# Brief for Respondent in Opposition — 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%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondent in Opposition - **Published:** January 1, 1969 - **Citation:** 393 U.S. 1027 ## Text J __momPrea G4£746 % 8 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0316%3A2. Public record. Not legal advice.