Brazos River C. and Reclamation District v. Adkisson

Citation173 S.W.2d 294
Decision Date11 June 1943
Docket NumberNo. 2348.,2348.
PartiesBRAZOS RIVER CONSERVATION AND RECLAMATION DISTRICT v. ADKISSON.
CourtCourt of Appeals of Texas

Appeal from District Court, Palo Pinto County; Ernest Belcher, Judge.

Condemnation proceedings by Brazos River Conservation and Reclamation District against Albert Adkisson. From the judgment rendered, the plaintiff appeals.

Judgment affirmed.

T. T. Bouldin, of Mineral Wells, and Sidney Samuels, of Fort Worth, for appellant.

Ritchie & Ritchie and J. R. Creighton, all of Mineral Wells, for appellee.

LESLIE, Chief Justice.

In this suit the Brazos River Conservation and Reclamation District sought and obtained by cross action condemnation of an easement in an oil and gas leasehold estate owned by Albert Adkisson. In addition, the judgment awarded Adkisson damages, and the District appeals. The proceeding is based on Art. 3269, R. S. 1925, Vernon's Ann.Civ.St. art. 3269, and is one branch of the litigation growing out of the case of Brazos River Conservation and Reclamation District v. E. P. Costello et al., 135 Tex. 307, 143 S.W.2d 577, 130 A.L.R. 1220.

The cause was tried before the Court without a jury. No request was made for findings of fact and conclusions of law. (All italics herein ours.)

From different angles appellant's first eight points raise the same controlling question presented by this appeal, and aptly stated by appellee as follows: "Did the Court properly require the District to pay appellee for the property taken, including casing and other fixtures affixed to the leasehold estate, where the lease, producing wells, and such equipment were inundated by the waters of the District's reservoir, even though as between the Appellee as Lessee and the original landowners as Lessors, Appellee had the privilege of removing such fixtures at the termination of the lease?"

On reason and authority we think this question must be answered in the affirmative.

The lease was a producing oil and gas lease embracing approximately 487 acres, and about 413.22 acres thereof were flooded by the reservoir, including 12 producing oil wells, casing, pumping unit, engines, and other such property and fixtures used by Adkisson in the operation of said lease as a unit or as a going concern, all of which was alleged to have been destroyed and rendered useless by the waters of the reservoir.

The Court's decree is in part as follows:

"The court further finds that certain fixtures located upon the lease-hold estates of Respondent on the above property have been covered and flooded by the waters of Petitioner's Reservoir; and that the condemnation of an easement on said property has resulted in Respondent's use thereof being totally destroyed and has resulted in a taking thereof by Petitioner.

"It is further ordered, adjudged, and decreed by the court that the Brazos River Conservation and Reclamation District do have and recover of and from the said Albert Adkisson full title in and to the hereinafter described property which is located on the above described land and flooded and covered by the waters of said reservoir: * * *

"It further appears from the evidence and the court finds that the Respondent Adkisson has been damaged by the condemnation of the easement hereinabove mentioned, and the taking and destruction of his leasehold estates, and the fixtures thereon * * *."

The judgment then identifies the equipment or fixtures so located and in the actual use on the leasehold. In other words, the trial court adjudged the casing and tubing in the producing oil wells, the engines, power house, tanks, flow lines, etc. so used in effecting production to be fixtures, and so treated them in his judgment awarding damages generally for the property rights condemned. The Court considered the fixtures as enhancing the value of appellee's property and not as separate items of recovery.

(As originally drawn, the trial court's judgment, after itemizing or enumerating said fixtures, contained an additional provision as follows: "Any and all other personal property in, on and under the above described real property, which is owned or claimed by the said Albert Adkisson." This provision of the original draft of the judgment will be disregarded in this opinion, since, as evidenced by supplemental transcript, the trial court held it was no part of said judgment and its inclusion therein a clerical error which was eliminated by proper order. This correction renders it unnecessary to resort to rules employed in construing judgments.)

