Petition for Writ of Certiorari — San Jacinto Sand Co. v. Southwestern Bell Telephone Co.

LIBRARY Premncwnsenrerie Court, Ug

SUPREM& COURT. th & ;

In THE

Supreme Court of the Untied States

OctTosER TERM 1968

San Jacinto Sanp Company, Inc.,

Petitioner,

Ve

SouTHWESTERN Bett TELEPHONE Company,

Respondent.

4,

an a a ne

ee

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CIVIL APPEALS FOR THE

14TH SUPREME JUDICIAL DISTRICT OF TEXAS

AT HOUSTON, TEXAS

Atvin Diamonp

1106 First City National

Bank Bldg.

Houston, Texas 77002

" Cuarues J. Suuiivan

3402 Gulf Building

Houston, Texas 77002

Attorneys for Petitioner

FIDELITY PRINTING COMPANY, INC., HOUSTON

Questions Presented .........csscesssssssessssssesseeees teeny I eT

IIIT 051 SED SUTIING «ss. cicsiccndpetenjansioneenbeomnicienorsennnaneabiets

REASONS FOR GRANTING THE WRIT ....................00

POINT I —A Declaratory Judgment Proceeding Which

Is Sui Generis Cannot Be Used To Subvert

The Constitutional Limitations On The Tak-

ing Of Privately Owned Lard Without The

Payment Of Compensation ...........ccccceee cosseeeees

POINT II —The Petitioner Is Entitled To The Protection

Of The Rule In Williams v. Thompson, 256

S.W. 2d 399 (Tex. 1953) Which Denies To A

Landowner The Right To Compel An Ease-

ment Holder To Provide Lateral Support For

The Landowner’s Land Which Abuts On The

Easement Land ............ ™ vaewee

POINT III — The Petitioner Is Denied Due Process Of Law

And Equal Protection Of The Law When

A Motion For Judgment Which Raises An

Abandonment Issue Is Not Treated As An

Amendment To The Petitioner’s Pleadings Or

As A Proper Basis For New Trial ..................

POINT IV —The Court Of Appeals Denied The Petitioner

Due Process Of The Law When It Presumed

That The-Respondent’s Toll Engineer’s Un-

equivocal Testimony As To The Abandonment

In Place Of The Respondent’s Pipes And

Cables Did Not Mean That The Respondent

Had Not Abandoned Its Easements ................

CONCLUSION. ...cccscsssssssssssseee . ee LEIA RO te IO

11

14

i)

cn

19

il

APPENDIX:

A — Opinion of the Court of Appeals for the 14th Su-

preme District of Texas at Houston, Texas ............

B— Data pertaining to location, size and value of

314,370 cu. yds. of sand and gravel taken from

petitioner without the payment of compensation ....

Tt ~ ° e

C— Summary of the grounds for new trial and assign-

ments of error in which constitutional issues were

raised ........... Seeiendchiceddanancuassantabeiaaidebiaandchbeebaastadaicitel

TABLE OF CASES

Adam v. Saenger, 303 U.S. 59, 82 L. ed. 649, 58 S. Ct. 454

SEITE. - ceininsestlenipsiccusniuetalibentes leeaadeia aaa cabindelbaadiamaaianisigenianneialaiabiaie

American Federation of Labor v. Swing, 312 U.S. 321, 85

ee SG ee 8k See. meen

American Railway Express Company v. Levee, 263 U.S. 19,

Be eh i ey ee Gk, Re CTE teitsictreneeniten

Bailey v. Alabama, 219 U.S. 219, 239, 55 L. ed. 191, 31S. Ct.

Be ID sccchassiniiinas secitconeceabilelinieceravescibiliiiiieidatasincedaipammianeitaeediiebtes

Bridges v. California, 314 U.S. 252, 86 L. ed. 192, 62 S. Ct.

Se CD hekicsianvacsan banderas sesindidebiendlieddneaiinstaalnianaiaenniteniantintbiets

Caniwell v. Connecticut, 310 U.S. 296, 84 L. ed. 1213, 60

ee IPD oieesncicsiee iccasenseueieatenntebensbipsenicoanmenntinnienniontts

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 41 L. ed.

ee i cP ae er eon

Cobb v. Harrington, 144 Tex. 360, 190 S.W. 2d 709 (Tex.

UD. sisturncouscrsencconinnssinneininanantinitnardathtensietmmneneinaaiinne

Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. ed. 1188, 58 S. Ct.

IG OI -icwikscescearnioeinseremennccteablinceeinaiinemasaibninctnmaaiaienane

Freeport Motor Casualty Co. v. Tharp, 406 Ill. 295, 94 N.E.

ee Sts SED - spsavclecssahcncehoncib nla enanscidemstnadncrobatidieisnairdedeiapainniaele

Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157,

ee & % See 8k} eee ete

Northern Transportation Company v. Chicago, 99 U.S. 635,

hk 5 gee ye ee ee

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 67 L. ed. 322,

Oe ie CE eaitedekinmintndhidieeemnsiccinindandiinn

Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 97 L. ed.

BE Fe We Ge. Fe COE thattiicenncemtevinticnenmreniiinionninin

PAGE

16a

Pe Larter ening

iil

PaGE

Radio Station WOW v. Johnson, 326 U.S. 120, 89 L. ed. 2092,

es Cs. ee CUI) eccicincicssincerneensiernstnssenssinmnnaninnnen

ae. Kraemer, 334 U.S. 1, 92 L. ed. 1161, 68 S. Ct. 836

sia. Nance, 100 8.W. 1039 (‘Tex. Civ. App. 1907, no writ

IIIs. P <sissnnsinsndnansanstnininnstshiipsenanesieeanadginininineaeiainiciiinninsaiaditlianteininn 12, 13

Williams v. Thompson, 152 Tex. 270, 256 S.W. 2d 399 (Tex.

ROE) sarisesscncenvesRiaveiaeveetteievanenntedsneniaanenmanndannbeniatinann 6, 14, 15

OTHER AUTHORITIES

Be TE ak, RR TD tetetesarsinsieeenteeientiisnicninn 3

U.S.C.A. Const. Amdmt. XIV, See. 1 ............ Asks Siceaianaabalel 4,5,11

Vernon’s Ann. Tex. Const., Art. By SE peirteniionn 4,5,11

Vernon’s Ann. Tex. Const., Art. 1, Sec. 19 0... .ccecccsssssseeees 4,5,11

Texas Rules of Civil Procedure

BI Be senicnieseseesninsasiientinsnninenttnininainsaiineaniineninmtntian 16,17

BI BF sncnsnracinizisciniesnniticenennmninianviimniiniagmantiainmivie 17

ee FD acc csnssrnetnnestensematinveninesecsie -venitbenmveesneinnnionnntinte 18, 19

In THe

Supreme Court of the Hnited States

Octoser TERM 1968

is scninaeasaaons

San Jactnto Sanp Company, Inc.,

Petitioner,

v.

SouTHWESTERN BELL TELEPHONE CoMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CIVIL APPEALS FOR THE

14TH SUPREME JUDICIAL DISTRICT OF TEXAS

AT HOUSTON, TEXAS

To the Honorable Chief Justice and the Associate Justices

of the Supreme Court of the United States:

San Jacinto Sand Company, Inc., petitioner herein, prays

that a Writ of Certiorari be issued to the Court of Civil

Appeals for the 14th Supreme Judicial District of Texas

to review a judgment herein affirming the judgment of the

District Court of Harris County, Texas, 157th Judicial

District, and remand this case to the said Court of Civil

Appeals with instructions that its judgment and the judg-

ment of the trial court should be corrected to accord to

the petitioner the protection of its property required by

the Constitution of the United States and the Constitution

of the State of Texas.

2

OPINIONS BELOW

The judgment of the 157th District Court of Harris

County, Texas was set forth in a written judgment entered

by the court. Thereafter the 157th District Court entered

its Findings of Fact and Conclusions of Law in support

of such judgment. The petitioner’s Motion for New Trial

was denied by the 157th District Court. The opinion of

the Court of Civil Appeals for the 14th Supreme Judicial

District of Texas in support of its judgment herein (R.-

Opn), printed in Appendix A hereto, infra pages 1a-15a,

is officially reported at 426 S.W. 2d 338. The order of the

said Texas Court of Civil Appeals overruling petitioner’s

Motion for: Rehearing was entered without opinion. The

order of the Supreme Court of Texas denying petitioner’s

Application for Writ of Error to the Court of Civil Ap-

peals for the 14th Supreme Judicial District of Texas

was entered with the docket notation, “Refused. No reversi-

ble error.”* The order of the Supreme Court of Texas

granting the petitioner’s Motion to File a First Amend-

ment to Application for Writ of Error was entered without

opinion.* The order of the Supreme Court of Texas over-

ruling petitioner’s Motion for Rehearing of Application

for Writ of Error and Application as Amended was entered

without opinion.*

JURISDICTION

1. The order of the Supreme Court of Texas denying

petitioner’s Application for Writ of Error to the Court of

Civil Appeals for the 14th Supreme Judicial District of

Texas was entered July 10, 1968. The petitioner’s Motion

to Amend Application for Writ of Error to the Court of

Civil Appeals for the 14th Supreme Judicial District was

granted by the Supreme Court of Texas on July 24, 1968.

