text:
    CITY OF MANVEL, Appellant, v. TEXAS DEPARTMENT OF HEALTH RESOURCES and City of Pearland, Texas, Appellees.
    No. 8132.
    Court of Civil Appeals of Texas, Beaumont.
    Aug. 15, 1978.
    Rehearing Denied Sept. 7, 1978.

      Paul Gosselink, Asst. Atty. Gen., Austin, Eugene J. Pitman, Houston, for appellant.
    Sam Graham, Austin, Sears and Burns, C. Charles Dippel, Houston, for appellees.
   CLAYTON, Justice.

Our prior opinion in this cause is withdrawn, and this opinion is substituted in lieu thereof.

Appellant, City of Manvel, filed suit in the district court of Travis County against the Texas Department of Health Resources (hereinafter referred to as Department) and the City of Pearland, appealing from the administrative order of the Department granting the City of Pearland a permit to operate a sanitary landfill within the corporate limits of Manvel, such proceedings for the permit being brought pursuant to the terms of Tex.Rev.Civ.Stat.Ann. art. 4477-7, § 9 (Supp.1978) (the Solid Waste Disposal Act) and art. 6252-13a, § 19 (Supp.1978) (the Administrative Procedure and Texas Register Act). The trial court rendered its judgment that appellant take nothing and awarded costs to appellees, from which judgment appellant has perfected this appeal.

The City of Pearland’s application for the landfill site was filed in July of 1975. On September 2, 1975, the Department furnished copies of the application to the City of Manvel. The City filed its response to the application on September 26,1975. The hearing on the application was held on April 6, 1976.

The trial court tried this case solely upon the record of the proceedings in the hearing conducted by the Department pursuant to Tex.Rev.Civ.Stat.Ann. art. 6252 -13a, § 19(d)(3) (Supp.1978). No additional evidence was offered or received by the trial court.

In appellant’s first and second points complaint is made that the Department’s order in granting the permit to Pearland was “made upon unlawful procedure, in violation of Department’s rules” and “the procedure followed by Department denied appellant notice and reasonable opportunity to defend against the application.” Appellant’s entire argument under these two points is directed to the failure of the Department to follow and comply with the provisions of its adopted regulations styled “Municipal Solid Waste Management Regulations.” A copy of such regulations was attached to appellant’s brief as Appendix A. These regulations were not introduced into evidence, and they do not appear anywhere in the record. We agree with the Department’s argument, as stated in its brief, that “[njeither the trial court nor this Court could take judicial notice of any rules of the Department. Such rules must be proved as any other evidence in order to be admissible.” See Imperial American Resources Fund, Inc. v. Railroad Commission of Texas, 557 S.W.2d 280, 288 (Tex.1977); Byrd v. Trevino-Bermea, 366 S.W.2d 632, 635 (Tex.Civ.App.—Austin 1963, no writ). Appellant has offered no reason or circumstances why this rule does not apply to the regulations involved in this case. Such regulations not appearing in the record and since we cannot take judicial notice of such regulations, they are completely foreign to the record and cannot be considered. Nixon v. Royal Coach Inn of Houston, 464 S.W.2d 900, 901 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ); Henslee v. State, 375 S.W.2d 474, 476 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.); Freeman v. Anderson, 119 S.W.2d 1081, 1083 (Tex.Civ.App.— Waco 1938, no writ); Yeager v. Bradley, 246 S.W. 688, 690 (Tex.Civ.App.—Austin 1922) writ ref’d per curiam, 114 Tex. 581, 278 S.W. 1115 (1923). There is no competent evidence in the record of the contents of any rules or regulations of the Department concerning the granting of a permit to operate a sanitary landfill.

This is a substantial evidence rule case, and when judicial review of an administrative action is governed by the substantial evidence rule, the action of the administrative body is presumed to be legal and valid, and the burden is on the party appealing from the order to show that the order is not reasonably supported by substantial evidence. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752, 758 (Tex.1966); Cusson v. Firemen’s and Policemen’s Civil Service Commission of San Antonio, 524 S.W.2d 88, 90 (Tex.Civ.App.—San Antonio 1975, no writ); McCall v. Presley, 512 S.W.2d 693, 695 (Tex.Civ. App. — Beaumont 1974, writ ref’d n. r. e.).

The burden was upon the appellant to show the “unlawful procedure” of which it complains, i. e., failure to comply with the provisions of such regulations, and this burden could not be discharged unless the rules and regulations of the Department were introduced into evidence. The order of the Department is presumed to be valid. Appellant, who challenged the order, had the burden of producing evidence establishing the invalidity of the order. See Herron v. City of Abilene, 528 S.W.2d 349 (Tex.Civ.App.—Eastland 1975, writ ref’d). Appellant failed to discharge such burden. Points one and two are overruled.

Appellant’s third point complains of error in “Rendering judgment that it take nothing upon its appeal, as the permit issued was in violation of a valid ordinance of appellant, the City of Manvel.” It is undisputed that the site, the subject of the application for sanitary landfill operation, lies within the corporate limits of appellant. It is also undisputed that appellant enacted an ordinance in December 1973 which expressly provides:

“No one shall maintain, operate, develop any garbage dump, sanitary landfill operation for the disposal of garbage or any other facility for the disposal of solid waste matter of any type within the city limits of the City of Manvel, Texas, without first obtaining a permit therefor from the City of Manvel.

No permit was sought by Pearland, and none was granted to it.

Tex.Rev.Civ.Stat.Ann. art. 4477 — 7 (Supp. 1978), the Solid Waste Disposal Act is a comprehensive enactment setting forth a regulatory scheme for solid waste disposal. The Act authorizes the Department to regulate the disposal of municipal solid waste and enables the Department to require and issue permits authorizing and governing the operation and maintenance of sites used for disposal of such wastes.

Sec. 6a of art. 4477-7 provides:
“No incorporated city or town may abolish or restrict the use or operation of a solid waste disposal site within its limits ... if the solid waste disposal site . . .:
(1) was in existence at the time the city or town was incorporated or was in existence at the time the city or town annexed the area where it is located; and
(2) is operated in substantial compliance with all applicable state and county regulations.”

Assuming, without deciding, the validity of Manvel’s ordinance, the record reflects a finding for the proposed grant of the permit to Pearland that:

“Use of this existing site for brush demolition purposes began prior to the annexation of the property by the City of Manvel, Texas. Inspection showed the site was essentially in compliance with rules and regulations of the Texas Department of Health Resources.”

and that

“An original permit application was made by the City of Pearland, Texas to the Texas Department of Health Resources . . .for permission to continue operation of a Type 1 municipal solid waste site in the City of Manvel, Texas.”

In its attempt to show that its ordinance complied with the terms of Tex.Rev. Civ.Stat.Ann. art. 4477-7, § 6a (Supp.1978), appellant states in its brief that “It is established by the testimony of the witnesses [naming five witnesses and referring to a letter App. A to the Trial Court Brief] that no landfill operation was conducted upon the site, in compliance with any rule or regulation of the Department, prior to the annexation of that area by Manvel.” These references made to assert fact questions do not contain any references to the record where the matters asserted may be found. The record concerning these possible fact assertions consists of a statement of facts which is not indexed as to names of the witnesses, and two volumes of exhibits, the pages of which are not numbered or the contents being indexed, all of which consists of more than 800 pages. The burden is on appellant that the record supports its contentions and to point out the place in the record where the matters complained of are shown. See Kropp v. Prather, 526 S.W.2d 283 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.); Sims v. McKnight, 420 S.W.2d 173, 178-79 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.); Little Rock Furniture Mfg. Co. v. Dunn, 218 S.W.2d 527, 534 (Tex.Civ.App.—Fort Worth), affirmed, 148 Tex. 197, 222 S.W.2d 985 (1949). Appellant has failed to meet its burden. This point is overruled.

Appellant’s fourth and fifth points urge error in rendering judgment against it as the “order of the Department was not reasonably supported by substantial evidence” and that such order “is arbitrary and capricious.”

There is testimony in the record reflecting that there is no other location for the disposal of Pearland’s solid waste in the foreseeable future except the fifty acre tract in controversy. Engineering studies and findings were made to the effect that within the one and one-half mile area surrounding the subject site, the prevailing land use was sparse single-family residential development, fallow land, grazing land, and either on-going or abandoned oil field production. This area is the least populated area of Brazoria County. Other evidence was introduced relating to the protection of surrounding land use, prevailing winds, soil studies and ground water protection, and the feasibility and desirability of the Pear-land site for use as a sanitary land site, and drainage and flooding propensities. Some of the testimony was conflicting in certain respects, but such conflict would merely affect the weight of the evidence. The reviewing court cannot substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion. Tex.Rev.Civ. Stat.Ann. art. 6252-13a, § 19(e) (Supp.1978).

Based upon the entire record before us, we are of the opinion the order of the Department is reasonably supported by substantial evidence. Based upon the same evidence and reasons stated above, appellant has failed to establish such order was arbitrary and capricious. Points four and five are overruled.

Appellees, by proper cross-point, urge the trial court erred in refusing to tax, as court costs, the cost of the administrative transcript. The trial court adjudged all court costs against appellant. Appellees filed a motion in the trial court, requesting that the cost of the transcript of the record in the hearing before the Department be assessed and taxed against appellant as court costs. The trial court refused to do so, holding that the cost of such transcript, as a matter of law, is not a “cost of court.” We agree.

Appellees have cited no cases, and we have found none, and no statutory authority for taxing, as court costs, the cost of the transcript of the proceedings of the hearing conducted by the Department.

Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Supp.1978), the Administrative Procedure and Texas Register Act, provides for the procedure for judicial review of all contested cases appealed from a final decision of the Department. Sec. 19(d)(1) of such Act provides that:

“After service of the petition on the agency, . . ., the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs.”

The Legislature, in enacting the above-quoted section of art. 6252-lSa, made it mandatory for the Department to transcribe the entire proceedings before the Department and transmit such transcript to the reviewing court. There is no legislative pronouncement that the costs therefor should be paid for or assessed against any party. The only reference to costs is in the event a party unreasonably refuses to stipulate to limit the record, in which event the court may tax the additional costs to the party so refusing. If the Department has to bear the cost of the transcript, then it is to the financial benefit of the Department that the parties cooperate in limiting the record. Any unreasonable action in refusing to limit the record is penalized by the possibility that the additional costs of the record could be taxed against the uncooperative party.

