal amount of the loan to Walker was $50,000. Ross borrowed the $50,000 from the First National Bank of Lancaster at 8V2% per annum interest. He then endorsed the check representing the proceeds of the loan and handed it to Walker. Under the terms of the agreement between the parties, Walker agreed to pay the interest on Ross’ note to the First National Bank of Lancaster. In addition, Walker executed a note to Ross for the principal sum of $55,000. The jury found that the $5,000 difference between Walker’s note to Ross and Ross’ note to the Bank was not interest. Rather, the jury found that the $5,000 represented: (1) compensation to Ross “for Ross’ services in securing the First National Bank of Lancaster loan”; (2) compensation for some promotional work previously done by Ross for Walker; and/or (3) compensation to Ross for a loss on a prior real estate transaction involving both parties. The Court of Civil Appeals concluded there was insufficient evidence to support a finding that the $5,000 was paid to Ross for reasons (2) and/or (3) above. It also concluded that if the answer to the relevant special issue was based on reason (1), it conflicted with the finding that the $5,000 was not interest. The Court of Civil Appeals reversed and remanded the cause for a new trial, and Ross presented to this Court an application for writ of error.

The remand ordered by the intermediate court is a general remand contemplating a new trial on all issues of fact and law. It was Ross’ contention in the lower courts that the $5,000 in question was compensation for services separate and apart from his loan to Walker. In Greever v. Persky, 140 Tex. 64, 165 S.W.2d 709 (1942), this Court wrote:

. a lender may, without violating the usury law, make an extra charge for any distinctly separate and additional consideration other than the simple lending of the money [citations omitted]; and where there is any dispute in the evidence as to whether there was any other separate and additional consideration, a question of fact is raised for the jury.

Id. at 712. The opinion of the Court of Civil Appeals states that the $5,000 difference between Ross’ loan from the Bank and his loan to Walker was interest. However, the evidence does not conclusively establish the nature and purpose of the $5,000 payment. On retrial Ross should have the opportunity to prove that the payment was for services separate and apart from the $50,000 loan and was not compensation “for the use or forbearance or detention of money”. Tex.Rev.Civ.Stat.Ann. art. 5069, § 1.01(a) (1971).

The writ is refused, no reversible error.


author: DAVIS, Commissioner.

text:
    Grady PITTMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 52895.
    Court of Criminal Appeals of Texas.
    March 23, 1977.
    Rehearing Denied April 20, 1977.
    James R. Mallory, Fort Worth, for appellant.
    John R. MacLean, County Atty., Cle-burne, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for speeding. After an appeal from a justice court to the county court, the jury entered a verdict of guilty and the court assessed punishment at a fine of $150.00.

Patrolman Busby of the Department of Public Safety testified that on July 20, 1975, the vehicle appellant was driving on Interstate 35 in Johnson County “registered seventy-four miles an hour on radar.”

In his sole ground of error, appellant contends, “The trial court erred in overruling Appellant’s timely written objection to the definition of ‘prima facie’ in the court’s charge to the jury, because the definition as fhereafter given to the jury was contrary to the law under which Appellant was prosecuted.”

The court instructed the jury:

“You are further instructed that under the laws of the State of Texas, it is provided that any speed in excess of the limits specified or established shall be pri-ma facie evidence that the speed is not reasonable or prudent and that it is unlawful.
“ ‘Prima Facie’ as used herein is that degree of evidence which is sufficient on the face of it to establish the facts above stated and if not rebutted remains sufficient for such purpose.”

Appellant, in a timely written objection which was brought to the court’s attention and overruled, complained, “The paragraph in the court’s charge shifts the burden of proof, and does not describe the law,” and urged that the charge failed to state that prima facie evidence is only some evidence upon which a jury may reach a verdict, to be considered without destroying the presumption of innocence or the right to be found “not guilty” if the evidence fails to prove up the elements of the alleged offense beyond a reasonable doubt.

Appellant argues that the definition of “prima facie” given by the court denied him a fair trial “because the definition given did not recognize the distinction between the use of the term in civil and criminal cases.”

Appellant relies on Thomas v. State, Tex.Cr.App., 474 S.W.2d 692, where reversal resulted upon an appeal from a conviction for speeding where the trial court failed to define the term prima facie evidence.

