text:
    SMITH-SOUTHWEST INDUSTRIES et al., Appellants, v. FRIENDSWOOD DEVELOPMENT CO. et al., Appellees.
    No. 16794.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 27,1977,
    Rehearing Denied Feb. 24, 1977.

      Joseph D. Jamail, S. Gus Kolius, Robert F. Stein, Houston, for appellants.
    Fulbright & Jaworski, Kraft W. Eidman, David J. Beck, Sim T. Lake, III, Robert D. McGee, Houston, for appellee Friendswood Development Co.
    McGinnis, Lochridge & Kilgore, Robert C. McGinnis, Peter M. Lowry, Austin, for ap-pellee Exxon Corp.
    Childs, Fortenbach, Beck & Guyton, Michael R. Waller, Houston, for Atlantic Rich-field Co., Arco Chemical Corp. and Arco Chemical Co., a Division of Atlantic Rich-field Co.
    Baker & Botts, Finis E. Cowan, Houston, for Tenneco Chemicals, Inc.
    Butler, Binion, Rice, Cook & Knapp, Frank J. Knapp, Houston, for E. I. DuPont de Nemours & Co.
    Crain, Winters, Houser & Deaton, Newton M. Crain, Jr., Houston, for Rohm & Haas Texas, Inc.
    Andrews, Kurth, Campbell & Jones, Bass C. Wallace, Houston, for Diamond Shamrock Corp.

      Cox, Packenham & Roady, Joyce Cox, Houston, for Shell Oil Co.
    Otis King, City Atty., James K. Gardner, Sr. Asst. Atty., for City of Houston.
    Saccomanno, Clegg, Martin & Kipple, Burke Martin, Houston, for City of Sea-brook.
    Barlow, Lacy, Smith & Gay, Billy R. Smith, Houston, for Galveston County Water Control & Improvement District No. 12.
    Vinson, Elkins, Searls, Connally & Smith, Dave McNeill, Jr., Houston, for Champion International Corp.
    Sewell, Junell & Riggs, William E. Matthews, Houston, for Crown Central Petroleum Co.
    Robert V. Shattuck, Jr., Galveston, for City of Galveston.
    Knox W. Askins, LaPorte, for City of LaPorte.
    Charles A. Easterling, Houston, for City of Pasadena.
    Kiibler & Kiibler, Dick H. Gregg, Jr., LaPorte, for Harris County Water Control & Improvement District # 83 and City of Nassau Bay.
    D. Neel Richardson, Baytown, for City of Baytown.
   PEDEN, Justice.

This is an appeal from the granting of a summary judgment against the plaintiffs, Smith-Southwest Industries and other landowners similarly situated, who brought this class action against Friendswood Development Company and its corporate parent, Exxon Corporation, alleging that the severe subsidence of their lands was caused by the defendants’ withdrawal of vast quantities of percolating underground water from wells located on defendants’ land in the immediate vicinity of the plaintiffs' land.

The plaintiffs’ petition alleged four theories of recovery: (1) nuisance, (2) negligence, (3) intentional interference with appellants’ property by way of the diversion of water onto and across their property and (4) wrongful and unconstitutional taking of property without just compensation and conversion of such property for private use. Friendswood and Exxon each filed a general denial, and Friendswood joined a number of parties as third-party defendants, alleging negligence and intentional unreasonable conduct and seeking contribution or indemnity.

The trial court had before it depositions, interrogatories and answers, affidavits, and exhibits but concluded, as a matter of law, that the plaintiffs had failed to state a cause of action against the defendants. The third party actions were also denied. A motion for summary judgment on the pleadings can be sustained in very limited situations, such as those in which the facts alleged by the plaintiff establish the absence of a right of action or an insuperable barrier to a right of recovery. Swilley v. Hughes, 488 S.W.2d 64 (Tex. 1972).

The appellants’ petition recites that they are landowners in the area of Seabrook and Clear Lake, and as a class include all owners of fee simple and leasehold estates along the west bank of Galveston Bay from the north dike of the Houston Yacht Club, following the shore line south to the mouth of Clear Creek and include the entire shore line of Clear Lake, Armand’s Bayou, and Taylor Bayou from the shore line to a contour line with elevation 15 feet above the shore line, excluding whatever land the ap-pellees own. Some of the landowners use their property as residences, others for business purposes. The appellees own property inland from that owned by appellants and pump massive amounts of subsurface fresh water from their property to sell to industrial purchasers.

The appellants contend this extensive withdrawal of fresh water has proximately caused the sinking and loss of elevation above mean sea level of their property and the property of others similarly situated along the shores of Galveston Bay and Clear Lake which has resulted in the destruction of the land and improvements by flooding. The appellants say that this is not a water rights case and that neither the trial court nor this court is called upon to decide any competing claims by property owners to any water rights. They contend that this case concerns damage to land and that their petition presents four individual causes of action upon which relief can and should be granted.

The appellees’ position is that whether the damage results from the lowering of the water table, from destruction of wells, or from subsidence, the damage is damage to land resulting from the exercise of a neighboring owner’s right to the unlimited withdrawal of water beneath his land. They say that in Texas there is no right to recover for damages resulting from withdrawal of underground water or to enjoin withdrawal, regardless of the fact that neighboring lands sustain damage.

The appellants’ eight points of error are that their petition: (1) states a cause of action in nuisance and (2) raises genuine issues of material fact as to the maintenance of a nuisance in fact by appellees Friendswood and Exxon; (3) states a cause of action in negligence and (4) raises genuine issues of material fact of the negligence of appellees Friendswood and Exxon; (5) states a cause of action for the intentional interference with appellants’ property by way of the diversion of the waters of Galveston Bay and Clear Lake onto and across the property of the appellants and (6) raises genuine issues of material fact for the intentional interference with appellants’ property by way of such diversion; (7) states a cause of action for the wrongful and unconstitutional taking of property without just compensation and conversion of such property for private use, and (8) raises genuine issues of material fact for such taking and conversion for private use.

In support of their first four points of error the appellants argue that the appel-lees’ motions for summary judgment are based on only one proposition: that since appellees’ water wells were situated on their own land, the withdrawal of water therefrom is lawful and not actionable by appellants under any circumstances, even when such activity causes damage to the appellants’ land. The appellants state that since they do not even allege the appellees’ activity to be a nuisance per se, an unlawful activity in and of itself, the extent of appel-lees’ ownership right to the ground water extracted is not relevant to the issue at hand. They allege that the type of nuisance here involved is a nuisance in fact, which consists of an activity or condition that, while lawful, becomes a nuisance by reason of the circumstances and surroundings. Further, that the doctrine of liability predicated upon the maintenance of a nuisance represents the recognition that all landowners, including appellants, have a basic right to the peaceful use and enjoyment of their own property and that such right must be viewed in context with the rights of the surrounding landowners; therefore, the asserted right to all the ground water they can extract must be compared to the rights of the appellant landowners, not to the water itself, but to the reasonable use and enjoyment of their surface estates.

The rules in the courts of the United States with respect to the right of a landowner to the abstraction and use of percolating water beneath his land are the “common law” or “English” rule and the “American” or “reasonable use” rule, which is also referred to as the doctrine of “correlative rights.” 78 Am.Jur.2d 607, Water § 158. The American or reasonable use rule is that “the rights of each owner being similar and their enjoyment dependent on the action of other landowners, their rights must be correlative and subject to the maxim that ‘one must so use his own as not to injure another,’ so that each landowner is restricted to a reasonable exercise of his own rights and a reasonable use of his own property, in view of the similar rights of others.” 78 Am.Jur.2d 607, Waters, § 158. The English rule of absolute ownership stems from Acton v. Blundell, 12 Meeson & Welsby, 324, 152 English Reprint 1223 (1843), in which the court said:

“That the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from the underground springs in his neighbor’s well, this inconvenience to his neighbor falls within the description of damna abs-que injuria, which cannot become the ground of action.”

As to their negligence cause of action, the appellants say that this court is bound by the extensive Texas case law that a property owner must use his own property so as not to injure that of another and that land ownership itself creates a duty to use reasonable care in the exercise of property rights incident to such ownership. They state they have raised fact issues as to appellees’ negligence in that they alleged in their petition and showed by summary judgment evidence, among other things, that: (1) appellees proceeded to withdraw massive amounts of ground water with knowledge that it would cause damage to appellant landowners, (2) appellees negligently spaced their wells in too tight a pattern and placed them on the Galveston Bay and Clear Lake side of their land, thus concentrating the land subsidence, and (3) appellees have pumped too much water from these wells in too short a period of time, compounding the damaging effect. Further, that defendant Friendswood had sufficient surface water available to supply their customers.

We have found no Texas cases dealing directly with land subsidence caused by withdrawal of ground water. The appellants rely on several cases from other jurisdictions. In State v. Michels Pipeline Construction Co., Inc., 63 Wis.2d 278, 217 N.W.2d 339 (1974), there was surface property damage caused by land subsidence, together with damage from the loss of water wells. The Wisconsin Supreme Court chose not to adopt the English rule, the reasonable use rule, or the correlative rights rule but rather to adopt the rule set forth in Tentative Draft No. 17 of the Restatement of the Law of Torts, Second, as proposed on April 26, 1971, for adoption by the American Law Institute. (Tentative Draft No. 17 has been approved in principle by the Institute; see State v. Deetz, 66 Wis.2d 1, 224 N.W.2d 407 [Wis.1974], note 5 at page 415.)

Proposed Section 858A reads:
“NON-LIABILITY FOR USE OF GROUND WATER — EXCEPTIONS.
“A possessor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless
“(a) The withdrawal of water causes unreasonable harm through lowering the water table or reducing artesian pressure,
“(b) The ground water forms an underground stream, in- which case the rules stated in sec. 850A to 857 are applicable, or
“(c) The withdrawal of water has a direct and substantial effect upon the water of a watercourse or lake, in which case the rules stated in secs. 850A to 857 are applicable.” State v. Michels Pipeline Construction Co., Inc., supra.

