Reply Brief for the Petitioner — San Jacinto Sand Co. v. Southwestern Bell Telephone Co.

NOV 27 196g—T-

PE ERK

In THE

Supreme Court of the United States

Octoser Term 1968

No. 657

San Jacinto Sanp Company, Ino.,

Petitioner,

V.

SouTHWESTERN Bett TELEPHONE Company,

Respondent.

REPLY TO BRIEF IN OPPOSITION

aaa —--

ene

Auvin D1amonp

1106 First City National

Bank Bldg.

Houston, Texas 77002

Cuages J. SULLIVAN

3402 Gulf Building

- Houston, Texas 77002

FIDELITY PRINTING COMPANY, INC., HOUSTON

REASONS FOR GRANTING WRIT

I. A declaratory judgment proceeding which is sui

generis cannot be used to subvert the constitutional

imitations on the taking of privately owned land

without the payment of COMPeNSAtION .............cccc0c0e0

II. The petitioner is entitled to the protection of the

rule in Williams v. Thompson, 256 S.W. 2a 399

(Tex. 1953) which denies to a landowner the right

to compel an easement helder to provide lateral

support for the landowner’s land which abuts on

tt straaiee seaplane eT aN

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 plead-

ings or as a proper basis for new a

The nature of the declaratory judgment proce-

ee noun

SOOO e eee eeeereseeeeeereseees

The petitioner’s motion for judgment as an

aniendment to its pleadings

IV. The Court of Appeals denied the petitioner due

process of the law when it presumed that the

respondent’s toil engineer’s unequivocal 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

al anette

11

12

— a —— ee —_

ee ee eee —-

Se

ii

CITATIONS

Cases

Bailey v. Alabama, 219 U.S. 219 (1911) ceccececcccccssssccssssseseeee 14

Bailey v. Anderson, 326 U.S. 203 (1945) ceeccccccccccccssssscssscsseeeee 3

Cobb v. Harrington, 144 Tex. 360, 190 S.W. 2d 709 (1945)...... 11

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

I I ara aliases diandcnedtacsemendicpcpdideasiaiasitpiesaivishiddamaiane

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) coecccccccccccssssssseee 9

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

Be I SN Siilcteireal sea clctanbrhnchealincicchacttenndtorkiideinsscnc alsin i 12

New York ex rel Bryant v. Zimmerman, 278 U.S. 63 (1928)... 3

New York Times v. Sullivan, 376 U.S. 274 (1964) occ 14

Northern Transportation “ompany v. Chicago, 99 U.S. 635

PUNTD nckserishsistesineiaeniehisegdanieiitsAdddatumindabiicclguiguseateccies 7

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) ........ 4,7

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

Simon v. Nance, 100 S.W. 1039 (Tex. Civ. App. 1907, no

Se EE Sienlesssitthescauseaiaiiaiieeliinlibiiiciponiaiealcieiceda ihe tana ocd

Williams v. Thompson, 152 Tex. 270, 256 S.W. 2d 399 (1953) 8,9

Constitutional Provision

U.8.C.A. Const. Amndt. XIV, See. 1 ....cccccccccccosesescsceseseseseososeee 4

Rules of Civil Procedure

Texas Rules of Civil Procedure

BO DF ssemsininivsiatinnsnninscsinwsnteiasisibncuiniaesaisissueilassatncasisiasisties 13

NPE SI sarssesincessheapnctnbinsaiunscaiiinapionpiteincapssinsintbesbicaingllanssie 13

SR TI siciniscintinninniinteanssaieribacviisittahaiciaianiiimmannlohivbiasobianteiss 13

In Tue

Aupreme Court of the United States

Octorzr Term 1968

No. 657

Sszn Jactnto Sanp Company, Inc.,

Petitioner,

v.

SouTHWESTERN BELL TELEPHONE Company,

Respondent.

REPLY TO BRIEF IN OPPOSITION

To the Honorable Chief Justice and the Associate Justices

of the Supreme Court of the United States:

GENERAL STATEMENT!

The jurisdictional issue raised by the respondent

is an illusory one whick evaporates when examined in the

light of the record and the rules developed by this Court

in respect to the timely raising of federal questions in

state court proceedings.

1 References to the record were inadvertently omitted from

the Statement of the Case appearing in the Petition at pages

8 through 11. There is attached to this Reply as Appendix

A-1 a reference to the parts of the record which are authority

for the factual statements made in the Statement of the Case in

the Petition.

