Brief for Respondent in Opposition — San Jacinto Sand Co. v. Southwestern Bell Telephone Co.

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SUPREME COURT. t). tog,

No. 657

In THE

Supreme Court of the United States

OctoBER Term 1968

San Jactnto Sanp Company, Inc.,

Petitioner,

v.

SouTHWESTERN BELL TELEPHONE CoMPaNny,

Respondent.

On Petition For a Writ oF CERTIORARI TO

THE Court oF Civit APPEALS FOR THE

14TH SupREME Jupiciau District or Texas

at Houston, Texas

BRIEF FOR RESPONDENT IN OPPOSITION

Of Counsel: Davin T. SEARLS

First City National Bank

James M. SuHatto ee

Building

Box 1530 Houston, Texas 77002

Houston, Texas 77001 :

James Hanp Attorney for Respondent

Southwestern Bell

308 South Akard

Dallas, Texas 75202 Telephone Company

Donap L. HowE.u ;

Joun L. Murcuison, JR.

Vinson, E.kins, Weems & SEARLS

First City National Bank Building

Houston, Texas 77002

FIDELITY PRINTING COMPANY, INC., HOUSTON

ees

I TI sic inssnscietcsclashinssisocentiiondaiaiiines

I heehee ciensesisncdeeeserinniententience

QUESTIONS PRESENTED o....ssssssssssssssscsscsssssccesssssseeeseesses

STATEMENT OF THE CASE ...ccssssssssssssssssseseeen aa

REASONS FOR DENYING THE WRIT .....ccsssssssssssssessssee

I eigenen tance ici lueniiaeene

en TO SOR RE Ra

CITATIONS

Cases

Bailey v. Anderson, 326 U.S. 203 (1945) .........csssscsssssssereeees

Berea College v. Kentucky, 211 U.S. 45 (1908) .........ccssessesseee

Bowe v. Scott, 233 U.S. 658 (1914)

Caniu v. Parr, 338 S.W. 2d 183 (Tex. Civ. App. 1960, error

IT WD. cecstinicaniteteneeessnntneeinineeemnmnnnnmannn

Consolidated Turnpike Co. v. Norfolk & O.V. Ry., 228 U.S.

326 (1913) ....

East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223

Be EE ATED ansicinsnnnienncsesentnicniccinnneniiaanecinsiapiaienininninniaaiinnals

Gulfview Courts v. Galveston County, 150 S.W. ‘2d 872 (Tex.

Cv. BR, TPG, GET DERE) ccctsesiniccerseenninnnnsieninnnvnipianane

Hayes v. State, 342 S.W. 2d 167 (Tex. Civ. App. 1960, writ

ID secceitsteecnaiedecisiptanseaninesisicnietestseitetcesiineibinniniitinieainins

John v. Pollin, 23i U.S. 583 (1913) socalled

Kimbrough v. Walling, 371 S.W. 2d 691 (Tex. 1963) ............

Leathe v. Thomas, 207 U.S. 93 (1907) .........scccccossosssessseserceseeres

Masonic Grand Chapter of Order of Eastern Star v. Sweatt,

329 S.W. 2d 334 (Tex. Civ. App. 1959, writ ref’d n.r.e.)

Mellinger v. City of Houston, 68 Tex. 36, 3 S.W. 249 (1887)

New York ex re! Bryant v. Zimmerman, 278 U.S. 63 (1928)

oo v. Muncie Gear Works, 179 F. 2d 829 (7th Cir.

li

PAGE

Phillips Pipe Line Co. v. Razo, 420 S.W. 2d 691 (Tex. Sup.

PONTE adataeieiesa halk sdoidgpihsodibenbaaolabidsswiceivnstaiynadosnsciiahangeisonnodiontmeae 6

Radio Station WOW, Ine. v. Johnson, 326 U.S. 120 (1945) 3

State v. Bilbo, 392 S.W. 2d 121 (Tex. 1963) on... cece cecceeee 3

Street v. Sinclair Pipeline Co., 386 S.W. 2d 350 (Tex. Civ.

