Lomax v. Henderson

559 S.W.2d 466, 60 Oil & Gas Rep. 223, 1977 Tex. App. LEXIS 3709

• Court: Court of Appeals of Texas
• Decided: December 8, 1977
• Docket: 5808
• Status: Published

Opinions

HALL, Justice.

The Brazos River Authority condemned certain interests in land for the construction, operation, and maintenance of the Sterling C. Robertson Dam and Lake Limestone on the Navasota River in Limestone, Leon, and Robertson Counties. A part of the land was 200 acres located in Limestone County of which appellees owned all of the surface and an undivided interest in the minerals, and appellants owned an undivided one-fourth mineral interest in 64 acres. In its statement of condemnation the Brazos River Authority sought the following interests in the land: “Fee simple title in and to the [200 acres], except that defendants shall retain all oil, gas, and other minerals, in, on, or under said land, it being provided, however, that no operations for the recovery of any such oil, gas, and other minerals shall be conducted on the surface of said premises.”

In the condemnation proceeding, the commissioners awarded $120,000.00 “as compensation for the land and interest in the land being taken.” They did not apportion this award among the owners. The amount of the award was not objected to by appellees, and it was deposited into the registry of the' court. Eventually, judgment was rendered in the condemnation proceeding awarding Brazos River Authority “fee simple title in and to the [200] acres, except that defendants shall retain all oil, gas, and other minerals in, on or under said land, it being provided, however, that no operation for the recovery of any such oil, gas, or other minerals shall be conducted on the surface of said premises.” The order also awarded the $120,000.00 to the eondemnees “with division of said sum to be in accordance with the order of the Court to be entered at a later date.”

Thereafter, appellees filed a Motion to withdraw the $120,000.00 asserting they were entitled to all of it because they owned the entire surface of the 200 acres and because the mineral interests in the land were not condemned. Appellants intervened, asserted their ownership of “a net sixteen mineral acres,” and alleged “they have been damaged by said condemnation taking of said minerals at the sum of $250.00 per mineral acre, making a total of $4,000.00.” The other mineral owners did not intervene. After a hearing without a jury, the court awarded all of the money to appellees. In its order the court found that appellees owned the surface in the land condemned; that appellants own an undivided sixteen acre mineral interest in the land; “that none of the oil, gas, or mineral interest was condemned under said award”; and “that said minerals lying in, under, and that might be produced from the property condemned have no reasonable cash market value.” This appeal was prosecuted from that order. We affirm the judgment.

Appellants come forward with two points of error asserting (1) there was a compensa-ble taking of their interest in the land as a matter of law, and (2) the court’s finding that their mineral interests had no market value is contrary to the great weight of the evidence.

It is settled in Texas that the ownership of minerals in place carries with it, as a necessary appurtenance thereto, the right to reasonably use so much of the surface as may be necessary to enforce and enjoy the mineral estate. “This is 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, 305 (1944).

Although appellants used the words “taking of said minerals” in their plea of intervention, they do not contend that the minerals in place on the 200 acres were condemned. Rather, they argue that although their “mineral interest is not yet expressly condemned” and the ownership is still in them, the taking of the surface easement has rendered their mineral estate valueless and that they are entitled to compensation for this damage from the condemnation award.

Without question, appellants’ right of use of the surface of the land in question was taken from them. The proper measure of this loss, and the one sought to be shown by appellants on the trial, was the diminution of value of their mineral estate by the taking. Vernon’s Tex.Civ.St. art. 3265.

Appellants’ value witness was Murray Johnson, who is one of the appellants. He resides in Dallas County. He has been in the oil and gas business since 1948. Appel-lees’ value witness was Roger Steward. He lives in Freestone County. He has been engaged in the oil and gas business since 1922. Johnson testified that the reasonable market value of appellants’ minerals was $250.00 per mineral acre. Steward testified the minerals had no market value.

We need not detail the testimony of the two witnesses. Both own oil and gas interests in the vicinity of the 200 acres. Both expressed familiarity with the locations and production of developed oil and gas fields in Limestone and Freestone Counties. Both have bought, sold, and leased oil and gas interests in the area in question, but the trial court would have been justified under the evidence in believing that Steward’s activities in these respects was much broader than Johnson’s. Steward has also participated directly in drilling many wells in the area. Some were producers and some were not. One non-producer drilled by him was only 700 feet from the 200-acre tract; another was less than two miles away. Steward inferred that the 200-acre tract is situated off the productive oil and gas formations.

Conflicts in the testimony of property value witnesses in eminent domain eases are common. These conflicts simply raise questions for the trier of the facts. Here, it was the trial judge’s prerogative and duty as the fact-finder to consider the position, interest, experience, and knowledge of the witnesses, weigh their testimony, pick out what he believed to be the most credible parts, and make his findings accordingly.

A part of Steward’s testimony was this: “Actually, there is no market value on it. I don’t know how I could answer your question as you want it, but that is one thing I don’t know of any way to estimate the market value because it would be based on seismic work, scientific information as well as a belief in what you think you are going to get, and so there is a bunch of variables in there that I couldn’t quite estimate. I might estimate what I would pay or wouldn’t pay.

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“Q. Do you own any minerals yourself that you say you put no value on? “A. I didn’t say that I didn’t put no value on them.

“Q. What was your testimony about the value of the minerals?

“A. I said there was no market value in it, which I think is a different thing.”

Appellants argue in effect that this testimony destroys the probative worth of Steward’s testimony on market value. We disagree. To the contrary, it shows the witness believed the only possible value of the minerals was a nominal, speculative one. Appellants do not seek nominal damages.

We cannot say the trial court’s finding is so contrary to the great weight and preponderance of all of the evidence as to be manifestly unjust. That is the test. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1952).

Appellants’ points are overruled. The judgment is affirmed.