Immediately following the court’s definition of prima facie evidence in the charge in the instant case, the court instructed the jury:

“Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the Defendant on or about the 20th day of July, A.D., 1975, in Johnson County, Texas, did then and there drive and operate a motor vehicle at a rate of speed greater than 55 miles per hour and that such speed was unreasonable and imprudent under the conditions then and there existing, having regard to the actual and potential hazards, then you will find such Defendant guilty.
“Unless you do so find and believe from the evidence beyond a reasonable doubt, you will acquit the Defendant and say by your verdict, ‘Not Guilty.’ ”
The court further instructed the jury: “In all criminal cases, the burden of proof is on the State. The defendant is presumed to be innocent until the guilt of the defendant is established by legal evidence, beyond a reasonable doubt; and in case you have a reasonable doubt as to the defendant’s guilt, you shall acquit him.”

A charge must be read as a whole and review not limited to parts standing alone. Peterson v. State, Tex.Cr.App., 508 S.W.2d 844; Whitson v. State, Tex.Cr.App., 495 S.W.2d 944.

When the charge before us is read as a whole, we find that it does not shift or lessen the required proof, nor does it instruct the jury to find appellant guilty upon prima facie evidence as a matter of law. Under the charge, the jury was left by the charge free to weigh the prima facie evidence, together with all the other testimony, in connection with the reasonable doubt and presumption of innocence which a defendant is entitled to in every criminal trial, and to render their verdict accordingly.” Floeck v. State, 34 Tex.Cr.App. 314, 30 S.W. 794; Thomas v. State, supra.

We reject appellant’s contention that the court erred in overruling his objection to the court’s charge.

The judgment is affirmed.

Opinion approved by the Court.

      . In Thomas, this Court noted that the term “prima facie” means, “It is merely proof of the case, upon which the jury may find a verdict, unless rebutted by other evidence.”


author: ONION, Presiding Judge.

text:
    Moses Lee MILLIGAN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 53148.
    Court of Criminal Appeals of Texas.
    June 1, 1977.

      William E. Hamilton, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Charles Martin, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for unlawful possession of a firearm by a felon, V.T.C.A., Penal Code, § 46.05, in which punishment was assessed at five (5) years in the Texas Department of Corrections.

The record shows that Officers R. J. Thomas and M. L. Keller of the Houston Police Department went to the “28” Club on a tip that the appellant had narcotics hidden in the alley and was selling narcotics out of the club, which was a pool hall open to the public. Officer Thomas walked through the front door to the back door from the alley. As he “stood by the swinging door there in the dark and watched him [appellant] walk in,” the officer observed a pistol in the waistband of appellant’s pants. When the officer asked him if he was “holding” any narcotics, the appellant answered, “I am not holding, but I have got this pistol,” which he then pulled out and set down on the bar. The appellant having a previous California conviction for robbery in 1950, this criminal proceeding was instituted.

Eight grounds of error are presented.

We shall first consider appellant’s contention that the trial court erred in overruling his motion to suppress evidence as the evidence was seized by an illegal search on private business premises. In his brief appellant admits that “an officer may seize what he sees in plain sight or open view if he is lawfully where he is,” citing Lewis v. State, 439 S.W.2d 351 (Tex.Cr.App.1969), and Simpson v. State, 486 S.W.2d 807 (Tex.Cr.App.1972). See also Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Morrison v. State, 508 S.W.2d 827 (Tex.Cr.App.1974). The record supports the State’s contention that the “28” Club was open to the public, giving the officers the right to enter. Licerio v. State, 456 S.W.2d 96 (Tex.Cr.App.1970); Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976). The officer being in a place he was lawfully entitled to, on seeing the pistol in plain view he had the authority to seize it as evidence. Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1975).

Appellant also urges that V.T.C.A., Penal Code, § 46.05, is void since it is in conflict with Article I, § 23 of the Texas Constitution guaranteeing a citizen “the right to keep and bear arms in the lawful defense of himself or the State”. The predecessor to this statute, Article 489c, Vernon’s Ann.P.C., was held valid against an identical challenge. Webb v. State, 439 S.W.2d 342 (Tex.Cr.App.1969). In McGuire v. State, 537 S.W.2d 26 (Tex.Cr.App.1976), this court upheld the reasoning of Webb in holding the present statute constitutional. We find no reason to depart from this holding.