BA. BORD, AD WETED cence cicesctensicneeseninnes sinibeleiaparieneitlamines 6

Williams v. Thompson, 152 Tex. 270, 256 S.W. 2d 399 (1953) 8

Constitutional Provision

Article 1, Section 18, Texas Constitution .0...........cccccecssseeeeee 2

Rules of Civil Procedure

I a at aia ci ceceari etininsiaminecisneenintioonienniaion 9

a I retaliate spdidsisrinidoceniccinicdaavcncepatotnibnnnenien 9

te saletaecieaccndarsencnndtniedaniebinhiniihinlennianeidermeindunmeinia 9

Ss I I pinhicaisustenisieoncriencacs -sinsciadakcsertcaamebenaninssinnniniion 9

Be I ee eects isaac sensiteinnceesiithninicocnsirninresinienciaanletdtinn 3

Other Authorities

Restatement of Property — Serviiudes

§§ 455, 456 (1944) oo, [Scsaiaesedahaepnie siaaiaelincheaeadnidiintodbinocinaies 6

No. 657

In THE

Supreme Court of the United States

Octoser Term 1968

San Jacinto Sanp Company, Inc.,

Petitioner,

Vv.

SoUTHWESTERN BELL TELEPHONE ComPaNy,

Respondent.

On Petition For a Writ oF CERTIORARI TO

THE Court oF Civ, APPEALS FOR THE

147TH Supreme Jupiciat District or Texas

aT Houston, Texas

BRIEF FOR RESPONDENT IN OPPOSITION

To the Honorable Supreme Court of the United States:

Respondent, Southwestern Bell Telephone Company, files

this Brief in Opposition to the Petition for Writ of Cer-

tiorari filed by San Jacinto Sand Company, Inc., to review

the judgment of the Court of Civil Appeals for the 14th

Supreme Judicial District of Texas (426 S.W. 2d 338, writ

refused, no reversible error, Order of the Supreme Court

of Texas, July 10, 1968; Motion for Rehearing overruled by

Order of the Supreme Court of Texas, July 24, 1968.)

1 NY POR TARP A

9

aad

OPINIONS BELOW

The statement of petitioner concerning the -opinions

below is correct except that 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 by order of the

Court dated July 10, 1968.

JURISDICTION

This Court does not have jurisdiction to review the deci-

sions below because the petit:cner did not timely raise and

preserve its contention that its rights under the Fourteenth

Amendment of the United States Constitution had been

violated. Until petitioner filed its First Amendment to

Application for Writ of Error in the Texas Supreme Court,

petitioner had never referred to the federal constitution.

Petition at 21A-22A, Appendix C, Petitioner’s refereices

to “unconstitutional” action are assumed to refer to the

Texas Constitution and rights thereunder rather than to

the Federal constitution. E.g., New York ex rel Bryant v.

Zimmerman, 278 U.S. 63, 67-8 (1928). Likewise, petitioner’s

references to “due process” are assumed to be referable

only to the Texas Constitution.’ E.g., Bowe v. Scott, 233

U.S. 658, 664-5 (1914).

Petitioner’s so-called federal question was not timely

raised. Its first reference to federal constitutional rights

was made in its First Amendment to Application for Writ

1 The term “due course of the law of the land” found in Article I,

section 18 of the Texas Constitution is synonymous with the

term due process. Typically the Texas courts refer to the state

constitutional right as the right to due process. E.g., Mellinger

v. City of Houston, 68 Tex. 36, 3 S.W. 249 (1887); Masonic

Grand Chapter of Order of Eastern Star v. Sweatt, 329 S.W.