The fact that the Legislature makes it possible for the reviewing court to tax only the costs of such portion to a party strengthens the view that the costs of the entire record is to be borne by the Department. Sec. 18a(g) of the Act provides that “Proceedings, or any part of them, must be transcribed on written request of any party. The agency may pay the cost of the transcript or assess the cost to one or more parties.” This provision applies when there is no appeal. It is clear the Legislature, permitting the Department to pay for such transcript, in such instances, considered the cost thereof to be no more than a cost of “doing business.”

In the absence of statutory authority for assessing costs of the transcript involved herein, and the obvious intent to the Legislature to preclude such assessment of the costs thereof as court costs, we hold that the cost of the transcript of the proceedings before the Department is not an item to be included in and assessed as court costs within the meaning of Tex.R.Civ.P. 127 and 131. This cross-point is overruled.

No error being shown, the judgment of the trial court is affirmed,

AFFIRMED,


source: Caselaw Access Project

author: DIES, Chief Justice.

license: Public Domain

text:
    EXXON CORPORATION, Appellant, v. JEFFERSON LAND COMPANY, INC., et al., Appellees.
    No. 8139.
    Court of Civil Appeals of Texas, Beaumont.
    Aug. 24, 1978.
    Rehearing Denied Sept. 28, 1978.

      John Tucker, Beaumont, Frank Harmon, Walter B. Morgan, Houston, for appellant.
    George Brown, Earl Hines, Beaumont, for appellees.
   DIES, Chief Justice.

This case involves the interpretation of a gas lease which requires Exxon, the producer/lessee, to pay the lessor/royalty owners “. . . the market value at the well of one-eighth (⅛) of the gas so sold or used. . The time period by stipulation of the parties is January 1,1973, through September 30, 1975. All of the gas involved here is sold in the intrastate market.

Expert witnesses for both sides gave opinions of the market value at the well of this gas for the quarters of the stipulated time frame. The trial court did not accept the opinions of any of the experts and entered judgment for the plaintiff upon values which did not correspond with that of any witness. Both sides challenge the value findings so made, and we agree that the evidence is factually insufficient to support the values so found. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). For this reason, the judgment of the trial court must be reversed and the cause remanded.

Since the cause must be tried again, we now express our views upon several of the other more important questions which will likely confront the trial court upon another trial.

1. Market Value

The oft-cited case of State v. Carpenter, 126 Tex. 604, 89 S.W.2d 979, 980 (1936), established that “market value” is price property will bring when offered for sale by one who desires to sell but is not obligated to sell, and is bought by one who desires to buy, but is under no necessity of buying. The simplicity of application of this rule to the case at bar is intriguing but is inadequate to protect the rights of all parties to the litigation.

In Texas Oil & Gas Corp. v. Vela, 405 S.W.2d 68, 74 (Tex.Civ.App.—San Antonio 1966), we find the court holding: “[A]ll parties agree that comparable sales of gas are those comparable in time, quantity, quality, and availability of marketing outlets.” (Emphasis supplied) When the case went to the Supreme Court, Texas Oil & Gas Corp. v. Vela, 429 S.W.2d 866, 872 (Tex.1968), the same language was used.

Further, on page 871 of this opinion of the Supreme Court, we find:

“They [the parties] might have agreed that the royalty on gas produced from a gas well would be a fractional part of the amount realized by the lessee from its sale. Instead of doing so, however, they stipulated in plain terms that the lessee would pay one-eighth of the market price at the well of all gas sold or used off the premises. This clearly means the prevailing market price at the time of the sale or use. The gas which was marketed under the long-term contracts in this case was not ‘being sold’ at the time the contracts were made but at the time of the delivery to the purchaser.” (Emphasis supplied)

See also Butler v. Exxon Corp., 559 S.W.2d 410 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.).

Until 1972, the price of natural gas made no dramatic increase and was sold by lessees on long term (10-20 year) contracts. In 1972, its price began a rapid escalation from about 20$ per thousand cubic feet (Mcf) to over $2.00 per Mcf by the third quarter of 1975.

Exxon determines the market value of gas by obtaining from the Comptroller’s office records which reflect the amounts paid for all natural gas for each quarter by all producers in such area. For this case, the area used was Railroad Commission District No. 3, plus seven other East Texas counties. This total amount paid by gas purchasers is then divided by the total gas produced resulting in what is known as the “weighted average market price.”

Much of the gas sold is under contracts made before January 1, 1972, when the price of natural gas was very low, and therefore the weighted average market price is depressed by gas being sold under these contracts.

Exxon argues, and the trial court found, that this gas was committed, and therefore, old contract prices have verity. Exxon’s argument that the gas is committed was “ . . .if you connect it to the system and the gas is needed to meet the contracts, yes sir [it is committed].” However, Exxon has not committed the gas from this field to any of its customers; consequently, we do not accept the argument that this is “committed” gas.

Having reviewed the voluminous testimony in our record and having carefully studied the authorities on the subject, we are of the opinion, and now hold, that Exxon’s weighted average market price for all gas sold by all producers in the particular area is the proper method of determining the market value of the gas produced after January 1, 1973, provided such weighted average does not include the price paid for any gas sold under contract entered into prior to said date. Stated differently, the weighted average market price is that price at which all gas produced in the stated area by all producers therein [whether from new or old fields, strata, or wells] is sold under contracts entered into after January 1, 1973.

2. Prejudgment Interest

The trial court awarded prejudgment interest on the royalties he found that Exxon owed the lessors.

In Texas, where damages are established as of a definite time and the amount thereof definitely determinable, interest is recoverable as a matter of right from the date of the injury. Texas Power & Light Co. v. Doering Hotel Co., 147 S.W.2d 897, 906 (Tex.Civ.App.—Austin 1941), affirmed, 139 Tex. 351, 162 S.W.2d 938 (1942); Hexter v. Powell, 475 S.W.2d 857, 864 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.); City of Galveston v. Russo, 508 S.W.2d 882, 885 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.).

We have given careful consideration to the very recent decision of Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978), and do not find it controlling. There, as pointed out specifically by the Court (569 S.W.2d at 484), Phillips knew precisely each month the amounts due Stahl, albeit some portion thereof might not be “sustainable.” That is not the situation revealed by our record.

Until the question of how to arrive at the market value of natural gas at the well head in an intrastate situation where the producer is selling the gas to some customers under preexisting contracts at less prices than prevail today is finally settled by the courts, we cannot say that the amount of damages sustained by lessors was definitely determinable. We, therefore, hold that an award of prejudgment interest in this case was incorrect.

3. Severance Taxes

In Texas, tax on natural gas is assessed on “the amount of gas produced and saved within this State equivalent to seven and one-half per cent (7½%) of the market value thereof as and when produced.” Tex. Tax.-Gen.Ann. art. 3.01 (1969).

The trial court refused to allow Exxon to withhold severance taxes on the additional amounts it found owed to the royalty owners. Both sides agree that if Exxon is found to owe the royalty owners additional royalties, no additional tax will ever be paid to the State of Texas. We do not permit Exxon to deduct from the sums it may owe the plaintiff-royalty owners a tax which neither of the parties owes and one which Exxon will never pay. To do so would, in the language used in Phillips Petroleum Company v. Adams, 513 F.2d 355, 370 (5th Cir. 1975), “be to give [it] an extracontrac-tual lagniappe” to which it is not entitled in law or in equity.

Exxon has additional points, and the plaintiff-royalty owners have brought forward several cross-points, all of which have been examined. We have sustained one point and one cross-point, and our precatory language explains our views as to those not specifically mentioned, each of which is overruled.

For the reason stated, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

REVERSED and REMANDED.

      . Plaintiffs’ counsel explains their complaint with the court’s value findings in this manner: “[T]he trial judge simply attempted to split the difference between the value figures resulting from an application of the two methods” of valuation presented by the respective parties. Exxon disagrees with plaintiffs’ value testimony, “but concurs with the plaintiff-royalty owners that the trial court’s ‘split the difference’ determination of market value is without support in the evidence.”

      . As applied to this case, the “particular area” is the Railroad Commission District No. 3, and several other East Texas counties, which Exxon has used for years in computing the royalties to be paid for gas produced on the land in question.


author: CLAYTON, Justice.

text:
    TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. Dora WILSON, Appellee.
    No. 8167.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 21, 1978.
    Rehearing Denied Oct. 12, 1978.

      Max P. Plusche, Asst. Atty. Gen., Austin, for appellant.
    Louis Dugas, Orange, for appellee.
   CLAYTON, Justice.

The Texas Alcoholic Beverage Commission appeals from an order of the District Court overruling its “Motion for new trial or motion to set aside judgment.”

This action was filed in the District Court appealing from and seeking a review of an order of the County Judge denying appel-lee’s application for a “retail dealers on-premises” permit. Appellee timely filed her petition in the District Court on December 13, 1977.

The citation served upon appellant in Austin shows it was received by the sheriff on the 21st day of December 1977 at 9:30 a. m. and served upon appellant at 10:05 a. m. on the 22nd day of December 1977. The sheriff’s return was filed in the District Clerk’s office at 8:30 a. m. January 9, 1978. The citation served upon appellant commanded its appearance by filing a written answer “at or before 10 o’clock a. m. of the Monday next after the expiration of 20 days after the date of service thereof . . ” in accordance with the provisions of Tex.R. Civ.P. 101. The citation and petition served upon appellant did not contain a fiat setting forth the date and time set for hearing appellee’s appeal from the County Judge’s order.

The hearing on appellee’s appeal in the trial court was held on December 22, 1977. Appellant made no appearance, and judgment was entered by the trial court on December 27, 1977, vacating the order of the County Court and ordering appellant to issue a permit and license as prayed for in her petition.

Appellee filed in this court a motion for leave to file a supplemental transcript. This motion has not been granted, and the purported supplemental transcript has not been filed and is not properly before this court. Such requested supplemental transcript contains nothing more than an affidavit of the trial judge, executed on June 6, 1978, stating:

“A hearing on the Petition on Appeal was set on the 22nd day of December, 1977, and on December 13, 1977, the date the Petition on Appeal was filed, I personally made a telephone call to the Beaumont Office of Texas Alcohol[ic] Beverage Commission and advised that the Petition on Appeal had been filed by Dora Wilson and that a hearing would be had on the 22nd day of December, 1977. On the same date, December 13, 1977, my Clerk Mickey Litton, made a telephone call, not only to the Beaumont office of Texas Alcoholic[ic] Beverage Commission, but to Austin and advised that a hearing on the Petition on Appeal would be had on the 22nd day of December, 1977.”

