Krienke v. Southwestern Superior Products Corp.

Decision Date19 March 1964
Docket NumberNo. 4221,4221
PartiesAnita KRIENKE, Appellant, v. SOUTHWESTERN SUPERIOR PRODUCTS CORPORATION, Appellee.
CourtTexas Court of Appeals

Fox, Fondren & Sapp, Taylor, for appellant.

William S. Lott, Georgetown, Wroe Owens and Phil Mockford, Austin, for appellee.

McDONALD, Chief Justice.

This suit was instituted by appellant against appellee for the purpose of obtaining construction of a 'sand, gravel, limestone, dolomite and rock lease', and a declaration of the rights, duties, and liabilities of the parties thereunder. Appellant is lessor, and appellee is assignee of the original lessee. Such lease is dated August 19, 1948 and provides for a primary term of 20 years, with options to lessee to renew for 20 additional years. Pertinent portions of such lease are:

'Sand, Gravel, Limestone, Dolomite and Rock Lease. * * *

'1. Lessor (Krienke) for and in consideration of the sum of $100.00 cash in hand paid * * *, and of the royalties herein provided, and the other agreements hereinafter set forth, hereby grants, leases, and lets exclusively unto Lessee for the purpose of investigating, exploring, prospecting, mining, producing, treating, removing and disposing of as desired, sand, gravel and rock (it is agreed and understood that the words 'sand, gravel, and rock', when appearing in this Lease, shall and do include sand, gravel, rock, limestone, and dolomite, and each of them of any and all kinds, and any combination of any one or more of them) and any one or more of them or any combination thereof, for construction, industrial, chemical, agricultural, and all other uses, and any one or more of them or any combination thereof, together with the right and privilege of building and maintaining roads, installing and maintaining equipment of any and all kinds for any one or more of said purposes, and the right of constructing and maintaining suitable shed, sheds, building or buildings, for the protection and convenience of the workmen * * * and the right of constructing and maintaining suitable storage for equipment and supplies, and the constructing and maintaining and operating of the necessary structures, roads and equipment thereon to produce, store, save, take care of, treat, transport, and own said products * * * the following described land in Williamson County, Texas, to-wit: * * * '2. It is expressly understood and agreed that the Lessee may place on said premises any and all machinery, appliances, equipment, structures, wagon roads, truck and automobile roads, and such other objects and things which may be necessary or convenient for use in mining, quarrying, producing, treating, storing, loading, and transporting sand, gravel and rock and any one or more of them, or any combination thereof so mined by Lessee upon said premises, and for such other operations as may be incident to the mining, quarrying and removing of such materials * * *.

'4. * * * All material processed shall remain the property of Lessee until removed from the premises * * *.' (Emphasis added).

The original lessee commenced quarrying operations under the lease in 1948, but hauled the rock and dolomite to a location some 3 or 4 miles away and off of lessor's land for treating and processing of the stone. One of the principal uses of the limestone and dolomite quarried is to convert it into 'dead burned dolomite' or 'dolomite lime.'

In 1963, lessee erected on the leased premises a large plant or factory, for the purpose of converting the raw dolomite stone into 'dead burned dolomite.' Such plant and equipment removed dirt from the quarried stone; reduced the stones in size by blasting; crushed the stone into smaller pieces; screened the crushed stone; conveyed the crushed stone into a kiln or dryer. The kiln treats the stone by subjecting it to high temperatures which drive off certain gases. Iron scale is introduced into the kiln which causes the stone to fuse harden as it reached certain temperatures at the discharge end of the kiln. The end product, 'dead burned dolomite' or 'dolomite lime,' has commercial and industrial uses.

It was and is the contention of the appellant landowner, that the lease was simply a quarry lease permitting lessee to extract dolomite and rock from the premises and haul same away; and that lessee is not permitted under the terms of the lease to build a manufacturing plant on the premises, or conduct a manufacturing operation on the premises.

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2 cases
  • Opperman v. Heritage Mut. Ins. Co.
    • United States
    • South Dakota Supreme Court
    • March 27, 1997
    ...146, 198 A.2d 574, 577 (1964)("process" is to treat, handle, or prepare through special treatment); Krienke v. Southwestern Superior Prod. Corp., 376 S.W.2d 936, 938 (Tex.Civ.App.1964)(defining "process" as to subject to treatment by special process, especially raw materials; to convert int......
  • Appeal of City of Berlin
    • United States
    • New Hampshire Supreme Court
    • December 28, 1988
    ...Landis v. Zoning Board of Adjustment of Hatfield, 198 A.2d 574, 576-77, 414 Pa. 146, 151-52 (1964); Krienke v. Southwestern Superior Products Corp., 376 S.W.2d 936, 938 (Tex.Civ.App.1964) (citing 87 C.J.S. 925 To obtain a tax exemption under RSA 72:12-a (Supp.1988) as it is written, the app......

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