In Gamer v. Town of Milton, 346 Mass. 617, 195 N.E.2d 65 (1964), the court held the defendant’s negligent removal of a mixture of water and soil which caused land to subside was actionable and did not involve questions of the rights of ownership and use of water.

The American Law Institute’s section dealing with subsidence, Section 818, was amended in May 1969 to read:

“Withdrawing Subterranean Substances. One who is privileged to withdraw subterranean water, oil, minerals or other substances from under the land of another is not for that reason privileged to cause a subsidence of the other’s land by such withdrawal.”

Before the revision, Section 818 read:

“To the extent that a person is not liable for withdrawing subterranean water from the land of another, he is not liable for a subsidence of the other’s land which is caused by withdrawal.”

The appellees rely on jurisdictions that apply the English rule. Some hold that damage due to subsidence, like other kinds of damage to land, is damnum absque inju-ria, or damage without invasion of legal right.

The Texas Supreme Court in City of Corpus Christi v. City of Pleasanton, 154 Tex. 289, 276 S.W.2d 798, 801-802 (1955), spelled out its adherence to the English rule:

“With both rules before it, this Court, in 1904, adopted, unequivocally, the ‘English’ or ‘Common Law’ rule. Houston & T. C. R. Co. v. East, 98 Tex. 146, 81 S.W. 279, 280, 66 L.R.A. 738, 107 Am.St.Rep. 620. The opinion in the case shows quite clearly that the court weighed the merits of the two rules — ‘The practical reasons upon which the courts base their conclusions [applying the “English” rule] fully meet the more theoretical view of the New Hampshire Court [applying the “American” rule] and satisfy us of the necessity of the doctrine’ — and, whether wisely or unwisely, made a deliberate choice. That the choice was considered and deliberate is made doubly clear when it is considered that the Court of Civil Appeals had made the opposite choice in the same case, 77 S.W. 646, 647, choosing to follow the reasoning of Basset v. Salisbury Mfg. Co. [43 N.H. 569] rather than that of Acton v. Blundell. It may be noted that the Court of Civil Appeals gave its approval to the holding of the Vermont Court that the right to take percolating water was ‘limited to the amount necessary for the reasonable use of the land, as land’, suggested that to apply the ‘English’ rule to the facts of the case ‘would shock our sense of justice’, and spoke of the rights of adjoining owners as ‘correlative’. In differing with the Court of Civil Appeals this Court approved the language of the Supreme Court of Ohio in Frazier v. Brown, 12 Ohio St. 294, where it said: ‘ “In the absence of express contract and a positive authorized legislation, as between proprietors of adjoining land, the law recognizes no correlative rights in respect to underground waters percolating, oozing, or filtrating through the earth . . ’
“The precise question this Court had before it in the East case was whether the Railway Company was liable in damages to East on a state of facts showing that by the use of a steam pump, installed in a well on its city lots, the Company had been capturing over 25,000 gallons of percolating water per day for use in locomotives and machine shops off of the premises where the well was located, and had thereby completely cut off the supply of water which had been entering East’s well on his property. Thus it may be said that by its decision the court, in adopting the ‘English’ rule established at least this much: that an owner of land had a legal right to take all the water he could capture under his land that was needed by him for his use, even though the use had no connection with the use of the land as land and required the removal of the water from the premises where the well was located. The court had no occasion, of course, to actually decide any other question.
“Having adopted the ‘English’ rule it may be assumed that the Court adopted it with only such limitations as existed in the common law. What were these limitations? About the only limitations applied by those jurisdictions retaining the ‘English’ rule are that the owner may not maliciously take water for the sole purpose of injuring his neighbor, 55 A.L.R. 1395-1398; 67 C.J., sec. 257, p. 840; or wantonly and willfully waste it. 56 Am. Jur., sec. 119, p. 602; Stillwater Water Co. v. Farmer, 89 Minn. 58, [93] N.W. 907, 60 L.R.A. 875. There certainly was no limitation that prohibited the use of the water off of the premises where it was captured. Neither was there any restriction of its use to a particular area. ‘Under the so-called “common-law” or “English” rule, which prevails in some jurisdictions, the right to extract artesian water for use outside the basin or district in which it is found would seem to be unrestricted.’ 56 AmJur., Sec. 118, p. 601. Moreover, by its holding in Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273, 278, 54 A.L.R. 1397, decided some ten years after the adoption of the Conservation Amendment to the Constitution, Article XVI, § 59, Vernon’s Ann.St., and the enactment of Articles 7602, V.A.C.S. and 846, Penal Code, this Court established that under the common-law rule there was no restriction against the sale of percolating waters for industrial uses off of the land. The Court said the waters ‘were the exclusive property of Burkett [the owner of the land on which the water was captured], who had all the rights incident to them that one might have as to any other species of property.’ ”

In Bartley v. Sone, 527 S.W.2d 754, 760 (Tex.Civ.App.1975, writ ref. n. r. e.), the court stated:

“This rule relating to ownership of water flowing from springs stems from the rule that the owner of land owns the water under the surface, generally referred to by hydrologists as ‘ground water.’ Our statutory law recognizes this principle, although the legislature uses the term ‘underground water,’ rather than ‘ground water.’ Our statutes define ‘underground water’ as ‘water percolating below the surface of the earth and that is suitable for agricultural gardening, domestic or stock raising purposes, but does not include defined subterranean streams or the underflow of rivers.’ Tex.Water Code Ann. § 52.001(3) (1972). The Water Code expressly recognizes ‘the ownership and rights of the owner of the land . in underground water . . .’ Tex. Water Code Ann. § 52.002 (1972). These statutory provisions are but the embodiments of well settled rules relating to the ownership of percolating waters. Houston & T. C. R. v. East, 98 Tex. 146, 81 S.W. 279 (1904); Anno.: 55 A.L.R. 1385, 1390-95 (1928).”

Among jurisdictions that apply the English rule we have found no subsidence cases holding that a cause of action may be grounded on a neighbor’s withdrawal of percolating waters from his own land, absent malice or waste.

In Finley v. Teeter Stone, Inc., 251 Md. 428, 248 A.2d 106 (1968), the plaintiffs sued for damages for subsidence because the defendant’s quarrying operations had caused the plaintiffs’ land to be dewatered, thereby causing the subsidence. The court stated:

“The English Rule is sometimes referred to as the ‘Absolute Ownership Rule,’ as the owner of the surface of the land had the absolute right to intercept underground percolating water before it left his property for whatever purpose he pleased and without regard to the effect of such interception on the owner on neighboring land.
“. . . It is apparent that under the English rule, [defendant] would have the absolute right to use the percolating waters under its land for any purpose without regard to the effect of that use on the [plaintiff’s] land.”

It should be noted, however, that the plaintiff in the Finley case did not contend that the defendant company had acted in a negligent manner. In our case we have noted that the plaintiffs do earnestly contend that the defendants were negligent in the drilling and operation of their water wells.

In a recent English case, Langbrook Properties, Ltd. v. Surrey County Council, 3 All E.R. 1424 (Ch.1969), the plaintiff sought recovery in negligence or nuisance. After making a comprehensive review of English law on the subject, the court concluded that one whose land has subsided as a result of the abstraction by his neighbor of the water percolating under that land cannot, in law, maintain an action for consequential damage either in nuisance or in negligence. The court held that the plaintiff’s damage is damnum sine injuria.

Two basic principles of law appear to be applicable: the English rule of absolute ownership and the well-settled Texas principle of law that imposes upon all persons a duty to use due care in the use of tneir property or the conduct of their business to avoid injury to others. G., C. & S. F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999, 1001 (1900); Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936). The court stated in Oakes:

“Since the owner may use his land as he chooses, if he does not violate any law, and is not to be substantially deprived of its use or of the ordinary pursuit of his own interests, but, at the same time, is required in its use to avoid injury to another, it at once follows that he may be required to forego a particular use when it is not essential to the substantial enjoyment of his property, and is fraught with unreasonable loss to his neighbor. On the other hand, the particular use may be so important to the owner, and the loss or inconvenience to his neighbor so slight compared to his, were he forbidden to so employ his property, that it would be unreasonable and unjust to impose such a restriction. In such cases, it is evident that all of the circumstances of the situation must be taken into consideration. The importance of the use to the owner, as well as the extent of the damage to be inflicted upon his neighbor, and the rights of the parties, are to be adjusted in a practical way; the question being whether or not the proposed use is a reasonable one, under all the circumstances. 1 Wood, Nuis. 3; Bish.Noncont. Law, §§ 418, 842. We are unable to discover that the law does, or, from the nature of the subject, can, furnish a more definite rule. For this reason, we think it cannot be laid down as a rule of law, applicable to all circumstances and situations, that one who plants Bermuda grass upon his premises makes himself liable for any damage that may result to his neighbor, nor, on the other hand, that he may not be liable under some circumstances and conditions. As is said in some authorities, there must, in such inquires where rights and interests seem to conflict, be a balancing of them.”

In Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936), the Texas Supreme Court said at page 223 that “acts lawful in themselves done by one upon his own premises which may result in injury to another if not properly done or guarded” can become a nuisance if performed in a negligent manner.

The court said in Storey v. Central Hide and Rendering Co., 148 Tex. 509, 226 S.W.2d 615, 617 (Tex.1950): “a lawful business may become a nuisance in fact when it is operated in such a place or manner as seriously to interfere with the enjoyment of life and property.” It held that a jury finding that a rendering plant constituted a nuisance did not entitle the plaintiffs to an injunction abating the plant as a matter of right but that the trial court should have received testimony offered by the plant on the balancing of equities.

Because of a landowner’s absolute right to take all of the water which he can produce from his land, the fact that this taking causes the land of others to subside will not, standing alone, give them a cause of action. But if the landowner is negligent in the manner by which he produces the water, and the negligence is a proximate cause of the subsidence of another’s land, the fact that he owns the water produced will not insulate him from the consequences of his negligent conduct.

