Heinatz v. Allen

• Decision Date: 26 January 1949
• Docket Number: No. A-1872.,A-1872.
• Citation: 217 S.W.2d 994
• Parties: HEINATZ et al. v. ALLEN et al.
• Court: Texas Supreme Court

217 S.W.2d 994

HEINATZ et al. v. ALLEN et al.

No. A-1872.

Supreme Court of Texas.

January 26, 1949.

Rehearing Denied March 23, 1949.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by Marvin Heinatz and others against R. K. Allen and others to determine ownership of limestone. To review a judgment of the Court of Civil Appeals, 212 S.W.2d 987, which reversed a judgment for plaintiffs, plaintiffs bring error.

Affirmed.

Albert G. Walker, John D. Cofer, and Shelton & Shelton, all of Austin, for petitioners.

W. Clarke Blalock and Robert B. Thrasher, both of Austin, and Wood & Wilcox and S. E. Wilcox, Jr., all of Georgetown, for respondents.

SMEDLEY, Justice.

The controversy is as to the ownership of or right to the commercial limestone in a tract of land containing 400 acres in Travis and Williamson Counties. The land was owned by Mrs. Emilie Heinatz, who devised to her daughter, Dora Heinatz, "the surface rights exclusive of the mineral rights" and to trustees for all of her children "the mineral rights."

In this suit by petitioners, who claim under the trustees, against respondents, who claim under Dora Heinatz, judgment was rendered by the district court in favor of petitioners against respondents for the title and possession of the mineral rights and estate in the land "including commercial limestone and building stone" and for actual damages in the sum of $15,888, and exemplary damages in the sum of $500, on account of limestone taken from the land, with injunction restraining respondents from quarrying or removing any commercial limestone or building stone therefrom.

The Court of Civil Appeals, holding that commercial limestone is not included in the devise of "the mineral rights," reversed the trial court's judgment and rendered judgment for respondents. 212 S.W.2d 987.

We do not understand the opinion of the Court of Civil Appeals, as petitioners understand it, to be based in part upon evidence as to circumstances attending the execution of the will or extrinsic evidence as to what the testatrix may have had in mind. The opinion mentions the rule which sometimes permits proof of the circumstances, but we understand that the court holds as a matter of law, from the terms of the will itself and without looking to evidence as to the surrounding circumstances, that the devise of "the mineral rights" does not include commercial limestone. It is also our opinion that, in view of the simple and plain terms of the will, the intention of the testatrix as to what is devised is to be ascertained without aid from evidence as to the attending circumstances. Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217.

By the terms of the will the testatrix devised to Dora Heinatz "the surface rights exclusive of the mineral rights" and to the trustees "the mineral rights." There are a number of decisions, some appearing to conflict with others, as to the meaning of "surface" or "surface rights" used in a deed or in a will, either in connection with or without reference to a grant, reservation or devise of all or part of the minerals. See Hendler v. Lehigh Valley R. Co., 209 Pa. 256, 58 A. 486, 103 Am.St.Rep. 1005; Keweenaw Ass'n v. Friedrichs, 112 Mich. 442, 70 N.W. 896; Shell Oil Co. v. Manley Oil Corp. 7 Cir., 124 F.2d 714, 717; Dolan v. Dolan, 70 W.Va. 76, 73 S.E. 90, Ann. Cas. 1913D, 125; Ramage v. South Penn Oil Co., 94 W.Va. 81, 118 S.E. 162, 31 A.L.R. 1509; Drummond v. White Oak Fuel Co., 104 W.Va. 368, 140 S.E. 57, 56 A.L.R. 303; Jividen v. New Pittsburg Coal Co., 45 OhioApp. 294, 187 N.E. 124.

We need not discuss the above-cited cases nor the different meanings that may be given to "surface" or "surface rights," for we are convinced that the terms of the will clearly disclose the intention of the testatrix to make disposition of her entire interest and estate in the 400 acre tract and to devise to the trustees only "the mineral rights." It follows that the controlling question in the case is that stated and decided in the opinion of the Court of Civil Appeals, that is, whether commercial limestone is included in the devise of "the mineral rights" in the tract of land. In deciding this question we must look to the evidence as to the nature of the limestone its relation to the surface of the land, its use and value, and the method and effect of its removal. While there is some conflict in the testimony, the facts hereinafter set out are shown by the evidence without conflict in important particulars.

