# Petition for Writ of Certiorari — San Jacinto Sand Co. v. Southwestern Bell Telephone Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0316%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 393 U.S. 1027 ## Text 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 q | / TT es it : .'e > 2+ aes sect . ee ee os: aye ° % } sa’ a » Pad ‘ ‘ 7 é t one ilies aXe 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0316%3A1. Public record. Not legal advice.