Marshall v. Ballard
| Decision Date | 16 May 1958 |
| Docket Number | No. 3370,3370 |
| Court | Texas Court of Appeals |
| Parties | J. W. MARSHALL, Appellant, v. Pat BALLARD, Appellee. |
Donald & Donald, Bowie, for appellant.
Ratliff & Ratliff, Haskell, for appellee.
This is a plea of privilege case. Pat Ballard brought suit in Haskell County against W. K. Myers and J. W. Marshall, but Myers has been dismissed as a party defendant. Ballard sought to enjoin the defendants from piping salt water into an abandoned oil well located on his land, which is under an oil and gas lease and is referred to as the Ballard Lease, from nearby lands covered by other oil and gas leases. The defendant Marshall filed a plea of privilege to be sued in Montague County, the place of his residence. Ballard filed a controverting affidavit claiming the right to maintain suit against Marshall in Haskell County under Subdivisions 9 and 14 of Article 1995, Vernon's Annotated Texas Civil Statutes. After hearing before the court without a jury the plea of privilege was overruled. J. W. Marshall has appealed.
Subdivision 14 of the venue statute provides that suits for recovery of land or damages thereto, to remove encumbrances on the title to land, to quiet the title to land or to prevent or stay waste on lands must be brought in the county in which the land or a part thereof is situated. In order to establish venue in Haskell County under Subdivision 14 appellee Ballard had the burden of pleading and proving two venue facts. He was required to show first that the nature of the suit concerned land as contemplated by Subdivision 14 of the statute and second that the land involved was located in Haskell County. Appellee alleged and the evidence shows that the land is situated in Haskell County. The disputed question concerns the nature of the suit brought by appellee.
It is held that in cases where venue depends upon the nature of the suit, such venue is ordinarily determined by the nature of the principal right asserted in the plaintiff's petition and the relief sought in connection therewith. The nature of the suit is thus determined by the allegations of the plaintiff's petition. 43-B Tex.Jur. 113, 114; Brown v. Gulf Television Co., Tex., 306 S.W.2d 706; Tennessee Gas & Transmission Co. v. Heard, Tex.Civ.App., 190 S.W.2d 518; Galindo v. Garcia, Tex.Civ.App., 222 S.W.2d 477.
Appellee Pat Ballard alleged that he was the owner of certain described land situated in Haskell County; that he and his wife had executed an oil and gas lease on the land in favor of appellant J. W. Marshall; that said lease was producing oil and was being operated by Marshall for himself and other parties who were interested in the lease. Ballard alleged that Marshall was interested in and operating producing oil wells on several other tracts of land in Haskell County known as the Hancock leases or lease, which other lands were in the neighborhood of and near the Ballard lease. He alleged that the oil wells operated by Marshall produced not only oil and gas but also a large amount of salt water; that Marshall had been and was still piping salt water produced from the lands known as the Hancock leases onto the Ballard lease and into an abandoned well on the Ballard lease 'without the permission of and in violation of the rights of this plaintiff and to his damage.' Ballard alleged that the piping of salt water from other leases onto the Ballard lease constituted a willful trespass upon his land in Haskell County and constituted damage thereto. Ballard alleged that he had many times requested Marshall to refrain from piping salt water onto his land, but that Marshall had failed and refused to refrain therefrom, and that Ballard had suffered and would in the future suffer damage if Marshall continued to pipe salt water from other leases onto his land. Ballard alleged that an action for damages would afford him no adequate relief because of his inability to determine the amount of damages he had or would suffer and prayed that the court grant a permanent injunction against Marshall perpetually prohibiting him from piping salt water from leases other than the Ballard lease onto the land of Ballard and placing the same in the abandoned oil well on his land. Ballard also prayed for all other relief to which he might be entitled under the pleadings, the law and the facts of the case.
Appellant contends that the record shows no pleadings or evidence to support the action of the court in retaining venue in Haskell County. He contends that the nature of the suit as shown by appellee's pleadings is not one which concerns land as contemplated by Subdivision 14, supra. Appellant urges that the only relief sought by Ballard is to perpetually enjoin him from piping salt water from other leases onto the Ballard lease; that the suit is an injunction suit and that venue lies in the county of the defendant's residence under Article 4656 and Subdivision 30 of Article 1995. Article 4656 provides as follows:
Subdivision 30 of Article 1995 provides as follows:
Appellant cites the case of Brown v. Gulf Television Co., Tex., 306 S.W.2d 706, 709, as authority for his contention that the court erred in overruling his plea of privilege. The facts of that case are distinguishable from the facts of the instant case and the holding therein does not in our opinion support appellant's contention. In that case Brown, who was the owner of an airport in Brazoria County brought suit against Gulf Television Company seeking a mandatory injunction requiring the defendant to remove from its lands a television antenna which was located in the path of a runway approach approximately three and six-tenth's miles from Brown's airport. In the alternative Brown sought to recover damages from the defendant in the alleged amount of $250,000. It was held by our Supreme Court that a perpetual injunction was the primary and principal relief sought and hence venue was not controlled by Subdivision 14. The allegations of Brown's petition did not show that he sought an adjudication of any question involving the title to his land or any right or interest therein. Brown's claim for damages was not based upon any alleged 'injury to the possession, or the freehold or estate'. He did not allege any invasion of his land or any right appurtenant thereto. On the contrary, Brown complained of the use which the defendant made of his own land situated more than three miles away and sought to enjoin such use and to recover damages therefor. The injuries which he sought to restrain and for which he sought damages were injuries alleged to have resulted from a claimed interference with the operation of airplanes flying over defendant's land prior to landing upon or after taking off from Brown's airport. He alleged that the tower on appellant's land constituted a hazard endangering the lives of the users of his airport, thus interfering with the operation of the airport located on his land. It was held by our Supreme Court that damage to land, as contemplated by Subdivision 14,
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