In seeking condemnation of various lands in the area, the District included Adkisson's leasehold estate and in substance defined the issues by pleadings, as follows: "Your Petitioner further represents that it is necessary in order to make effective the purposes for which the District was created that Petitioner acquire, take, hold and enjoy all the properties, property rights, rights and privileges of the said Respondent herein, in and to said lands and that an easement to said land and property rights be condemned."

Such allegations possibly amount to no more than emphasis of the object and general purpose of the proceeding, but they also reflect the scope and effect which the proceeding had upon said fixtures.

In response to such pleadings appellee Adkisson alleged that in the Costello and Carter lands he owned a certain oil and gas lease and that 413.22 acres were flooded and covered by the reservoir, including 12 producing oil wells, casing, pumping units, etc. and fixtures used by him in the operation of said lease as a unit; that all of same had been covered, destroyed or rendered valueless to him, to his damage, etc.

The factual background of Appellee's contentions reflected by the testimony generally, and especially that of Montgomery is, in substance, as follows:

Said witness testified he was familiar with the fixtures on said leases and made an inventory of the same at the time or immediately before appellee's property was taken or covered by water from the dam. That all such fixtures or equipment were used by Adkisson in the production of oil. That the power house, etc., was 1,800 to 2,500 feet from the shore out in the lake, and about 30 feet under water. That the casing in some of the wells was cemented, and all wells had casings; that tubing, rods, pump, flow lines, and well head fittings were all connected to the casing. That the flow tanks were connected with the flow lines. That the tanks were of steel, of 100 to 250 barrel capacity, some welded, some put together with bolts, and resting on heavy timber foundations. That on the lease in an iron house there was a central power and an 18 foot band wheel power on a concrete foundation, with which appellee pumped eight of the wells. That this power was connected by pull rod lines, with pump jacks on the wells; that the pump jack sat over the well and lifted the sucker rods in the tubing and pumped the oil. That the sucker rods ran down through the tubing and connected with working slides. That the pump jacks were on timber foundations about 8×10 in size. The testimony gives in detail the operations and mechanics employed in producing oil wells.

The District's contentions with reference to these fixtures is reflected by a discussion between its counsel and the trial court. That discussion will, in part, be set out, since it focuses attention on the theory advanced in the trial, as well as the material questions presented by this appeal.

"Mr. Kilgore: Now, your Honor, we object to any testimony with reference to the fixtures or the equipment, because this is a proceeding to condemn an easement and is not a proceeding to take over the fixtures and equipment he might have had, and, therefore, it is wholly irrelevant as to what fixtures or equipment was on the property; and they are still there unless he removed them, which he had the right to do.

"Court: Do you have any authorities?

"Mr. Kilgore: I think it's elementary when we seek only to condemn an easement, the right to inundate a piece of property only; there are means by which they could still save his equipment.

"Court: They would now be under water, wouldn't they?

"Mr. Kilgore: I did not say they would not be under water."

In the judgment the Court found as follows: "The Court further finds that certain fixtures located under the leasehold estates of Respondent of the above property have been covered and flooded by the waters of Petitioner's Reservoir; and that the condemnation of an easement on said property has resulted in Respondent's use thereof, being totally destroyed and has resulted in a taking thereof by Petitioner."

The appellant insists the trial court erred in the judgment (1) "in mingling indistinguishably the value of the equipment on the lease with the value of the mineral estate which had been submerged by the waters of the District", (2) by fusing the value of the equipment on the lease with the value of the mineral estate", (3) "The mechanical equipment * * * on the mineral estate of Adkisson were not fixtures in the sense that such fixtures become a part of the realty, but were trade-fixtures, and, therefore, could not be estimated as a separate element of damage against the District", and (4) "If the equipment on the mineral lease that had been utilized by Adkisson in drilling for oil and gas and in extracting oil and gas from the soil should be considered as fixtures so that such fixtures became a part of the realty, then such fixtures would belong to the owner of the soil (Costello and Carter) and not to Adkisson, and consequently could not be an element of damage or of value in the condemnation suit of the District." Four propositions following those above stated raise, in substance, the same question.

On the other hand, appellee Adkisson contends that the testimony of Montgomery and other witnesses conclusively shows that the equipment on the lease listed by...

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