Orsinger v. Schoenfeld

• Decision Date: 02 June 1954
• Docket Number: No. 12702,12702
• Citation: 269 S.W.2d 561
• Parties: ORSINGER et al. v. SCHOENFELD et al.
• Court: Texas Court of Appeals

Page 561

269 S.W.2d 561

ORSINGER et al. v. SCHOENFELD et al.

No. 12702.

Court of Civil Appeals of Texas, San Antonio.

June 2, 1954.

Rehearing Denied June 30, 1954.

Kelso, Locke & King, San Antonio, for appellants.

B. P. Matocha, Orville C. Walker, Dodson, Duke & Branch, Clifford Davis, San Antonio, for appellees.

POPE, Justice.

Appellants are landowners and homeowners who filed a suit against Chas. M. Schoenfeld and Olmos Rock Products, Inc., to permanently enjoin an alleged nuisance. The trial court sustained a plea in abatement to the appellants' original petition, and they have appealed. The trial court heard no evidence.

The plea in abatement stated that Article 4644, Vernon's Ann.Civ.Stats., forbade suits to enjoin subsurface drilling or mining operations unless the respondent is shown to be incapable of responding in damages, and that the suit was prematurely brought because it only asserted anticipated occurrances and results. The plea in abatement was actually a statement of certain special exceptions, and, as such, sufficiently raised the points intended by the appellees. Ferguson v. Commissioners' Court of Sabine County, Tex.Civ.App., 230 S.W.2d 303; Clark v. City of Dallas, Tex.Civ.App., 228 S.W.2d 946. The order sustaining the exceptions recited that the appellants declined to allege that the defendants are unable to respond in damages, and then dismissed the suit.

Appellants alleged that they brought the suit as a class action, that defendants had entered upon lands with the intent to establish a rock quarry and asphalt plant; that the quarry is located on property near a 'number of permanent homes'; that the property immediately west and southwest of the quarry site has a number of residences erected upon it; that subdivided lots in the entire area 'if not now used for residence purposes, were purchased and are now being held for that purpose'; and that all the plaintiffs either now reside on or own land in the vicinity of the quarry site. Appellants then alleged that the establishment and operation of the quarry will necessarily be accompanied by blasting with high explosives, causing noise, vibrations and tremors of the earth; that foundations of residences 'likely' will be damaged, water wells destroyed and polluted; that lives will be endangered by stones and rocks; that explosives must be stored on the quarry premises; that the operations will require heavy machinery, trucks, and much labor; that the pulverized limestone will result in dust; that the operation of the plant will result in the pollution of the air by fumes and heated oil; and that it is impossible to operate the plant without causing such annoyances, discomforts and damages. They alleged that the prior residential use of the vicinity will be destroyed by an industrial area and that the damages are such as are not compensable by the payment of damages.

From the record it appears that the chief point relied upon by the appellees in the trial court was that Article 4644 defeats the appellants' right to an injunction. That statute was passed originally in 1919, and provides in part:

'No injunction or temporary restraining order shall ever be issued prohibiting sub-surface drilling or mining operations on the application of an adjacent land owner claiming injury to his surface or improvements or loss of or injury to the minerals thereunder, unless the party against whom drilling or mining operations is alleged as a wrongful act is shown to be unable to respond in damages for such injury as may result from such drilling or mining operations; * * *.'

The appellants failed to allege that the appellees were unable to respond in damages, as required by the statute, and the trial court for that reason sustained the exceptions and dismissed their suit. Appellants assert that the court erred in applying the statute because of the nature of the operations involved. Appellants' argument is that the operations are and will be in the nature of an open-cut quarry for the removal of limestone; that such operations are not 'sub-surface drilling or mining operations' within the prohibition of the statute.

Appellants rely upon authorities which construe such terms as 'mineral rights,' 'minerals' and 'mines.' These terms are construed as used in ordinary language, as distinguished from a scientific or technical definition which, of course, whould include the taking of any substance and such things as soil, gravel, sand and any other substances composing the earth's crust. Their argument is supported by Heninatz v. Allen, 147 Tex. 512, 217 S.W.2d 994, which thoroughly treats the ordinary meanings of those terms, and concludes that the terms as used in a will to distinguish a surface estate from the sur-surface estate did not include ordinary limestone nor a quarry. See also, Watkins v. Certain-Teed Products Corporation, Tex.Civ.App., 231 S.W.2d 981; Marvel v. Merritt, 116 U.S. 11, 6 S.Ct. 207, 29 L.Ed. 550; Kreps v. Brady, 37 Okl. 754, 133 P. 216, 47 L.R.A.,N.S., 106; J. M. Guffey Petroleum Co. v. Murrel, 127 La. 466, 53 So. 705.

The appellees can and do point to as many authorities holding that particular statutes, either by reason of their purpose or their wording, have been held to include limestone and other substances within the meaning of 'minerals' or quarries within the meaning of 'mining.' Anderson v. Industrial Comm., 250 Wis. 330, 27 N.W.2d 499; Barksdale v. Silica Products Co., Inc., 200 Ark. 32, 137 S.W.2d 901; Union Drainage Dist. No. 6 of Towns of Bourbonnais and Manteno v. Manteno Limestone Co., 341 Ill.App. 353, 93 N.W.2d 500; Burdick v. Dillon, 1 Cir., 144 F. 737; Nephi Plaster & Mfg. Co. v. Juab County, 33 Utah 114, 93 P. 53, 14 L.R.A.,N.S., 1043.

The approaches suggested are not helpful in view of the wording of the particular statute. The arguments ignore a descriptive word which, in our opinion, is controlling and which we have no reason to believe is, as suggested by one of appellees, a tautological word. The statute limits injunctive relief in cases involving 'sub-surface' drilling or mining operations. It is true that any taking of minerals from the crust of the earth involves a sub-surface operation, but that fact does not compel the conclusion that the word is therefore meaningless. It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute. Texas Bank & Trust Co. v. Austin, 115 Tex. 201, 280 S.W. 161. And, conversely, 'a construction should not be...