Appellant next argues that § 46.05 denies equal protection of the laws as guaranteed in Article I, § 3 of the Texas Constitution and the 14th Amendment of the federal Constitution as it applied only to persons convicted of a felony involving an act of violence or threatened violence to a person or property and not to all persons convicted of felonies. Article I, § 3 of the Constitution of Texas and the 14th Amendment to the Constitution of the United States secure to all persons similarly circumstanced equal protection under the laws of this State. As these provisions have been construed by the highest courts of this State as well as by the Supreme Court of the United States, in the absence of a suspect classification, a state law is not repugnant to either constitutional provision so long as unequal treatment of persons is based upon a reasonable and substantial classification of persons. Unequal treatment of persons under a state law which is founded upon unreasonable and unsubstantial classification constitutes discriminating state action and violates both the state and federal Constitutions. See Rucker v. State, 170 Tex.Cr.R. 487, 342 S.W.2d 325 (1961), and cases cited therein; Ex parte Matthews, 488 S.W.2d 434 (Tex.Cr.App.1973).

We have no difficulty in perceiving a rational basis for the application of the statute to persons convicted of felonies involving an act of violence or threatened violence and not to all felons in general. By their conviction, this class of felons has demonstrated their propensity toward dangerous acts, not found in felons who have not committed such acts of violence or threatened violence. The apparent purpose of the statute is to protect the general public by depriving these persons of firearms away from their premises. Felons who have not committed crimes involving acts of violence or threatened violence are considered less likely to resort to violent actions and thus are not included in the statute. Cf. Buchanan v. State, 480 S.W.2d 207 (Tex.Cr.App.1972).

Appellant further argues that the prior felony involving an act of violence alleged as a basis for this prosecution, having occurred in 1950, was too remote in time. However, we construe this statute to be similar to the enhancement statute, V.T.C.A., Penal Code, § 12.42(d). In Hicks v. State, 545 S.W.2d 805 (Tex.Cr.App.1977), this court held that, unlike the rule that a prior conviction too remote in time cannot be used for impeachment purposes, a prior conviction may be utilized for enhancement no matter how remote. Similarly, a prior conviction may be utilized under V.T.C.A., Penal Code, § 46.05, no matter how remote.

During the direct examination of Officer Thomas, he identified the pistol and a “clip of the pistol” taken from the appellant at the time of his arrest. The record then reflects the prosecutor asked:

“Q. And I will hand you what has been marked as State’s Exhibit No. 4, and ask you if you can identify that?
“A. Yes, sir, it’s the pocketknife Mr. Milligan had.
“MR. SPILLER (Appellant’s counsel): If it please the Court, again we would object to the nonresponsive answer to the question and ask the witness be instructed to properly respond to the question asked him.
“THE COURT: All right. Listen to the question, Officer, and answer the question that is asked. Don’t add any more to it.
“MR. SPILLER: Judge, at this time we would move for a mistrial.
“THE COURT: Be overruled.
“Q. Okay, Officer, now you say that you recovered State’s Exhibits No. 1, 2, 3 and 4 from Moses Milligan? Is that correct?
“A. Yes, sir.”

While it would have been better for the witness to have simply answered the question in the affirmative and waited for the next question, it appears the pocketknife was handed to the witness in the presence of the jury. The knife was later introduced into evidence without objection. The partially unresponsive answer having come into evidence without objection, any possible error is waived. Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1974). Clearly the knife having been found on appellant’s person at the time of arrest was admissible as res gestae of the arrest and the offense. Downey v. State, 505 S.W.2d 907 (Tex.Cr.App.1974). See also Nichols v. State, 511 S.W.2d 269 (Tex.Cr.App.1974); Alba v. State, 492 S.W.2d 555 (Tex.Cr.App.1973); Franklin v. State, 494 S.W.2d 825 (Tex.Cr.App.1973); Tyra v. State, 496 S.W.2d 75 (Tex.Cr.App.1973). While the complained of answer was partially unresponsive, there was no error in refusing the mistrial motion under the circumstances presented. Appellant’s reliance on cases dealing with propounding improper questions and whether withdrawal can cure the error is clearly misplaced.

Appellant’s next ground of error attacks the admission of “irrelevant and immaterial” evidence. On cross-examination of Officer Thomas, defense counsel brought out that the appellant had been arrested by him approximately five or six times, mainly in and around the “28” Club. Then on redirect, the assistant district attorney asked Thomas the nature of these arrests, to which he replied, “We found large sums of narcotics behind and in the club.” The objection now urged was then made.