This “supplemental transcript,” not being properly before this court, cannot be considered. Even though the supplemental transcript be considered, the affidavit of the trial court cannot be considered. Tex. R.Civ.P. 376 specifically sets forth instruments which shall be included in the transcript, and the same should be adhered to strictly. This affidavit of the trial judge setting forth evidentiary matters is not a proper instrument to be included in the transcript. See Goetz v. Goetz, 534 S.W.2d 716 (Tex.Civ.App.—Dallas 1976, no writ); Davis v. Davis, 521 S.W.2d 952, 954 (Tex.Civ.App.—Fort Worth 1975, no writ); Tejas Trial Property Owners Association v. Holt, 516 S.W.2d 441 (Tex.Civ.App.—Fort Worth 1974, no writ); Rotello v. State of Texas, 492 S.W.2d 347 (Tex.Civ.App.—Houston [1st Dist.]), writ ref’d n. r. e. per curiam, 497 S.W .2d 290 (Tex.1973); Beasley v. Reiger, 441 S.W.2d 957 (Tex.Civ.App.—Waco 1969, no writ).

In this State, it is well settled that appellee’s filing of her petition with the clerk of the proper court commenced this suit and vested that court with subject matter jurisdiction of the suit. Tex.R.Civ.P. 22; Hughes v. Atlantic Refining Company, 424 S.W.2d 622 (Tex.1968); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926). However, the court does not have personal jurisdiction over appellant (defendant) until it has been served with process. Lawler v. Neathery, 509 S.W.2d 453 (Tex.Civ.App.—Amarillo 1974, no writ); Gunter’s Unknown Heirs and Legal Rep. v. Lagow, 191 S.W.2d 111, 113 (Tex.Civ.App.—Austin 1945, writ ref’d); A. J. Hill Co. v. Tex-Tan of Yoakum, 235 S.W .2d 945 (Tex.Civ.App.—Galveston 1951, writ dism’d). Unless the case is one in which constructive or substituted service is authorized, personal service is indispensable and jurisdictional. Erwin v. Holliday, 131 Tex. 69,112 S.W.2d 177 (1938); Crawford v. Brown, 507 S.W.2d 574 (Tex.Civ.App.—Beaumont 1974, no writ).

In our case under review, assuming arguendo that the affidavit of the trial judge could be considered, at the time the trial court gave oral notice of the scheduled hearing on appellee’s appeal, citation had not been served upon appellant, and jurisdiction over appellant had not been obtained. Jurisdiction over appellant could not be obtained by giving of such notice. We do not say that a written order scheduling such hearing could not legally be signed by the trial court, but such an order could have no legal effect until it was served upon appellant subsequent to jurisdiction having attached. Such a written order must necessarily be served upon appellant either with, at the time of, or subsequent to the service of citation.

In view of the foregoing authorities, at the time of giving of the oral notice to appellant of the date of the scheduled hearing, the court had no jurisdiction over appellant, and such notice was of no legal effect. Jurisdiction over the person of appellant did not attach until citation was served upon appellant. Appellant did not, at any time subsequent to service of citation, receive any type of notice of the time for the hearing, and, in the absence of such notice, appellant was deprived of the right to be present and to have its day in court.

There are other reasons for reversing the trial court’s judgment. The citation served upon appellant on the day of the hearing conducted by the trial court was issued pursuant to and containing the prerequisites of Tex.R.Civ.P. 101. This citation commanded the appellant to “appear by filing a written answer to plaintiff’s petition at or before 10 o’clock a. m. of the Monday next after the expiration of 20 days after the date of service thereof. . . ” Appellant, in obedience to this citation, timely filed its answer. Appellant had no valid notice that a hearing would be held prior to appearance day as stated in the citation. Any judgment entered before the time at which a defendant is commanded by the citation to appear and answer is erroneous and must be set aside. See Andrus v. Andrus, 168 S.W.2d 891 (Tex.Civ.App.—Eastland 1943, no writ). Even though we are of the opinion the citation required by Tex.R.Civ.P. 101 is not the proper process to be served in this type of proceeding, it was the only process served upon appellant, and it complied with the commands of such process. The proceedings in this case are special proceedings in that the Tex. Alcoholic Beverage Code Ann., § 11.67 (1978), specifically provides that “the case shall be tried before a judge within 10 days from the date it is filed.” This time limit has been held to be mandatory. See Cook v. Spears, 524 S.W.2d 290 (Tex.1975); Texas Alcoholic Beverage Commission v. Navy Club, U.S.A. Alamo Ship 106, 533 S.W.2d 475 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). Since the case must be tried within 10 days from the date it is filed, then any process served upon the defendant must make the appearance day within the time limits of the statutory time for hearing. Such process was not served upon appellant.

For the reasons stated, the judgment of the trial court must be reversed. To remand the case would serve no practical purpose in view of the decisions in Cook v. Spears, supra, and Texas Alcoholic Beverage Commission v. Navy Club, supra. Therefore, the proper judgment by this court is to reverse the judgment of the trial court, and, under the authority of Texas Alcoholic Beverage Commission v. Navy Club, supra, the judgment of the trial court is vacated.

REVERSED, and judgment of the trial court is vacated.


author: EVANS, Justice.

text:
    Alan GETZ, Appellant, v. The BOSTON SEA PARTY OF HOUSTON, INC., Appellee.
    No. 17250.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 5, 1978.

      Sewell, Junell & Riggs, William A. Worthington, Houston, for appellant.
    Elliot T. Gerstenhaber, Houston, for ap-pellee.
   EVANS, Justice.

This is an appeal from a temporary injunction.

The appellee operates a restaurant on a tract of approximately four acres of land on Westheimer Road, having leased the property from one of the defendants, Jerry Ar-govitz, in 1976. The four acre tract was at one time part of an eight acre unit which Argovitz divided in 1973 by a conveyance of the south one half to Johnny Lester. In late 1976 the appellant, Alan Getz, purchased the south four acres at a foreclosure sale, and at the time of the hearing he operated a “mini-warehouse” on that land. Apparently then unknown to any of the parties, a sewer line was located underneath the surface of the appellant’s tract of land, connecting the sewer line serving the appellee’s restaurant with a sewage discharge system located to the south of appellant’s property.

Subsequent to the appellee’s taking possession of the north four acres under its lease from Argovitz, a serious problem was discovered with respect to the sewer line “backing-up” into the restaurant. In order to alleviate this problem the appellee placed a “clean-out” drain on the southern part of the four acre tract, but the sewer continued to back-up, creating a sanitation problem and on occasion requiring the appellee to close its restaurant to the public. The ap-pellee then had a work crew go on the appellant’s property to check the sewer line through a manhole opening which had been located on the appellant’s land, and this inspection indicated the sewer to be plugged with “grease, sludge, rocks, and boulders.” After further entry was refused by the appellant, the appellee brought this action, contending that its only alternative was to connect its sewer line north to the city sewer line on Westheimer and seeking an injunctive right to enter upon the appellant’s land for a period of six months in order to clean out the sewer line until the alternative connection could be made.

The trial court found that if the appellee was not permitted to enter upon the appellant’s property for the limited purpose of unblocking the sewage system, a health hazard would be created endangering the lives of the appellee’s employees and invitees and that a necessity existed for a limited time, not to exceed six months, to allow the appellee to construct an alternative sewage route. The trial court accordingly entered a temporary injunction order on June 8, 1978, enjoining the appellant for a period of 180 days from interference with the appellees’ entry upon the appellant’s premises for the limited purpose of unblocking the sewage system.

In three points of error the appellant contends that the trial court abused its discretion in entering the injunction order because it altered the status quo, because it granted the appellee complete relief at the temporary hearing, and because the appel-lee failed to plead a cause of action and show a probable right to relief.

It is not the purpose of a temporary injunction to transfer possession of property from one person to another, but rather to preserve the original status of the property pending a final decision on the rights of the parties. Morgan v. Brannon, 95 S.W.2d 509 (Tex.Civ.App.—Eastland 1936, no writ); Story v. Story 142 Tex. 212, 176 S.W.2d 925, 927 (1944).

Where a party seeking injunctive relief with respect to the use of land fails to establish any right therein, the status quo is the owner’s uninterrupted possession. Pena v. Le Comte, 35 S.W.2d 252 (Tex.Civ.App.—San Antonio 1931, no writ); Payton v. Hurst Eye, Ear, Nose & Throat Hospital and Clinic, 318 S.W.2d 726, 731 (Tex.Civ.App.—Texarkana 1958, writ ref’d n. r. e.). However, where the applicant for temporary relief proves the probability of some easement right in the property of another, the status quo is the applicant’s continued right to exercise such possession of the property as the easement right carries with it. North v. Atlas Lime Co., 2 S.W.2d 956 (Tex.Civ.App.—El Paso, 1928, no writ).

In the case at bar it is undisputed that the appellee has no right with respect to the sewage line crossing the appellant’s property unless such right exists under facts establishing an implied easement. Thus, the status quo must be determined on the basis of whether the facts adduced at the temporary hearing showed that the appellee probably owned an easement right in the appellant’s land.

In order to show a probable right, it was the plaintiff’s burden to prove the essential elements of unity of ownership, continuance and apparent use, and strict necessity constituting the basis of an easement by implied reservation. Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163 (1952). The record does not reflect that the appel-lee met this burden at the temporary hearing.

