Chambers-Liberty Counties Navigation District v. Banta

453 S.W.2d 134, 35 Oil & Gas Rep. 246, 13 Tex. Sup. Ct. J. 230, 1970 Tex. LEXIS 243
CourtTexas Supreme Court
DecidedMarch 4, 1970
DocketB-1773
StatusPublished
Cited by15 cases

This text of 453 S.W.2d 134 (Chambers-Liberty Counties Navigation District v. Banta) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chambers-Liberty Counties Navigation District v. Banta, 453 S.W.2d 134, 35 Oil & Gas Rep. 246, 13 Tex. Sup. Ct. J. 230, 1970 Tex. LEXIS 243 (Tex. 1970).

Opinions

HAMILTON, Justice.

Condemnor-petitioner, Chambers-Liberty Counties Navigation District, brought this suit to condemn the surface estate in 7.-6345 acres of land owned by condemnees-respondents, David A. Banta, et al. Con-demnees also own the mineral estate subject to an outstanding mineral lease; the lessee is not a party in this lawsuit. In the condemnation petition the mineral estate together with the right of ingress and egress upon the surface estate was expressly reserved unto condemnees. In accordance with the jury verdict, the trial court awarded condemnees $1,908.63 for the value of the surface estate taken and no damages for the remaining severed mineral estate. The Court of Civil Appeals held that the jury’s finding of no damages to the severed mineral estate was contrary to the great weight and preponderance of the evidence; therefore, the judgment of the trial court was reversed and the cause was remanded for a new trial. 445 S.W.2d 61. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court because as a matter of law under the facts involved there can be no damages to the mineral estate, such mineral estate being the dominant estate.

The property being condemned was described in condemnor’s Second Amended Original Petition. The description concluded as follows:

“SAVE AND EXCEPT, and reserved unto Defendants, their heirs, successors and assigns, all right, title and interest in and to all of the oil, gas, and other min-[136]*136erais in and under and that may be produced from said land, together with right of ingress and egress in, over and upon said land for the purpose of or incidental to the exploration, development, production, and transportation of such oil, gas, and other minerals.”

The description of the property was followed by the purposes for which the property was being condemned:

“* * * [I] t is necessary for Plaintiff to acquire, take, hold, occupy, own, and use the above described real estate, subject to the exceptions, conditions and agreements above stated, for the purposes of developing and improving the adjacent navigable waters of the Trinity River, spoil disposal areas, the establishment and development of a port, docks, warehouse, railroad extensions, and other purposes incident to or necessary for the development of industries on said lands, as authorized by Article 8263h and other laws of the State of Texas relating to Navigation Districts.” [Emphasis added.]

The judgment of the trial court expressly included the previously quoted exception and reservation unto defendants-condemn-ees of the mineral estate together with the right of ingress and egress upon the surface estate.

In holding that the jury’s finding of no damages to the severed mineral estate was against the great weight and preponderance of the evidence, the Court of ■ Civil Appeals cites only the testimony of Tom Poynor, an expert witness, as being favorable to condemnees. This testimony was that if the surface is covered with structures so that a drilling rig cannot get onto the lease, then the underlying minerals would have no value or if the surface is used by condemnor in such a way as to necessitate the drilling of a directional well, then the value of the minerals would be lowered because of the additional costs involved in directional drilling. The Court of Civil Appeals could have reached its “great weight and preponderance” holding only if it gave condemnor’s surface estate legal priority and dominance over con-demnees’ mineral estate or if it ignored condemnees’ common law right to use the surface estate.

In situations where the surface and mineral estates have been severed, the mineral estate owner has a common law right to use the surface estate, as expressed in Cowan v. Hardeman, 26 Tex. 217 (1862):

“It is a well established doctrine from the earliest days of the common law, that the right to the minerals thus reserved, carries with it the right to enter, dig and carry them away, and all other such incidents thereto as are necessary to be used for getting and enjoying them.
* * Jfc * * *
“The State must have the easement of going upon the land for this purpose; and if to the full enjoyment of the right of the State it should become necessary to use the whole of the land, timber and water upon the tract, the right of the State to an easement to that extent cannot, I apprehend, be questioned.”

This common law right was created “* * * because a grant or reservation of minerals would be wholly worthless if the grantee or reserver could not enter upon the land in order to explore for and extract the minerals granted or reserved.” Harris v. Currie, 142 Tex. 93, 176 S.W.2d 302 (1944). See also Warren Petroleum Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 65 A.L.R.2d 1352 (1957); Le-mar v. Garner, 121 Tex. 502, 50 S.W.2d 769 (1932); and Empire Gas & Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265 (1932).

The trial court’s judgment citing the previously quoted reservation of the mineral estate unto condemnees does not preclude the common law right of condemnees to the reasonable use of condemnor’s surface estate. Therefore, condemnees have not been denied their common law right.

[137]*137The reservation in the trial court’s judgment expressly reserves unto condemnees the “* * * right of ingress and egress * * * for the purpose of or incidental to the exploration, development, production, and transportation of such oil, gas, and other minerals.” We construe this right of ingress and egress as being a mere statement of condemnees’ common law right to the reasonable use of the surface estate. The right of ingress and egress for the expressed purposes adds nothing to the common law right, nor do we construe such right of ingress and egress as being a limitation upon the common law right.

In cases not involving condemnation proceedings this Court has held that a mineral estate together with the common law right to use the surface estate is the dominant estate. General Crude Oil Co. v. Aiken, 162 Tex. 104, 344 S.W.2d 668 (1961), and Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954). We hold that in condemnation proceedings wherein the surface and mineral estates are severed and the mineral estate is reserved unto condemnees together with the common law right to use the surface estate, such mineral estate is the dominant estate and condemnees’ common law right to use the surface estate has superiority and priority over any purposes for which condemnor desires to use the surface. See White v. Natural Gas Pipeline Co. of America, 444 S.W.2d 298 (Tex.1969). So long as condemnees possess their common law right to the reasonable use of the surface estate, as a matter of law there is no damage to the dominant mineral estate.

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Chambers-Liberty Counties Navigation District v. Banta
453 S.W.2d 134 (Texas Supreme Court, 1970)

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Bluebook (online)
453 S.W.2d 134, 35 Oil & Gas Rep. 246, 13 Tex. Sup. Ct. J. 230, 1970 Tex. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chambers-liberty-counties-navigation-district-v-banta-tex-1970.