2

The declaratory judgment proceeding involved in this

case rests upon a constitutionally deficient principle,

namely that the federal constitutional prohibition against

the taking of a citizen’s property without the payment of

compensation ts not applicable to a declaratory judgment

proceeding, which does not set over a specified amount of

land to respondent, but merely prohibits the petitioner

from excavating 314,370 cu. yds of sand and gravel which

ul preserve the respondent’s easements from erosion by

the San Jacinto River. Constitutional rights cannot be

destroyed by specious legal distincitions or by a resort to

obtuse quais legal-economic considerations, such as the

protection and preservation of the integrity of the thous-

ands of easements that blanket the State of Texas, as was

done by the Court of Civil Appeals for the 14th Supreme

Judicial District of Texas (Petition — Appendix A, p. 13a;

426 S.W. 2d 338, 345)

THIS COURT DOES HAVE JURISDICTION

The respondent urges this Court to decline to review

this case because the federal constitutional question was

not timely raised, that is that the federal question was first

raised in a petition for rehearing.

The respondent has inaccurately described the record in

the case. The federal constitutional question was timely

raised by the petitioner’s Motion for Leave to File First

Amendment to Application for Writ of Error? which the

2 By motion contemporancously filed, this Court has been re-

quested to allow the petitioner to enlarge the record before the

Court to include a certified copy of the Motion for Leave -to

File First Amendment to Application for Writ of Error which

was filed with the Supreme Court of Texas on July 19, 1968.

3

Supreme Court of Texas separately granted’ on July 24,

1964, prior to the time that it denied the petitioner’s Motion

for Rehearing. The Court’s order stated as follows:

“Motion of petitioner, San Jacinto Sand Company,

Inc., to amend application for writ of error to the

Court of Civil Appeals for the Fourteenth Supreme

Judicial District haviny been duly considered by the

Court, it is ordered that said motion be, and hereby is,

granted, and that the application for writ of error be

amended as prayed for therein.”

“And the Court heaving determined that the appli-

cation for writ of error as amended presents no error

requiring reversal of the judgment of the Court of

Civil Appeals, it is ordered that said application be,

and hereby is, refused.”

The test of whether the court of last resort oi the state

has been presented with and in fact considered a federal

question is whether the court entertains and specifically de-

cides the issue, and such decision is clearly indicated in the

record. Consolidated Turnpike Co. v. Norfolk & O. V. Ry.,

228 U.S. 326, 334 (1913); Radio Station WOW, Inc., v.

Johnson, 326 U.S. 120, 128 (1945); Bailey v. Anderson, 326

U.S. 203, 207 (1945); New York ex rel Bryant v. Zimmer-

man, 278 U.S. 63, 67 (1928). The foregoing test has clearly

been met in this case, as evidenced by the Court’s rulings

as set forth above. .

The Supreme Court of Texas, by its action in granting

the petitioner’s Motion to Amend the Application for Writ

ef Error, determined that there had been a compliance with

all relevant sections of the Texas Rules of Civil Procedure.

The petitioner’s Motion for Rehearing incorporated by

reference the errors assigned in the Application for Writ

3 See Section 3 of Summary of the ground for new trial and

assignments of error in which constitutional issues were raised

(Petition — Appendix C, pp. 22a, 23a)

%

of Error as amended, The Suprowe Court of Roxas under-

stood the scope of the Motion fv Ronearing and ontered

its ruling on the basis that ther had boon a timely raising

of the federal constitutional question, Meo thin paragraph

of the order of the Supreme Cwart at Yorar dated July 24,

1968, read as follows:

“And petitioners motion ty whoaring of applica-

tion for writ of ervey amd applioation as amended

having been duly camsitwd dy he Court, if is ordered

that said motion ba amt herehy is, overruled. Tt is

further ordered dat potitionen, Saw Jacinto Sand

Company, Tne, anit its sapedy, Pedelity & Deposit Com-

pany of Maryland, pay all evets earred on this ap-

plication.”

1.

A DECLATORY JUDGMENT PROOREDING WHIOH

I8 SUI GENZRIS CANNOT BR VARY TO BUBVERT

THE CONSTITUTIONAL MIMITATIONS ON THE

TAKING OF PRIVATELY OWNED LAND WITHOUT

THE PAYMENT OF COMPENBATION

The respondent's argamert i apposition to this issue

fails to deal with the Qwatwental question of whether

under Section 1 of the Paarteort® Amendment to the Con-

stitution of the United States a dohatory judgment pro-

ceeding can be used ax a sAderaree hy Which 314,370 cu.

yds. of sand amd gravel have a hall vale of $424,399

and a royalty value af S4T,48 ean He taken from the peti-

tioner without compensating Te petitioner for sach loss.