The Supreme Court of ‘Texas on July 24, 1968 denied the

* Order of Supreme Court of Texas dated July 24, 1968.

3

Application for Writ of Error as Amended. The peti-

tioner’s Motion for Rehearing of Application for Writ of

Error and Application as Amended were overruled by the

Supreme Court of Texas on July 24, 1968.

2. Jurisdiction is conferred upon this Court by Title

28, United Status Code, Section 1257(3) :

(a) The action of the Supreme Court of Texas, the

highest court of the State of Texas, in refusing petitioner’s

Application for Writ of Error to review and correct the

errors of law committed by the Court of Civil Appeals

for the 14th Supreme Judicial District in its judgment

herein, of which review is hereby sought, was to constitute

the said Civil Court of Appeais the highest court of the

State of Texas in which a decision hearing could be had

within the meaning of 28 U.S.C. 1257. Michigan-Wisconsin

Pipe Line Co. v. Calvert, 347 U. 8. 157, 98 L. Ed. 583, 74

S. Ct. 396 (1954). The date, however, when the judgment

and decision of the Court of Civil Appeals became final

was July 24, 1968, when the Supreme Court of Texas over-

ruled Petitioner’s Motion for Rehearing on Application

for Writ of Error, as amended. American Railway Ex-

press Company v. Levee, 263 U. S. 19, 168 L. Ed. 140, 44

S. Ct. 11 (1923) ; Adam v. Saenger, 303 U. S. 59, 82 L. Ed.

649, 58 S. Ct. 454 (1938). ;

(b) The judgment of the Court of Civil Appeals for

the 14th Supreme Judicial District of Texas, of which.

review is hereby sought, is a “Judgment or decree within

the meaning and coutemplation of 28 U.S.C. 1257”. Radio

Station WOW v. Johnson, 326 U. S. 120, 89 L. Ed. 2092,

65 S. Ct. 1475 (1945) ; Pope v. Atlantic Coast Line R. Co.,

345 U. S. 379, 97 L. Ed. 1094, 73 S. Ct. 749 (1953).

eevee Wala.

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4

_ CONSTITUTIONAL PROVISIONS INVOLVED

The pertinent federal constitutional provision involved

in this case is Amendment Fourteen, Section 1, of the

Constitution of the United States, U.S.C.A. Const. Amdmt.

XIV, See. 1:

“. .. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

The pertinent provisions of the Constitution of the State

of Texas involved in this case are: Article 1, Section 17

and Section 19 of the Constitution of the State of Texas:

“$17. Taking, damaging or destroying property for

public use; special privileges and immunities;

control of privileges and franchises

“Sec. 17. No person’s property shall be taken,

damaged or destroyed for or applied to public use

without adequate compensation being made, unless by

the consent of such person; and, when taken, except

for the use of the State, such compensation shall be

first made, or secured by a deposit of money;.. .”

“19. Deprivation of life, liberty, ete.; due zourse of

law

“Sec. 19. No citizen of this State shall be deprived

of life, liberty, property, privileges or immunities, or

in any manner disfranchised, except by the due course

of the law of the land.”

ne eed

5

QUESTIONS PRESENTED

The petitioner, as the owner of a 17.584 acre tract, and

the respondent, as the holder of two easements located on

such tract, disagreed as to whether the respondent’s ease-

ments were entitled to lateral support and if the easements

wer? entitled to lateral support, whether the obligation to

provide lateral support included an obligation to protect

the easements from the erosive action of the San Jacinto

River?

In its affirmation ef the trial court’s declaratory judg-

ment, which provided that the respondent’s easements must

be provided with lateral support and protected from the

erosive action of the San Jacinto River, the Court of Ap-

peals stated, “None of the appellant’s (petitioner’s) due

process or other constitutional rights have been violated

in this case.” (Appendix A, p. 15a); and “Tke problems

in this case are difficult, for to grant adequate relief to

appellee (respondent) the appellant (petitioner) must suf-

fer loss and damage, and its rights to excavate valuable

sand and gravel from its land must be reduced.” (Ap-

pendix A, p. 13a).

The issues here presented are whether in affirming the

trial court’s determination of the correlative rights of the

parties, the Court of Appeals applied principles of law

which are constitutionally deficient within the meaning of

Section 1 of the Fourteenth Amendment to the Constitu-

tion of the United States and Sections 17 and 19 of Article

1 of the Constitution of the State of Texas? In particular:

1. Did the Court of Appeals deprive the petitioner of

its constitutional right to be compensated for 314,370 cu.

yds. of sand and gravel taken from it, when the Court of

Appeals did not reverse and remand the case to the trial

court with instructions that the judgment entered by the

AEN PRT ITNT DEY

6

trial court in this declaratory judgment proceeding was

excessive and could not be sustained unless through eminent

domain proceedings that could be instituted by the respond-

ent with leave of the trial court or a monetary award made

by the trial court, the judgment was modified to assure

the payment to the petitioner of fair compensation for

the 314,370 cu. yds. of sand and gravel taken from the

petitioner when the trial court imposed upon the petitioner,

as the landowner, the absolute burden of supporting the

respondent’s easements and protecting them from the ero-

sive action of the San Jacinto River, which protection was

given by the entry of a permanent injunction that:

(a) Prohibited any excavation by the petitioner in a

200 ft. x 399 ft. strip of land paralleling the east bank

of the San Jacinto River; and

(b) Limited the petitioner’s excavations in two 500 ft.

strips on the south side of the respondent’s easements by

requiring the creation of residual slopes of repose in excess

of 1 ft. vertical to 3 ft. horizontal, which is the slope of

repose which the trial court found would be stable when

all factors other than the action of the river were taken

into account, namely the imposition of a residual slope

requirement of 1 ft. vertical to 10 ft. horizontal in one

500 ft. strip and 1 ft. vertical to 5 ft. horizontal in another

500 ft. strip?

2. Was the petitioner unconstitutionally deprived of

the equal protection of the common law of Texas when

the Courts of Texas declined to follow the rule of Williams

v. Thompson, 152 Tex. 270, 256 S.W. 2d 399 (Tex. 1953)

which provides that the doctrine of lateral support cannot

be used to compel an easement owner to provide lateral

support for the owner’s land that abuts the easement land?

7

3. Did the Court of Appeals deny the petitioner due

process of law and equal protection of the laws of the

State of Texas when it held that the petitioner had not

pleaded the issue of the respondent’s abandonment of a

portion of its easements, that the abandcnment issue had

not been tried by express or implied consent of the parties

and the issue of abandonment was deemed to have been

waived, even though the recurd shows that (a) the re-

spondent by trial amendment placed in issue the present

location of its easement, (b) the trial court’s attention

was invited to the abandonment issue by the petitioner’s

motion for judgment which was filed prior to the entry by

the court of its final judgment, and (c) during oral argu-

ment on the motion for judgment the trial court’s attention

was invited to the evidence (respondent’s documentary

records and the testimony of the respondent’s engineer)

which clearly revealed that an abandonment of portions of

the easements had been intended and that the abandonment

had occurred.

4. Did the Court of Appeals unconstitutionally deprive

the petitioner of due process of the law when, instead of

reversing and remanding to the trial court for appropriate

findings as to what the respondent’s engineer meant when

he said that the respondent had “abandoned its old pipe

in place”, the Court of Appeals resolved the uncertainty

by assuming that the evidence could only be favorable to

the respondent and said “The Toll Engineer obviously

meant only that the old pipes which had been laid pursuant

to the easements and which were replaced by a new pipe,

were left in the ground because there was no point in tak-

ing them out.” (emphasis supplied)

IMME Sg rprteA ow ptwmNRo rEg

SOR ag

8

STATEMENT OF THE CASE

The petitioner’s dredging activities on its 17.584 acre

tract of land have been permanently “shut down” pursuant

to injunctive relief granted the respondent. Injunctive

relief was granted to the respondent to assure that lateral

support would be provided for the respondent’s three un-

derground intercity cables located on the tract.

The trial court found the following facts in respect to

lateral support of the respondent’s easements:

“27, The nature of the soil on the 17.584 acre tract

is such that its stable slope of repose is approximately

3 to 1; i.e., 3 feet of slope for each one foot of depth.

This would take into account the presence of water,

and the rising or falling of the river level but would

not take into account the effect of river action or

velocity of the current of the San Jacinto River on

this soil. .. .”

“29, The flow and velocity of the San Jacinto River

must be taken into account in determining the effect of

dredging operations and excavations on either side of

the 30 foot strip within which Southwestern Bell Tele-

phone’s easements are located. The force of the flow

of the river is directed against the east bank of the

San Jacinto River at the point in question. The west-

ern boundary of Plaintiffs easement begins at the

eastern bank of the San Jacinto River where the gen-

eral erosive effect of the flow of the San Jacinto River

is the greatest.”