Defendant Jerry Argovitz testified that at the time he sold the south one-half of the eight acre unit to the predecessor of the appellant Getz, he was unaware of the existence of the sewer line on that property and that he first became aware of its existence when he received a call from Getz in the latter part of 1976. The appellant, Getz, testified that the sewer line was not visible when he purchased the property and that he had made a physical examination of the property at that time and could find nothing. He did not see the manhole cover when he inspected the property, and the first time he became aware of it was when it was hit and knocked into the air by a maintainer grading the surface of the property. The evidence does not establish that the sewer line was visible and apparent to the occupants of the appellant’s property, and the record is silent with respect to whether the existence of the sewer line was “indicated by signs which might be seen or known on a careful inspection by a person ordinarily conversant with the subject.” Westbrook v. Wright, 477 S.W.2d 663 (Tex.Civ.App.—Houston [14th Dist.], 1972, no writ). Thus, the appellee did not establish that there had been such continued and apparent use of the sewage line as would justify a conclusion that the appellee had an implied easement in the appellant’s property-

A temporary writ should not be granted if it will effect a change in the original status of the parties’ rights even though its purpose may appear reasonable and appropriate to prevent damage or injury to one of the parties. McCan v. Missouri Pacific R. Co., 526 S.W.2d 754 (Tex.Civ.App.—Corpus Christi 1975, no writ). Since the appel-lee failed to establish the probability of an easement right in the appellant’s property, the trial court abused its discretion in granting the temporary injunction.

The temporary injunction order is also defective because it purports to grant the same relief sought by the appellee upon final hearing. In its original petition the appellee sought a temporary injunction permitting it access to the defendant’s premises for a period of six months, and on final hearing, it sought a permanent injunction against the appellant from preventing its access to the premises for a period of six months from “the date of the hearing.” The legitimate purpose of a temporary injunction is to preserve the status quo until a final hearing can be had on the merits. Lower Colorado River Authority v. Gulf Coast Water Co., 107 S.W.2d 1101 (Tex.Civ. App. — Galveston 1937, no writ). The trial court’s temporary injunction order should have been limited in its term from the date of the temporary hearing to the date of the hearing on the merits.

The judgment of the trial court is reversed and the cause is remanded.


author: COLEMAN, Chief Justice.

text:
    CLEAR CREEK BASIN AUTHORITY, Appellant, v. The CITY OF HOUSTON, Appellee.
    No. 17233.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 5, 1978.
    Rehearing Denied Nov. 2, 1978.
    Kronzer, Abraham & Watkins, Michol O’Connor, Houston, for appellant.

      Pulbright & Jaworski, David J. Beck, Robert M. Collie, City Atty., John L. Hill, Atty. Gen., Troy Webb, Houston, for appel-lee.
   COLEMAN, Chief Justice.

This is an appeal from a summary judgment sustaining the City of Houston’s contention that the Clear Creek Basin Authority has no legal right to obtain injunctive relief or recover statutory penalties based on alleged violations of the Texas Water Code, Chapter 26, pp. 174, et seq.

This is a suit wherein the plaintiff, Clear Creek Basin Authority, seeks to recover penalties and injunctive relief because of alleged violations by the City of Houston of the Texas Water Code and certain waste control orders issued by the Texas Water Quality Board to the City. The City of Houston filed a motion for summary judgment asserting certain propositions of law, including (1) — (2) that as a matter of law the plaintiff cannot obtain injunctive relief or recover statutory penalties based upon alleged violations of the Texas Water Code when the violations occurred outside the jurisdiction or geographical boundaries of the Clear Creek Basin Authority; (3)

The Clear Creek Basin Authority filed an answer to the motion asserting (1) “the only issue before this court is a question of law: can a downstream victim of pollution sue an upstream polluter; (2) the city has admitted that its sewer plants exceed the parameters of its permits on a regular basis; (3) the city’s effluent is flushed into Clear Lake on a daily basis and cause pollution there.”

In the judgment the trial court recites as follows:

“. . . counsel for Clear Creek Basin Authority having represented in open court to the court that the Clear Creek Basin Authority desired to withdraw from its First Amended Original Petition all claims and causes of action asserted against The City of Houston predicated on the theory of common law nuisance and desired to proceed only against The City of Houston on the basis of its claims and causes of action asserted against The City of Houston under Ch. 26 of the Texas Water Code, and defendant, The City of Houston, having represented to the Court that should this matter be reversed and remanded for a new trial, it would have no objection to the Clear Creek Basin Authority amending its pleadings to reassert the claims and causes of action asserted against The City of Houston based on the common law nuisance theory, and The City of Houston having further represented to the Court that it desired to withdraw from consideration by the court paragraphs I and III of its motion for summary judgment and to proceed to hearing only on paragraph II of its motion for summary judgment, which complains that the Clear Creek Basin Authority is not entitled to sue for or obtain injunctive relief or penalties against the City of Houston under Chapter 26 of the Texas Water Code for violations which occur outside of the jurisdictional or geographical boundaries of the Clear Creek Basin Authority, and the Clear Creek Basin Authority having proceeded to file its response and affidavits in opposition to the motion for summary judgment of the City of Houston, and the City having agreed to waive any objections to the late filing of said response and affidavits, and the court, after considering the motion for summary judgment, the summary judgment evidence, the pleadings on file herein, and the representations, stipulations, and arguments of counsel, and it being the opinion of the court that the motion for summary judgment of the City of Houston should be in all things granted. . . . ”

The Clear Creek Basin Authority asserts that the trial court erred in granting the motion for summary judgment because the City of Houston has admitted that six of its plants are located within the geographical boundaries of the Basin Authority and that these plants have violated the terms of their Water Quality permits.

The City of Houston asserts that prior to the hearing on the City’s motion for summary judgment, the parties agreed to present squarely for determination the issue of whether the Clear Creek Basin Authority had the statutory authority to sue for violations that occurred outside its jurisdictional boundaries. It asserts that the sole issue before the trial court at the hearing on the City’s motion for summary judgment was whether the Clear Creek Basin Authority was entitled to recover civil penalties and injunctive relief for alleged discharges by the City of Houston outside the geographical boundaries of the Clear Creek Basin Authority.

Rule 166-A, Vernon’s Texas Rules Annotated, provides: “. . . the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues as expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal . . .”

Any agreements limiting the issue at the hearing on the motion for summary judgment made by parties were not reduced to writing and filed in the record of the case except as such agreement may be reflected in the judgment and the pleadings of the parties. We are particularly concerned with that portion of Rule 166-A, supra, providing that issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal. We conclude that we can consider as grounds for reversal only those issues presented in the motion for summary judgment or in the answer to the motion for summary judgment.

The recitation in the judgment that the Clear Creek Basin Authority desired to proceed only against the City of Houston on the basis of its claims and causes of action asserted against the City of Houston under Chapter 26 does not clearly evidence an agreement to waive its cause of action based on the admitted fact that some sewage plants operated by The City of Houston are located within the boundaries of the Clear Creek Basin Authority and have violated the permits issued it by the Texas Water Quality Board. We assume that these facts were not presented to the trial court at the hearing, but since there was no written agreement to waive the cause of action based upon the admitted violations at plants within the jurisdiction of the Clear Creek Basin Authority, the City of Houston failed to carry the burden of showing that the Clear Creek Basin Authority as a matter of law could not recover either injunctive relief or penalties as authorized by the Texas Water Quality Act, Texas Water Code Annotated, Chapter 26. See Rule 11, T.R.C.P.

The burden was on the City to show not only that there was no material issue of fact presented by the pleadings and evidence, but also that Clear Creek Basin Authority was entitled to no relief solely by reason of the matters set up in the motion for summary judgment. The ground for relief on which the City’s motion for Summary Judgment was based did not reach the question of whether the Basin Authority was entitled to relief because of violations of the Water Code occurring within the boundaries of the District. Rule 166-A, supra, does not authorize a judgment for the movant in a summary judgment proceeding based on the failure of the respondent to specify the reasons why the motion should not be granted. The movant must establish that it is entitled to judgment as a matter of law by reason of the matters set out in the motion.

Paragraph 2 of the City’s motion for summary judgment asserts that the Clear Creek Basin Authority cannot obtain injunctive relief or recover statutory penalties based on alleged violation of the Texas Water Code, “which violations occur outside the jurisdiction or geographical boundaries of the Clear Creek Basin Authority. No genuine issue of material fact exists in this regard and defendant is entitled to judgment as a matter of law.” We construe this language as asserting that no genuine issue of material fact exists as to whether or not the violations alleged in plaintiff’s petition occurred outside the jurisdiction of the Clear Creek Basin Authority. It also asserts the proposition of law that if the alleged violations occurred outside the geographical boundaries of the Clear Creek Basin Authority as a matter of law the authority cannot maintain the action. This interpretation of the pleading is consistent with the recitation of the agreement of the parties made by the trial court in his judgment granting the motion for new trial.

A fact issue was presented to the trial court by the written motion, i. e. the motion for summary judgment, and the summary judgment evidence conclusively established that sewage plants were operated by the City of Houston within the boundaries of the Clear Creek Basin Authority and that these sewage plants violated the terms of the permit granted to the City.

Reversed and remanded.


text:
    Paul BONDESON, Appellant, v. PEPSICO, INC., d/b/a Wilson Sporting Goods Co., a Division, Appellee.
    No. 17189.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 12, 1978.

      Charles L. Black Aycock, Houston, for appellant.
    Lapin, Totz & Mayer, Paul G. Yale, Houston, for appellee.
   EVANS, Justice.

This is an appeal from a summary judgment entered in favor of the plaintiff on the basis of a foreign judgment.

Pepsico, Inc., d/b/a Wilson Sporting Goods Company brought this action against the defendant, Paul Bondeson, to enforce a judgment for the total sum of $695.56. Attached as an exhibit to the plaintiff’s petition filed August 3, 1977, is an exemplified copy of the Florida judgment entered January 4, 1977. On September 28, 1977, the defendant filed his first amended original answer to the plaintiff’s petition, alleging that he had purchased the merchandise upon which the plaintiff’s suit was based as an agent and employee of Sheoah Golf Club, and not individually, and that after the plaintiff had been informed of this fact, it had agreed and promised that it would take no further action against him. He further alleged that in reliance upon this representation, he had not interposed a defense in the Florida action and that the Florida judgment had been fraudulently procured in violation of the plaintiff’s agreement with him. The plaintiff then filed a motion for summary judgment based on the Florida defense, and in response thereto, the defendant filed an opposing affidavit in which he stated the following:

“. . .At the time I ordered the merchandise described in the invoice attached to said pleadings, I was working for Sheoah Golf Club; and I ordered the merchandise for said Club and not for myself. I quit working for said Club prior to the time the merchandise was delivered, and it was delivered to said Club and not to me. Attached hereto, incorporated herein for all purposes by this reference, and marked Exhibit ‘B’ is a copy of a letter explaining these circumstances which was sent to the Plaintiff by Mr. Warren Williams, President of said Club. Both Mr. Williams and I explained these circumstances to the duly authorized agents of the Plaintiff, both before and after the Plaintiff filed said Florida suit against me. Finally, after said Florida suit was filed and I was served with the citation and I again explained the above described circumstances to the Plaintiff’s agents, they promised me on behalf of the Plaintiff that the Plaintiff would drop the Florida suit and would not further prosecute the same against me. But for said promise, I would have hired a Florida lawyer to represent me and prove to the Florida Court that I purchased said merchandise as an agent of Sheoah Golf Club and not individually, and that I never received the same, having left the employ of said Club before it was delivered. I believed the Plaintiff’s promise that it would not further prosecute the Florida suit and relied on said promise.”

