Davis v. Esperado Min. Co.

• Citation: 750 S.W.2d 887
• Decision Date: 12 May 1988
• Docket Number: No. C14-87-210-CV,C14-87-210-CV
• Parties: Jackie Lewis DAVIS and Peter Heinrich Deller, Appellants, v. ESPERADO MINING COMPANY, Appellee. (14th Dist.)
• Court: Court of Appeals of Texas

Page 887

750 S.W.2d 887

Jackie Lewis DAVIS and Peter Heinrich Deller, Appellants, v. ESPERADO MINING COMPANY, Appellee.

No. C14-87-210-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

May 12, 1988.

Preston Henrichson, Edinburg, Dale W. Felton, Houston, for appellants.

Craig Smyser, Houston, for appellee.

Before JUNELL, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

Appellants' son died as a result of a fall into a mine shaft adjacent to the Terlingua Ghost Town. Appellants filed a wrongful death action against a number of parties listed in the property's chain of title. The trial court granted appellee's motions for summary judgment and severance. Appellants' cause of action as to the other defendants is still pending in the court below. Appellants' sole point of error is that the trial court erred in granting the summary judgment. We affirm the judgment of the trial court.

Appellee, Esperado Mining Company, a corporation, became owner of the mineral estate in the property on September 29, 1972. There is no summary judgment evidence that appellee ever owned the surface estate. The mine shafts were in existence, but had been inactive for some years, at the time appellee became mineral estate owner. On April 25, 1975, appellee conveyed the mineral estate to Mel LaVergne, reserving a one-sixteenth ( 1/16) non-participating royalty interest. The accident involving appellants' son occurred on May 29, 1982, seven years after appellee's conveyance of the mineral estate.

Appellee sought summary judgment on two grounds. One, it owed no duty to appellants' son since it was not the owner or occupier of the property and it had no possessory interest in the property. Two, it fully disclosed the existence of the mine shaft to its grantee and thus discharged any duty it had. In their response to the motion for summary judgment, appellants contended that crucial fact questions remained as to whether the dangerous and defective condition of the mine shaft was created, modified, or maintained during appellee's ownership or control of the mineral interests, and whether such negligence was the proximate cause of the injury.

Liability for a defective condition on property arises only if the party had ownership, possession, control, or had itself created the dangerous condition. City of Denton v. Van Page, 701 S.W.2d 831 (Tex.1986). The mineral deed, which is part of the summary judgment evidence, clearly establishes that the mineral estate was conveyed to Mel LaVergne seven years before the accident occurred. Since appellee retained only a non-possessory royalty interest, it did not own, possess, or control the property. Stevens County v. Mid-Kansas Oil & Gas Company, 113 Tex. 160, 254 S.W. 290 (1923). The depositions of both J.L. Batt and Mel LaVergne clearly reflect that the mine shaft was in existence when appellee acquired the mineral interest. Other than assertions in appellants' brief in response to the motion for summary judgment, there is no evidence that appellee ever operated the mine during the two and one-half years it owned the mineral estate. In fact, the Batts deposition states that appellee never conducted mining operations on the property.

During the seven-year period prior to the accident, appellee was simply a royalty interest holder with no possessory right in the property, and no right to even enter the premises. Further, the summary judgment proof establishes that appellee did not create the dangerous condition. Since appellee did not own, possess, or control the property, nor create the causal condition, it had no duty to appellants' son. Therefore, appellee has no liability under general negligence theories.

Appellee's only duty was that of a vendor of real property. Texas courts of appeals have applied the Restatement (Second) of Torts §§ 351-353 (19-) to...