The trial court entered an order that:

(a) Permanently enjoined’ the petitioner from conduct-

ing any excavations in a 200 ft. strip of land paralleling

the east bank of the San Jacinto River;

1 The injunction has the collateral effect of making it impossible

to recover the sand and gravel located north of the boundary in

the most commercially marketable manner, i.e. dredging.

9

(b) Limited the petitioner’s excavations in two 500 ft.

strips by prescribing the maintenance of residual excava-

tion slopes of repose in excess of 1 vertical to 3 horizontal,

namely on the north side of the easements petitioner was

ordered to leave the following residual slopes of repose:

Strip

Distance from east bank

of San Jacinto River Slope of repose

200 ft.- 700 ft. 1 vertical 10 horizontal

700 ft.- 1200 ft. 1 vertical 5 horizontal

Land containing 314,370 cu. yds. of sand and gravel

(“erosion protection land”) was taken from the petitioner

when the trial court imposed upon the petitioner the obli-

gation of protecting the easements from erosion by the

San Jacinto River. The location and value of the sand and

gravel taken from the petitioner is shown in the attached

Appendix B and is summarized below:

Value of sand taken

Retail Royalty

Area in which sand Yardage Price Price

and gravel taken ; _taken__ $1.35 yd. 15¢ yd.

$ $

Area north of easements... 180,570? 243,769 27,086

Area south of easements...... 133,800 180,630 220,070

314,370 424,399 47,156

The respondent installed its original 27 quad. 19 gauge

Beaumont-Houston A and B cables (“A & B Cables”) on

its first easement in 1946. The respondent installed its

original 51 pair 19 guage Crosby-Houston cables (“Crosby

Cables”) on its s:cond easement in 1954, which easement

was 10 ft. north of the first easement. In 1966 in connection

2 Includes 159,900 yards to which access by dredge has been denied

the petitioner by the injunction which prohibits excavations in

the 200 ft. x 300 ft. strip.

10

with its completion of a new submarine crossing under the

San Jacinto River, the respondent installed in the 10 ft.

strip between its cables 197 ft. of larger cables and 180 ft.

of protective 12 inch pipe and then connected the new and

larger cables into the existing A & B Cables and Crosby

Cables at a manhole which it also instalied in the 10 ft.

strip. The respondent then abandoned in place that portion

of the A & B Cables and Crosby Cables (197 ft.) and the

original protective 8 inch pipe located between the east

bank of the San Jacinto River and its newly constructed

manhole.

Although advised by its outside consulting engineers

to protect its cables from the erosive action of the San

Jacinto River by acquiring the portion of the 17.584 acre

trust adjacent to the San Jacinto River by purchase or

condemnation, the respondent declined to do so.

Drawings prepared under the direction of the respon-

dent’s Toll Engineer showed the respondent’s intention

to abandon the old pipe and cables. Two of these drawings

were furnished to the U. S. Corps of Engineers (R. —S.F.

Pitf. Exs. 15, 16). Two of the drawings were used in the

respondent’s internal operations (R.—S.F., Defd. Exs.

3, pp. 21, 29).

The trial court judge, in ruling on the petitioner’s

Motion for Judgment which set forth the abandonment

issue, stated as follows:

“THE COURT: Well, I find for the Plaintiff with

respect to the matter of abandonment; also with re-

spect to the matter of Plaintiff’s being entitled to have

covering over the conduit.”

The petitioner raised the constitutional questions here

involved in its: (1) Motion for New Trial; (2) Brief for

Appellant filed in the Court of Civil Appeals; (3) Applica-

11

tion for Writ of Error to the Supreme Court of Texas;

(4) and First Amendment to the Application for Writ of

Error filed with the Supreme Court of Texas. The questions

actually placed before the respective courts are compiled

in the summary attached hereto as Appendix C.

REASONS FOR GRANTING THE WRIT

A declaratory judgment proceeding has been converted

into a proceeding in the nature of an eminent domair. pro-

ceeding whereby 314,370 cu. yds. of sand and gravel have

been taken from the petitioner through siate action with-

out compensating the petitioner. The taking of the sand

and gravel without the payment of compensation violates

Sections 17 and 19 of Article 1 of the Constitution of the

State of Texas, and Section 1 of the Fourteenth Amendment

to the Constitution of the United States. In taking the sand

and gravel the petitioner was denied equal protection of

the common law of the State of Texas and due process of

law.

A.

A DECLARATORY JUDGMENT PROCEEDING WHICH

IS SUI GENERIS CANNOT BE USED TO SUBVERT

THE CONSTITUTIONAL LIMITATIONS ON THE TAK-

ING OF PRIVATELY OWNED LAND WITHOUT THE

PAYMENT OF COMPENSATION

After determining that the respondent’s easements would

be supported in their natural state if the petitioner was

required to excavate on the 17.584 acre tract in such a way

as to leave residual excavation slopes of 1 ft. vertical to

3 ft. horizontal, the court, without providing for the pay-

ment of compensation to the petitioner, took the erosion

12

protection land containing 314,370° cu. yds. of sand and

gravel from the petitioner in order to protect the respond-

ent’s easements from erosion by the San Jacinto River, such

additional land being shown on the sketches that appear on

page 17a of Appendix B.

The judgment of the trial court was constitutionally

deficient because of its excessiveness, that is it allowed the

taking of the erosion protection land containing 314,370

cu. yds. of the petitioner’s sand and gravel without com-

pensating the petitioner for such sand and gravel. The

obligation to provide lateral support does not include the

obligation to protect the respondent’s easements from the

erosive action of the San Jacinto River. The common law

obligation to provide lav:ral support involves the support-

ing ef adjoining land in its “natural state without im-

provements”. Northern Transportation Company v. Chi-

cago, 99 U.S. 635, 25 L. ed. 336, (1897). Simon v. Nance,

100 S.W. 1039 (Tex. Civ. App. 1907, no writ hist.).

In Northern Transportation Company v. City of Chicago,

supra, the doctrine of lateral support was described as

follows at page 339:

“. . . The general rule may be admitted that every

landowner has a right to have his land preserved un-

broken, and that an adjoining owner excavating on his

3 The erosion protection land containing the 314,370 cu. yds. of

sand and gravel represents the sand and gravel located above

lateral support slopes of 1 ft. vertical to 3 ft. horizontal in the

200 ft. x 399 ft. strip paralleling the San Jacinto River; in the

two 500 ft. strips south of the respondent’s easements in which

the court established excavation slopes in excess of 1 ft. vertical

to 3 ft. horizontal; and in the area north of the respondent’s

easements and east of the 200 ft. x 399 ft. strip where excava-

tion by dredging, the only commercially feasible method of

excavation, is prohibited because access to the land through the

200 ft. x 399 ft. strip has been permanently denied to marine

dredges and barges.

13

own land is subject to this restriction, that he must not

remove the earth so near to the land of his neighbor

that his neighbor’s soil will crumble away under its

own weight and fall upon his land. But this right of

lateral support extends enly to the soil in its natural

condition.” ... (emphasis supplied)

In Simon v. Nance, supra, the doctrine of lateral support

was described as follows at page 1040:

“... By the weight of authority it is a well-settled rule

of the common law that an owner of land has an abso-

lute right to the lateral support of adjoining land.

In other words, he has the right to have his land remain

as it was in a state of nature, and neither the adjoining

landowner, nor any one else, can rightfully remove

from the boundaries of the land the supports which

hold it in its natural position. ...” (emphasis supplied)

The trial court cannot by judicial fiat enlarge the com-

mon law doctrine of lateral support to include the pro-

tecting of the respondent’s easements from erosion.

A declaratory judgment proceeding in Texas is neither

legal nor equitable, it is sui generis. Cobb v. Harrington,

144 Tex. 360 190 S.W. 2d 709 (Tex. 1945). The taking of

the erosion protection land containing the 314,379 cu. yds. of

sand and gravel was an excessive act.

In light of the respondent’s status as a public utility,

the petitioner concedes that the court in the public interest

could properly have granted the respondent the right to

reopen the case and institute an eminent domain procedure

pursuant to which the petitioner would be paid the fair

value of the land taken from it, or in the alternative the

court could continue the temporary restraining order in

effect for a reasonable time to allow the respondent to

physically relocate or remove its cables from the easement

area or to arrange to provide the easements and the cables

aceite eet iadee |

SED twice

14

contained therein with appropriate protection from the

erosive action of the San Jacinto River.

The powers conferred upon the courts of Texas do not

include the right to take from the petitioner the 314,3/0

cu. yds. of sand and gravel without arranging for the pay-

ment of fair compensation to the petitioner. Pennsylvania

Coal Co. v. Mahon, 260 U.S. 393, 67 L. ed. 322, 43 S. Ct.

158 (1922).

The respondent should not be allowed to subvert the

petitioner’s constitutional right to be compensated for the

taking of the erosion protection land by resort to an invalid

argument about lateral support of easements.

II.