“Processes of dry logic halt at platting a line whereby that which is permitted and that which is forbidden are laid to respective sides (even as it halts in allocating degrees in causation and required prudence and at absolutism in many other jural subjects) and impel us to be content with the general pronouncement that injurious results of the consequential user are damnum absque or damnum injuria, and absolutely so or contingent upon exercise of due prudence, as circumstances may require.
“Yet the law, in its practical workings, we apprehend, thus resolves many of the seeming contradictions. If the purpose be lawful, physical trespass absent, primary use reasonable, and manner of that use duly careful, consequences are dam-num absque; otherwise, injury within proximate causation is redressable. This would appear to have support in ‘blasting’ and ‘explosion’ cases (see Ft. W. & D. C. Ry. Co. v. Beauchamp, 95 Tex. 496, 68 S.W. 502, 58 L.R.A. 716, 93 Am.St.Rep. 864; 11 R.C.L. 673, 674; 19 Cyc. 7, 8), in which liability for injuries produced through vibration and shock alone is made to turn upon use or omission of due care in starting the vibrative or concussive waves, and in ‘fire’ cases (see Seale v. G., C. & S. F. Ry. Co., 65 Tex. 274, 57 Am.St.Rep. 602), upon caution observed or forgotten in the act which started or which failed to halt the elements in its journey to neighboring premises.” Comanche Duke Oil Co. v. Texas Pacific Coal & Oil Co., 298 S.W. 554, 560 (Tex.Com.App.1927).

We sustain the appellants’ first four points of error. We cannot say that they failed to state a cause of action against the appellees based on the theories of negligence and of nuisance in fact. Having thus ruled, we do not reach the appellants’ other points of error.

We also grant the cross-point of ap-pellee Friendswood Development Company, which is that if the summary judgment in its favor should be reversed, this court should also reverse the trial court’s summary judgment against Friendswood on its third-party action for indemnity and contribution against several municipalities and industries that also withdraw underground water in the area in question.

We reverse and remand the trial court’s order granting summary judgments on the pleadings in favor of 1) the appellees and 2) the third-party defendants.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    James E. HENSON, Jr., Appellant, v. David DENISON, Appellee.
    No. 17836.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 28, 1977.

      Zimmermann, Driscott & Baskett, Robert T. Baskett, Cecil Emerson, Dallas, for appellant.
    Griffin, Shelton & Eames, Mike Griffin, Denton, Jerry John Crawford, Lewisville, for appellee.
   OPINION

MASSEY, Chief Justice.

By suit filed in a district court of Denton County, Texas, on May 7, 1976, petitioner, David Denison, a private citizen authorized to act pursuant to provisions of Tex.Rev. Civ.Stat.Ann. art. 4667 (1973), Injunctions to abate public nuisances, sought injunctive relief of respondents, James E. Henson, Jr., David Ledbetter and others.

On August 12, 1976, was held a hearing upon petitioner’s motion for temporary injunction. Based upon evidence considered sufficient to justify it, the judge granted the motion and directed issuance of writ in the enforcement. The order was signed August 23,1976. Though the relief granted petitioner was against Henson, Ledbetter and others, the only one who appealed was Henson.

We reverse and vacate the order granting temporary injunction.

Certain premises are involved in the case, being .95 acres of land in Denton County (without the city limits of any municipality), the title to which was lodged in David Ledbetter. Prior to date petitioner’s suit was instituted Ledbetter had leased a certain parcel out of the .95 acres to the respondent, Henson. It is in the use, or misuse, of the .95 acres and the parcel severed therefrom for lease to Henson that we must concern ourselves.

Hereafter when the term respondent is used it is Henson to whom there is reference, and when the term petitioner is used it is Denison to whom there is reference. On presentation of the appeal the petitioner has erroneously taken the position that insofar as his action is against respondent the lot or land parcel occupied by him under lease from Ledbetter remained a part of Ledbetter’s premises. That is not the situation in the eyes of the law for when Ledbet-ter leased to the respondent he became landlord of the leased premises, without right to enter without consent of his tenant save for some provision of contract.

What we attempt to clarify is that the premises leased to respondent was, during the term of his lease, his own and not Ledbetter’s.

In this particular case the Ledbetter land might be likened to a shopping center where the owner has leased various partitioned store areas from which his lessees might conduct whatever business it is in which they wish to engage. In such a case should there be violation of law connected with the usage by one of his lessees of leased premises the fact of violation by him, if in no way connected with culpability of the lessor in the initial execution of the lease and not a part of any conspiracy by both to aid and abet the violation of law by the tenant, the tenant’s violation would not amount to any violation of law by the lessor landlord. And, should it be the landlord who might violate the law by use of premises he retained and did not lease, the enjoin-der of the landlord from continuing some illegal misuse of his own property would in no way affect the property leased to an innocent tenant — nor to a tenant who is not shown to have either been guilty of some violation of law or to threaten to be unless enjoined.

In the instant controversy Ledbetter and his retained parcels of land and the respondent and his leased parcel must, for the purposes of application of legal tests of propriety for injunction, be treated and considered as though separated by many miles, despite the fact that the respondent’s leased ground was carved out of the greater land area of .95 acres to which Ledbetter held title.

Thus the fact that Ledbetter did not appeal from the temporary injunction decree would in no way have an effect upon respondent’s legal position. Propriety of the Trial Court having enjoined respondent must be tested by facts considered wholly unrelated to any by virtue of which Ledbet-ter or any other of the respondents to the original suit might have properly been enjoined. This is so for by a test of the evidence in the record nothing appears which would establish any conspiracy or other reason for any different application of tests or for inclusion of additional tests.

What acts were enjoined by the Court’s order? They were the following: (1) illegal acts of prostitution on the Ledbetter premises, premises leased to respondent, and premises leased by Ledbetter to others; (2) the operation of massage parlors on the premises; (3) the operation of the premises for prostitution or for the operation of massage parlors; (4) the leasing (and impliedly the sub-leasing) of any part of the premises for said uses; and (5) allowing the premises to be used for such purposes.

By one point of error there is attack upon Tex.Rev.Civ.Stat.Ann. art. 4667 (1973), Injunctions to abate public nuisances, on the ground that it was enacted in contravention of the provisions of the Tex.Const. art. Ill, § 35, (Legislative Deportment) — Subjects and Titles of Bills.

In the disposition of the case we find it unnecessary to pass upon the constitutionality of Art. 4667, and we expressly decline to do so in this particular case of appeal from an order of temporary injunction. In temporary injunction cases we should not pass on constitutional questions where it is not necessary! 31 Tex.Jur.2d Injunctions Sec. 151, Issues, (1962). We overrule the point as immaterial.

The only other two points, both predicated upon the constitutionality of Art. 4667, have relation to Art. 4664, Nuisance; Art. 4665, Nuisance; evidence; and to Tex. Penal Code Ann. Ch. 43 (1974), Public Indecency, and sections thereunder viz: § 43.01, (Prostitution) — Definitions; and § 43.02, Prostitution. Respondent’s complaints are (1) no sufficient evidence to establish that respondent was operating a public nuisance, and (2) that the order of temporary injunction which forbids the operation of “massage parlors,” per se, is too broad and thus invalid. We sustain both these points of error.

There is nothing inherently evil in the term “massage parlor” nor in the operation of any proper “massage parlor” establishment. There is nothing in the law which forbids such. It could only be by misuse of the term or by the operation or intended operation of something other than or in addition to proper activities conducted at some establishment under color of its designation as a “massage parlor” that there might be propriety of an injunctive order in restraint.

It should be only improper activities which should be enjoined, not the lawful activities which might be carried on by a legitimate “massage parlor” operator. These would be lawful, and, as lawful, proper to be made a business or trade in which every citizen would be privileged to engage if so disposed. No State law requires a license to engage in such a trade or business in Texas. Indeed, one who does so as a masseur is exempted by Tex.Rev.Civ.Stat. Ann. art. 4590c (1976), Basic Science Law, from complying with its provisions relative to licensing and examinations for licensing, by qualifying language in the article’s section 16, Exceptions.

A lawful use of property or lawful conduct of business is never a public nuisance per se. It is the place of business only where a public statute is violated that is a public nuisance per se. Waits v. State, 76 S.W.2d 545 (Tex.Civ.App. — Texarkana 1934, no writ). In this case the fault in the order of temporary injunction relative to “massage parlors” and operation of such by respondent is that it is over-broad and, further, that it enjoins operation of trade or business respondent is privileged to engage as a lawful one.

Prom what we have said on the absence of any impropriety of acting as a masseur and operating a “massage parlor”, it is obvious that for one so engaged to be temporarily enjoined would be to alter and not to preserve the status quo, and, except in an instance where to permit activity would be to permit the right to continue the violation of a law, the activity should not be enjoined. Since there was no proof of a violation or intended violation of law it is obvious in this case that to permit respondent to conduct his business would be to preserve the status quo and it is the function of temporary injunctions to preserve such, not to change it or destroy it. 31 Tex.Jur.2d, Injunctions, Sec. 12, Preliminary and temporary injunction; Sec. 38, (Use of temporary injunction to maintain status quo) — In general (1962).

There is no question but that in this case propriety of the temporary injunction depended upon petitioner’s proof having established violation of law by the respondent on the premises leased from Led-better and not the violation of any other person on any other premises. We have, by test of the evidence, concluded that there was failure on the part of the petitioner to make even a prima facie case of violation of law against the respondent. An applicant for injunction must have made out a prima facie case for injunction before the defendant has a burden to go forward and show facts justifying a denial of the injunction. Such a defendant’s burden would not arise in a case such as this where the applicant’s case has been made out against some third party but not the defendant. 31 Tex.Jur.2d Injunctions, Sec. 150 (Hearing for Temporary Injunction — In general; Proof) — Burden (1962).

The premises of respondent was leased from Ledbetter on April 15,1976. At time of the hearing respondent operated a business by the name of La Casa Massage at the premises. The evidence upon violation of law upon which petitioner relied related solely to events which had occurred in February, 1976, and not subsequently, and on premises of Ledbetter and/or other of Led-better’s lessees. As of the time of the hearing in the Trial Court in August of 1976 all massage parlor activity other than that of respondent had ceased.

