Coastal States Gas Producing Co. v. Miller

• Decision Date: 21 October 1959
• Docket Number: No. A-7329,A-7329
• Citation: 160 Tex. 295,329 S.W.2d 853
• Parties: COASTAL STATES GAS PRODUCING COMPANY et al., Relators, v. Honorable John H. MILLER, District Judge, et al., Respondents.
• Court: Texas Supreme Court

Page 853

329 S.W.2d 853

160 Tex. 295

COASTAL STATES GAS PRODUCING COMPANY et al., Relators, v. Honorable John H. MILLER, District Judge, et al., Respondents.

No. A-7329.

Supreme Court of Texas.

Oct. 21, 1959.

Rehearing Denied Dec. 16, 1959.

Kelley, Looney, McLean & Littleton, Edinburg, Hart & Hart, Austin, for relators.

Strickland, Wilkins, Hall & Mills, Mission, for respondents.

HAMILTON, Justice.

This matter comes before us in the form of a petition for writ of mandamus filed by Coastal States Gas Producing Company, a corporation, and Harrell Drilling Company, a partnership, relators, complaining of respondents, the Honorable John H. Miller sitting as Judge of the 93rd Judicial District Court of Hidalgo County, Texas, and Harold Bannworth and Arthur Bannworth, residents of Hidalgo County, Texas, requesting that the said district judge be ordered and commanded to fix and determine the security which may be proper for the payment of any damages that may be assessed on relators' pleading of condemnation in Cause No. B20954 in said 93rd Judicial District Court of Hidalgo County, Texas, and that said respondents be commanded and ordered to permit and authorize relators to deposit the sum so fixed and determined in the registry of said district court, and that upon said deposit being made the said respondents be commanded and ordered to grant relators the right to take possession of the property described in the petition in said cause in said district court, except as to tract No. 3, as to which relators have dismissed their suit. It appears that on January 30, 1959, the relators as plaintiffs in said cause filed in said court their petition for injunction and for declaratory judgment and condemnation, complaining of said respondents Harold Bannworth and Arthur Bannworth as defendants. Said petition contained in substance three counts, as follows:

In the first count, relators allege that on March 10, 1958, the General Land Office of the State of Texas entered into an oil, gas, and mineral lease with Harrell Drilling Company, which said lease was filed for record on March 27, 1958, and is recorded in Volume 214, Page 322, of the Oil and Gas Lease Records of Hidalgo County, Texas; that subsequent thereto Harrell Drilling Company assigned and transferred a part interest in said lease to said Coastal States Gas Producing Company, which assignment is of record in Volume 217, Page 462, of the Oil and Gas Lease Records, Hidalgo County, Texas; that pursuant to Article 5421c, of the Revised Civil Statutes of Texas, as amended, relators filed condemnation proceedings in the County Court at Law of Hidalgo County, Texas, against Wheelock Oil Company, et al.; that on the 28th day of April, 1959, the commissioners appointed by the County Judge of the County Court at Law of Hidalgo County, Texas, made an award in said proceedings, and subsequent to the entry of said award, the relators, pursuant to Article 3268, Revised Civil Statutes of Texas, posted bond as required by law and deposited with the county clerk funds equal to twice the amount of the award of the commissioners in such case, performing all acts required by law for the purpose of immediately entering upon the property described in said condemnation proceedings, which was necessary for drilling sites and roadways in connection with said oil and gas lease. Relators further allege that the respondents, Harold Bannworth and Arthur Bannworth, who were not parties in the condemnation proceedings referred to, are asserting some interest in said land and that they have interfered with relators' possession of said land and are preventing relators from exercising their rights of possession under said condemnation proceedings; that relators have a lawful right to enter upon said property, but that respondents have prevented their doing so, to relators' irreparable damage.

In the second count of said petition, relators, in the alternative, pray for relief under Article 2524-1, Revised Civil Statutes, commonly known as the Uniform Declaratory Judgment Act, relators alleging that respondents are asserting a right in the property, that there is a current existing controversy between relators and respondents regarding the title and possession of said property, but that the court should adjudge what rights, title, or interest said respondents have in and to said property, and should adjudge that the respondents have no right to interfere with or prevent the relators from performing the acts authorized under the terms of said condemnation proceedings.