The 400 acre tract is about two miles from the Heinatz home tract. It was not fenced and was neither cultivated nor grazed, being used only for taking wood from it for fire and stove wood and cedar posts. It is in what is known as "the hill country," is rough land crossed by gullies and a number of ravines, described by some of the witnesses as canyons. Different opinions were expressed as to how much of the 400 acres could be cultivated. One witness testified that only eight acres could be put in cultivation, another 15 acres, and another 40 acres. There is testimony that mesquite grass grows on parts of the land, but much of the land is barren because of caliche or caliche dirt on the surface. Petitioner Marvin Heinatz testified that the land would make fair grazing land if the brush were cleared off so that the grass could grow. The valleys or gullies are very well wooded, but their side slopes have smaller timber, shin oak, cedar, shrubs and brush that grow in the hill country. Most of the timber is cedar.

In places limestone is found exposed on the surface. One of the witnesses testified that a conservative estimate of the total area of exposed limestone on the surface of the 400 acre tract would be 15 acres. The undisputed evidence shows that there are outcroppings of limestone in all of the gullies and ravines. Petitioners made three core tests to determine the depth and nature of the soil. One of these, dug to a depth of two feet, showed black soil, another showed eighteen inches of soil and then caliche, and the third ten inches of soil and then rock. Witnesses for respondents testified to twenty-five core holes scattered over the 400 acres, that the top rim of the limestone rock was encountered in these tests anywhere from the surface to a depth of about eight feet, that in twenty-three of the tests all of the overburden from the top surface to the limestone was caliche, and that in the other two test holes there was black soil. Where soil is found on the land it is for the most part leaf mold and is shallow. Under it and above the limestone is caliche of varying depths. Much of the top surface and most of the overburden is caliche.

The limestone is taken from the land by quarrying. First the overburden is removed by scraping or stripping it off of the limestone. Then by what is called a channeling machine slots are cut in the stone to the desired depth. Wedges are put in at the bottom of the cut and driven up so that the stone breaks off in blocks. The blocks are taken to the mill and sawed into slabs. Witnesses for respondents testified that for each acre of land actually quarried five additional acres of land are for all practical purposes destroyed by the depositing of caliche and waste rock taken from the quarry.

Limestone was quarried from the land and sold by respondents, the total amount removed and saved being 21,227 cubic feet. In the sale of it respondents received $15,888.00. The limestone is described by the witnesses as cream stone and shell stone, the first seven feet of the eight feet cut being cream stone and the other being shell stone or mostly shell stone. An expert witness called by respondents testified that in his opinion the limestone he saw at the quarry, or most of it, was not merchantable because of the wavy deposits, it being composed of streaks of cream and streaks of shell that did not run straight. The record contains testimony offered by respondents of expenditures in opening and operating the quarry and processing the stone substantially in excess of the amount that they realized from selling the stone.

Petitioners cite and quote from several books of reference, including histories, encyclopedias and almanacs, in which limestone or other stone is classified or referred to as a mineral, and argue that because of the classification there made the limestone in the 400 acre tract of land is mineral and passed to the trustees by the devise of "the mineral rights." It is apparent from examination of those sources that their classifications are based upon the scientific or technical definition of the word minerals. The same sources and other similar sources include also sand and gravel under the general classification of mineral or mineral resources. If the scientific definition of minerals is followed the caliche or caliche dirt which covers or composes a great part of the surface of the tract of land is a mineral. Caliche is described in the testimony of one of the witnesses in this case as a form of limestone deposit. Like limestone, caliche consists essentially of calcium carbonate. A scientist's article in a technical magazine recently issued lists limestone, gravel, sand, caliche and many other raw materials or substances as mineral resources of the state.

It has been pointed out in several decisions that the scientific or technical definition of minerals is so broad as to embrace not only metallic minerals, oil, gas, stone, sand, gravel and many other substances, but even the soil itself. In one decision it is said that it is rare, if ever, that mineral is intended in the scientific or geological sense in the ordinary trading transactions about which deeds and contracts are made. Beury v. Shelton, 151 Va. 28, 144 S.E. 629, 630-632. See also: Northern Pacific R. Co. v. Soderberg, 188 U.S. 526, 23 S.Ct. 365, 47 L.Ed. 575; Kinder v. La Salle County Carbon Coal Co., 310 Ill. 126, 141 N.E. 537; Rudd...