On November 21, 1977, the trial court entered an order denying the plaintiff’s motion for summary judgment. Thereafter, on January 3, 1978, the plaintiff filed a second motion for summary judgment and its brief in support thereof, directing the court’s attention to Florida Rules of Civil Procedure, Section 1.540, which provides, in effect, that a judgment procured by the fraud, misrepresentation, or other misconduct of an adverse party may be set aside upon motion made within one year after the judgment was entered and not thereafter. The trial court granted the plaintiff’s second motion for summary judgment, and the defendant brings this appeal contending that the record establishes a genuine issue of material fact as to whether or not the Florida judgment was procured by fraud.

A judgment of another state may be impeached for fraud in an action brought in Texas for its enforcement. Krummen v. Still, 146 S.W.2d 288 (Tex.Civ.App.—Beaumont 1940, writ dism’d jdgmt. cor.). Thus, a foreign judgment obtained in violation of a promise to dismiss a suit or to take no further action is subject to attack in this state. Babcock v. Marshall, 21 Tex.Civ.App. 145, 50 S.W. 728 (Austin 1899, no writ); Krummen v. Still, supra. The defense of fraudulent procurement is available in a suit brought in Texas to enforce a foreign judgment when the same fraud would have been a defense in an action brought on the judgment in the state in which it was rendered. Marsh v. Millward, 381 S.W.2d 110, 114 (Tex.Civ.App.—Austin 1964, writ ref’d n. r. e.); Burleson v. Burleson, 419 S.W.2d 412 (Tex.Civ.App.—Houston [14th Dist.] 1967, no writ).

In the case at bar, the defense of fraudulent procurement was interposed by the defendant in the Texas action within one year following the entry of the Florida decree. Since the Florida statute of limitations would not then have precluded the assertion of this defense if a motion had been filed in Florida to vacate the decree, it does not constitute a bar to the defense being asserted in the Texas action brought to enforce the judgment. Contrary to the plaintiff’s contention, the defendant was not required to bring proceedings in the State of Florida to vacate the decree in order to assert the defense that the foreign judgment was fraudulently obtained.

It is also the plaintiff’s contention that the contents of the defendant’s opposing affidavit do not adequately raise a genuine issue of material fact with respect to the defense of fraudulent procurement because the affiant does not set forth the names of the plaintiff’s agents who allegedly made the false representations or the dates or places when such representations were allegedly made. This contention must be overruled. The plaintiff did not file exceptions in the trial court complaining that by reason of the lack of specificity in the defendant’s affidavit it was not sufficiently informed of the identity of the persons who had allegedly made the false representations or with respect to the circumstances surrounding the making of such representations. Had such exceptions been presented to the trial court, additional particulars concerning such matters could easily have been supplied by a supplemental affidavit, as evidenced by the defendant’s response to interrogatories filed subsequent to the date of hearing on the plaintiff’s motion but prior to the date of the entry of the summary judgment. The statements contained in the defendant’s affidavit sufficiently demonstrate the existence of a genuine issue of material fact regarding the defense of fraudulent procurement, and the plaintiff’s objections to the form of the affidavit must be considered waived. Jones v. McSpedden, 560 S.W.2d 177, 179 (Tex.Civ.App.—Dallas 1977, no writ).

The judgment of the trial court is reversed and the cause is remanded.


author: DIES, Chief Justice. KEITH, Justice,

text:
    Floyd B. THORNAL, Appellant, v. CARGILL, INC., et al., Appellees
    No. 8142.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 12, 1978.
    Rehearing Denied Nov. 2, 1978.
    John Fulbright, Beaumont, for appellant.
    Cleve Bachman, John D. Rienstra, Jr., John Benckenstein, George Duncan, Beaumont, for appellees.
   DIES, Chief Justice.

Plaintiff below, Floyd B. Thornal, sued Leduma Cia. Mar. S/A (Leduma), Cargill, Inc. (Cargill), and the Kansas City Southern Railway (KCS) for personal injuries allegedly received on May 1, 1974. Leduma was owner of the ship “Costa Flora” which was loading grain from the KCS docks in Port Arthur, Texas. Cargill was the grain dealer and leased the grain storage area, as well as portions of the dock from KCS. The grain was loaded in the ship by longshoremen, of whom plaintiff was one. Plaintiff alleged his injuries resulted from a fall on one of the ramps leading from the dock to the ship.

At the conclusion of the evidence, the court granted an instructed verdict for Le-duma. After a jury trial, the court entered judgment on December 14,1977, that plaintiff take nothing against Leduma, Cargill, and KCS. From this judgment, plaintiff has perfected this appeal.

Plaintiff complains that the court erred in granting Leduma an instructed verdict. It is proper only if there is no evidence to support the submission of a necessary issue, and we must indulge every inference that may be properly drawn from the evidence against the action of the trial court. Echols v. Wells, 510 S.W.2d 916 (Tex.1974); Anderson v. Moore, 448 S.W.2d 105 (Tex.1969).

In the entire chain of this transaction from the buying of the wheat in West Texas, to its delivery in Port Arthur by the KCS, to its loading on Leduma’s vessel, Leduma had absolutely no duties or responsibilities. The grain was stored in Cargill’s facility, loaded on a conveyer of Cargill, by longshoremen, and the ramp involved was owned, maintained, and repaired by KCS. The master and crew of Leduma’s ship had no responsibility or indeed right to interfere or assist in any of these functions, except the master could require loading in a manner to give his vessel the proper trim. See Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976), and authorities cited therein. See also Victory Carriers v. Law, 404 U.S. 202, 212-15, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). This point is overruled.

Plaintiff urges that the trial court erred in failing to grant his motion for new trial as to Cargill because the jury’s answer to S.I. No. 8 is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In S.I. No. 8, the jury failed to convict Cargill of negligence in failing to sweep off the grain. This point requires that we examine all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

It was plaintiff’s theory that grain on the ramp, together with rain, made it very slippery.

The evidence as to which defendant, Cargill or KCS, had the duty to sweep the ramp was conflicting. One witness testified it was impractical to clean up spilled grain until the loading operation was complete. And all witnesses agreed it was next to impossible to load a ship with grain without spilling some on the docks, ramps, and elsewhere. We believe the answer to this issue has support in the evidence, and accordingly overrule this point.

The evidence revealed that several times in the past KCS had repaired the ramp in question and had put cleats and handrails on it. It is undisputed, however, that at the time of plaintiff’s alleged injury the ramp had no cleats or handrail on it.

The jury convicted KCS of negligence in several respects in failing to repair the ramp. However, because of the jury’s answer to S.I. No. 20, the judgment absolved KCS of liability.

In answer to S.I. No. 20 the jury found that plaintiff’s supervisor was aware of the hazard or danger involved in attempting to use the ramp as a walkway.

As previously noted, the judgment in the case at bar was entered on December 14, 1977. KCS argues that the case of Parker v. Highland Park, 565 S.W.2d 512 (Tex.1978), abolished the “no duty” defense, and since it was not delivered until February 8, 1978, the case at bar is not affected by this decision.

This issue seems to us to be assumption of risk (volenti non fit injuria) which was abolished in Farley v. M M Cattle Company, 529 S.W.2d 751 (Tex.1975). Assumption of risk is what KCS pled.

At any rate it seems to us that in Parker v. Highland Park, supra, at 518, the court held that “no duty” was completely abolished in Farley when the court said:

“The definition [assumption of risk] included three elements: (1) knowledge, (2) appreciation, (3) the voluntary encounter. Greenhill, “Assumed Risk,” Sw.L.J. 1, 12 (1966). When Farley abolished voluntary assumption of risk, it terminated the whole doctrine, all three elements. The contention now is that the first and second elements (knowledge and appreciation by the plaintiff) in some way survived Farley and Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975), and still live under the name of ‘no duty.’ Voluntary assumption of risk included and is inseparable from no-duty.” (Emphasis supplied)

A recent case should be added. We cite it with neither approval nor disapproval, since as far as we are aware the question of when a decision of the Texas Supreme Court applies to pending litigation in various stages has never been directly answered. In Bullington v. Texas Electric Service Co., 570 F.2d 1272 (5th Cir. 1978), a plaintiff sued for injuries sustained in 1972. In July 1975 the trial court entered summary judgment on the “no duty” doctrine. When this case reached appeal, Parker had been delivered, and the appeals court reversed the trial court citing Parker, supra.

We hold that the trial court erred in the case at bar in not disregarding the jury’s answer to S.I. No. 20.

Our plaintiff was convicted of contributory negligence, and the jury found that he (plaintiff) contributed 25 percent to the accident, while KCS contributed 75 percent; that plaintiff’s damages were $26,-280.00. Plaintiff contends for this entire sum arguing that the question of whether his failure to keep a proper lookout was negligence was not submitted to the jury, and the definition of proper lookout did not contain the elements of negligence. We reject this contention because plaintiff did not object to the definition. Tex.R.Civ.P. 272, 274. 3 R. McDonald, Texas Civil Practice, §§ 12.28 and 12.29 (Rev.1970). All points of error not addressed in this opinion are overruled.

We now proceed to enter the judgment that should have been entered. It is ordered, adjudged, and decreed that plaintiff — appellant Floyd B. Thornal — shall recover of and from the defendant, Kansas City Southern Railway, $19,710.00, nothing of and from defendant Leduma; nothing of and from the defendant, Cargill, Inc. All costs are taxed against KCS.

AFFIRMED in part; REVERSED and RENDERED in part.