2d 334 (Tex. Civ. App. 1959, writ ref’d n.r.e.) ; Cantu v. Parr,

338 S.W. 2d 183 (Tex. Civ. App. 1960, error dism’d w.0o.j.).

3

of Error in the Supreme Court of Texas. Under rule 374

of the Texas Rules of Civil Procedure it is necessary that

a position be included in a statement of points in the brief

before the court of civil appeals. See State v. Bilbo, 392

S.W. 2d 121 (Tex. 1965). Petitioner failed to include its

so-called federal constitutional argument in this statement

of points. Additionally, the Supreme Court of Texas will

not consider points of error that were not raised in the

Motion for Rehearing before the Court of Civil Appeals.

E.9., East Texas Motos Freight Lines v. Loftis, 148 Tex.

242, 223 S.W. 2d 613 (1949); Kimbrough v. Walling, 371

S.W. 2d 691 (Tex. 1963). Having failed to comply with

state procedural ruies for the raising of federal questions

petitioner cannot now assert this so-called federal question

by way of petition for writ of certiorari. E.g., John v. Pollin,

231 U.S. 583, 585 (1913). By order of July 10, 1968, the

Supreme Court of Texas refusec petitioner’s application

for writ of error, noting that there was no reversible error.

As previously noted, petitioner first raised federal con-

stitutional questions in its First Amendment to Applica-

tion for Writ of Error in the Supreme Court of Texas.

The order of the Superme Court of Texas permitting

amendment was entered without opinion in the same order

in which the Supreme Court overruled petitioner’s Motion

for Rehearing of Application for Writ of Error and Appli-

cation as Amended. (Order of Supreme Court of Texas

dated July 24, 1968). Where a federal question is initially

raised in a petition or assignment of errors filed in the

highest state court which refuses to consider any issue not

presented to the lower courts, the jurisdiction of this Court

cannot attach. Bailey v. Anderson, 326 U.S. 203, 206-7

(1945). Only if the highest state court actually considers

and disposes of the question so raised can this Court review

the opinion. Raising the federal question for the first time

in a petition for rehearing addressed to the highest state

court is insufficient unless the court actually entertains the

petition and expressly decides the question Radio Station

WOW, Inc. v. Johnson, 326 U.S. 120, 128 (1945). To con-

stitute a reviewable judgment under such circumstances,

the order denying a petition for rehearing must be more

than a curscry recitation that the petition was denied. Con-

solidated Turnpike Co. v. Norfolk & OV. Ry., 228 U.S. 326,

333-4 (1913).

Ignoring the fact that petitioner did not timely raise

and preserve its federal constitutional contentions, the

questions presented by petitioner may be expressed as

follows:

QUESTIONS PRESENTED

1. Whether the Texas courts deprived petitioner of its

property without due process of law by holding that peti-

tioner’s excavations must be limited in such a manner as

to permit respondent to reasonably utilize its easement

rights?

2. Whether petitioner was deprived of equal protection

of the law by the Texas courts’ holdings that the correlative

rights of an easement owner and the owner of a iract of

land burdened by easements are not equivalent.

Petitioner’s third and fourth questions may be expressed

in a single question:

3. Whether the Texas courts denied petitioner due proc-

ess of law by holding (1) that petitioner had waived an

affirmative defense by failing to plead it and (2) by holding

that the affirmative defense issue had not been tried by

express or implied consent.

a a

A)

STATEMENT OF THE CASE

Respondent, Southwestern Bell Telephone Company

(Southwestern Bell) is the owner of two easements that

burden a 17.584 acre tract of land located on the east bank

of the San Jacinto River in Harris County, Texas. The

easements were acquired by Southwestern Bell by written

grants in 1945 and 1954. Pursuant to each of these ease-

ments respondent has installed various conduits, cables, and

equipment. The equipment is an integral part of the com-

munications system between Houston, Texas, and Beau-

mont, Por. Arthur, and Orange, Texas.

In 1966 petitioner, San Jacinto Sand Company, acquired,

for approximately $25,000, the 17.584 acre tract that was

burdened by respondents’ two easements. Petitioner ac-

quired the land with actual and constructive knowledge of

the two easements and the equipment placed pursuant to

them.

