Merriman v. Xto Energy, Inc.

• Decision Date: 21 June 2013
• Docket Number: No. 11–0494.,11–0494.
• Citation: 56 Tex. Sup. Ct. J. 719,407 S.W.3d 244
• Parties: Homer MERRIMAN, Petitioner, v. XTO ENERGY, INC., Respondent.
• Court: Texas Supreme Court

407 S.W.3d 244

56 Tex. Sup. Ct. J. 719

Homer MERRIMAN, Petitioner,

v.XTO ENERGY, INC., Respondent.

No. 11–0494.

Supreme Court of Texas.

Argued Feb. 5, 2013.

Decided June 21, 2013.

Joe Cannon, Cannon & Wilson PC, Groesbeck, TX, Greg White, Attorney at Law, Wesley David Lloyd, Naman Howell Smith & Lee PLLC, Waco, TX, for Homer Merriman.

Bobby L. Reed, Attorney at Law, Groesbeck, TX, John Sjoberg, Jackson Sjoberg, McCarthy & Wilson LLP, Charles R. ‘Skip’ Watson Jr., Mike A. Hatchell, Locke Lord LLP, Austin, TX, for XTO Energy, Inc.

Andy McSwain, Fulbright Winniford PC, Waco, TX, for Amicus Curiae Texas Farm Bureau.

Lisa Bowlin Hobbs, Kuhn Hobbs PLLC, Austin, TX, for Amicus Curiae Texas Oil & Gas Association.

Justice JOHNSON delivered the opinion of the Court.

This case involves the question of whether a mineral lessee failed to accommodate an existing use of the surface when the lessee drilled a gas well. Claiming that the lessee did not accommodate his existing cattle operation, the surface owner sought an injunction requiring the well to be moved. The trial court granted summary judgment for the mineral lessee and the court of appeals affirmed. We affirm the judgment of the court of appeals.

I. Background

Homer Merriman, a pharmacist by occupation, owns the surface estate of an approximately 40–acre tract (the tract) in Limestone County. His home and a barn are on the tract, and he has installed permanent fencing and corrals which he uses in a cattle operation. Merriman leases several other tracts of land that he also uses in his cattle operation. Once a year he brings his cattle to the 40–acre tract in a “roundup” to sort and work them. The sorting and working activities involve using temporary corrals and catch-pens in conjunction with the permanent fencing and structures.

XTO Energy, Inc., the lessee of the tract's severed mineral estate, contacted Merriman in September 2007 about locating a gas well on the tract. Merriman claimed that the proposed location would interfere with his cattle operation, so he opposed it. Despite Merriman's opposition, XTO proceeded to construct a well site and drill the well. When XTO began construction of the well site Merriman filed suit seeking temporary and permanent injunctions enjoining it from drilling the well. After the well was drilled he amended his pleadings and sought a permanent injunction requiring XTO to remove it. Merriman's claim for injunctive relief was based on his assertion that XTO failed to accommodate his existing use of the surface for the annual sorting and working part of his cattle operation so XTO's acts exceeded its rights in the mineral estate and constituted a trespass.

Both parties filed motions for summary judgment, but because of our disposition of the appeal we need address only one of the grounds in XTO's combined traditional and no-evidence motion.¹ Among other grounds, XTO asserted that Merriman could not produce evidence XTO failed to accommodate Merriman's use of the surface, thus there was no evidence of the “wrongful act” Merriman alleged would support injunctive relief.

The trial court granted summary judgment for XTO without stating its reasons. The court of appeals affirmed. In concluding there was no evidence that XTO failed to accommodate Merriman's existing use, the appeals court focused on whether Merriman produced evidence that he did not have any reasonable alternative agricultural uses for the 40–acre tract, and also whether he produced evidence that relocating his sorting and working operations to the leased land was not a reasonable alternative. 407 S.W.3d 244, 250.