KEITH, Justice,

dissenting.

Since I would affirm the judgment in its entirety, I respectfully dissent. I decline to join an opinion which reverses a judgment of a trial court which, at the time it was entered, was a correct judgment. The operative dates are those set out in the margin. I admit, as indeed I must, that the “no duty” concept had been severely wounded before Parker; but it had not yet suffered the final indignity of public execution; while not robust, it had not then been buried. I express no sorrow or regret at the interment of the doctrine, even though I was instrumental in its birth nearly a quarter century ago. McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954).

Chief Justice Greenhill, speaking for the court in Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (fn. 2) (Tex.1976), used this language to explain the holding:

“The defense of volenti, a voluntary assumption of the risk in the ordinary negligence case, was abolished. Farley v. M M Cattle Co., 529 S.W.2d 751 (Tex.1975). The court, however, was careful to state that ‘henceforth in the trial of all actions based on negligence, volenti . will no longer be treated as an issue.’ 529 S.W.2d at 758. This case was tried and decided by the Court of Civil Appeals before Farley. Farley did not speak to ‘no duty.’ Neither does this opinion deal with the ‘no duty’ concept as it relates to ‘open and obvious’ danger which would have been related to the concept of assumption of the risk. We do not reach that question. See Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976).” (emphasis supplied)

Indeed, Justice Pope, the author of Parker, filed a lengthy and scholarly opinion in Abalos wherein he discussed the “no duty” doctrine in detail and the myriad of confusing cases following McKee v. Patterson (544 S.W.2d at 635-638). While he concurred with the majority (with only Justices Reav-ley and Johnson dissenting), the future author of Parker did not suggest that the “no duty” doctrine had been abolished in Farley; he reserved that enjoyable duty for another day and these are the words he used in Parker:

We now expressly abolish the so-called no-duty concept in this case and, as expressed in Farley, ‘henceforth in the trial of all actions based on negligence . . (565 S.W.2d at 517, emphasis supplied)

Yet, the majority, dogmatically asserting “ ‘no duty’ was completely abolished in Farley”, neglects to note that Farley did not speak to the concept of “no duty”. I disagree since it clearly appears from the quotations set out earlier that the doctrine of “no duty”, as applied to the type of case under review, was not abolished until Parker was written; and, as applied to this case, it was made to operate prospectively— “henceforth”.

The case presently under review had been tried and judgment entered long before Justice Pope wrote the language found on page 517. Indeed, jurisdiction of this case had already been vested in this court. There was no “trial” of this cause after the enunciation of the rule in Parker — only an appeal of an earlier judgment.

The operative word in both Farley (which did not abolish the “no duty” concept) and Parker (which did) is “henceforth” and the dictionaries are unanimous in attributing a prospective operative effect to the word. See, e. g., American Heritage Dictionary of the English Language (1969): “From this time forth; from now on.” Other similar definitions are to be found in the margin.

I would apply — and unhesitatingly so— the rule laid down in both Farley and Parker — to trials held after the announcement of the decision in each case. However, I decline to apply such rules retroactively and thereby reverse a case because there has been a change in the rule after the appeal had been perfected. To argue such a position, it seems to me, detracts from the orderly development of the case law which should, I submit, operate prospectively as to all cases other than the one which makes the change in the law. See the discussion by the present Chief Justice concurring in Watkins v. Southcrest Baptist Church, 399 S.W.2d 530, 536 (Tex.1966). See and compare Hendrix v. Jones-Lake Construction Company, 570 S.W.2d 546 (Tex.Civ.App.—Corpus Christi 1978) (1978, not yet reported, writ history unknown).

In the annotation “Overruling Decision— Application”, 10 A.L.RM 1371, 1382 (1966), it is said that Texas is committed to the traditional theory of unlimited retroactive operation of the new decision, citing Storrie v. Cortes, 90 Tex. 283, 38 S.W. 154 (1896). But, in Parker and other cases [see, e. g., Farley, supra, and Bounds v. Caudle, 560 S.W .2d 925, 927 (Tex.1977)], the newly announced rule was given prospective operation only. There is much to be said for such an approach to the discharge of the judicial function. See T. Currier, “Prospective Overruling”, 51 Virginia L.Rev. 201, 205, et seq. (1965).

I decline to join in the reversal of a judgment which was errorless when signed and correct when this Court acquired jurisdiction of the case.

      . Plaintiff was injured on May 1, 1974; the charge was submitted to the jury on September 26, 1977, and the verdict returned the following day; judgment was entered on the verdict on December 14, 1977; the appeal bond was filed on February 6, 1978; and the opinion in Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978), was handed down on February 8, 1978, with motion for rehearing being overruled on March 15, 1978. The transcript of the record in this case was filed in our court on March 6, 1978.

      . In footnote 3 on the same page, the Chief Justice made it clear that the majority had not agreed to abolish the “no duty” doctrine at least up to that date, saying, “And again, we are not talking about negating ‘no duty’ in the concept of the assumed risk cases such as Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963).”

      . Justice Pope, writing in Parker (at 517, fn. 2), reiterated his position, saying: “We therefore hold that for this trial, and henceforth in the trial of all actions based on negligence . voluntary assumption of risk . . will no longer be treated as an issue. . Farley, supra . . . (emphasis supplied)

      .The Random House Dictionary of the English Language (Unabridged Ed. 1966): “from now on; from this point forward.”
      Oxford English Dictionary, Vol. 5, Part I (1901): “From this time forth; from now onwards.”
      Webster’s Third New International Dictionary (Merriam-Webster 1967): “from this point on.”


author: SHANNON, Justice. O’QUINN, Justice,

text:
    Joe Slator PETSCH et al., v. C. H. SLATOR.
    No. 12748.
    Court of Civil Appeals of Texas, Austin.
    Oct. 18, 1978.
    Rehearing Denied Dec. 5, 1978.

      Joe Slator Petsch, Del Rio, C. C. Small, Jr., Richard S. Donoghue, Small, Craig & Werkenthin, Austin, for Harold Petsch Brelsford, Diana Brelsford, Susanna Brels-ford, Madge Brelsford and John Brelsford.
    John W. Stayton, Jr., McGinnis, Lo-ehridge & Kilgore, Austin, for appellee.
   SHANNON, Justice.

This appeal is from a judgment entered by the district court of Llano County in a will construction case. The important question is whether certain lapsed gifts passed by intestacy to the testator’s heirs or by the terms of the residuary clause of the will to the residual beneficiaries. The court overruled appellants’ motion for summary judgment and entered summary judgment for appellee. The judgment declared that the lapsed gifts passed to the testator’s heirs by intestacy.

The will in question was signed by the testator, J. D. Slator, Jr., on August 14, 1959. The testator owned ranch land in Llano and Blanco Counties and certain oil producing property in Ector County. At death the testator possessed large sums of cash, United States Government Bonds, and United States Treasury Bills. He also held life insurance stock and stock in a Llano savings and loan association.

The testator died on February 25, 1973. His wife, Josephine Pehl Slator, had died earlier. The testator and his wife were childless. He was survived by three brothers and one sister. A brother, C. H. Slator, is appellee. The testator left at least one nephew and two nieces and several grandnephews and grandnieces. A number of these persons were residual beneficiaries under the will. The nephew, the grandnephews, and grandnieces are appellants.

The will was admitted to probate in 1973 by order of the County Court of Llano County. The testator’s nephew, Joe Slator Petsch, was appointed independent executor, but he later filed his resignation. E. H. Slator, the testator’s brother, was appointed administrator with will annexed. An inventory and appraisement and list of claims was filed and approved by order of the court.

Appellants raise a threshold problem by their point of error that the district court lacked jurisdiction to entertain the will construction suit. Appellants’ contention is based upon Tex.Prob.Code Ann. § 5(b) and § 5(d) (Supp.1978). Section 5(b) provides in part as follows:

“In those counties where there is no statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate, administrations, guardi-anships, and mental illness matters shall be filed and heard in the county court, except that in contested probate matters, the judge of the county court may on his own motion, or shall on the motion of any party to the proceeding transfer such proceeding to the district court, which may then hear such proceeding as if originally filed in such court. . . . ”

The applicable portion of § 5(d) provides as follows:

“All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills. . . . ”

Appellants argue that under § 5(b) a district court for a county such as Llano County cannot exercise jurisdiction over a probate matter until the county court probate proceedings have been transferred to district court. Since the county court proceedings had not been transferred to district court in the manner provided by § 5(b), appellants maintain that the district court did not have jurisdiction to entertain appel-lee’s suit to construe the will.

Although § 5 was intended to broaden jurisdiction of the probate court, the section has not been construed to exclude jurisdiction of the district court in suits to cancel deeds to lands of an estate, Folliott v. Bozeman, 526 S.W.2d 577 (Tex.Civ.App.1975, writ ref’d n. r. e.), and Nolan v. Bettis, 562 S.W.2d 520 (Tex.Civ.App.1978, no writ), or in suits to impose a constructive trust upon the assets of estate, Gordy v. Alexander, 550 S.W.2d 146 (Tex.Civ.App.1977, writ ref’d n. r. e.). Likewise, § 5 has not been construed to exclude jurisdiction of the district court in suits to construe wills. Boyd v. Ratliff, 541 S.W.2d 223 (Tex.Civ.App. 1976, writ dism’d). Appellants’ point of error is overruled.

Appellants’ points of error two and three present the question whether the lapsed gifts to Josephine Slator passed to the testator’s heirs or to the residual beneficiaries. The relevant paragraphs of the will are either described or quoted below.

Paragraph two provided that Josephine, the testator’s wife, take the cash on hand and the United States Government Bonds. In paragraph three the testator devised to Josephine the “M. C. Winters Ranch,” a ranch of 3557.2 acres located in Llano and Blanco Counties, along with the livestock on that ranch.

In paragraph four the testator devised to his brothers, E. H. Slator and C. H. Slator, the “Six Mile Ranch,” composed of 3754.67 acres located in Llano County, along with the livestock on that ranch.