There was evidence that in February of 1976 the respondent was using the same leased premises for some purpose never specified, it then being on a portion of Ledbetter’s .95 acres which was under lease to Betty Chaney, operator of a business by the name of Foxy Lady Massage and held by him by sub-lease (of his location) from Chaney, who was in occupancy of a retained part where she operated the Foxy Lady. The Foxy Lady Massage ceased to do business February 28, 1976. Mr. Ledbetter had at that time caused Betty Chaney to be evicted and she was shown to have left the vicinity. By Chaney’s eviction respondent lost his sub-lease, whereupon if he remained it was, of necessity, by agreement with Ledbetter. He obtained his lease from Led-better in April of 1976.

There was evidence that another lessee of Ledbetter on the .95 acres had in February, 1976, operated a “massage parlor” called the Garden of Eden. A woman by the name of Cynthia worked there in February of 1976. There was evidence that in such month she had participated in activity forbidden by law by Tex.Penal Code Ann. § 43.01 and § 43.02. Cynthia testified in denial at the hearing.

There was not evidence of any forbidden activity having ever transpired pursuant to respondent’s operations of his establishment, La Casa Massage, though there was such character of proof relative to respondent’s sub-lessor, Betty Chaney, in her operation of the Foxy Lady in the month of February, 1976. In that connection there was no evidence that there was any misuse of the portion of her leased property which she was subleasing to respondent at the time. Indeed, Betty Chaney was never made a party to petitioner’s suit.

The foregoing having been the extent of the proof by the petitioner for injunction we hold there was not evidence to support the statements made in the court’s injunc-tive order as reasons for issuance of the writ. Tex.R.Civ.P. 683 (1967), Form and Scope of Injunction or Restraining Order. There being no evidence to support such statements of reasons for issuance of the writ there was no evidence to support the injunction itself, and, consequently, an abuse of discretion in granting the writ. City of Houston v. Southwestern Bell Tel. Co., 263 S.W.2d 169 (Tex.Civ.App. — Galveston 1953, writ ref’d).

Apart from any confinement to those stated by the Court in its order to be its reasons for issuing the writ, there was not evidence which supported the injunction in any event. The respondent introduced no evidence and he rested his case at the time petitioner rested in reliance of his pleaded general denial. Petitioner’s evidence proved nothing relative to the respondent’s activities on property leased by him or elsewhere, lawful or unlawful, proper or improper, save by the implication to be made from the name of his business, La Casa Massage, that he was operating a massage business thereat. However, that was a lawful business if properly conducted and there was nothing to the contrary proved.

Judgment order of the Trial Court is reversed, with the temporary injunction vacated pending hearing on the merits of petitioner’s case for permanent injunction.


author: GUITTARD, Chief Justice.

text:
    Nelson PHILLIPS, Jr., et al., Appellants, v. Frank WERTZ et al., Appellees.
    No. 19078.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 1, 1977.
    Rehearing Denied March 3, 1977.

      Gregory L. Ceshker, Robert F. Ashley, Ashley & Welch, Dallas, for appellants.
    William Andress, Jr., Andress, Woodgate & Lodewick, Dallas, for appellees.
   GUITTARD, Chief Justice.

This action arose out of a dispute between neighboring landowners. Plaintiffs Phillips, Sartain, and Nelms own and reside on adjoining lots in a subdivision known as Turtle Creek Estates. Their lots face to the east and front on Turtle Creek Drive, which they allege to be a private driveway maintained by the lot owners. Defendants Frank and Dorothea Wertz own property outside the subdivision, but abutting it on the east. Between Turtle Creek Drive and the Wertz property is a narrow strip of land across which defendants attempted to put a driveway between their land and Turtle Creek Drive. Plaintiffs sued for title and possession of this strip, for actual and exemplary damages because of defendants’ attempted use of the strip, and for an injunction restraining defendants from taking possession or entering upon the strip and from using Turtle Creek Drive. After a jury trial and a verdict favorable to plaintiffs, the trial court rendered judgment for plaintiffs Phillips for title to the strip, actual damages in the amount of $341.20, and exemplary damages in the amount of $10,-000, but denied other items of damage found by the jury and also denied injunc-tive relief. Defendants appeal from the judgment against them, and plaintiffs also appeal from the court’s failure to grant injunctive relief and to award the full damages found. We affirm the judgment for title, but we reverse the judgment for damages, and we remand with instructions to grant the injunctive relief sought and to make a new assessment of both actual and exemplary damages.

Title to Disputed Strip

The controlling question governing title to the disputed strip is whether a person in possession of land, though without any claim to record title, may recover a judgment for title and possession against an intruder or trespasser who enters upon the land and dispossesses him. We hold that he may recover such a judgment.

Plaintiffs Phillips and wife sued in trespass to try title and alleged both adverse possession for a period of more than ten years and also that they and their predeees-sors in title have had possession of the property “for many years prior to any possession of said property by the Defendants Wertz.” They further alleged that on December 9,1974, defendant Frank Wertz entered on the property with a bulldozer, cut down a portion of a bamboo hedge, tore down a fence, drove a truck over the property and spread a load of gravel across it, and destroyed grass and other vegetation. They made the conventional allegation that they were in possession of the property on December 9,1974, that on that date defendants unlawfully entered upon and dispossessed them, and still withhold from them the possession of their property.

Defendants answered by general denial and plea of not guilty, and further alleged that title to the strip had never been divested out of the corporate developer, which had forfeited its charter many years ago for nonpayment of the franchise tax. Defendants did not allege any claim of title in themselves.

The evidence shows that record title to the disputed strip stands in the name of the original developer, a defunct corporation. Plaintiffs Phillips have lived on the west side of Turtle Creek Drive, directly across from the disputed strip, for many years. The strip is 166.7 feet long and varies in width from ten to fifteen feet. A ten-foot easement for public utilities extends its entire length, as shown by the subdivision plat. The Phillipses have landscaped this strip with flowers and shrubs. The evidence shows without dispute that on December 9, 1974, defendant Frank Wertz removed a portion of the fence between his property and the disputed strip, entered on the strip with a bulldozer, knocked down about four feet'of bamboo hedge planted by the Phillipses, and dumped a load of gravel which Wertz subsequently spread on the property for the purpose of constructing a driveway between his land and Turtle Creek Drive. The evidence further shows that on March 29,1975, a landscape company employed by the Phillipses replaced the fence posts and replaced a portion of the bamboo hedge, and that on the same day defendants again removed the posts and pulled the bamboo out of the ground. Defendants did not deny these acts, but rather testified that if another fence were put in or any more bamboo were planted in the area where they had started to construct the driveway, they would tear it up.

The jury found that the Phillipses had had peaceful and adverse possession of the disputed land continuously for ten years before the suit was filed and also found that these plaintiffs had had possession of the land prior to any possession by the defendants. Judgment was accordingly rendered for plaintiffs for title and possession. Defendants complain on this appeal of the adverse possession issue and finding on various grounds, including lack of evidence, but they make no complaint of the issue or the finding concerning plaintiffs’ prior possession. Accordingly, the question presented is whether this unchallenged finding is sufficient in itself to support the judgment for title and possession. Defendants argue that this finding is not sufficient without some claim by plaintiffs under col- or of right, and that the undisputed evidence that the title never passed out of the developer defeats plaintiffs’ suit.

Without passing on any of defendants’ complaints concerning the adverse possession issue and finding, we hold that the finding of prior possession provides independent support for the judgment. In our opinion, this question is ruled by Reiter v. Coastal States Gas Producing Co., 382 S.W.2d 243, 249-51 (Tex.1964). There, the supreme court announced the rule that a plaintiff’s prior possession is sufficient to authorize him to maintain suit for title against a trespasser, and that proof of title in a third person, through whom the defendant makes no claim, does not justify the defendant’s ouster of the plaintiff. The court observed that this doctrine is designed to maintain public peace and order and proceeds on the theory that one in possession should not be disturbed unless by one having a better title. Id. at 251. This court also has held that although the plaintiff’s claim of title may be weak, prior possession is enough to make it stronger than that of a defendant who is a mere intruder. Dinwitty v. McLemore, 291 S.W.2d 448, 451 (Tex.Civ.App.—Dallas 1956, no writ).

Although in Reiter, the plaintiff was claiming under a defective deed, the policy announced, in our view, extends to a case like the present in which the plaintiff has no color of record title, but was in possession when defendant entered and dispossessed him. Cf. Land v. Turner, 377 S.W.2d 181, 187 (Tex.1964) (holding that if plaintiff does not have possession when ousted, he must show that his possession has not been abandoned). As the Reiter opinion explains, the doctrine of prior possession is recognized in a long line of authorities in Texas and other common-law jurisdictions. The philosophical basis for protecting a possessor against one who dispossesses him without right is examined and justified by O. W. Holmes, Jr., in his celebrated treatise on the common law. 0. Holmes, The Common Law, 206, 208, 244 (1881). Holmes points out that the only intent required is the general intent of the occupant to exclude the public. Id. at 224. We conclude that the rule of prior possession does not require a claim of legal title.

In Reiter, the supreme court also held that the fact that a tract of land is subject to an easement for an electric power line or water conduit does not render the tract immune from operation of the doctrine of prior possession. 382 S.W.2d at 247. Consequently, the existence of the utility easement on the strip now in question does not defeat plaintiffs’ action for title and possession.

Defendants objected to the prior possession issue in the trial court and also made the argument orally here that this issue was not controlling because defendants’ plea of not guilty admitted plaintiffs’ prior possession. Apparently counsel is under a misapprehension with respect to Tex. R.Civ.P. 790, which provides that a plea of not guilty in a trespass to try title action is an admission that the defendant (rather than the plaintiff) was in possession of the premises at the time the action was commenced. We know of no authority that such a plea is an admission of the plaintiff’s prior possession. Such a rule would be contrary to the authorities holding that prior possession is in itself an independent ground of recovery. Land v. Turner, supra. Since Tex.R.Civ.P. 788 expressly authorizes the plea of not guilty as a means of putting the title in issue, it would be contradictory to hold that such a plea constitutes an admission of a matter which may be asserted by the plaintiff as an independent ground of recovery.