In arguing that the court of appeals erred, Merriman asserts that he is not required to show he cannot make any alternative agricultural uses whatsoever for the tract as required by the court of appeals. Rather, he argues, he is required to show only that he does not have reasonable alternatives for conducting his cattle operations. He maintains that he did so with competent, non-conclusory evidence. He further argues that the court of appeals erred by considering the availability of additional land he leased in determining whether he has reasonable alternatives for continuing his existing use of the single tract that he owns.²

II. Law

A. Summary Judgment

We review the granting of a motion for summary judgment de novo. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex.2012). When the trial court does not specify the grounds for its ruling, a summary judgment must be affirmed if any of the grounds on which judgment is sought are meritorious. State v. Ninety Thousand Two Hundred Thirty–Five Dollars & No Cents in U.S. Currency, 390 S.W.3d 289, 292 (Tex.2013). When both parties move for summary judgment and the trial court grants one motion and denies the other, we review all the summary judgment evidence, determine all issues presented, and render the judgment the trial court should have. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009).

Merriman contends that we should treat XTO's motion as only a traditional one because XTO did not sufficiently segregate the grounds for the different types of motions. But XTO labeled its motion as a combined traditional and no-evidence motion, and as long as a motion clearly sets forth its grounds and otherwise meets the requirements of a no-evidence summary judgment motion, as XTO's did, it is sufficient as one. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004); seeTex.R. Civ. P. 166a(i). When a party moves for summary judgment on both traditional and no-evidence grounds as XTO did here, we first address the no-evidence grounds. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). That is because if the non-movant fails to produce legally sufficient evidence to meet his burden as to the no-evidence motion, there is no need to analyze whether the movant satisfied its burden under the traditional motion. Id. No-evidence summary judgments are reviewed under the same legal sufficiency standard as directed verdicts. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.2003). Under that standard, evidence is considered in the light most favorable to the nonmovant, crediting evidence a reasonable jury could credit and disregarding contrary evidence and inferences unless a reasonable jury could not. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex.2007); City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). The nonmovant has the burden to produce summary judgment evidence raising a genuine issue of material fact as to each challenged element of its cause of action. Tex.R. Civ. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206 (Tex.2002). A no evidence challenge will be sustained when

“(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.”

King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).

B. The Accommodation Doctrine

A party possessing the dominant mineral estate has the right to go onto the surface of the land to extract the minerals, as well as those incidental rights reasonably necessary for the extraction. Tarrant Cnty. Water Control & Improvement Dist. No. One v. Haupt, Inc., 854 S.W.2d 909, 911 (Tex.1993); Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex.1971). The incidental rights include the right to use as much of the surface as is reasonably necessary to extract and produce the minerals. If the mineral owner or lessee has only one method for developing and producing the minerals, that method may be used regardless of whether it precludes or substantially impairs an existing use of the servient surface estate. Haupt, 854 S.W.2d at 911;Getty Oil, 470 S.W.2d at 622. On the other hand,

[i]f the mineral owner has reasonable alternative uses of the surface, one of which permits the surface owner to continue to use the surface in the manner intended ... and one of which would preclude that use by the surface owner, the mineral owner must use the alternative that allows continued use of the surface by the surface owner.

Haupt, 854 S.W.2d at 911–12.

To obtain relief on a claim that the mineral lessee has failed to accommodate an existing use of the surface, the surface owner has the burden to prove that (1) the lessee's use completely precludes or substantially impairs the existing use, and (2) there is no reasonable alternative method available to the surface owner by which the existing use can be continued. See Getty Oil, 470 S.W.2d at 628 (op. on reh'g); see also Humble Oil & Refining Co. v. Williams, 420 S.W.2d 133, 135 (Tex.1967); Davis v. Devon Energy Prod. Co., L.P., 136 S.W.3d 419, 424 (Tex.App.–Amarillo 2004, no pet.). If the surface owner carries that burden, he must further prove that given the particular circumstances, there are alternative reasonable, customary, and industry-accepted methods available to the lessee which will allow recovery of the minerals and also allow the surface owner to continue the existing use. Haupt, 854 S.W.2d at 911–12.

In this case the court of appeals' decision turned on its conclusion that Merriman failed to produce competent evidence that he had no reasonable alternative method by which to continue his cattle operation. As to that element of the accommodation doctrine, a surface owner's burden to prove that his existing use cannot be maintained by some reasonable alternative method is not met by evidence that the alternative method is merely more inconvenient or less economically beneficial than the existing method. See Getty Oil, 470 S.W.2d at 628 (op. on reh'g) (“We have not held, as some have stated, that the issue is a question of inconvenience to the...