The constitutional Lataior AOR a CONrES powerr Which

prohibits the taking af a oitirons property withoat the pay-

ment of compensation ix a fadawental part of our consti-

tutional system, Peaasnanna Coal Co. ¥. Makon, 260 U.S.

393 (1922). The power te dole vights in a declaratory

judgment proceeding ix sehket ty The wame constitutional

5

limitations as is the power of the State to regulate a com-

mon carrier, Stone v. Farmers Loan & Trust Co., 116 U.S.

807 (1886). In the Stone case, supra, the Court in describ-

ing the state’s authority to regulate a common carrier,

said at page ddl:

“From what has thus been said it is not to be inferred

that this power of limitation or regulation is itself

without Jimit. This power to regulate is not a power to

destroy, and limitation is not the equivalent of con-

fiscation, Under pretense of regulating fare and

freights the State cannot require a railroad corpora-

tion to carry persons or property without reward;

neither can it do that which in law amounts to a taking

of private property for public use without just com-

pensation or without the due process of law... .”

The respondent’s argument in opposiiion ignores the

constitutional limitations applicable to the taking of 314,370

ou. yds, of sand and gravel without compensation by saying

that this is simply a case where a defendant lost some land

and is dissatisfied with the decisions o1 the lower court.

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

action is predicated upon the fact that the trial court cor-

rectly applied the doctrine of lateral and subjacent sup-

port. Under a guise of protecting the integrity of the

respondent's easements and the thousands of other ease-

monts that blanket Texas, the Court of Appeals declined

to correct the constitutionally excessive taking of the peti-

“The Court of Appeals’ position is succinctly summarized as

-_ (Petition — Appendix A, p. 13a; 426 S.W. 2d 338,

“.. . We hold that the owner of the dominant estate, the

easement owner, is entitled 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 subjacent support. ...” (Citations omitted)

Ee et ae .

=

6

tioner’s land to protect the respondent’s easements from

the erosive action of the San Jacinto River as required by

the trial court.®

Subject to the right of the citizens of Texas to have the

equal protection of its laws, as described in Issue II of the

Petition, the petitioner acknowledges that the courts of

Texas have the power to declare the existence of a right to

Jateral and subjacent support for easements, to define

prospectively what is required to provide lateral and sub-

jacent support for easements, and thereafter by injunctive

process to prevent any interference with the lateral and

subjacent support so decreed.

The action complained of by the petitioner in this

Issue I is the failure of the courts of Texas to require that

the respondent compensate it for the 314,370 cu. yds, of

sand and gravel taken from it to protect the respondent’s

easements from erosion by the San Jacinto River.

The respondent should not be allowed to confuse the

constitutional issue herein presented by:

(a) Inaccurate statements of the circumstances that

would cause the respondent’s easements to be destroyed,

that is, by attributing the destruction of the respondent’s

5 The trial court’s position is set forth in its Findings of Fact

Nos. 27 and 29 (R-Tr. pp. 135, 137 Findings of Fact and

Conclusions of Law):

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

is such that its stable slope of repose is appreximately

3 to 1; ie., 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 Rell Telephone’s

easements are located.”

¢

easements to the petitioner, rather than to the erosive

action of the San Jacinto River; or

(b) An incorrect equating of the reasonable enjoyment

of easements with the right to lateral support of ease-

ments. Northern Transportation Company v. Chicago, 99

U. S. 635 (1897); Simon v. Nance, 100 S.W. 1039 (Tex.

Civ. App. 1907, no writ hist.)

In equating the right of reasonable enjoyment of its

easements with the right to have its easements protected

from the erosive action of the San Jacinto River, the

respondent stated its position as follows at page 7 of its

repiy brief:

“. .. If, as the courts below held, respondent’s ease-

ments 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 held that respondent acquired

this right to support or protection as one of the rights

it acquired when it secured its easements.”