Paragraph five is the residuary clause and is set out below:

“All of the rest, residue and remainder of my property and estate, after the delivery of the specific bequests made in Paragraphs 2, 3 and 4 of this will, such rest, residue and remainder of my property and estate to include all of the property and estate of every nature, character and description, whether real, personal or mixed and wheresoever the same may be situated, exclusive of the specific bequests in said Paragraphs 2, 3 and 4 hereof, I hereby give, will, devise and bequeath unto the following named persons, in equal portions, share and share alike, to-wit:
(1) My wife, Josephine Slator;
(2) Harold Petch [sic] Brelsford;
(3) Diane Brelsford;
(4) Suzan [sic] Brelsford;
(5) Madge Brelsford;
(6) John Brelsford;
(The said Harold Petch [sic], Diane, Suzan [sic ], Madge and John Brelsford being children of my Niece, Peggy Petch [sic] Brelsford)
(7) Debra Lou Slator, daughter of my brother, C. H. Slator;
(8) Joe Slator Petch [sic] ; son of my sister Myra Petch [sic];
“To have and to hold the said rest, residue and remainder of my property and estate unto the above named Josephine Slator, Harold Petch [sic] Brelsford, Diane Brelsford, Suzan [sic] Brelsford, Madge Brelsford, John Brelsford, Debra Lou Slator, and Joe Slator Petch [sic], in equal portions, share and share alike, and to their heirs and assigns forever.”

Paragraph six provides as follows:

“By my property disposed of by this will, I intend to dispose of all my property of whatever kind, real, presonal [sic] or mixed, in my possession, and to which I am entitled at the time of my death, including not only my separate property but also all the community estate existing between myself and my wife Josephine Slator at the time of my death, and therefore the said bequests to my said wife Josephine Slator under this will are made upon the condition that she waive any and all claims to any interest she may have in our community property, and thereby recognize the disposition of said Community property of said community estate as herein made, and upon the execution of such a release and waiver of such a release and waiver of such claim to said Community estate, said bequests are to be delivered to her as such beneficiary, otherwise my said wife shall only receive all of my interest in the Community Estate existing between us at the time of my death, and my Separate Estate shall pass to and vest in the beneficiaries, other than my said wife Josephine Slator, as named in Paragraphs 4 and 5 hereof, in equal portions, share and share alike, and their heirs and assigns, forever.”

Josephine Slator died before the testator. As a result, the gifts to her in the will lapsed. The usual rule is that a lapsed legacy falls into the residue of the estate and passes to the residual beneficiary unless it appears that the testator intended otherwise. Moss v. Helsey, 60 Tex. 426 (1883); Jordan v. Virginia Military Institute, 296 S.W.2d 952 (Tex.Civ.App.1956, no writ).

Appellee’s argument is that the lapsed gifts to Josephine did not pass under the residuary clause of the will because of the wording of two phrases in paragraph 5, “ . . after the delivery of the specific bequests made in Paragraphs 2, 3 and 4 of this will . . . ” and “ . . . exclusive of the specific bequests in said Paragraphs 2, 3 and 4 hereof . . . ” Appel-lee claims that the quoted phrases remove the specific bequests in paragraphs two and three from the operation of the residuary clause. For authority appellee relies upon Moss v. Helsey, supra; Bittner v. Bittner, 45 S.W.2d 148 (Tex.Comm’n App.1932, judgmt adopted); Lenz v. Sens, 27 Tex.Civ.App. 442, 66 S.W. 110 (1901, writ ref’d); and Neinast v. Brauckmuller, 401 S.W.2d 113 (Tex.Civ.App.1966, no writ).

Appellants list many out-of-state cases which they claim support the position that phrases such as those in paragraph five do not, standing alone, operate to keep lapsed gifts from passing as part of the residue.

A statement of the rule with respect to similar phrases is found in 80 Am.Jur.2d Wills § 1690 (1975):

“Where a residuary clause contains some such phrase as ‘not hereinbefore disposed of,’ ‘not hereinbefore specified,’ or ‘not otherwise disposed of,’ as in a gift of ‘the residue of my estate not before disposed of,’ it has frequently been contended that the addition of such language indicates an intention that the residuary clause is not to apply to prior gifts in the event of their lapse or other failure, but this contention has been generally denied, the courts taking the position that the use of such a phrase as those mentioned does not operate to change the general import of such recognized expressions as ‘residue,’ ‘remainder,’ etc., unless other language of the will necessitates such a result. A similar view is taken with respect to the use of such expressions as ‘after paying the preceding devises and bequests,’ ‘after carrying out my herein-before legacies and bequests,’ etc.”

Bittner v. Bittner, supra; Lenz v. Sens, supra; and Neinast v. Brauckmuller, supra, support appellee’s position. We do not understand those cases, however, to stand for the proposition that in no event may the lapsed gifts pass by the residuary clause. If the will as a whole reveals an intent of the testator that none of his estate pass by intestacy, then such intent should be given effect by a construction that the lapsed gifts pass by the residuary clause.

The primary principle in the construction of wills is that the intention of the testator shall prevail. “All the rules which are observed in the construction of wills, have for their object, to aid in ascertaining and giving effect to such intention.” Philleo v. Holliday, 24 Tex. 38 (1859). In seeking to ascertain the testator’s intent the court is limited, generally, to a determination based upon the words used by the testator in the will. Rekdahl v. Long, 417 S.W.2d 387 (Tex.1967).

If one makes a will, the general presumption is that he intends to dispose of all of his property, Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147 (1945), and if a will is subject to more than one construction, the construction resulting in intestacy will not be adopted if by any reasonable construction it can be avoided. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096 (1931). If the will contains a residuary clause, every presumption will be made against intended intestacy. Morris v. Finkelstein, 442 S.W.2d 452 (Tex.Civ.App.1969, writ ref’d n. r. e.).

We have examined the entire will in an effort to ascertain the intent of the testator. Paragraph six is particularly relevant to the consideration of that intention. Paragraph six provides in part: “ . . I intend to dispose of all my property of whatever kind, real, presonal [sic] or mixed, in my possession, and to which I am entitled at the time of my death, including not only my separate property but also all the community estate existing between myself and my wife. . . .” The testator could hardly express more positively his intention to dispose of all of his property. We give effect to the testator’s express intention by holding that the lapsed gifts to Josephine Slator in paragraphs two and three of the will did not pass by the laws of intestacy, but instead passed under the residual clause of the will to the residual beneficiaries.

Appellants assert further that Josephine’s one-eighth share in the residuary estate passed equally to the other residual beneficiaries. Appellee responds that the one-eighth share did not pass to the other residual beneficiaries, but instead by intestate succession, because the gift to the residuary estate was not a class gift.

We find nothing in the language of the will that would lead to the conclusion that the testator did not intend to dispose of his entire estate. In fact, the testator in paragraph six affirmatively stated his intention to dispose of all of his property. There is no presumption that the testator intended to die intestate as to part of the estate “ . . .if the words used in the will may carry the whole of his property.” Briggs v. Peebles, supra. (Emphasis added)

Paragraph five provides that the residuary estate be divided among the residual beneficiaries “ . . .in equal portions, share and share alike . . . ” As the testator clearly manifested his intent not to die intestate as to any part of the estate, we are of the view that a “fair, practical and reasonable interpretation” of the testator’s intent, Briggs v. Peebles, supra, is that Josephine’s share in the residual estate pass to the seven residual beneficiaries “in equal portions, share and share alike . . . ”

Neither Swearingen v. Giles, 565 S.W.2d 574 (Tex.Civ.App.1978), writ ref’d n. r. e.), nor Tabor v. National Bank of Commerce of San Antonio, 351 S.W.2d 126 (Tex.Civ.App. 1961, no writ), controls our disposition of this point of error. As we understand, the basis for both cases was that the presumption against intestacy does not create a dispositive provision in a will when no basis for the disposition can be found in the language of the will. In the case at bar, we do not ground our judgment upon operation of the presumption against intestacy but instead upon the intent of the testator as reflected in specific language in the will. The point of error is sustained.

The judgment is reversed. Judgment is here rendered that the lapsed gifts in paragraphs two and three pass by the residuary clause to the residual beneficiaries, and that Josephine Slator⅛ one-eighth interest in the residuary estate pass to the other seven residual beneficiaries, share and share alike. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).

O’QUINN, Justice,

dissenting.

It is my studied opinion that the judgment of the trial court should be affirmed, and therefore I do not agree with the majority in reversing that judgment and rendering a contrary judgment. I do concur, however, in overruling the contention of appellants that the district court was without jurisdiction to entertain the suit for construction of the will.

The testator devised to his wife Josephine Slator cash and certain bonds in paragraph 2 of the will, and in paragraph 3 gave his wife the Winters Ranch of nearly 3,600 acres and all livestock grazing on the land at the testator’s death.

In paragraph 4 the testator devised jointly to two of his brothers the Six Mile Ranch of nearly 3,800 acres and all livestock grazing on the ranch at the testator’s death.

The rest and residue of testator’s property was devised in equal portions to named persons in paragraph 5, including his wife, a nephew and a niece, and five great nephews and nieces. Delivery under this paragraph could be made only “after delivery of the specific bequests made in Paragraphs 2, 3 and 4 of this will . . . ” and the residue was to be “exclusive of the specific bequests in said Paragraphs 2, 3 and 4 hereof . . . ”

Under paragraph 6 the testator made clear his intention not only to dispose of his separate property and his interest in the community held with his wife, but also to dispose of his wife’s share of the community and to put her to an election under the will. The testator there stated that the bequests to his wife were made “upon the condition that she waive any and all claims to any interest she may have in our community property, and thereby recognize the disposition of said Community property of said community estate as herein made . . ” Delivery to his wife of the bequests was further conditioned “ . . . upon the execution of such a release and waiver . to said Community estate . . . ” The testator provided further that “otherwise my said wife shall only receive . . . ” his interest in the community.

The language of the will is clear and unambiguous, and distribution of the property, with or without the waiver and release by the surviving wife, could have been made as plainly provided in the will. The problem in this case is that the testator did not die first. Josephine Slator died on February 17, 1973, and eight days later, on February 25, 1973, J. D. Slator, Jr., the testator, died. It is obvious that much of the language of the will became inapplicable by reason of the sequence of death of the testator and his wife.

The testator made no provision in his will specifying what disposition should be made of the property if Josephine Slator should die first thereby terminating their community estate and rendering it impossible for her to make the election required under paragraph 6. It appears clear that under paragraph 6 the testator intended that his wife’s survival be a condition precedent to application and operation of that paragraph. Since Josephine Slator died first, paragraph 6 became ineffective.