Actual Damages

As we have already noted, defendants entered upon the disputed strip for the purpose of constructing a driveway on December 9, 1974, and again on March 29, 1975. The evidence shows that on both occasions they took down part of the fence between their property and the disputed strip and disturbed some of the shrubbery and other vegetation planted by the Phil-lipses. The jury found that the reasonable cost of the repairs necessary to restore the land after the first entry was $164.80, and after the second entry, $341.20. The court rendered judgment for plaintiffs for the second amount, but not for the first. Plaintiffs complain on this appeal of the court’s failure to render judgment for the first amount, and defendants contend that the court was not authorized to render judgment for either amount because in both instances the repairs included an unspecified amount for repairing the fence, which was not shown to be the property of plaintiffs.

On this point we agree with defendants. The amounts found by the jury are those given in the testimony of plaintiffs’ landscaper, Curtis Taber, who replanted the shrubbery and repaired the fence, but he did not specify how much was for shrubbery and how much for fence repairs. The only testimony concerning ownership of the fence is that of plaintiff Nelson Phillips. He testified that the fence is on the property line between the disputed strip and the Wertz property, which was formerly part of the right-of-way of the Katy Railroad. The fence runs continuously parallel to the right-of-way beyond the disputed property. Plaintiff said that he did not know who built the fence, but assumed that the railroad put it up. He testified that he doesn’t know who owns the fence, but “guesses” that he owns it.

This evidence is not sufficient even to raise a fact issue concerning ownership of the fence. A statement concerning ownership without supporting facts is an inadmissible conclusion if ownership is an issue. Magee v. Paul, 110 Tex. 470, 221 S.W. 254, 258 (1920); Southwest Bank and Trust Co. v. Executive Sportsman Ass’n, 477 S.W.2d 920, 924 (Tex.Civ.App. — Dallas 1972, writ ref’d n. r. e.). Here, Phillips’s testimony does not even rise to the dignity of a conclusion that he is the owner since he only “guesses”'that he is, and he gives no factual basis for this guess. On the record before us, we cannot segregate the damages allowed for repairs to the fence from the other damage assessed for defendants’ actions on either of the occasions in question, although the evidence indicates that on each occasion plaintiffs did sustain other recoverable damages. Consequently, we reverse and remand the cause for a new trial insofar as it concerns the claim of plaintiffs Phillips for damages to the disputed land. Moran Corp. v. Murray, 381 S.W.2d 324, 328 (Tex.Civ.App. — Texarkana 1964, no writ).

Exemplary Damages

Our reversal of the Phillipses’ recovery for actual damages raises the question of whether we must also reverse the judgment in their favor for exemplary damages. The jury found that on the occasions when defendants entered on the land, they “acted with willful, wanton or reckless disregard” of the rights of plaintiffs Phillips and that the Phillipses should be awarded exemplary damages against them for $10,000. The jury also assessed exemplary damages against defendants for entry upon Turtle Creek Drive in the amount of $100.00 in favor of plaintiffs Phillips, $100.00 in favor of plaintiffs Nelms, and $1.00 in favor of plaintiffs Sartain. The court rendered judgment for the $10,000 exemplary damages found, but denied recovery of the exemplary damages for entering upon Turtle Creek Drive.

It is well settled that recovery of exemplary damages cannot stand in the absence of a finding of actual damages. Jones v. Matthews, 75 Tex. 1, 12 S.W. 823 (1889); Upjohn Company v. Petro Chemicals Suppliers, Inc., 537 S.W.2d 337, 341 (Tex.Civ.App. — Beaumont 1976, writ ref’d n. r. e.). This rule applies even when the defendant has been found guilty of a trespass. Texas Electric Service Co. v. Linebery, 333 S.W.2d 596, 599-600 (Tex.Civ.App. —El Paso 1960, no writ); and see Giraud v. Moore, 86 Tex. 675, 26 S.W. 945 (1894) (holding that nominal damages will not sustain an award of exemplary damages). Consequently, if a finding of actual damages is not supported by the evidence, an award of exemplary damages must also fail. Securities Investment Co. v. Finance Acceptance Corp., 474 S.W.2d 261, 270 (Tex.Civ.App. — Houston [1st Dist.] 1971, writ ref’d n. r. e.). Accordingly, we reverse that portion of the trial court’s judgment which awarded plaintiffs Phillips exemplary damages of $10,000, and remand that claim for a new trial. Upon another trial, the court should review any finding of exemplary damages in the light of the rule that the amount of exemplary damages should be reasonably proportioned to the actual damages found. Southwestern Investment Co. v. Neeley, 452 S.W.2d 705, 707-08 (Tex. 1970).

Under the above authorities it is clear also that the court properly disregarded the findings of exemplary damages with respect to defendants’ entry on Turtle Creek Drive because there was no evidence and no findings of actual damages.

Injunctive Relief

All plaintiffs complain of the trial court’s denial of a permanent injunction restraining defendants from entering upon Turtle Creek Drive, and plaintiffs Phillips complain of the court’s denial of an injunction restraining further entry by defendants on the disputed strip. Defendants contend that the injunction was properly denied with respect to Turtle Creek Drive because plaintiffs had failed to show it to be a private drive and also with respect to the disputed strip because defendant Frank Wertz testified that he would not go upon the strip if the court held he did not have the right to do so.

We conclude that the injunction should have been granted in both respects. The evidence is sufficient at least to raise a fact issue as to whether Turtle Creek Drive is a private driveway. The original subdivision plat recorded in 1925 shows a winding strip of land between the lots, marked “reserved for driveway.” The parties stipulated that this driveway has come to be known as Turtle Creek Drive and that it “has never been dedicated to the public.” The evidence shows that the roadway was originally constructed at the expense of the developer and that since that time all repairs and maintenance have been done at the expense of the lot owners rather than the city. About the year 1955 the city posted signs at each end stating that the roadway is a private drive. Plaintiffs presented testimony to the effect that lot owners had from time to time advised persons using the driveway that it was private and had sought to prevent them from passing through. On the other hand, defendants testified that they had driven along Turtle Creek Drive on many occasions before the present dispute arose and had never been stopped or warned not to do so. Two other witnesses called by defendants testified to the same effect.

The jury found that Turtle Creek Drive is a private drive for the use and benefit of the lot owners in Turtle Creek Estates and answered “no” to an issue inquiring whether the general public has traveled over Turtle Creek Drive by general custom. Defendants attack these findings for lack of evidence, but in our view the evidence recited above is sufficient to support them. The original plat showing that the driveway was “reserved” rather than dedicated to the public, together with the stipulation that it has never been dedicated, is sufficient without more to support these findings in the absence of conclusive evidence establishing that the public has acquired some character of easement. Casual use by members of the public, with no visible public appropriation, does not establish a public right-of-way. The use of land by the public as a roadway will not ripen into a prescriptive right unless the evidence shows, circumstantially or otherwise, that the use was by claim of right adverse to the landowner, of which the owner has notice, for the statutory period of limitation. Ladies’ Benevolent Soc’y v. Magnolia Cemetery Co., 288 S.W. 812, 815 (Tex.Com.App.1926, jdgmt adopted). The evidence here falls far short of establishing a prescriptive right as a matter of law.

Since Turtle Creek Drive is thus established by the evidence and jury findings to be a private driveway and the evidence shows that defendants have used it in the past and have announced their intention to continue using it, we hold that the trial court erred in failing to grant a permanent injunction restraining such use.

Defendants have also announced their intention to continue to use the disputed strip for a driveway between their property and Turtle Creek Drive. In view of the Phillipses’ recovery of title and possession, the injunction should also restrain defendants from further entry on the disputed strip. The fact that they do not specifically threaten to disregard the court’s order does not bar plaintiffs’ right to an injunction restraining defendants from commission of wrongful acts which they have committed in the past and have threatened to continue in the future. Neither does the attempted unilateral “stipulation” by defendants’ counsel that defendants would not violate the court’s order constitute proof that defendants would discontinue their attempts to use the land for a driveway.

Judgment

Since the rulings announced above are sufficient, in our opinion, to dispose of the actual controversy between the present parties, we do not pass on plaintiffs’ points which seek a declaration of their rights and claim of title to Turtle Creek Drive. The judgment is reversed insofar as it denies injunctive relief, and the cause is remanded with instructions to issue a permanent injunction restraining defendants from using Turtle Creek Drive and from entering upon and using the disputed strip. The judgment of the trial court is reversed insofar as it concerns the cause of action of plaintiffs Phillips for actual and exemplary damages for entry upon and use of the disputed strip, and that cause is severed and remanded for a new trial. In all other respects the judgment of the trial court is affirmed. Costs of the appeal are divided equally between plaintiffs Phillips and defendants.

Reversed and remanded in part and affirmed in part.


author: SHANNON, Justice.

text:
    Grady Lee CRAPPS, Appellant, v. Nancy Margaret CRAPPS, Appellee.
    No. 12478.
    Court of Civil Appeals of Texas, Austin.
    Feb. 2, 1977.
    Rehearing Denied March 9, 1977.

      Daniel R. Rutherford, San Antonio, for appellant.
    Earl S. Post (A Professional Corporation), San Antonio, for appellee.
   ON MOTION FOR REHEARING

SHANNON, Justice.

The opinion of this Court filed on December 22, 1976, is withdrawn, and the following opinion replaces it.

Appellee, Nancy Margaret Crapps, filed suit for divorce against appellant, Grady Lee Crapps, in the district court of Comal County. The parties were married in 1966 and they had one child, a girl, Tiffany Lee Crapps, bom in 1970. After hearing in August, 1975, the court named appellant temporary conservator “. . . pending a final decree in this suit or until further order of this Court.”

After trial on the merits, judgment was entered granting the divorce and dividing the property. In the judgment the court appointed appellee managing conservator of the child. The judgment further provided that appellant pay child support.