The simple answer to the foregoing statement is that it

violates fundamental constitutional prohibitions against the

taking of property without compensating the owner of the

Jand which has been taken. Pennsylvania Coal Co. v. M ahon,

260 U.S. 393 (1922). In considering the analgous problem

of the public’s right to have a street supported which had

been obtained in an eminent domain proceeding in which

only surface rights had been acquired, this Court in Penn-

sylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) held that

the public could not ohtain support for the street without

paying for it and said at page 415:

“The rights of the public in a street purchased or

laid out by eminent domain are those that it has paid

for. If in any case its representatives have been so

short sighted as to acquire only surface rights without

gE IE ROU A, LOOPY ER TNE

on ee ee a) meet

8

the right of support we see no more authority for

supplying the latter without compensation than there

was for taking the right of way in the first place and

refusing to pay for it because the public wanted it

very much. The protection of private property in the

Fifth Amendment presupposes that it is wanted for

public use; but provides that it shall not be taken for

such use without compensation. A similar assumption

is made in the decisions upon the Fourteenth Amend-

ment. Hairston v. Danville & Western Ry. Co., 208

U. S. 598, 605, 28 Sup. Ct. 331, 52 L. Ed. 637, 13 Ann.

Cas. 1008. When this seemingly absolute protection is

found to be qualified by the police power, the natural

tendency of human nature is to extend the qualifica-

tion more and more until at last private property

disappears. But that cannot be accomplished in this

way under the Constitution of the United States”.

“The general rule at least is that while property

may be regulated to a certain extent, if regulation

goes too far it will be recognized as a taking. . . .”

Neither the respondent through its unilateral act nor

the courts of Texas through judicial fiat can enlarge the

respondent’s rights under its easements to include the

protection of the easements from the erosive action of the

San Jacinto River without compensating the petitioner fer

land taken from it.

II.

THE PETITIONER IS ENTITLED TO THE

PROTECTION OF THE RULE IN WILLIAMS v.

THOMPSON, 256 8.W. 2d 399 (TEX. 1953) WHICH

DENIES TO A LANDOWNER THE RIGHT TU

COMPEL AN EASEMENT HOLDER TO PROVIDE

LATERAL SUPPORT FOR THE LANDOWNER’S

LAND WHICH ABUTS ON THE EASEMENT LAND

The respondent’s argument in opposition to the foregoing

point is that the courts of Texas have fashioned two sets of

9

rules in respect to the lateral support of property subject

to easements, namely (1) the easement holder does not

have to provide lateral support for the land that is subject

to the easement; and (2) the owner of the land subject to

an easement must provide lateral support for the easement

to which his land is subject.

The respondent incorrectly states the rule of Williams v.

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

of the Williams case, supra is that the doctrine of lateral

support is a doctrine applicable to adjacent landowners

and is not applicable to the relationship that exists between

the holder of an easement and the owner of the land subject

to the easement.

The petitioner concedes that the common-law of Texas

might ultimately produce the dual rules suggested by the

respondent, but until such time as the Supreme Court of

Texas decrees the existence of dual rules, the petitioner has

been unconstitutionally deprived of the equal protection of

the common-law of Texas as exemplified by the rule in

Williams v. Thompson, supra; Erie R. Co. v. Tompkins,

304 U.S. 64 (1938). The constitution of the United States

compels the reversal of the holdings of the lower courts,

or in the alternative a remanding of the case to the Court of

Civil Appeals for a determination under Texas law as to

the applicability of the rule in Villiams v. Thompson, supra,

to the instant case.

RN eel kd wick oe #

10

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

The respondent argues that the petitioner was five months

late in pleading the respondent’s abandonment of its ease-

ments and thus waived the defense of abandonment. The

respondent’s argument is in error both technically and

in the implications that the respondent seeks to have drawn

from the delay in the entry of the Final Judgment, which

delay was the result of a mutual understanding reached by

counsel for the petitioner and respondent.®

6 This proceeding was instituted when the respondent filed its

original petition and requested and obtained a restraining

order that shut down the petitioner’s entire operations. The

petitioner was informed after a hearing on the restraining

order that a temporary injunction would be granted prohibiting

excavations until the rights of the parties could be declared in

a formal hearing. The trial judge indicated a willingness to

adjust his schedule and give the parties an early non-jury

hearing if they so desired. The Hobson-like choice presented

to the petitioner was either an immediate non-jury trial without

recourse to discovery procedures, or a hearing at some indefinite

date in the future before which discovery procedures could

be instituted in respect to the respondent’s operations, but

during which period the petitioner’s operations would be shut

down. The petitioner elected an early trial and the trial was

held. When the trial court ruled against the petitioner, the

petitioner’s counsel, Charles J. Sullivan, and the respondent’s

counsel, Donald Howell, conferred and agreed that prior to

the time that a judgment was submitted to the trial court

for signing, Mr. Sullivan would seek to dispose of or otherwise

handle in a manner satisfactory to him certain pending legal

proceedings involving the 17.584 acre tract, which were un-

related to the declaratory judgment proceeding.