The extraneous offenses having been introduced by the appellant, the State was entitled to establish the circumstances and facts surrounding such offenses. Hartman v. State, 507 S.W.2d 553 (Tex.Cr.App.1974); Hernandez v. State, 506 S.W.2d 884 (Tex.Cr.App.1974). In addition, the officer had already testified without objection to previous arrests including a case in which appellant pled guilty to the offense of possessing a controlled substance. No error is shown.

Appellant further urges the court erred in permitting a State’s witness to identify a fingerprint card as containing appellant’s fingerprints when the card was never introduced into evidence. The witness had taken the fingerprints and they were used to demonstrate they matched the fingerprints contained in the California pen packet. While it would have been better to introduce the fingerprint card, we find the omission harmless in view of the expert witness’ undisputed testimony that the card contained appellant’s fingerprints.

Appellant also urges that the California judgment and other parts of the pen packet were copies and thus did not comply with the “Best Evidence Rule.” While objections were made at trial to the certifications involved, the ground of error now urged was not made at trial. Grounds of error on appeal must comport with objections by counsel at trial. Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974); Campbell v. State, 492 S.W.2d 956 (Tex.Cr.App.1973); Gondek v. State, 491 S.W.2d 676 (Tex.Cr.App.1973). Nothing is presented for review.

Appellant contends in another ground of error that a defense witness was impeached by the use of a conviction that was too remote. On cross-examination by the State, the witness admitted that he had been convicted on May 29, 1964 of shoplifting and given 45 days in the county jail. It is this conviction to which the appellant objected. The State admits that the date of discharge of sentence was about 10 years and 10 months prior to the time of trial. The State also showed that the witness had been convicted on April 18,1969 of shoplifting, with a sentence of 60 days in the county jail and a $500 fine, and of felony theft on January 6, 1965, with punishment of three years’ confinement in the state penitentiary.

In McClendon v. State, 509 S.W.2d 851 (Tex.Cr.App.1974), this court said:

“In most instances where a prior felony conviction has been used for impeachment, it has been held remote if the time of one’s discharge from such conviction is more than ten years. See 62 Tex.Jur.2d, Witnesses, Section 340, page 381; Penix v. State, Tex.Cr.App., 488 S.W.2d 86; Livingston v. State, Tex.Cr.App., 421 S.W.2d 108; Haney v. State, 152 Tex.Cr.R. 63, 211 S.W.2d 215. However, the often referred to ten-year rule of thumb is not always followed. Each case must rest upon its own circumstances. See Dillard v. State, 153 Tex.Cr.R. 134, 218 S.W.2d 476.
“If more than ten years have elapsed since the discharge date of a prior conviction and if the witness has not reformed, proof of such prior conviction may be shown for impeachment purposes.”

It is observed that a misdemeanor conviction for theft involves moral turpitude and can be used for impeachment. Poore v. State, 524 S.W.2d 294 (Tex.Cr.App.1975); Avilla v. State, 493 S.W.2d 233 (Tex.Cr.App.1973). In introducing the two intervening convictions of the witness, at intervals of six and 10 years prior to trial, the State demonstrated the inability of the witness to reform. The conviction in question, occurring eight months before the 1965 shoplifting conviction, was properly admitted for impeachment purposes.

Appellant’s final ground of error objects to the definition found in the court’s charge of a firearm as it is “contrary to the definition of ‘firearm,’ as used in Black’s Law Dictionary, Fourth Edition, page 761.” The definition given in the charge follows that found in V.T.C.A., Penal Code, § 46.01(3). This court has held that an indictment tracking the statutory language describing an offense is sufficient. McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); White v. State, 505 S.W.2d 258 (Tex.Cr.App.1974); Ames v. State, 499 S.W.2d 110 (Tex.Cr.App.1973). Similarly a definition in a charge tracking the statutory definition given to a specific term is sufficient. Cf. Glover v. State, 532 S.W.2d 346 (Tex.Cr.App.1976). As was said in Simon v. State, 522 S.W.2d 929 (Tex.Cr.App.1975), the “Legislature has not delegated the determination of the meaning of its enactments to the publishers of dictionaries.”

The judgment of the trial court is affirmed.