THE PETITIONER IS ENTITLED TO THE PROTEC-

TION OF THE RULE IN WILLIAMS v. THOMPSON,

256 S.W. 2d 399 (TEX. 1953) WHICH DENIES TO A

LANDOWNER THE RIGHT TO UOMPEL AN EASE-

MENT HOLDER TO PROVIDE LATERAL SUPPORT

FOR THE LANDOWNER’S LAND WHICH ABUTS ON

THE EASEMENT LAND

The imposition upon the petitioner of the obligation of

providing lateral support of any kind for the respondent’s

easements unconstitutionally deprives the petitioner of the

equal protection of the laws of the State of Texas. In

Williams v. Thompson, 152 Tex. 270, 256 S.W. 2d 399

(Tex. 1953), the Supreme Court of Texas held that the

common law doctrine of lateral suppori was not applicable

to the relationship that existed between easement holders

and landowners. The court declined to require the holder

-f a roadway easement to provide lateral support for the

landowner’s land which abutted the easement holder’s road-

way. The court said at page 403:

15

“There are many American and English decisions

on the doctrine of lateral support. ... It is undoubtedly

the rule in this state as well as in most other juris-

dictions that each of two adjoining landowners is en-

titled to the lateral support of the other’s land; this

right is one of property necessarily and naturally at-

tached to and passing with the soil. 1 Thompson on

Real Property, Sec. 545, p. 654, citing Simon v. Nance,

45 Tex. Civ. App. 480, 100 S.W. 1038, which described

the right as ‘absolute’.

“But as petitioners recognize in their argument, the

parties to this suit are not adjoining landowners. What

we have is a respondent who is one of several owners

of an easement in Hidden Road and petitioners who

are owners not only of the adjoining land but of the

fee title to the 15 feet of Hidden Road which respond-

ent was improving when he destroyed the lateral sup-

port to petitioners’ adjoining land.” (emphasis sup-

plied)

The Court of Appeals’ affirmaticn of the trial court’s

judgment unconstitutionally deprived the petitioner of the

protection of the common law of Texas as exemplified by

the rule of Williams v. Thompson, supra. In applying the

rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. ed. 1188,

58 S. Ct. 817 (1938) it is clear that the common law rules

enunciated by state courts in judicial opinions are to be

regarded as a part of the law of the state. The action of

the Court of Appeals in declining to apply the rule of

Williams v. Thompson, supra, to the instant case consti-

tuted a denial to the petitioner of the equal protection of

the laws of the State of Texas. Shelley v. Kraemer, 334

US. 1, 92 L. ed. 1161, 68 S.C. 836 (1948); American Fed-

eration of Labor v. Swing, 312 U.S. 321, 85 L. ed. 855,

61 S. Ct. 568 (1941) ; Cantwell v. Connecticut, 310 U.S. 296,

84 L. ed. 1213, 60 S. Ct. 900 (1940); Bridges v. California,

314 U.S. 252, 86 L. ed. 192, 62 S. Ct. 190 (1941); Chicago,

trek

CEE IAAI RE SPTEIARES, Ge TIE REST FGETS apt FP TLR ee ee re Te

OUD invent im

16

B. & Q. R. Co. v. Chicago, 166 U.S. 226, 41 L. ed. 979, 17

S. Ct. 581 (1897).

ITI.

THE PETITIONER IS DENIED DUE PROCESS OF

LAW AND EQUAL PROTECTION OF THE LAW WHEN

A MOTION FOR JUDGMENT WHICH RAISES AN

ABANDONMENT ISSUE IS NOT TREATED AS AN

AMENDMENT TO THE PETITIONER’S PLEADINGS

OR AS A PROPER BASIS FOR NEW TRIAL

A judgment is not entered in a declaratory judgment pro-

ceeding until it has been signed by the trial judge. Freeport

Motor Casualty Co. v. Tharp, 406 Ill, 295 94 N.E. 2d 139

(Ill. 1950). A declaratory judgment proceeding is sul

generis. Cobb v. Harrington, 144 Tex. 360 190 S.W. 2d 709

(Tex. 1945).

The respondent at the commencement of the case filed a

trial amendment to the prayer to its petition placing in

issue the present location of the respondent’s easements.

The respondent’s Toll Engineer testified that the respond-

ent had abandoned 197 ft. of its old pipes and cables in

place. The documentary records of the respondent pro-

duced at the trial showed the clear intention on the part

of the respondent to abandon the easements. These facts

were called to the trial judge’s attention in the petitioner’s

motion for judgment and oral argument thereon prior to

his signing of the final judgment.

The petitioner was unconstitutionally denied due process

of the law and equal protection of the law when in light of

the respondent’s trial amendment, the testimony and docn-

mentary records of the respondent and the timely filing

of the petitioner’s motion, the Court of Appeals determined

that the abandonment issue had not been pleaded in a

manner that satisfied the requirements of Rule 94 of the

ae PN at EH

17

Texas Rules of Civil Procedure* and was accordingly

waived, and that the issue of abandonment had not been

tried by express or implied consent in a manner that satis-

fied the requirements of Rule 67 of the Texas Rules of

Civil Procedure.®

This case was commenced and concluded by an invocaticn

of the trial court’s equity powers to grant injunctive relief.

The nature of the declaratory remedy imposed upon the

courts of Texas the obligation to exercise their discretion

in a manner to do equity and justice to the parties. The

petitioner was denied due process of law and equal protec-

tion of the laws of Texas when the courts failed to exercise

such discretion.

4 i 94 of the Texas Rules of Civil Procedure provides as fol-

ows:

“Rule 94. Affirmative Defenses

“In pleading to a preceding pleading, a party shall set forth

affirmatively accord and satisfaction, arbitration and award,

assumption of risk, contributory negligence, discharge in bank-

ruptey, duress, estoppel, failure of consolidation, fraud, illegali-

ty, injury by fellow servant, laches, license, payment, release,

res judicata, statute of frauds, statute of limitations, waiver,

and any other matter constituting an avoidance or affirmative

defense. .. .”

5 Rule 67 of the Texas Rules of Civil Procedure provides as fol-

lows:

“Rule 67. Amendments to Conform to Issues Tried Without

Objection

“When issues not raised by the pleadings are tried by express

or implied consent of the parties, they shall be treated in all

respects as if they had been raised in the pleadings. In such case

such amendment of the pleadings as may be necessary to cause

them te conform to the evidence and to raise these issues may

be made by leave of court upon motion of any party at any

time up to the submission of the case to the Court or jury, but

failure so to amend shall not affect the result of the trial of

these issues; provided that written pleadings, before the time of

submission, shall be necessary to the submission of special issues,

as is provided in Rules 277 and 279. Amended by Order of

March 31, 1941.”

ek sik

LONE NNO rt

S diaacat aa pa adiee erento neamnneenee

FLEE PNT EIT IEEE GI, NOTE I HERA, PPS

18

IV.

THE COURT OF APPEALS DENIED THE PETITIONER

DUE PROCESS OF THE LAW WHEN IT PRESUMED

THAT THE RESPONDENT’S TOLL ENGINSER’S UN-

EQUIVOCAL TESTIMONY AS TO THE A)3.ANDON.

MENT IN PLACE OF THE RESPONDEN Ss PIPES

AND CABLES DID NOT MEAN THAT THE RESPOND-

ENT HAD NOT ABANDONED ITS EASEMENTS

The respondent’s Tol! Engineer testified that the res-

pondent had abandoned in place portions of its original

pipes and cables. The construction sketch and submarine

crossing sketches prepared by the respondent’s personnel

showed the respondent’s intention to abandon in place

portions of its original pipe and cables (R-S.F., Defd.’s

Ex. 3, p. 21, 29; Pltf.’s Exs. 14, 15) The Court of Appeals

in considering the abandonment question stated (Appendix

A, p. 10a):

“... The Toll Engineer obviously meant only that the

old pipes, which had been laid pursuant to the ease-

ments and which were replaced by a new pipe were left

in the ground, because there was ne point in taking

them out. This does not mean that the easements

were abandoned, especially when a new line had been

laid between the old pipes at the came time. It is

necessary to prove an intent to abandon in order for

there to be an abandonment of an easement, and the

evidence must be satisfied by clear and satisfactory

evidence, . . .”

The Court of Appeals denied the petitioner due process of

the law and the equal protection of Rule 299 of the Texas

19

Rules of Civil Procedure® when in the presence of evidence

showing an intention on the part of the respondent to

abandon the easements, the Court presumed that the Toll

Engineer could not have meant that an abandonment had

occurred. The presumption by the Court of Appeals of

what the witness meant violated the petitioner’s right to

a trial of the issue of abandonment and thus deprived the

petitioner of property without compensation. The Court

of Appeals, as an instrument of the State, cannot presume

a fact and deprive the petitioner of the right to due process

of law and the right to be compensated for its property.

“The power to create presumption is not a means of escape

from constitutional restrictions.” Bailey v. Alabama, 219

U.S. 219, 239, 55 L. ed. 191, 31 S. Ct. 145 (1911).

