Pickens v. Harrison

• Decision Date: 08 June 1950
• Docket Number: No. 12197,12197
• Citation: 231 S.W.2d 812
• Parties: PICKENS v. HARRISON et al.
• Court: Texas Court of Appeals

Page 812

231 S.W.2d 812

PICKENS v. HARRISON et al.

No. 12197.

Court of Civil Appeals of Texas, Galveston.

June 8, 1950.

Rehearing Denied June 29, 1950.

Andrews, Kurth, Campbell & Bradley and Raymond A. Cook, all of Houston, Vance and Vance, of Edna, and Hamblen, Bobbitt & Hamblen, Jas. F. Bobbitt and A. C. Lesher, Jr., all of Houston, for appellant.

S. G. Sample and W. H. Hamblen, both of Edna, and Fulbright, Crooker, Freeman & Bates, Leon Jaworski, Austin C. Wilson, all of Houston, for appellees.

CODY, Justice.

This is a plea of privilege case. Suit was filed in the District Court of Jackson County by plaintiffs, Harrison of Wharton County, Combs of DeWitt County, and Clark of Jackson County, against defendant, Pickens of Dallas County, wherein it was alleged in substance that plaintiff Combs was the owner of 1,380 acres in Jackson County, and that on January 1, 1949, he leased said land to plaintiff Harrison for a period of ten years for rice farming purposes and that under the terms of said lease said Harrison drilled an irrigation well of the value of $17,500 on a portion of the land; that on February 1, 1949, said plaintiff Harrison and plaintiff Clark entered into a partnership agreement for the purpose of rice farming the land; that under said partnership agreement plaintiff Clark contributed $5,000 and his services in rice farming said land, and was to share equally in the rice produced: that said plaintiffs Harrison and Clark would have produced a rice crop on said land for the 1949 season of the value of $20,000 except for the wrongs perpetrated by defendant.

Plaintiffs further alleged that defendant operated an oil and gas lease in the vicinity; that in operating said lease, defendant negligently disposed of salt water and other refuse so as to cause same to pollute the surface and subsurface waters and water-bearing sands, and so as to pollute the water of Lummis Creek which flowed down to and seeped into said plaintiffs' land, etc., etc. (making allegations of specific particulars in which defendant was alleged to be guilty of negligence in disposing of refuse from the operation of the oil lease, proximately causing the injuries complained of).

Plaintiffs further alleged that the rice crop was damaged in that less rice was produced, and that of an inferior quality, by reason of defendant's said negligent acts and that the leasehold estate was damaged, and the water well injured and polluted, etc. The damage to the leasehold estate was alleged to be $75,000; and that the value of the ownership in plaintiff Combs was damaged to the extent of $40,000. Without further particularizing, the plaintiffs sought recovery as follows: for plaintiff Harrison, $109,178.87; for plaintiff Clark, $12,504.63; for plaintiff Combs, $43,334.56.

Defendant seasonably filed his plea of privilege to be sued in Dallas, the county of his residence, which plaintiffs duly controverted, asserting venue to be in Jackson County under subdivision 14, Article 1995.

Upon the hearing of such contest, plaintiffs offered proof (1) that the land was located in Jackson County; that plaintiff Harrison leased the land from plaintiff Combs for ten years; that Harrison and Clark are in partnership in the farming operations thereon, and (2) introduced their pleadings in evidence to show the nature of their suit, and then rested. They introduced no evidence on the issue of damages, either to establish that the alleged injuries occurred, or that defendant was negligent in the respects charged, or that defendant's acts caused plaintiffs' damages. Nor would the court permit defendant to cross-examine the plaintiff Harrison, who testified for plaintiffs, as to the truth of the allegations of plaintiffs' petition with respect to the cause of action therein alleged. Defendant duly excepted to the court's refusal to permit any other evidence to be heard,-excepted to the court's refusal to hear evidence from Harrison on the issue of defendant's liability, upon which defendant sought to cross-examine said witness.

In response to defendant's request, the court filed findings of fact and conclusions of law; finding, that it was undisputed that the land was located in Jackson County; and concluding: That plaintiffs' petition shows this to be a suit by Gerard A. Harrison, as lessee of the lands involved, by Hassell I. Clark, his partner, and by C. J. Combs, as lessor and owner of the land, for recovery of damages to the land involved, in Jackson County. That by reason of Subdivision 14, Article 1995, venue of the suit is in Jackson County. That the only venue facts to be proved under said subdivision are (1) that the land is located in Jackson County, and (2) that the nature of plaintiffs' suit is a suit for the recovery of damages to such land, which latter fact, as to the nature of the suit, is to be determined from the allegations of plaintiffs' petition.

Defendant predicates his appeal on these points:

1. 'The Court erred in holding that the only venue fact necessary to be proved under Section 14 of Article 1995, * * * is that the land in question is located in the County in which venue is sought to be maintained.

2. 'The Court erred in overruling appellant's (defendant's) plea of privilege as to appellee, Hassell I. Clark, and in sustaining appellee, Hassell I. Clark's controverting affidavit for the reason that said appellee's pleading showed that he had no interest or estate in the land in question and there was no proof that he had any interest or estate in said land.'

Defendant's first point must be overruled.

The question of whether the liability of the defendant, in a suit for damages to land, is a venue fact under Subdivision 14, has not yet come squarely before the Supreme Court for decision, nor has it heretofore come before this Court. However, it is defendant's contention that the following decisions by courts of civil appeals have held that, in such a suit, such liability of the defendant is a venue fact under Subdivision 14, and that in order to sustain the court's jurisdiction where the suit is pending against the defendant's plea of privilege, the plaintiff, in addition to proving the land is located in the county where the suit is pending, must prove, at least prima facie, that defendant is liable for the damages. Talco Asphalt & Refining Co. v. McCann, Tex.Civ.App., 149 S.W.2d 150; Fordyce Gravel Co. v. Spring, Tex.Civ.App., 79 S.W.2d 1111; Hoover v. Horton, Tex.Civ.App., 209 S.W.2d 646. Unquestionably, the text of Texas Jurisprudence, Vol. 43, at page 863, supports defendant's position, where the following language is used: 'Suit for Damages to Land. When the suit is for damages to land the proof is sufficient if it prima facie shows that damage was incurred through the acts of defendant or by his authority and that the land is located in the county.'

The language of the following decisions by courts of civil appeals supports the action of the trial court here. Cox v. Chapa, Tex.Civ.App., 188 S.W.2d 217; Holmes v. Jackson, Tex.Civ.App., 200 S.W.2d 276; Tennessee Gas & Transmission v. Heard, Tex.Civ.App., 190 S.W2d 518; Ross v. Martin, Tex.Civ.App., 225 S.W.2d 220; Longhorn Trucks v. Bailes, Tex.Civ.App., 225 S.W.2d 642. On the last two cases, the Supreme Court refused applications for leave to file petitions for writs of mandamus against the courts of civil appeals, and plaintiffs have made the Supreme Court records here available. But we do not rest out our decision upon said records. ¹ The defendant has undertaken to distinguish the cases so cited by plaintiffs, and has requested this Court to consider the records in two of the cases which were before the courts of civil appeals, so that this Court may go back of such holdings, and determine from the records before such courts, that they used broader language than the records before them justified.

We deem it a more rewarding labor to determine what are the venue facts necessary to be pled and proved in order to bring the case within Subdivision 14 from the rulings made in Compton v. Elliot, 126 Tex. 232, 88 S.W.2d 91, and Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, than from a review of the...