Appellant does not question those parts of the judgment ordering the divorce, fixing the child support payments, or dividing the property. By several points of error appellant does attack the part of the judgment appointing appellee managing conservator of the child.

By his first point appellant claims the court erred “. . .in failing to consider the qualifications of the respective parents without regard to the sex of the parent.” Texas Family Code Ann. § 14.01(b) (1974) provides that in determining which parent to appoint as managing conservator, the court shall consider the qualifications of the respective parents without regard to the sex of the parent.

The basis for appellant’s claim that the court disregarded § 14.01(b) is found in a comment by the court made after the close of the evidence. The statement was: “Obviously, the most important thing, I, do think, the child should be in the custody of the mother . . .”

The reviewing court must look to the district court’s findings of fact and conclusions of law and to the judgment to determine the basis for the entry of the judgment. Rutledge v. Valley Evening Monitor, 289 S.W.2d 952 (Tex.Civ.App.1956, no writ). There are no findings of fact and conclusions of law. Nothing in the judgment suggests the court disregarded § 14.-01(b).

The court’s comment is not a finding of fact and conclusion of law under Tex.R. Civ.P. 296, and, as a result, may not serve as a predicate for the assertion on appeal that the court disregarded § 14.01(b). See Ramirez v. Milton Provision Co., 231 S.W.2d 547 (Tex.Civ.App.1950, no writ), Brazos River Authority v. Gilliam, 429 S.W.2d 949 (Tex.Civ.App.1968, writ ref’d n.r.e.).

Even though the court’s comment be considered, that comment does not mean that the court failed to consider the qualifications of the respective parents without regard to the sex of the parent. The court made the comment after counsel had closed and argued the case. The comment served only to indicate that under the record it was the court’s conclusion that appellee should be named managing conservator.

Appellant’s second point is that the district court erred in appointing appellee managing conservator because there was no showing that the circumstances of the child or parent had changed since the time the court had appointed appellant temporary conservator.

Appellant’s point hinges upon the premise that Tex. Family Code Ann. § 14.08 (1975) was applicable to the trial on the merits of this cause. Section 14.08 provides for modification of orders affecting the parent-child relationship. The proceeding to modify is initiated by the filing of a motion to modify in the court having jurisdiction of the suit affecting the parent-child relationship. At least thirty days’ notice of the hearing on the motion to modify must be given the affected parties. Section 14.08(c)(1) provides that the court after a hearing may modify an order providing for managing conservatorship upon a showing that the circumstances of the child or parent have so materially and substantially changed since the entry of the order sought to be modified that the retention of the present managing conservator would be injurious to the child and that the appointment of the new managing conservator would be a positive improvement for the child.

Appellant then argues that appellee failed to allege and prove the circumstances of the child or parent had so materially and substantially changed since the entry of the order appointing him temporary conservator so that his retention as managing conservator would be injurious to the welfare of Tiffany Lee.

Section 14.08 contemplates modification of a final order pursuant to § 14.01 entered after a trial on the merits, and not a temporary order entered under § 11.11 during the pendency of the divorce proceeding as in this cause. For that reason there was no requirement of showing “changed circumstances” to modify the court’s temporary order of conservatorship.

By a supplemental brief appellant asserts a third point of error. That point is, “The Court erred in violating the terms and provisions of Article 14.07, Texas Family Code, in that there is no evidence and insufficient evidence that the appointing of the appellee as permanent managing conservator would be in the best interest and welfare of the child and the Court’s decision to appoint the mother, appellee, as permanent managing conservator was contrary to the greater weight and preponderance of the evidence.”

Appellant does not support the third point of error by any argument and authority in the supplemental brief. In the initial brief there does appear general discussion and argument which we will consider to be in support of his third point of error so as to prevent waiver. See Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).

As no findings of fact and conclusions of law were requested, and none were filed, it is assumed on appeal that the court found every fact necessary to sustain the judgment, if such factual propositions were raised by the evidence, Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950), and the judgment will be affirmed on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962).

The district court’s judgment in determining the best interests of the child and in appointing the managing conservator in accordance with this determination should be reversed only when it appears from the record as a whole that the court has abused its discretion. Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966).

Appellee testified that she had originally had Tiffany Lee with her in San Antonio. Appellant came to the door “. forced his way in and forced me into the other room and yelled for his niece to take the baby [Tiffany Lee] and run to the car.”

Appellee testified that she was making her home with her brother in San Antonio. She vouched that she could take care of Tiffany Lee and that when she obtained employment her mother would be available to care for the child. She declared that she had tended to the health needs of the child. Appellee claimed further that the child’s emotional development would be impaired if the child continued to live with appellant. As phrased by appellee, “They [appellant and a girl friend] are immoral [sic ] living.” Appellee’s reference was to appellant’s testimony that pending the divorce he was living in his mother’s home with a woman whom he intended to marry “. . .as soon as everything is settled.” Appellant claimed that this woman took “good care” of Tiffany Lee.

Appellant’s evidence tended to show that appellee was a somewhat insouciant mother and housekeeper. In that connection, appellant’s sister testified that the condition of the Crapps’ house, when appellee was still the housekeeper, was one of “pure-de-filth.” Even so, there was evidence to support the appointment of appellee as managing conservator of Tiffany Lee. Also, the appointment was not so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust. It follows that the district court did not abuse its discretion in appointing appellee managing conservator.

The judgment is affirmed.

Affirmed on Motion for Rehearing.


author: PEDEN, Justice.

text:
    Sandra Norma TEES, Appellant, v. Harold James TEES, Appellee.
    No. 16821.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 3, 1977.

      Schlanger, Cook, Cohn & Mills, Steven J. Watkins, Houston, for appellant.
    Tinsley & Snowden, Paul R. Tinsley, Houston, for appellee.
   PEDEN, Justice.

Mrs. Sandra Tees appeals from the granting of a divorce decree appointing Sgt. Harold Tees, her former husband, as managing conservator of the parties’ two children. She complains of jury misconduct and alleges that an agreement between her former attorneys and opposing counsel prevented her from presenting evidence that her husband used drugs. We affirm.

The custody issue was, by agreement, the only one submitted to the jury.

The appellant’s first point of error is that the jurors were guilty of misconduct because during deliberations they discussed and were influenced in reaching their verdict by statements of juror Mrs. Ruby T. Traynham that she had been successful in raising her three children on an army base.

Harold Tees is a sergeant in the U. S. Army, currently stationed in San Antonio. He testified during the trial that he lives in government housing on the post and feels it is a suitable place for the children. If awarded custody he would keep them in the child care center at the post while he is at work. He feels that army life would be good for the children. No evidence was offered to contradict this testimony, and he was not cross-examined on this subject.

The appellant contends she has shown misconduct by the testimony of several jurors at the hearing on her motion for new trial. She asserts that juror Traynham “made statements to the effect that she was married to a man who had a career in the service, that her children had been raised in the service, that her children turned out all right, and that the service was a good place to raise children.”

The Supreme Court stated in Crawford v. Detering Co., 150 Tex. 140, 237 S.W.2d 615 (1951):

“Under Rule 327 of the Texas Rules of Practice and Procedure in Civil Actions, the plaintiff in this case was required to show, in order to obtain a new trial upon the ground of jury misconduct that (a) the misconduct complained of in fact occurred, (b) it was material, and (c) it was calculated to and probably did result in harm to him.”

The appellant has the burden to prove material misconduct which, from the record as a whole, probably resulted in harm. Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969).

We review the testimony of the jurors who testified at the hearing on the motion for new trial. Mr. Charles Draughon testified that the jury first elected a foreman, then re-read the charge and took a quick vote. Seven jurors voted to award custody to the father, four to the mother, and one did not vote. Draughon voted to award custody to the mother. The jurors then discussed the evidence. “It was simply noted . . that Sgt. Tees was in the army and was a single person and the question was whether he had the capabilities or the facilities to have the proper custody of the children ... It was regarded as a secondary kind of fact. The primary thing was to decide which one would offer better custody of the children.” In response to a question by another juror about her statement made on voir dire, juror Mrs. Trayn-ham said she was married to a career service man, they had raised their family while in the service, and her children came out all right. She was not forceful. The jurors were interested in what Mrs. Traynham had to say but didn’t dwell on the matter. Mr. Draughon said her statement did not affect his answer to the special issue. The jury took another vote shortly after Mrs. Trayn-ham’s remarks. He didn’t recall whether it was the second or third vote, but the result of it was something like ten to two in favor of Sgt. Tees. She did not try to persuade anyone to change a vote. He didn’t change his right after she made her statement; he changed it at the second vote after that.

Mr. Cecil P. White was the next juror to testify. A poll was taken after election of a foreman and re-reading of the charge, then the evidence was discussed. He said he tried not to let the fact that Sgt. Tees was in the army and living on an army base interfere in his decision and doesn’t think it did. He recalled that Mrs. Traynham said she had raised her children on an army base and as far as she knew they turned out all right, but she did not elaborate. Her answer was not forceful or domineering. She was the wife of a retired army man, a fact established before the jury was selected. A second vote was taken after the discussion, and he voted to give the children to the father. He did not change his vote because of Mrs. Traynham’s statement. No juror attempted to stop her from making it.

We review the testimony of Mrs. Ernest B. Wilson. After the first vote, everybody started expressing opinions. One short gentleman said, “I think the children should be with their mother.” The fact that the husband was in the army was discussed. A lady said she demanded equal time, and everybody laughed. She held her hand up and said she had raised her children in the military successfully, and she thought it was a good place for children. She called for attention when she made the statement, then lowered her voice and explained how she raised her children. The others seemed to be interested in what she was saying. Everyone was asking for opinions. Mrs. Traynham said it was a good, protective life. Mrs. Wilson testified she voted in favor of the woman on the first seven-to-four-to-one poll. On the second, taken after Mrs. Traynham’s statement, there were only two votes for the woman. “The short gentleman who started the statement said because of what this woman said he would like to change his vote and it seems like everyone explained their vote.” Mrs. Wilson said she changed her vote after the ten-to-two vote, even though she knew it wouldn’t make any difference since the judge had instructed them that a ten to two would be sufficient. She “thought maybe the children would be better off on a base somewhere.” She thinks she changed her vote because the husband was in the military. It was already ten to two and she knew it wouldn’t make any difference, but she wanted it to go on the record as the way she felt.