CONCLUSION

This case presents the interrelated constitutional ques-

tions of how a declaratory judgment proceeding can be

converted into a procedure in the nature of an eminent

domain proceeding whereby the petitioner’s land (314,370

cu. yds. of sand and gravel) can be taken without accord-

ing the petitioner the equal protection of the common law

of Texas, without the payment of compensation to the

petitioner and without affording the petitioner due process

6 Rule 299 of the Texas Rules of Civil Procedure provides as fol-

lows:

“Rule 299. Omitted Findings

“Where findings of fact are filed by the trial court they shall

form the basis of the judgment upon all grounds of recovery

and of defense embraced therein. The judgment may not be

supported upon appeal by a presumption of finding upon any

ground of recovery ér defense, no element of which has been

found by the trial court; but where one or more elements there-

of heve been found by the trial court, omitted unrequested ele-

ments, where supported by evidence, will be supplied by pre-

sumption in support of the judgment. Refusal of the court to

make a findings requested shall be reviewable on appeal.”

WB distr vies ee em.

20

of the law. The constitutional transgressions involved in

this case were justified by the Court of Appeals by the

invocation of two overriding constitutionally deficient prin-

ciples namely that (1) the petitioner’s land can be taken

without compensation if the protection of the respondent’s

land from erosion would be “prohibitive and not feasible

because of cost, maintenance and loss of time” (Appendix

A, p. 6a) ; and (2) the integrity of thousands of Texas ease-

ments must be protected without regard to the rights of the

petitioner as a landowner. (Appendix A, p. 13a)

The interrelated constitutional questions presented in

this case satisfy the most stringent standards of discre-

tionary review of this Honorable Court.

Wherefore your petitioner respectfully submits that Writ

of Certiorari should issue to the end that this Court may

review the decision of the Civil Court of Appeals for the

Fourteenth Supreme Judicial District of Texas to deter-

mine the propriety of its resolution of the constitutional

questions involved and raised herein.

Arvin Diamonp

1106 First City National

Bank Bldg.

Houston, Texas 77002

Cuares J. SULLIVAN

3402 Guif Building

Houston, Texas 77002

Attorneys for Petitioner

ne

G8 ta bathe as ai sc Pe chal E STATS

la

APPENDIX A

Affirmed, and opinion filed March 6, 1968.

No. 81

San Jactnto Sanp Company, Inc., APPELLANT

v.

SouTHWESTERN BELL TELEPHONE Company, APPELLEE

Appeal from District Court of Harris County

Appellee, Southwestern Bell Telephone Company

(Southwestern Bell), as plaintiff, brought suit against de-

fendant, San Jacinto Sand Company, Inc. (Sand Company)

and others as defendants, seeking a temporary injunction

to prohibit defendants from making excavations which

allegedly would result in the destruction of the cables,

conduits, and equipment of Southwestern Bell, and further

seeking a declaration of its rights as an alleged easement

owner to lateral and/or subjacent support. During the

hearing on appellee’s application for temporary injunction,

on November 29, 1966, all parties jointly moved to con-

solidate for all purposes the hearing on application for

temporary injunction and the hearing of the cause on

the merits.

The hearing on the application for temporary injunction

and on the declaratory judgment was tried without a jury,

and at the conclusion of the testimony after some delay,

on May 22, 1967, the trial court granted appellee’s applica-

tion for temporary injunction and held that Southwestern

Bell, as owner of two easements burdening a tract of land

owned by Sand Company, was entitled to the reasonable

enjoyment and use of its easements, and was entitled to

exercise the rights, privileges and authorities granted

thereby without interference, damage or destruction by

SS ee

STR EN FARRER OT ey

2a

removal of the lateral and subjacent support of the ease-

ments through excavation of the sand, gravel and soil on

the servient tract owned by the Sand Company.

This appeal has been perfected from the trial court’s

final judgment by San Jacinto Sand Company, Inc., as

appellant. Southwestern Bell Telephone Company is ap-

pellee.

Appellant, Sand Company, is a Texas corporation doing

business in Harris County and is engaged in the excava-

tion and sale of sand and gravel. Appellee, Southwestern

Bell, is a telephone company and public utility serving

tel. phone customers in the Beaumont-Houston area and

areas throughout and beyond the State of Texas. Appel-

lant owns a certain 17.584 acre tract of land in Harris

County, Texas, adjoining and east of the San Jacinto

River, said property having been conveyed to appellant

by deed from Sherwood E. Beverly, dated January 20,

1966, and duly recorded in the deed records of Harris

County. In 1945 and 1954, two easements were executed

by the then owners of the land to Southwestern Bell.

Each easement specifically located the telephone lines

across the property, the 1954 easement providing that the

lines should extend approximately 10 feet north of and

parallel with the 1945 easement lines. The easements pro-

vided that Southwestern Bell was granted the “right,

privilege and authority to construct, reconstruct, operate,

maintain, or remove lines of telephone and telegraph, or

other signal or communication circuits, consisting of unc er-

ground conduits, cables, manholes, markers and fixtt res

as the grantee may from time to time require, (with the

right to cut down and keep cut down trees, brush, and

stumps within ten feet of each side of said lines), on and

under the property... .”, and that the conduits and cables

were required to be buried to such depth as not to interfere

3a

with the ordinary cultivation of the land. Pursuant to the

easement granted in 1945, Southwestern Bell installed in

1945 and 1946, certain equipment including underground

intercity toll cables referred to as the Houston-Beaumont

A and B cables. Pursuant to the 1954 easement, appellee

installed in 1954, underground inter-city toll cables, re-

ferred to as the Crosby-Houston cables. The lines extend

from the east bank of the San Jacinto River in an easterly

direction and then generally in a north-northeasterly di-

rection to the north property line of the 17.584 acre tract.

The easements were referred to during trial as a 30-

foot easement or easements to describe the 30-foot wide

area, used by appellee in the repair, operation, maintenance,

etc., of its equipment, though by stipulation, reference to

the 30-foot area was used by the parties as an identifica-

tion device. The cables have not been replaced since they

were originally installed except at the river crossing.

Appellant, Sand Company, also owns a tract of land of

about 20.099 acres located immediately adjacent to and

south of the 17.584 tract and has extensively excavated

sand and gravel from the surface of the 20.099 acre tract.

Waters of the San Jacinto River have filled the excava-

tions on that tract. Appellant and others were excavating

and removing sand and gravel from the 20.099 acre tract

for some time prior to the filing of this action.

The title of Sand Company to the 17.584 acre tract and

the title to the two easements of Southwestern Bell derive

from a common grantor, and appellant’s chain of title

clearly reflects the existence of appellee’s easements, which

were duly recorded. Sand Company acquired title to the

17.584 acre tract with actual knowledge that the tract was

burdened with the two easements, and with actual knowl-

edge that appellee had installed its cables and conduits

pursuant to such easements.

4a

The trial court found that the operation and maintenance

of the conduits, cables, etc., have reasonably required the

use of a ten-foot area on each side of the cables. Since the

second easement is located ten feet north of the first ease-

ment, there is an overlap in the area used, and Southwest-

ern Bell has utilized a strip approximately thirty feet in

width for the entire length of the easements. In 1966,

appellee began construction of a new river crossing under

the San Jacinto River. The Houston-Beaumont A and B

cables and the Crosby-Houston cable were connected to

the new river crossing at a distance of approximately

192-197 feet east of the east bank of the San Jacinto

River on the 17.584 acre tract. The new crossing consists

of a 12-inch concrete coated pipe, which enters the east bank

of the San Jacinto River at a point located between the

two 8-inch steel pipes in which the Houston-Beaumont A

and B cables and the Crosby-Houston cable had been in-

stalled. ihe 12-inch pipe terminates at a manhole at the

192-197 foot point on appellant’s land, where the existing

27 quad, 19 gauge Houston-Beaumont A and B cables and

the Crosby-Houston 51 pair, 19 gauge cable were brought

into the manhole on the 17.584 acre tract and spliced into

the three 37 auad, 19 gauge cables. The two 8-inch pipes

from that poi ~vd to the river were thereby rendered

useless. Th. . an integral part of the com-

munication sysw- iouston and the area of Beau-

mont, Port Arthur and urange. In addition, the cables

involve high priority government circuits, press circuits,

radio broadcast circuits, high-flying dispatch circuits, avia-

tion control circuits and foreign exchange circuits.

The composition of the surface of the 17.584 acre tract

is largely conimon sand and gravel. Certain areas of the

tract contain deposits of sand and gravel at least to the

extent of 15 to 30 feet below the surface, and appellant

5a

claims that there are deposits of sand in commercially

marketable quantities extending to a depth of about 60 feet.

Beginning about November, 1966, appellant prepared the

surface of the 17.584 acre tract for excavation. Soon there-

after, the Sand Company began dragline excavations to

the north and to the south of appellee’s easements and the

cables and conduits placed pursuant to the easements. Ex-

cavation of the 17.584 acre tract was discontinued as the

result of a temporary restraining order obtained by ap-

pellee. Appellant stipulated that it did not intend directly

to extract any sand from beneath the easements of appellee,

and accordingly it stated that excavation operations would

not be conducted within the 30-foot strip extending from

the east bank of the San Jacinto River in a generally

eastern direction for approximately 1,747 feet and then

in a generally northeastern direction to the northern

boundary of the tract.