11

THE NATURE OF THE DECLARATORY

JUDGMENT PROCEDURE

A declaratory judgment is neither legal nor equitable,

it is sui generis, Cobb v. Harrington, 144 Tex. 360, i590 S.W.

2d 709 (1945). A natural concomitant of such a proceeding

is that the equitable doctrine that he, who seeks equity,

must do equity will be of paramount importance. As the

moving party in a declaratory judgment proceeding tt was

incumbent upon the respondent as an officer of the court

to state all relevant facts pertaining to its situation in clear,

unmistakable and unambiguous language, for example it

was the respondent’s obligation to disclose the fact that

it had made two initial installations and thereafter abam-

doned in place portions of such cables in connection with its

replacements of its two existing underwriter cable crossings

and substituted at a new location a single and larger in-

stallation containing new and larger cables.

Neither paragraph II nor paragraph III of the Plaintiff’s

Original Petition (R-Tr. pp. 3-5) clearly and unmistakably

indicate the respondent’s abandonment in place of portions

of its original cables and the installation of new cables at

a new location. When the skillfuily drawn allegations set

forth in paragraphs II and III of the Plaintiff’s Original

Petition are read in light of the evidence developed during

the trial, the true nature of the respondert’s position be-

comes apparent. Equally significant is the fact that the

6 Cont'd.

When the unrelated proceedings involving the 17.584 acre

tract were taken care, counsel for the petitioner and respondent

met and tried to formulate a mutually acceptable judgment.

The parties did not reach agreement as to the form of the

judgment and both the petitioner and the respondent submitted

appropriate motions for judgment to the trial court. The

petitioner’s Motion For Judgment included a suggested Final

Judgment that set forth the fact that the respondent had

abandoned portions of its easements. The trial court after an

oral hearing rejected the petitioner’s Motion for Judgment in

its entirety and entered the Final Judgment submitted by the

respondent.

Re daar

ERY IPR RRE INES NENT PTY IRN ORR IS CRIED PTI IW TES “PML Da OT RED

Geeee-on

12

“gamesmanship” aspects of the respondent’s plea for equi-

table and legal relief become apparent. The respondent's

purposes, but not justice’s purposes, are served when the

respondent argues that the pleadings, including the peti-

tioner’s Motion for Judgment, do not place in issue the

fact that the respondent was seeking lateral support for

portions of its easements which it had already abandoned.

THE PETITIONER’S MOTION FOR JUDGMENT

AS AN AMENDMENT TO ITS PLEADINGS

A declaratory judgment proceeding is not closed until the

trial judge signs the final judgment in the case, at which

time the judgment then officially becomes entered in the

record. Freeport Motor Casualiy Co. v. Tharp, 406 Ill. 295,

94 N.E. 2d 139 (1950)

The petitioner filed its Motion for Judgment and sug-

gested Final Judgment with the trial court prior to the time

that the trial judge signed the Final Judgment in the case.

(R-Tr. pp. 79-96) The petitioner’s suggested final judg-

ment specifically raised the abandonment question.” In a

declaratory judgment proceeding which is sui generis the

filing of the petitioner’s Motion for Judgment and suggested

Final Judgment constituted a timely amendment of the

petitioner’s pleadings. Freeport Motor Casualty Co. v.

Tharp, 406 Ill. 295, 94 N.E. 2d 139, (1950). This is especially

true in light of the evidence in the record which clearly

shows the fact and the intention on the part of the respond-

7 The issue of abandonment of portions of the respondent’s ease-

ments was placed in issue by the Respondent’s Trial Amendment

to Plaintiff’s Original Petition, which requested lateral support

for the respondent’s easements as they presently exist. (R-Tr.

pp. 2-25; 124). When the Trial Amendment is considered in

conjunction with paragraphs II and III of the Plaintiff's

Original Petition, the scope of the respondent’s existing ease-

ments was placed in dispute.