The composition of the surface of the 17.584 acre tract

is largely common sand and gravel. In November, 1966,

petitioner began excavating sand and gravel from the tract

in such a manner that the respondent’s easements and equip-

ment would have been destroyed. Petitioner’s excavation

operations were discontinued as the result of a temporary

restraining order obtained by respcndent.

The controling question in the case concerned the correl-

ative rights, under Texas law, of an easement owner and

the owner of the servient, burdened estate. Relying upon

well-settled principles of Texas property law the trial court

and court of civil appeals held that the respondent was

entitled to the undisturbed use of its property for the pur-

poses of the easements and that petitioner would not be

permitted to excavate in such a manner that would injure

or destroy the easements. The Supreme Court of Texas

CONNIE: APE Fe mt IE

6

ruled that there was no reversible error committed by the

trial court or the court of civil appeals.

The proceedings below involved nothing more than a

. controversy between two owners of interests in land. Three

Texas courts have passed on the controlling yuestions of

the Texas law of easements. Petitioner now seeks to con-

vert an ordinary state property law case into one involving

federal constitutional issues. An examination of petition-

er’s reasons for granting the writ reveals that there are

no constitutional issues involved in this case. Petitioner

is simply complaining of the application by the Texas

courts of traditional doctrines of property and procedural

law.

REASONS FOR DENYING THE WRIT

1. Petitioner's First Reason For Granting The Writ

The courts below held that petitioner could not destroy

respondent’s easements and equipment placed pursuant to

the easements. As a result of this holding, presumably,

petitioner will not be able to recover as much sand and

gravel as it could if it were not required to avoid destroy-

ing the easements. The courts’ determination was based

on the universally accepted rule of property law that the

easement is the dominant estate and that the burdened land

is the servient estate. Reinstatement of Property — Servi-

tudes §§ 455, 456 (1944). Under this rule the easement

owner is entitled to the reascnable enjoyment of its ease-

ments and the owner of the servient estate may not act

inconsistently therewith. E.g., Gulfview Courts v. Galves-

ton County, 150 S.W. 2d 872 (Tex. Civ. App. 1941, writ

ref'd); Street v. Sinclair Pipeline Co., 386 S.W. 2d 350,

352 (Tex. Civ. App. 1965, no writ); Hayes v. Stute, 342

S.W. 2d 167 (Tex. Civ. App. 1960, writ ref’d n.r.e.); Phil-

lips Pipe Line Co. v. Razo, 420 S.W. 2d 691 (Tex. Sup.

7

1967). In reaching their decisions the Texas courts often

referred to respondent’s easements being entitled to lateral

support. Petitioner argues that the judgments of the courts

below went beyond the protection of lateral support and

protected respondent’s easements from the action of the

adjacent San Jacinto River. Without regard to whether

the action of the river should be taken into consideration

in determining lateral support, petitioner’s position ignores

the rationale of the decision ct the courts below. These

courts simply held that respondent is entitled to the rea-

sonable enjoyment of its interests in land and that peti-

tioner, who had actual and constructive notice of these

interests when it acquired the burdened property, may not

destroy them. As the court of civil appeals opinion makes

clear, this holding is required by universally accepted prin-

ciples of easement law. (Petition at 12a-14a) Petitioner’s

constitutional argument begs the question. If, as the courts

below held, respondent’s easements are entitled to support

and protection from the acts of the owner of the burdened

tract, nothing has been “taken.” Following the well-settled

principles of easement law, the courts below held that

respondent accxired this right to support or protection

as one of the rights it acquired when it secured its ease-

ments.

Petitioner is arguing that if the substantive principle

of state law by which it lost should be different, it was

deprived of property without due process of law. Under

this theory there is a federal constitutional question

concerning the taking of property without due process

of law in every case where one party is economically ad-

versely affected by the decision. Every question of state

law would involve a federal constitutional issue. Petitioner

is simply dissatisfied with the results of this litigation.

Clearly petitioner’s approach must be rejected. E.9., Berea

SSRI ERS

8

College v. Kentucky, 211 U.S. 45, 53 (1908); Leathe v.