In the course of the trial, hydraulic, soil and structural

engineers testified, and the trial court found, that prosecu-

tion of appellant’s plan of development would acstroy the

lateral and subjacent support of appellee’s easements and

the destruction of the cables, conduits, manholes, etc., placed

pursuant thereto. The natural ground surface of the 17.584

acre tract is about 15 to 18 feet above the surface level

of the water flowing in the San Jacinto River. The trial

court further found that if excavations proceeded on

either side of the 30-foot easement strip, the strip would

deteriorate, and that if there were dredging operations to

a depth of 60 feet on either side of the easement, the surface

land would disappear, and deterioration would begin long

before a 60-foot depth is reached. The trial court found

from the evidence that alternatives would be impracticable,

such as rerouting of appellee’s lines, installation of aerial

crossings, use of steel sheet piling bulkheads on either

ERRMSG ERRNO,

6a

side of the easements, etc., and though technologically pos-

sible, such alternatives would be prohibiti.e and not feasible

because of cost, maintenance, and loss of time.

In order to provide lateral and subjacent support for

Southwestern Bell’s easements, the trial court decreed

that the entire natural east bank of the San Jacinto River,

along the west boundary of the 17.584 acre may not be

further disturbed, and that ne excavation may be made

east of the east bank of the river for a distance of 200

feet; that no excavation may be made on land which forms

the easements, the 30-foot strip. South of the easements

at a point 200 feet east of the river and extending east

500 feec from that point, a stable residual slope of 3

horizontal to 1 vertical measured from natural ground

level at the south easement line to mean sex level (river

surface) and a residual slope of 10 horizontal to 1 vertical

from mean sea level to the depth of the excavation below

mean sea level was allowed. Parallel to the east river

bank 200 feet back, 3 to 1 slope to mean sea level and a

slope of 5 to 1 from mean s¢a level to depth of the excava-

tion below mean sea level was ordered. For the remainder

of the tract a 3 to 1 slope was permitted. North of the

easement line a 3 to 1 siope was ordered 200 feet east of

the river extending easterly throughout the tract and 200

feet from the river. The trial court further ordered that

supplemental equitable relief may be provided by the

court from time to time on application of any party.

Appellant attacks the judgment of the trial court by

twenty-one points of error. By points five, six and seven,

appellant contends that appellee is trespassing upon the

17.584 acre tract from a point approximately 197 feet

back westerly to the San Jacinto River, and that appellee

has abandoned the two 8-inch lines for that distance and

has replaced the old lines with the new 12-inch pipe up

7a

to the manhole constructed in 1966, which lies between the

two 8-inch pipes above referred to. While appellee, South-

western Bell, did relocate and remove its line by placing

a 12-inch pipe between the +wo 8-inch pipes for a distance

of 197 feet, no greater burden on the servient estate was

imposed by such change. Cantu v. Central Power & Light

Co., 38 S.W. 2d 876 (Tex. Civ. App.), writ ref. The origi-

nal 8-inch lines were parallel lines approximately eight to

ten feet apart, and the discontinuance of use of the old

lines by replacement with the 12-inch line lessened the

burden upon the servient estate owned by appellant. Fort

Quitman Land Co. v. Mier, 211 S.W. 2d 340, 343 (Tex.

Civ. App.), writ ref., n.r.e.; 2 Thompson on Real Property

(Replacement Ed., 1961), Sec. 426, p. 694; 21 Tex. Jur. 2d

175; 28 C.J.S., p. 777; Shammel v. Vogl, 396 P.2d 103

(Montana Sup.); Burris v. Peoples Ditch Co., 37 P. 922

(Calif. Sup.).

Appellant claims that the 1966 installation amounted to

an expansion of Southwestern Bell’s easement rights. The

existence of an unauthorized expansion of easements turns

on a proper construction of the written agreement of the

parties. See Houston Pipe Line Co. v. Dwyer, 374 S.W. 2d

662, 664 (‘Tex. Sup.). As stated above, each of appellee’s

easements provides, in part, that the easement carries with

it the,

“right, privilege, and authority to construct, recon-

struct, operate, maintain, repair, or remove . . . con-

duits, cables, manholes, markers and fixtures as the

grantee may from time to time require.” (Emphasis

added)

The principal decisions relied nyon by appellant are

the Dwyer case, supra, and Winslow v. City of Vallejo, 84

P. 191 (Calif. Sup. 1906), the latter case being cited as

authority in the Dwyer opinion. Jn Dwyer, plaintiff sought

CB Hi ii ir i he

8a

a judgment declaring that a pipeline easement terminated

as a result of defendant having removed an 18-inch low

pressure pipeline and replacing it with a 30-inch high

pressure pipeline. Defendant answered that its easement

right had not terminated and in the alternative, sought to

condemn a right-of-way and easement. The agreement creat-

ing the easement contained no specification as to the size

of the pipeline. It provided that the pipeline company had

“A right of way to lay, maintain, operate, repair, and

remove a Pipe Line for transportation of gas.” The parties

struck out the word “remove” and also deleted a para-

graph that gave the pipeline company the right to con-

struct additional pipeliges. Additionally, they provided that

the pipeline company would have the authority to remove

the pipeline on termination of the easement. Stating that

a proper determination of the case turns on a construction

of the agreement between the parties, the Texas Supreme

Court held:

(1) “(T)hat the terms ‘operate’ and ‘maintain’ in the

granting clause are at least broad enough to include

the right to remove and replace the original pipe with

pipe of the same size when necessary.

(2) That unlike the situation that existed in Knox

v. Pioneer Nat’l Gas Co., 321 S.W. 2d 596 (Tex. Civ.

App. 1959, writ ref., n.r.e.), there was no language in

the agreement between the parties which could be

construed to permit a grantee a right under the agree-

ment in excess of the right actually used, i.e., a right

to increase the size of the pipe in excess of 18 inches

in diameter.

(3) Emphasizing the fact that the parties had deleted

the word ‘remove’, the Court held that in installing

the 18-inch pipe with the consent and acquiescence of

the plaintiff, the extent of defendant’s easement rights

under their agreement became fixed and certain “De

9a

fendant was not authorized to remove this 18-inch

line initially constructed and replace it with a line of

substantially greater size.

In Winslow v. City of Vallejo, supra, an easement granting

the City of Vallejo a right of way for “any water pipes or

mains which may be laid by the city.”, such pipes to be

covered by not less than 114 feet of ground, and to be

“laid and maintained on present surveyed line as near as

may he.” was involved. The Supreme Court of California

held in favor of the grantor-landowner and said that where

a grant of an easement is general as to the extent of the

burden to be imposed on the servient tenement, an exercise

of the right with the acquiescense and consent of both

parties in a particular court or manner, fixes the right and

limits it to the particular course or manner in which it has

been enjoyed. The City of Vallejo had sought to lay an ad-

ditional 14-inch pipe about three feet from the 10-inch

pipe originally installed. The court held that the most

that could be said regarding the language of the easement

was that the grant was indefinite as to the number of pipes,

and that the city, having originally elected to lay one pipe,

was bound by such election.

The language of the present agreement between the

parties clearly demonstrates the propriety of appellee’s

action in substituting the single 12-inch pipe for the two

8-inch pipes. Particular attention is directed to the fact

that the easements expressly provide appellee with the

right to reconstruct or remove conduits, cables and fixtures

as the grantee may from time to time require. The plural

is used throughout. We believe a proper construction of the

easements involved in this case warrants the placement

of the 12-inch pipe between the two 8-inch pipes with a

resultant replacement and non-use of the two 8-inch pipes.

The inclusion of the above language demonstrates that

Soke fins Cua Ree ek a he aides oe ORR ae ae

SPER EU INS 0

PRALINE POEMS Te ANC

CARTE RNY ty Re ga CR BSI HN CC

a OUR at bse

10a

the parties intended that Southwestern Bell be permitted

to remove or expand its use of the easements as appellee

might from time to time require, at least to place the 12-inch

pipe between and in lieu of the old pipes within the 30-foot

area. Knox v. Pioneer Natural Gas Co., 321 S.W. 2d 596

(Tex. Civ. App), writ ref., n.r.e.; Cantu v. Central Power

& Light Co., supra.

Moreover, appellant’s above claims do not affect appel-

lee’s alleged right of lateral support of its easements. Until

appellant advanced its abandonment theory, over five

months after the trial of the case, it argued that appellee

had valid prescriptive easements. Even ‘i it be held that

appellee trespassed to some extent or had improperly

expanded its easements, its right to lateral and subjacent

support would not be affected. Such alleged enlargement

and trespass could not affect the quantity of sand and

gravel that the Sand Company could excavate from the

property. It is important to note that in the Dwyer case,

while the Supreme Court held that the easement owner

had expanded its easement rights and that the land owner

would thus have condemnation rights, the Supreme Court

expressly held that the easement owner’s expansion did

not constitute a termination of its easement rights.