Earlier in the will, under paragraph 5, the testator clearly declared his intention that the bequests to Josephine were excluded, along with the bequests to the brothers under paragraph 4, from distribution under the residuary clause. The residue was described as property left “after the delivery of the specific bequests made in Paragraphs 2, 3 and 4,” and “exclusive of the specific bequests in said Paragraphs . . . ”

The trial court held that all property bequeathed to “ . . Josephine Slator under said Paragraphs 2, 3 and 5 passed under the laws of descent and distribution equally to the four heirs at law of J. D. Slator, Jr., such heirs at law being his brother Paul Slator ... his brother E. H. (Eric) Slator . .his brother C. H. Slator . . and his sister Myra Slator Petsch . . . ”

The plain language of the will, as viewed by the trial court, would bar any contention that the will provides an alternative disposition of the bequests to Josephine Slator, and I would affirm the trial court’s judgment that all such property passed under the laws of descent and distribution to the testator’s four heirs at law.


author: MASSEY, Chief Justice.

text:
    G. F. HELMS et al. v. Nelson R. GUTHRIE et al.
    No. 18016.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 19, 1978.
    Rehearing Denied Nov. 30, 1978.

      Prothro & Sellers and Lee Sellers, Wichita Falls, Adams, Adams & Blackburn and Joe R. Blackburn, Houston, for appellant Walter C. Shaw III.
    Robertson & Stensrud and Bruce J. Stensrud, Dallas, for appellees.
   OPINION

MASSEY, Chief Justice.

Suit was brought by Nelson R. Guthrie and others (hereinafter termed Guthrie), against defendants G. F. Helms and others (hereinafter termed Helms), Henry and Johanna Stern, and lessee Holt and successors (hereinafter termed Holt), to determine the ownership of overriding royalty interests in the production of oil and gas from an oil and gas leasehold estate. Though parties are in groups for our discussion we will treat them in the sense of the singular.

Trial was before the court, sitting without a jury, and, though evidence was introduced, was submitted substantially as would have been an agreed case.

The trial court entered judgment which generally suited the contentions of Guthrie and the Sterns but was not in accord with Helms’ concept of propriety. Helms appealed from the judgment as it affected his controversy with Guthrie. Guthrie filed cross-points of error by which there was contention that, as between himself and Helms, he should have been awarded damages in the form of a property interest in the royalty decreed as Helms’. No one complains of the judgment as affected by the determination of title in Henry and Johanna Stern.

We affirm the judgment.

To be noticed is that at a time when Helms had the full title to the surface and minerals under the subject property there had been a conveyance to Stern of ¼⅛ of “the” royalty estate. Subsequently there had been a conveyance by Helms to Guthrie of the full Helms estate remaining except by specific provisions that:

“Helms . . . under date of September 19, 1950, . . . conveyed to Henry Stern ... an undivided ¼⅛ of the Vbth oil, gas and mineral royalty
“Also, the grantors herein retain and reserve under said First Tract ½ of the ⅛⅛ royalty (same being a Vieth of the total production) of oil, gas and minerals, same being a non-participating royalty interest here retained by grantors.”

Likewise to be noticed is that by the lease of Guthrie to Holt there was provision that in addition to the normal ⅛⅛ royalty interest the further agreement and provision that:

“In lieu of a bonus consideration for this lease, Lessors hereby reserve unto themselves (meaning Guthrie) an overriding royalty equal to ½6 of ⅞ of all the oil, gas and other minerals that may be produced, saved or sold from the land covered by this lease, the same to be reserved by or paid to the Lessors . . . .”

By the judgment was decreed that the Stearns were vested in right, title and interest, under the lease to Holt, not only to the Vith interest in royalty received by the deed from Helms, but furthermore a ¼⅛ of the overriding royalty reserved by Guthrie in the lease to Holt.

By the judgment was decreed that Helms held ½ the interest in the royalty, such interest being that reserved by the Helms’ deed to Guthrie, and no more.

By the judgment was decreed that Guthrie was vested in right, title and interest, under the lease to Holt, to not only the ¼⅛ interest in the royalty received by the deed from Helms, but furthermore to Viths of the overriding royalty he had reserved in the lease to Holt, but no other right or relief.

The reason why the parties to the appeal have conceded that the award to the Sterns of ¼⅛ interest in the overriding royalty provided by the lease was because of judge-made law exemplified in the following cases: Griffith v. Taylor, 156 Tex. 1, 291 S.W.2d 673 (1956); McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341 (1957); Delta Drilling Company v. Simmons, 161 Tex. 122, 338 S.W.2d 143 (1960), and Lane v. Elkins, 441 S.W.2d 871, 874 (Tex.Civ.App.—Eastland 1969, writ ref’d n. r. e.). By these cases was settled that as a matter of law the owner of the executive right to bind the interests of non-participating royalty owners in a property may not reserve an overriding royalty for himself alone, but that any overriding royalty provided for in a lease executed by him accrues to the benefit of all the royalty owners in proportion to their titular interests.

Helms’ contention is that the trial court erred in not applying the same rule of law to his case as the court had done for the Sterns. He claimed a like proportionate interest (based on his fractional title) in the overriding royalty provided by the lease to Holt.

Helms chooses to disregard the provision made by him in his deed to Guthrie, where, relative to the royalty interest reserved, the meaning of that which was reserved was defined, viz: “½ of the Vsth royalty (same being a ½6⅛ of the total production) of oil, gas and minerals, . . . .”

To us, as to the trial court, the meaning of the above is that Helms had contracted in limitation of that which was reserved for himself in the conveyance made to Guthrie. He had provided by contract that the measure of that which was reserved should be “Visth of the total production” from the leasehold estate if and in the event production of oil or gas should ever be accomplished. Our holding is that Helms contractually provided that he should own a “fractional royalty” of ½6⅛ of the total production, not a “fraction of royalty”, determinable upon the execution of some future lease. Allen v. Creighton, 131 S.W.2d 47, 49-50 (Tex.Civ.App.—Beaumont 1939, error refused); Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 583-5 (1941). See also Williams & Meyers, Oil and Gas Law (1977), Vol. 2, Ch. 3, “Oil and Gas Conveyancing”, Topic 4, “Royalty and Non-Executive Mineral Interests”, p. 81, et seq. beginning with Sec. 327, “Construction of Fractional Interests: Introduction”.

Helms must be held to be bound under principles of contract law. No reformation is sought in this case, involved is mere contractual construction. His points of error are without merit and are overruled.

By cross-points Guthrie seeks to obtain relief from Helms under the warranty provisions of Helms’ deed; the relief sought being to give him a part of the royalty income derived and to be derived by Helms from the production on the lease so that he would have that which was warranted by Helms, to-wit: the equivalent of income from overriding royalty received by the Sterns. We copy the cross-points:

1. The trial court erred in not holding, as a matter of law, that the Guthries’ royalty interest was equal of Vi of Vs plus ½6 of Vs of the production from the subject land under and by virtue of the subject lease.
2. The trial court erred in not holding that of the Guthries’ royalty interest described in cross-point no. 1 above, an amount equal to ¼ of ½6 of Vs of production was to be borne by and taken from the Helms’ royalty interest because, as a matter of law, the Helms breached their warranty in their deed to the Guthries and the royalty interest reserved by them in such deed must be reduced by such amount in order to make up the loss which would be sustained by the Guthries in the absence of such reduction.

Guthrie necessarily has reference by the cross-points (wherein he claims entitlement to something in addition to that he received) to an equivalent out of Helms’ royalty to the overriding royalty granted Sterns. This Guthrie perceives as something promised to be conveyed, and warranted to be conveyed to him by Helms, but not received by the judgment.

There was antecedent delivery of interest in royalty to the Sterns and of this there is no dispute between Guthrie and Helms. The instrument of conveyance had been theretofore placed of record. The deed from Helms to Guthrie read, in the material portion thereof under scrutiny, as follows:

“Helms, . . . under date of September 19, 1950, as shown of record in Volume 148, Page 314, Jack County Deed Records, conveyed to Henry Stern and wife, Johanna Stern, an undivided Vdh of the Vsth oil, gas and mineral royalty and as a non-participating royalty interest under such land, and this deed is made expressly subject to said royalty conveyance shown of record in Volume 148, Page 314, Deed Records.” (Emphasis supplied.)
(Paragraph following provision that Helms reserves the Vntb of the total production, subject of earlier discussion).
“To repeat . . . this deed is made subject to the Henry Stern, et ux. ¼⅛ of Vsth non-participating royalty interest above referred to, and is made subject to the ½ of ⅛⅛ non-participating oil, gas and mineral royalty interest as here retained by grantors. The grantees herein, their heirs and assigns, being entitled to the ownership of all other title, rights and authorities pertaining to such First Tract except those last above set out.” (All emphasis has been supplied.)

The usual warranty language follows, and it is upon the warranty, either solely or in part, that Guthrie founds his cross-points of error.

Reference to the Sterns’ deed of record in Volume 148, Page 314, Deed Records of Jack County, Texas, discloses that the interest conveyed by Helms to Sterns was: “but covers and includes one-fourth (Vith) of all the oil royalty, and gas royalty, and casing-head gas and gasoline royalty, and royalty from other minerals . . . .”

Under the Guthrie contention there is some confusion. He seems to actually desire specific performance relief by delivery to him out of the royalty interest remaining in Helms — the computable amount of royalty necessary to produce the overriding royalty income in amount equal to that of the Sterns — as what Helms had warranted to have been delivered by the conveyance to him (Guthrie). At the same time, it would seem, Guthrie, declares upon Helm’s breach of warranty because of a failure of title warranted, and, despite the declaration founded upon a theory of breach of warranty, seeks something other than the usual relief in damages. The relief desired could only be that which would be secured in a suit for specific performance.

In a proper case the situation might call for discussion of philosophies of the law as well as the discussion of authorities presented. Here, however, there is not the requirement for such labors.

We hold that by the language of the deed from Helms to Guthrie, with specific provision for notice of that which had earlier been conveyed to Sterns and with express provision that the conveyance to Guthrie was made subject thereto, there was excepted from the conveyance and from the warranty of that instrument whatever was shown by the earlier instrument, on record, as the Sterns’ property interest.

The cross-points of error are overruled.

Judgment is affirmed.