Mrs. Ruby Traynham testified that she was in the Air Force for twenty-eight years and raised her children there. Her husband is now retired from the military. There was some discussion about Sgt. Tees’ being in the army. The jury discussed the raising of children on army bases. She asked for equal time for the women because none of them had said anything. She did not discuss her experience in the military, but her answer was similar to that she gave in the courtroom. It was not a discussion of the military as a whole, but of the possibility of raising a family in a stable and Christian area which happened to be a military base. She stated that it was possible and that she had reared her family without any problem. On voir dire the question of raising a family had come up and she had answered about how long she had been in the service; someone jokingly said that she was in and had turned out all right.

Mr. Jacob L. Schulzinger testified that during the jury deliberations a lady said she had reared three children in the military and they had come out well but others may not have had the same experience. Schul-zinger’s vote was for Mr. Tees throughout the deliberations.

Mr. James Collins testified that any statements made in the jury room concerning one of the ladies rearing her family on a military base did not influence him or cause him to change his vote in any way. His first vote was for Mrs. Tees. It was not a formal vote, and he had not yet made up his mind.

Mr. Robert Arrington testified that he remembered Mrs. Traynham saying she raised her family on a military base, but others did not make it too well there. He said he voted for Sgt. Tees throughout the proceeding.

A trial judge is not required to make findings of fact after a hearing on a motion for new trial. Absent findings of fact we presume in support of the order overruling the motion that the trial judge did not find that jury misconduct had occurred, did not find that it was material, or that it probably caused harm.

In consideration of a motion for new trial on grounds of misconduct of a jury, testimony should be confined to overt acts, and inquiry into mental process of jurors should be avoided. Trousdale v. Texas & N. O. R. Co., 154 Tex. 231, 276 S.W.2d 242 (1955). We have reported the jurors’ testimony about mental processes, but we do not consider it.

We cannot say the trial court erred in overruling the motion alleging jury misconduct. The evidence concerning Mrs. Traynham’s statements varies somewhat. Most agreed she said her husband was in the service while her children were raised and that they came out all right, basically the same thing she said during jury selection. Two jurors testified that she also said there were others that did not have the same experience and did not make it too well on military bases.

The trial judge was entitled to accept the latter version, to conclude that the public in general would probably reach the same conclusion based on its knowledge, that the jurors knew before beginning their deliberations that Mrs. Traynham was satisfied with the way her children had been raised on service bases, and that there was no misconduct.

The appellant has not shown the materiality of any misconduct. Rule 292, Texas Rules of Civil Procedure, states in part:

“A verdict may be rendered in any cause by the concurrence, as to each and all answers made, of the same ten members of an original jury of twelve . . .”

The verdict was signed by the jury foreman as unanimous. At most, the evidence does not compel a finding that more than two jurors changed their vote because of Mrs. Traynham’s comments. We do not know the identity of the “short gentleman.”

We have examined the entire record of this case, and we hold that the appellant did not discharge her burden of proving probable harm. The testimony shows that Sgt. Tees is attentive and capable in his handling of the children but there was some evidence that Mrs. Tees had not been able to give them very good care. We think no useful purpose would be served by detailing this evidence, but will only state that the jury may well have concluded from it that the children’s best interest would be served by placing them with their father.

Appellant’s second point of error is that the trial court erred in not granting a new trial because an agreement between her former attorneys and Harold Tees’ counsel prevented the jury from hearing evidence that Harold Tees is now, has been, or will be addicted to heroin.

The appellant testified at the hearing on the motion for new trial that during the trial on the merits Mr. Roy Mease, who was then representing her, told her that he and her husband’s counsel were going to make an agreement not to bring up all the drug problems. She told him she would like to discuss it first. No evidence was offered to prove that her husband was a drug addict; after the verdict was in she asked why it was not brought up and was told that they had made the agreement. Mrs. Tees said she knew the appellee was taking heroin in 1971 and 1972 and had seen him use a hypodermic needle to put it in his arm.

Mr. Michael J. Thibodeaux, attorney ad litem for the minor children, testified that he knew, before the trial began, of Mrs. Tees’ contention that Sgt. Tees had had additional problems; a history had been presented to him, he had interviewed both Sgt. and Mrs. Tees, and had information from San Antonio and Harris County authorities. Mrs. Tees did not tell him she had seen Sgt. Tees using drugs, only that she thought he had continued to do so. He thinks there was no agreement not to raise drugs, only a statement by Sgt. Tees’ counsel that if it is going to be raised he wanted to mention it on voir dire. Mr. Thibodeaux did not raise the drug issue in the trial because he had interviewed every witness called in the case and had not heard of any indication of drug involvement since the last part of 1971 or early 1972. The Family Service Center had information that Sgt. Tees had been addicted to drugs when he was in Viet Nam and had “kicked the habit.”

Mr. B. N. Trank testified. He was lead counsel for Mrs. Tees at the trial. He discussed with Sgt. Tees’ attorney the drug involvement matter.

“I believe it was cur understanding, although I knew there was no enforceable agreement, that the matter of drugs would not be entered into. I felt with my knowledge of the case, and without [with what?] my client had explained to me about the case, that it was not in her best interest to go into it. I would not be justified at this time to explain why unless Mrs. Tees would be inclined to not claim the attorney-client privilege.”

He had been informed that Sgt. Tees had used heroin, and at the time of trial had reason to believe that there was some type of heroin involvement. The discussion about the drugs took place prior to trial in Judge Woodall’s chambers. His understanding was that if the lawyers representing Mrs. Tees did not ask Sgt. Tees questions about his use of drugs then opposing counsel would not ask Mrs. Tees about her use of them. He had no indication of any recent drug usage by either party.

Mr. Roy Mease, another former attorney for Mrs. Tees, testified. When they went into the judge’s chambers he was asked by opposing counsel if he was going to bring up drug involvement. He said he doubted that he would but that he thought the witnesses would bring it out. There wasn’t any binding, iron-clad agreement. They discussed “her involvement and his involvement and what we would accomplish.” He wasn’t under any order and was sure that Mr. Trank, who handled the case, would have gone into it if he had wanted to. “. . . Unless my client is willing to waive the client-attorney relationship, I cannot go into why we actually would have gone into them or would not have gone into them or what our problem was.” He said he was sure that Mrs. Tees was aware they were entering into an agreement with opposing counsel about drugs.

The appellant argues that an unauthorized act of an attorney, however innocent, may be the basis upon which a court may grant a new trial. She cites McMillan v. McMillan, 72 S.W.2d 611 (Tex.Civ.App.1934, no writ), but we do not find it persuasive. In that case the court said:

“While the negligence of one’s attorney usually affords no relief, yet when such negligence is so connected with an unauthorized act of an attorney, in agreeing to a judgment and premature issuance of a writ of possession in which the adverse party is shown to have been implicated, we feel that such warranted the conclusion that the aggrieved party was not afforded a fair hearing. The power to grant the application, when justice requires it, is inherent in all courts of common-law jurisdiction.”

We hold that the evidence supports the trial court’s implied findings that the appellant has not shown harm, that there was no binding agreement, and that the decision not to bring up the drug involvement was trial strategy on the part of appellant’s counsel that may have been made in her best interest. We cannot determine the facts behind their decision since Mrs. Tees did not waive her privilege under the attorney-client relationship. Further, the evidence in question was not newly-discovered, and she was made aware before her attorneys rested her case that they contemplated offering no evidence on the subject. There is no contention of improper conduct on the part of the appellee or his counsel that induced the omission complained of. There was evidence that Mrs. Tees did not raise the question until after the jury had returned an adverse verdict.

In Hicks v. Brooks, 504 S.W.2d 942 (Tex.Civ.App.1974, writ ref. n. r. e.), the court stated:

“It is well settled that a court of equity will not set aside a final judgment when the failure to have a full presentation of the case resulted from the negligence, inadvertence or mistake either of the party seeking the relief or by his counsel. Kelly v. Wright, 144 Tex. 114, 188 S.W.2d 983 (1945); Jones v. Jones, 391 S.W.2d 102 (Tex.Civ.App. — Amarillo, 1965, n. w. h.). The failure on the part of appellants or their attorney to fully develop the available evidence would not constitute ‘good cause’ authorizing a new trial.
“ ‘A motion for new trial is not a vehicle through which the case may be tried over or tried differently.’ Crossley v. Crossley, 306 S.W.2d 388 (Tex.Civ.App., San Antonio, 1957, n. w. h.).”

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Jud CRAMER, Appellant, v. Larry Bruce WHITE, Trustee, Appellee.
    No. 17784.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 4, 1977.
    Rehearing Denied March 4, 1977.

      Kelly & Walker and Jearl D. Walker, Port Worth, for appellant.
    Locke, Purnell, Boren, Laney & Neely, Stephen Philbin, Dallas, for appellee.
   OPINION

HUGHES, Justice.

Larry Bruce White, as trustee for himself and his brother, Robert White, sued Jud Cramer for $10,000.00 paid (one-half as earnest money; one-half as consideration for option to buy a tract of land up to one day before closing of transaction) by Larry and Robert to Cramer at the time of executing a contract to purchase a farm in Ellis County. At trial Larry contended that Cramer had committed an anticipatory breach of the contract. Cramer denied the breach allegation and alleged that Larry was himself in breach. In his brief Cramer asserts that the option terminated contractually when Larry failed to deliver to Cramer on or before February 27, 1974, written notice of his intent to buy such land.