13

ent to abandon portions of its easements, namely the testi-

mony of the respondent’s Toll Engineer that the respondent

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

(R-S.F. p. 32); documentary records of the respondent

which showed the clear intention to abandon 197 ft of the

easements (R-S.F., Pitf’s. Exs. 15, 16; Defd’s. Ex. 3, pp. 21,

29); the oral argument before the trial judge prior to the

time when he signed the Final Judgment (R-S.F., supple-

mental pages 1-35).

In view of the foregoing facts the petitioner was un-

constitutionally denied due process of law and equal pro-

tection of the law when the Court of Appeals determined

that: (a) the avandonment issue had not been pleaded in

a manner that satisfied the requirements of Rule 94 of the

Texas Rules of Civil Procedure and accordingly had been

waived; and (b) the issue of abandonment had not been

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

fied the requirements of Rule 67 of the Texas Rules of Civil

Procedure.

IV.

THE COURT OF APPEALS DENIED THE PETITIONER

DUE PROCESS OF THE LAW WHEN IT PRESUMED

THAT THE RESPONDENT'S TOLL ENGINEER'S

UNEQUIVOCAL 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

The petitioner was denied procedural due process and

equal protection of Rule 299 of the Texas Rules of Civil

Procedure when the Court of Civil Appeals refused to re-

mand the ease to the trial court on the ground that remand

was unnecessary since the impact of the clear, absolute

unequivocal testimony of the respondent’s toll engineer

14

as to the abandonment in place of the respondent’s cables

(R-S.F. p. 32), could be mullified by assuming that the

engineer meant to say something other than what he actual-

ly said. (Petition — Appendix A, p. 10a; 426 S.W. 2d 338).

“The power to create presumptions is not a means of

escape from constitutional restrictions.” Badey v. Alabama,

219 U.S. 219, 239 (1911); New York Times v. Sullwan, 376

U.S. 254 (1964). The Court of Appeals as an instrument

of the State of Texas cannot presume a fact, which fact

when once presumed has the effect of destroying a legal

interest of the petitioner, namely the right to be free from

the obligation of providing lateral support for easements

which had in fact been abandoned.

CONCLUSION

For the reasons stated in Petition For Writ of Certiorari

and in this Reply, the writ of certiorari should be issued.

Respectfully submitted

Auvin DiamonpD

1106 First City National

Bank Bldg.

Houston, Texas 77002

Cuares J. SULLIVAN

3402 Gulf Building

Houston, Texas 77002

Attorneys for Petitioner

a6 He elie hia Li Cee SE

15

AFFIDAVIT OF SERVICE

Tue Stareor Texas | ..,

County or Harris f§ ~

BEFORE MB, the undersigned authority, on this day

personally appeared CHARLES J. SULLIVAN, who after

first being duly sworn did upon his oath depose and say:

The affiant, Charles J. Sullivan, did on this day cause a

true and correct copy of the Reply to Brief in Opposition

in the case of San Jacinto Sand Company, Inc. v. South-

western Bell Telephone Company, Docket No. 657, to be

served upon David T. Searls, attorney for Respondent

Southwestern Bell Telephone Company, and upon Donald

Howell and John L. Murchison, Jr., of Vinson, Elkins,

Weems & Searls, by delivering the same to them at their

office in the First City National Bank Building, Houston,

Texas, and to James M. Shatto, Box 1530, Houston, Texas

77001, and James Hand, 308 South Akard, Dallas, Texas,

75202, by depositing a copy of such Reply to Brief in

Opposition in a United States mailbox with first class air

mail postage prepaid.

PUTT aad

CxHarLEs J. SULLIVAN

SWORN AND SUBSCRIBED TO BEFORE ME, the

undersigned futhority this ........ BIG OB cercersesrersscccrrsssones , 1968.

PPUTTITITI Tt

Notary Public in and for

Harris County, Texas

Do Pie SOA Se SE 7 SAI RNY ERS, “a

- la

APPENDIX A-1

References to Record That

Support Facts Set Forth in

STATEMENT OF THE CASE

(Petition pp. 8-10)

Drapoment

yk Record

Page No, Factual Statement Reference

8 Findings of Fact Nos. 27 and 29 Tr. 135, 137

8 Trial court’s order and judgment Tr. p. 67

(a) Enjoining excavations in 200

ft. strip

9 (b) Establishing variable excava- Tr. p. 68, 69

tion slopes

10 Recommendations to respondent by S.F. Defd’s Ex.

consulting engineers 1, p. 6; Ex. 2,

pp. 2, 3