Appellant contends that appellee abandoned the ease-

ments from the river to a point 197 feet into the 17.584

acre tract where the new manhole was placed in 1966, and

cites the testimony of Mr. Jaenacke, appellee’s Toll En-

gineer, to the effect that when the new line was placed,

the old pipe was abandoned in place in support of its con-

tention. The Toll Engineer obviously meant only that the

old pipes, which had been laid pursuant to the easements

and which were replaced by a new pipe, were left in the

ground because there was no point in taking them out.

This does. not mean that the easements were abandoned,

aA SE NF be. dal) eae gaaRidl

lla

especially when a new line had been laid between the old

pipes at the same time. It is necessary to prove an intent to

abandon in order for there to be an abandonment of an

easement, and the intention must be satisfied by clear and

satisfactory evidence. Dallas County v. Miller, 166 S.W.

2d 922 (Tex. Com. App.), opinion adopted; 1 Tex. Jur. 2d,

Sec. 10, p. 8. Although in the present case there was clearly

not a non-use of the easement, the decisions uniformly

hold that mere non-user does not in itself constitute aban-

donment. Dallas County v. Miller, supra. The use for

which appellee acquired its easements has not failed. See

Griffith v. Allison, 96 S.W. 2d 74, 77 (Tex. Com. App.),

opinion adoy:.d. There was no pleading of abandonment,

which is an affirmative defense, and failure to plead it

results in its waiver. Rule 94, T.R.C.P.; See Chapman v.

Tyler Bank & Trust Co., 396 S.W. 2d 143 (Tex. Civ. App.),

writ ref., n.r.e. We hold that the issue of abandonment

was not tried by express or implied consent, and that

the findings and implied findings of the trial court that

there was no abandonment are supported by the evidence.

By various points of error, appellant contends that

appellee, while it is entitled to such rights as may be neces-

sary and essential to reasonable enjoyment of the ease-

ments, is nevertheless not entitled to lateral and subjacent

support for the easements in question, and that appellant

may with impunity excavate sand and gravel from its

17.584 tract as it sees fit. Appellant stipulated that it would

not, however, extract sand from beneath the easements or

within the 30-foot area where the lines are located. But

the evidence clearly shows that such restriction agreed to

will not solve the problem, and that within a short time,

if appellant pursues its plan of excavations, all lateral and

subjacent support of the lines, manhole and other equip-

ment will be lost.

a ne ee 4

I ais Seti ech I oo Le

12a

The grantee of an easement is entitled to such rights

as are incident, essential or necessary to the enjoyment of

such easement. Williams v. Thompson, 256 S.W. 2d 399

(Tex. Sup.). An casement, however, gives no exclusive

dominant right over the servient land unnecessary to the

enjoyment of such easement, and the dominant owner (ease-

ment owner) must make a reasonable use of the right so

as not unreasonably to interfere wich the property rights

of the owner of the servient estate. Magnolia Pipeline Co.

v. McCarter, 52 S.W. 2d 663 (Tex. Civ. App), no writ hist. ;

Texas-Louisiana Power Co. v. Webster, 59 S.W. 2a 902,

905 (Tex. Civ. App.), affirmed, 91 S.W. 2d 302. As was held

in Simon v. Nance, 100 S.W. 1038 (Tex. Civ. App.), no writ,

the existence of the right to lateral support is an absolute

right and is not subordinate to any right of the adjoining

proprietor. Appellant, however, contends that rights of an

adjoining proprietor differ from the rights of an ease-

ment owner as against the landowner, or the rights of the

owner of the dominant estate as against those of the owner

of the servient estate. We hold that the duties and obliga-

tions as between the owners of the dominant estate and the

servient estate, if different, are greater and more clearly

defined than the rights as between adjoining landowners, by

reason of the contractual relationship of the parties under

the authority and the rules of law cited above. In contrast,

in the present case, there is a special relationship between

appellant and appellee and the interests of land involved.

The prior owners of the 17.584 acre tract encumbered, for

valuable consideration, the tract of land for the benefit of

appellee. The owners of the servient estate sold and guar-

anteed the right to use the easement for the purposes stated.

Appellant is in privity with its predecessors in title, and

took with actual and constructive notice of Southwestern

Bell’s easements. Accordingly, there is even more reason

to conclude that an easement is entitled to lateral support.

13a

Whether we say that necessary lateral and subjacent

support of the easements here involved is an incident of

appellee’s right to the complete enjoyment of the casements,

or whether lateral and subjacent support is a separate

right of property makes little practical difference. All of

the testimony in this case points clearly to the fact that

some formula or some means was necessary to regulate

the excavations and removal of sand and gravel, or ap-

pellee’s telephone lines and equipment would have no sup-

port. They would, in fact, have been left suspended in the

air. The State of Texas is blanketed with many thousands

of easements. Although most of these are privately owned,

practically all serve public purposes. The tremendous trans-

portation and communication systems servicing the state

are dependent upon the integrity of these easements. Many

of the streets, roads, and highways of the state are built

on easements. The distribution of electric power is de-

pendent upon easements as is practically all telephone serv-

ice. Pipelines and railroads generally rely entirely on ease-

ments. Under the view taken by appellant, these interests

in land would be potentially reduced to mere licenses at will.

The problems in this case are difficult, for to grant ade-

quate relief to appellee the appellant must suffer loss and

damage, and its right to excavate valuable sand and gravel

from its land must be reduced. But to our minds the equities

and legal rights of the parties are clear. We hold that the

owner of the dominant estate, the easement owner, is en-

titled to lateral and subjacent support for its easements, its

lines and its property lawfully thereon, and that the trial

court correctly applied the doctrine of lateral and sub-

jacent support. Salt Lake City v. J.B. & RB. EB. Walker, Inc.,

253 P. 2d 365 (Utah Sup.) ; Village of Haverstraw v. Keker-

son, 118 N.Y.S. 337, aff’d., 84 N.E. 578, 20 L.R.A., N.S. 287;

City of Troy v. Murray, 219 N.Y.S. 681; Cincinnati & Sub-

REMIT SIT IIITT SB MY

l4a

urban Bell Telephone Co. v. Eadler, 61 N.E. 2d 795 (Ct.

App. Ohio); Scranton v. Peoples Coal Co., 100 A. 818;

East Ohio Gas Co. v. James Bros. Coal Co., 85 N.E. 2d

816 (Ohio) ; Sumrall v. United Gas Pipe Line Co., 97 So. 2d

914 (Miss. Sup.). The Texas courts have impliedly recog-

nized that easements are entitled to lateral support. In

Calvert v. Harris County, 46 8.W. 2d 375 (Tex. Civ. App.),

writ ref., a condemnation suit, the condemnees attempted

to recover as a part of their damages the loss of mineral

rights relating to the minerals underlying the surface of

the land taken for road purposes. The court rejected con-

demnee’s contention. In the first place, the condemnor did

not acquire the minerals. “The settled rule is that in con-

demnation proceedings only an easement is acquired.”

Secondly, the oil and gas in question could be extracted by

easement which was taken. The court said:

“In Lewis, Eminent Domain, Vol. 2 (3rd Ed.) page

1268, we find this statement: ‘When an easement is

taken for a railroad or other public use, the owner

of the fee retains title to the minerals with the right to

remove them, subject to the right of support for the

railroad or whatever may be put upon the land, and

to the right of exclusive use of the surface.’ See South-

ern Pac. R. Co. v. San Francisco Savings Union, 146

Cal. 290, 79 P. 961, 964, 70 L.R.A. 221 .. .” (Emphasis

added)

Appellant, in an attempt to equate its rights with the

rights of a mineral or oil and gas lessee, contends that

its excavations and removal of sand and gravel from its

land places it in the position of a mineral lessee or owner,

and cites the case of Warran ?etroleum Corp. v. Monzingo,

304. S.W. 2d 362 (Tex. Sup.) in support thereof. Appellant

contends that its right to remove “minerals” was absolute,

and consequently there is no duty befalling appellant to

provide lateral support. The position is untenable. The

leading Texas decision bearing on the meaning of the

15a

term “minerals” as it is used in the Texas law concerning

mines and minerals is Heinatz v. Allen, 217 S.W. 2d 994

(Tex. Sup.). Sand and gravel under the circumstances of

this case are not minerals. Psencik v. Wessels, 205 S.W.

2d 658 (Tex. Civ. App.), writ ref.; Winsett v. Watson, 206

S.W. 2d 656 (Tex. Civ. App.), writ ref.; See 40 Tex. L.

Rev. 163. Compare Street v. Sinclair Pipeline Co., 386

S.W. 2d 350 (Tex. Civ. App.), no writ hist., with Kenny

v. Texas Gulf Sulphur Co., 351 S.W. 2d 612 (Tex. Civ.

App.), writ ref., both decisions by the same court. The

case of Cline v. Henry, 239 S.W. 2d 205 (Tex. Civ. App.),

writ ref., n.r.e., cited by appellant, involving a waiver of

homestead rights, is unpersuasive and is not in point.