Pertinent portions of the contract are:

“2. The purchase price is $432,000.00 payable as follows: $ See Para. II B cash, of which Buyer has deposited with the Seller Buyer’s check subject to collection for $10,000.00 as part payment, receipt of which is hereby acknowledged by Seller. The said $10,000 payment shall represent a $5,000.00 payment for the option to purchaser to declare this contract null and void on or before February 27, 1974, and $5,000.00 earnest money which shall be credited toward the purchase price at time of closing. In the event option to purchase is not exercised by purchaser, in writing, on or before February 27, 1974, the entire $10,000 prepayment shall be forfeited to the seller. It is also agreed that Purchaser has the right at any time prior to February 28, 1974, to sell, or transfer, the option to purchase set out above.

“Balance to be paid in accordance with Paragraph II C of the Special Condition.

“10. Other Terms: Closing shall take place on February 28, 1974, at Rattikin Title Co., Throckmorton Street, Fort Worth, Texas. .

“SPECIAL CONDITIONS

“A. Seller agrees to furnish, at Seller’s expense, a current survey of the property covered hereby, the same to be prepared by a registered professional surveyor acceptable to Purchaser, which survey shall be furnished at time of closing. Such survey shall locate all easements, roads, and rights-of-way, shall show no encroachments upon the property, and shall contain the surveyor’s certification as to the number of net acres contained in the property, exclusive of any land lying within encroachments, easements, roads and rights-of-way. The purchase price for the property shall be adjusted upward or downward so that it shall be an amount equal to $3,000.00 times the number of net acres shown by such survey- or’s certification, any such adjustments to be made pro rata to the cash down payment at closing and to the principal amount of the First Lien promissory note, hereafter referred to as the ‘Note’.

“B. The down payment shall be $82,-350.00 which shall consist of 12V2% principal plus one year prepaid interest at a rate of 7½% per annum.

“K. All prior documents and agreements executed by and/or between the parties hereto with respect to the property herein described are hereby cancelled, terminated and declared void, each signatory hereto releasing all others from any and all liability arising under or pursuant to said prior documents and agreements, the execution hereof being the consideration for said mutual releases. Anything contained herein to the contrary notwithstanding, Buyer or Seller shall have no liability whatever to Seller or Buyer, in excess of the $5,000.00 option payment and $5,000.00 earnest money to be credited to the purchase price (total of $10,000.00 maximum potential liability) in the event the purchase and sale herein described is not consummated for any reason whatever, Buyer & Seller hereby waiving any and all other rights, remedies or causes of action for damages or equitable relief available at law, in equity or pursuant to other provisions of this Agreement.” (S.F. Def.Ex. # 1)

Larry did not give written notice of intent to buy. Cramer did not deliver a net acreage survey.

The case was tried to a jury. Cramer’s motion for instructed verdict was denied. Three special issues were submitted to the jury, which, with answers, are as follows:

“QUESTION NO. 1:
“Did Jud Cramer, before February 28, 1974, communicate to Larry Bruce White a positive refusal to produce on February 28, 1974, time of closing, a ‘net acreage survey’?
“Answer ‘Yes’ or ‘No’.
“ANSWER: Yes
“If you have answered Question No. 1, ‘Yes’, then answer Question No. 2; otherwise do not answer Question No. 2.
“QUESTION NO. 2:
“Did the refusal by Jud Cramer, if any, constitute the sole or only reason for the failure of Larry Bruce White to exercise the option to purchase in writing on or before February 27th, 1974?
“Answer ‘Yes’ or ‘No’.
“ANSWER: Yes
“If you have answered Questions 1 and 2, ‘Yes’, then answer Question No. 3; otherwise do not answer Question No. 3.
“QUESTION NO. 3:
“Was Larry Bruce White ready, willing and able on February 28th, 1974, to perform and consummate the contract to purchase the subject property if the ‘net acreage survey’ was produced on February 28th, 1974?
“Answer ‘Yes’ or ‘No’.
“ANSWER: Yes”

Cramer’s motion for judgment non ob-stante veredicto was denied; judgment was rendered for Larry; Cramer’s first amended original motion for new trial was overruled and appeal was perfected.

Larry bases his case upon the fact that no “net acreage survey” was ever delivered to him or to the closing officer (“net acreage survey” under the contract in this instance meaning the survey of the gross acreage of the land in question less the encroachments, easements, roads and rights-of-way).

Cramer contends that he was not obligated to furnish the net acreage survey until time of closing on February 28, 1974, and then only if Larry had delivered notice in writing to Cramer on or before February 27, 1974, that he was exercising the option to purchase. (Cramer did furnish Larry gross acreage surveys that identified easements but did not show easement acreage.)

Larry and Robert testified that they were ready to close the deal when they received the net acreage survey but that Cramer told them through Alvin Botts, the escrow and closing officer for Rattikin Title Company, “ . . .he wasn’t going to furnish him any other survey other than the one we had here.” “ . . . that’s the way he bought the property” and that he wanted to sell the property like it was. Robert contended that they did not give written notice of intent to purchase because they assumed “there was nothing to be done” since Cram-er “obviously wasn’t providing me with a net acreage survey.” Further, the Whites claimed that it was too late for Cramer to obtain a net acreage survey a day ahead of closing since it would take at least three days to have the same prepared.

We affirm the judgment of the Trial Court.

Points of error Nos. 1 — 13 address themselves to the contention that the Trial Court erred in submitting special issue No. 1 and in overruling Cramer’s objections both to the special issue and to rendering a judgment based upon the jury’s answer thereto for the reason that there was no evidence, insufficient evidence and no evidence of probative value to support the judgment of the Trial Court. Cramer contended that Larry White did not prove that he made a positive, unqualified refusal to provide a net acreage survey at the time required by the contract nor that he made an unqualified refusal to perform the contract.

Points of error Nos. 1 — 13 are overruled.

In considering the “no evidence” points we must view the evidence in the light most favorable to the jury’s findings and disregard all evidence to the contrary. If there is any evidence of probative force to support the jury’s findings, we are bound by those findings. In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In considering whether the evidence is “insufficient” to support the jury’s findings, we must review all the evidence. The verdict should be set aside only if it is so contrary to the overwhelming weight of all the evidence as to be clearly wrong or manifestly unjust. In Re King’s Estate, supra.

We find the evidence in the cause to be sufficient, as well as of ample probative value, to support the answer of the jury to special issue No. 1. There is admissible evidence constituting admissions by a party against interest from Alva Kilgore (Cram-er’s real estate agent) that Cramer told Kilgore to tell the Whites he would sell the property “the way he bought it.” “He said tell them — Well, sell it the way he bought it, the contract he had prior to that.” (Testimony is undisputed that Cramer bought the property on a gross acreage basis.) Agricultural and Mechanical College v. Guinn, 326 S.W.2d 609 (Tex.Civ.App. — Austin, 1959, writ ref’d n. r. e.); 2 C. McCormick and R. Ray, Texas Law of Evidence § 1121 (2d ed. 1956). We find Cramer’s statements broad enough to constitute a repudiation of his promise to furnish a net acreage survey at closing. “ . . .It must be a distinct and unequivocal, absolute refusal to perform the promise, . . . .” Carlisle v. Green, 131 S.W. 1140, 1142 (Tex.Civ.App.1910, no writ), quoting Kilgore v. Northwest Texas Baptist Educational Soc., 90 Tex. 139, 37 S.W. 598, 600 (1896). Cramer’s statements were communicated to Larry and Robert. Larry responded to Kilgore on February 27th that “ . . . there is no way we can do this deal then if you don’t get us a net survey, . . . .” (Larry and Robert maintained the net acreage survey was material because the land was contracted for at $3,000.00 per net acre and there appeared to be from 3 to 10 acres in easements.)

Points of error Nos. 14-21 complain that there was no issue submitted as to whether Larry relied upon Cramer’s communications of a positive refusal to carry out the terms of the contract and that there was no evidence and insufficient evidence from which to infer a reliance upon such refusal.

In his brief White argues that Cramer failed to preserve his objection to special issue No. 2 by failing to request a substantially correctly worded issue or to object to its wording. Cramer did object to the failure to submit an issue as to reliance, however. “An objection is necessary (and sufficient) to preserve complaint of the error in omitting one or more controlling issues which are necessary to submit completely the component elements of a theory of recovery or of defense relied upon by the opponent of the objecting party . . . .” 3 R. McDonald, Texas Civil Practice § 12.-27.1 (1970). Although it is our opinion that Cramer preserved his objection, we do not find the objection to be well taken.

We overrule Points of error Nos. 14 — 21.

The communications of the parties through Kilgore on February 27,1974, quoted above constituted repudiation by Cram-er, acceptance of such by the Whites and reliance by the Whites as evidenced by Larry’s statement on February 27, 1974, to Kilgore: “ . . . I guess its over and dead, and he said he guessed so, too. I did call him back on the 28th to see if he had heard anything else, anybody called him, and he said no, that he hadn’t.” We do not find that Larry’s calling back on the 28th to see if anything had happened amounted to a waiver of the breach. “It is not a waiver for a party not in default to make an honest effort to induce the party who has breached his contract to withdraw the repudiation and perform the contract.” Haddaway v. Smith, 277 S.W. 728, 731 (Tex.Civ.App.— Amarillo 1925, no writ). It did not amount to the Whites having “treated with him for a continuance of the contract,” as was the case in Kilgore v. Northwest Texas Baptist Educational Soc., 90 Tex. 139, 37 S.W. 598 (1896).

Points 22 and 23 are not before this Court, having been expressly abandoned in Cramer’s brief.

Points of error Nos. 24-27 complain that there was no evidence and insufficient evidence to submit special issue No. 2 on whether or not the refusal by Cramer was the only reason for the failure of Larry Bruce White to exercise the option to purchase in writing on or before February 27, 1974.

We overrule Points of error Nos. 24-27.

We hold that the jury had sufficient evidence to find the refusal of Cramer was the only reason that Larry failed to exercise the option. The statements made by Cramer and Larry on February 27, 1974, above quoted, and Cramer’s unavailability to Kil-gore on such date and the other surrounding circumstances gave the jury evidence to answer as they did.

Judgment affirmed.