Thomas, 207 U.S. 93 (1907).

2. Petitioner’s Second Reason For Granting The Writ

The Supreme Court of Texas has held that the easement

owner, in the reasonable enjoyment of its easement rights,

may destroy the lateral support of the servient estate.

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

Petitioner argues that the failure of the Texas courts to

adopt the converse of this holding, i.e., the servient estate

owes ro duty of laterai support to the dominant estate,

denied it equal protection of the law.

Clearly no constitutional issue is presented. Petitioner’s

position simply ignores the basis of the distinction between

the two situations. Under Texas law as well as that of all

other jurisdictions the easement constitutes the dominant

estate and the burcened land the servient estate. The corre-

lative rights of the owners of these interests in land are not

equal. This was the holding of the Supreme Court in

Williams.’ As the dominant estate, the easement owner may

destroy the lateral support of the servient estate if this is

reasonably necessary to the enjoyment of the easement.

Conversely, the owner of the servient estate may not injure

the support of the easement if this is necessary to the

reasonable enjoyment of the easement. This typical appli-

cation of well-settled principles of property law does not

raise constitutional questions.

? The court in Williams also relied on the fact that the complaining

landowners acquired the burdened property with constructive

notice of the easements and took subject thereto. In the present

case petitioner also acquired the property with actual and con-

structive notice of respondent’s easements and equipment.

9

3. Petitioner’s Third and Fourth Reasons

For Granting the Writ

Over five months after the trial of the case petitioner

argued te the trial court that the respondent had abandoned

its easements. Petitioner had not pled this defense and did

not offer an amendment to its pleadings. The court of civil

appeals held that the abandonment issue had been waived

under rule 94 of the Texas Rules of Civil Procedure since

the issue was an affirmative defense that should have been

set forth affirmatively in petitioner’s pleading. In this re-

spect rule 94 is identical to rule 8(c) of the Federal Rules

of Civil Procedure. Petitioner would also have waived the

defense under the federal rule. £.g., Oederkerk v. Muncie

Gear Works, 179 F. 2d 829 (7th Cir. 1950).

The court of civil appeals reviewed the record of the

proceedings before the trial court and held that the issue

had not been tried by the express or implied consent of the

parties under rule 67 of the Texas Rules of Civil Proce-

dure. Rule 67 is substantially identical to rule 15(b) of the

Federal Rules of Civil Procedure. In reaching this con-

clusion, the court found, inter alia, that the primary evi-

dence relied on by petitioner did not even relate to the

abandonment of the easements.

Highly dissatisfied with these rulings of the Texas courts,

petitioner makes the nebulous contention that it has been

deprived of its constitutional rights. The decisions of the

courts below were the products of the correct employment

of procedural rules that govern all federal litigation and

most state litigation. In no respect are constitutional issues

raised.

10

GONCLUSION

For the foregoing reasons it is respectfully submitted

that the petition for wri of certiorari should be denied

Respectfully submitted,

COCO RCO HK OOH 6 HERERO ETHER HEE KO EET HEE EERO

Davip T. Searis

First City National Bank

Building

Huvaiou, Texas 77002

Of Counsel; Ativrney for Respondent

Southwestern Heli

James M. Suattro Telephone Company

Box 1530

Houston. Texas 77001

James Hanp

308 South Akard

Dallas, Texas 75202

Donsip L. Hows

JoHN L. Murcuison, Ja.

Vinson, E_xins, Weems & Sgaris

First City National Bank Building

Houston, Texas 77002

PROOF OF SERVICE

I, Davip T. Szarzs, one of the Attorneys for Roapondent

herein and a member of the Bar of the Supreme Court of

the United States, hereby vertify that on the 13th day of

November, 1968, I served copies of the foregoing Brief tor

Respondent in Opposition by mailing copies thereof to

counsel for Petitioner, San Jacinto Sand Company, Ine.

SUVHSSTSAVT ES eee eee

David T. Sear