None of appellant’s due process of other constitutional

rights have been violated in this case. The trial court’s

holding that removal or change in the type and nature of

the easement rights of appellee is not feasible under the

circumstances is fully supported by the evidence. More-

over, the trial court’s methods of providing for iateral and

subjacent support for appellee’s easements outlined above

is supported by the evidence, and the trial court’s remedy

was the only solution developed by the testimony. Appel-

lant’s defense was principally that no lateral support was

required. Under the difficult and complex circumstances,

the trial court’s remedy was reasonable and necessary to

protect appellee’s easement rights. The trial court pro-

vided for supplemental relief on application of the parties

to relieve inequities and hardships which might develop

in the future, and we believe the judgment is in all things

correct.

We have carefully reviewed each contention made by

appellant, and finding no error in the trial court’s judg-

ment, it is affirmed.

/s/ John M. Barron

Associate Justice

Judgment rendered, and opinion filed March 6, 1968.

SNE IOI IE PURER HERS eR SIERT Nea EEE rermegeen _ ‘

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16a

APPENDIX B

DATA PERTAINING TO LOCATION, SIZE AND

VALUE OF 314,370 cu. yds. OF SAND AND

GRAVEL TAKEN FROM PETITIONER WITH-

OUT THE PAYMENT OF COMPENSATION

Pace No.

1. Picture of 17,584 acre tract with notations as to areas

taken from the petitiomer ...........ssssesssensseeeneesereenenesansenensees 1

2 Sketch of areas containing sand and gravel taken from

the petitioner .........cssseseesssrsseenenssnersneneenensesenensenensnseeneneneenes 2

3. Computation of value of 314,370 cu. yds. of sand and

gravel taken without the payment of compensation ........ 3

4. Survey showing the 17.584 acre tract ........ssesssesereererees 4

ATION :

BI FT: 10 PY. EXCAVATION SLOPE

(Gee | FT.:8 FT EXCAVATION SLOBE

D1 FT: 3 FT. EXCAVATION §

;

& SOUTHWESTERN ~ ie ¢., oat 4

: bs MARINE CROSSING- SAWN JACINTO

a #* E a

ort eg 4 - 77 3,

OD ee te mew on ‘ .

; ee Rae —) (. [en a a ne en Oe

Unrecoverable sand deposits in area 200 ft. east of east bank

: of the San Jacinto kiver as resuit of imposition of:

209 ft. no excavation requirement 200 it. ro excavation requirement

NATUPAL GRADE aah ose JACINTO KIVER WATER LEVEL)

com *, Ht

20,070 cu. yde. lost : 35,c80 cu. yds. lost

WZiiA eurecoverable sand 3cs’

NATURAL GRADE LINE SAN SROEINTO RIVER WATER LEVEL

Unrecoveravie eard deposits in area 200 ft. to 700 ft. east of

the east benk of the San Jacinto River attributable to:

denial of access by dredge i co 10 slope requirement

51,650 cu. yds. lost 62,440 cu. yds. lost

4

a 365

NATURAL GRADE LINE SAN JHCINTO RIVER WATER LEVEL-~> q |

/ TT es < 3)

| ~ J.

3 . bw | 7 NT ©

.

ine s : | “ORS |

88 ee P °

4/83 (2' 1. 470 Re

jae

Unrecoveratie sand deposits in area 700 ft. to 1200 ft. east of

east bank of the San Jacinto River attributable to:

C€enuial of access by credge ‘1 to 5 slope requirement

51,050 cu. yds. lost 35,040 cu. yds. lost

pms 265" zo

NATURAL GRADE 2-wED SAN JACINTO RIVER WATER LEVEL

“ j / Hy “| i

3 “BLE P 4 iy

iss 2 I 9 rr

é =

$8 7@3' mp2 172

fom

Unrecoverabl2 san¢ deposits in area 1200 ft. to 1747 ft. east of !

east bank of the San Jacinto River attributabie to:

denial of access by dredge 1 to 3 slope requirement

50,540 su. yds. lost po

$

~ , = °

ing T - 4

33

TH

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12a

APPENDIX B

COMPUTATION OF VALUE OF SAND TAKEN

FROM PETITIONER WITHOUT COMPENSATION

Value of sand taken

Retail Royalty

Area in which sand Yardage Price Price

and gravel taken taken $1.35 yd.* 15¢ yd.

$ $

Area north of easements:

0 ft.- 200 ft. east of river .... 20,670 27,904 3,101

200 ft.- 700 ft. east of river .... 51,680 69,768 7,752

700 ft. - 1200 ft. east of river .... 51,680 69,768 7,752

1200 ft. - 1747 ft. east of river .... 56,540 76,329 8,481

Area south of easements:

0 ft.- 200 ft. east of river .... 35,680 48,168 5,352

200 ft.- 700 ft. east of river .... 62,440 84,294 9,366

700 ft. - 1200 ft. east of river .... 35,680 48,168 5,352

424,399 7,156

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2la

APPENDIX C

SUMMARY OF THE GROUND FOR NEW TRIAL

AND ‘ASSIGNMENTS OF ERROR IN WHICH

CONSTITUTIONAL ISSUES WERE RAISED

1. Motion for New Trial filed May 26, 1967.

Ground 20:

“TWENTIETH: The judgment is contrary to law

in that the prohibition of excavations in the 200 foot

strip of the 17.584 acre tract located east of the east

bank of the San Jacinto River and north and south

of the respective southern and northern boundaries

of the 17.584 acre tract constitutes an unconstitutional

taking of property without due process of the law.

The evidence clearly reveals that if the residual slopes _

recommended by Mr. Van Sickle were established in

the 200 foot strip the easements would have their

proper support. The Plaintiff as holder of the ease- |

ment has the obligation to maintain any such slopes

in operating condition. West v. Giesen; Cozby v. Arm-

strong, supra. If the Plaintiff desires to subject to

its control portions of the Defendants’ land not sub-

ject to its easements, the Plaintiff as a public utility

can do so through appropriately instituted condemna-

tion proceedings, in which the Defendants’ interests

will be protected by due process ”

2. Bri:? on Appeal filed with the Court of Civil Appeals

in the appeal from the 157th District Court of Harris

County, Texas.

Point of Error Eight and Eighth Point of Error Re-

stated, pp. 5, 15:

“The trial court, as a matter of law, unconstitution-

ally deprived appellant of its property when it en-

joined appellant’s excavation of said from the 197

Spprrae Py REGALO RRR Vee, yore acre

v Ne SR Sass dts ee eae te eed ear tes See ae Dee

22a

foot strip of land paralleling the San Jacinto River.

(Germane to Point 20, Motion for New Trial).”

The assignment of error was discussed at pages 45-52 of

the Brief on Appeal.

3. Application for Writ of Error filed in the Supreme

‘Court of Texas on May 8, 1968.

Points of Error Nos. 7 and 17 state the constitutional

questions at pages 9 and 12 of the Application for Writ, of

Error.

POINT OF ERROR NO. 7

“The Court of Appeals erred in failing to determine

that there had been an unconstitutional taking of the

petitioner’s land without due process by the imposition

of excessive standards of lateral support. (Germane to

Points 11, 12, 13, 20, Motion for New Trial; Points 17,

18, Motion for Rehearing.)”

POINT OF ERROR NO. 17

“The Court of Appeals erred in failing to determine

that there had been an unconstitutional taking of the

petitioner’s land without due process by the imposition

of excessive standards of laterai support. (Germane

to Points 11, 12, 13, 20, Motion for New Trial; Points

17, 18, Motion for Rehearing.)

Point of Error No. 7 was discassed in detail at pp. 36-40

of the Application for Writ of Error. Point of Error No.

17 was encompassed in a discussion of the adverse effects

of the respondent’s taking of the petitioner’s land, but

was not separately discussed.

4. First Amendment to Application for Writ of Error

accepted by the Supreme Court of Texas on July 24,

1968.

Points of Error Nos. 7 and 17 (after amendment) were

set forth at pages 1 and 2:

23a

POINT OF ERROR NO. 7 (AFTER AMENDMENT)

“The Court of Appeals erred in failing to determine

that there had been an unconstitutional taking of the

petitioner’s land without compensation and without

due process of law by the imposition of excessive

standards of lateral support, such taking of the peti-

tioner’s land being prohibited by the provisions of

Article I. Section 17 of the Constitution of the State

of Texas and by Section 1 of the Fourteenth Amend-

ment to the Constitution of the United States. (Germane

to Points 11, 12, 18, 20 Motion for New Trial; Points

17, 18 Motion for Rehearing)”

POINT OF BRROR NO. 17 (AFTER AMENDMENT)

“The Court of Appeals erred in failing to determine

that there had been an unconstitutional taking of the

petitioner’s land without compensation and without due

process of law by the imposition of excessive standards

of lateral support, such taking of the petitioner’s land

being prohibited by the provisions of Article I, Section

17 of the Constitution of the State of Texas and by

Section 1 of the Fourteenth Amendment to the Con-

stitution of the United States. (Germane to Points 11,

12, 13, 20, Motion for New Trial; Points 17, 18, Motion

for Rehearing) new material underlined.”

eRe at

PNT RAE