In the third count of said petition, pleading further in the alternative, relators pray that if injunctive relief is denied under Counts 1 and 2, that relators seek to condemn the interest of said respondents in said land; that said land is necessary for drilling sites and roadways; that relators have the right of eminent domain and the right to condemn property for roadways and drilling sites; that relators have determined that the acquisition of such roadways and drilling sites is necessary to the operation of their lease; that relators do not know and cannot determine with certainty what interest, if any, said respondents have in and to said property; that relators offer to post such bond and security as the court in its discretion deems necessary or proper, and relators specifically request the court to set the amount of bond as security and that the relators be permitted to proceed with the construction and operation of the roadways and drilling sites and that defendants be enjoined from interfering therewith. Relators specifically request that the court set the security as required by Article 3269, Revised Civil Statutes of Texas, as amended, and relators offer to do equity and post such bond as is required by the court and to perform such other acts as the court may deem reasonably necessary in the premises by way of protecting the said respondents against damages.

In their prayer relators pray for the following temporary relief:

(1) A temporary injunction enjoining said respondents from interfering with plaintiffs' construction and use of the roadways and the operations of the drill sites for the purposes set forth in Article 5421c, Revised Civil Statutes of Texas; (2) That the court set the amount of security to be required of relators and that upon posting such security, defendants be temporarily enjoined from interfering with plaintiffs' use of said roadways and drill sites, as provided in said Article 5421c;

(3) In the alternative, that this court fix the security as required by Article 3269, Revised Civil Statutes of Texas, and upon relators posting such security, relators be authorized to take immediate possession of such property for the purpose of roadways and drill sites.

Relators further prayed in said petition that upon final hearing the court render judgment for relators for title and possession of said property and that in the alternative the court declare and adjudge what right and interest respondents have in said property, and that respondents be permanently enjoined from interfering with plaintiffs' use of said property for the purposes authorized, and in the further alternative that relators be permitted to condemn said property under the power of eminent domain. Respondents Harold Bannworth and Arthur Bannworth in their answer filed in said cause No. B20594, on May 1, 1959, allege in substance the following defenses:

(1) That Article 3269, Vernon's Civil Statutes, does not authorize the court to permit relators to give security for the payment of damages as may be assessed upon their pleading for condemnation or permit relators to go into possession of the property sought to be condemned, because said respondents have not sought any injunctive relief against relators.

(2) That Tract No. 3 described in the third count in the plaintiffs' petition should not be included in any injunctive relief, because the condemnation proceedings as to said Tract No. 3 had been dismissed. (This issue was met by plaintiffs by dismissing as to said Tract No. 3, and this issue is no longer in the case.)

(3) That respondents are in possession of the property in question under a lease for agricultural purposes for fifteen years and are entitled to remain in possession of said premises; and

(4) That relators had not entered into possession of the property and had not made a previous attempt to condemn the interests of said respondents in said land.

A hearing was held on relators' petition and said answer of respondents on May 1, 1959, and the court on said date rendered and entered its judgment denying all temporary relief prayed for by plaintiffs and further providing as follows:

'The Court further finds, in compliance with the request of plaintiffs, that the plaintiffs have offered to post bond or deposit cash security in such amount as the Court might deem proper and sufficient in order to afford them the right claimed to enter immediately upon the property described in the petition, but the Court, being of the opinion that such right does not exist in said plaintiffs, finds and so holds that the plaintiffs should not be permitted to post bond or other security in order to obtain the right of immediate entry upon such property.'

It can be seen from the issues drawn by said pleadings that the decision in this case rests upon a construction and interpretation of Article 3269, Vernon's Texas Civil Statutes, as amended in 1945. Relators contend that since they are plaintiffs in a suit for property rights and the suit is brought for injunction to prevent respondents from interfering with their possession and use of such property by relators for the purposes for which they are given the right of condemnation and eminent domain, that it was and is the ministerial duty of the judge presiding in said cause to require and permit relators to give such security as the court may deem proper for the payment of any damages...