Property Owners of Leisure Land, Inc. v. Woolf & Magee, Inc.

• Decision Date: 19 January 1990
• Docket Number: No. 12-89-00026-CV.,12-89-00026-CV.
• Citation: 786 S.W.2d 757
• Parties: PROPERTY OWNERS OF LEISURE LAND, INC., Del Mar Property Owners Association, Inc., Donald K. Young and City of Payne Springs, Texas, Appellants, v. WOOLF & MAGEE, INC., Appellee.
• Court: Texas Court of Appeals

786 S.W.2d 757

PROPERTY OWNERS OF LEISURE LAND, INC., Del Mar Property Owners Association, Inc., Donald K. Young and City of Payne Springs, Texas, Appellants, v. WOOLF & MAGEE, INC., Appellee.

No. 12-89-00026-CV.

Court of Appeals of Texas, Tyler.

January 19, 1990.

Willis D. Moore, Moore & Moore, Athens, for appellants.

John H. Minton and Potter Firm, Tyler, for appellee.

BILL BASS, Justice.

Appellants (hereinafter "Property Owners") brought suit against Woolf & Magee, Inc. seeking a declaratory judgment and permanent injunction concerning Woolf & Magee's construction of a road on certain lots in a subdivision. Sitting without a jury, the trial court found for Woolf & Magee. By seven points of error Property Owners challenge the legal and factual sufficiency of the evidence to support the trial court's judgment. We affirm.

The controversy in this suit concerns the construction of an emergency evacuation road on lots 67 and 110 in the Del Mar Subdivision in conjunction with the drilling of an oil well. North Central Oil Corp. is the mineral lessee of a tract of land which includes lots 67 and 110. North Central joined other lessees to pool their acreage to form the Woolf & Magee, et al—McCord Oil Unit No. 1 (hereinafter referred to as the "Unit"). Woolf & Magee, the operator of the unit, owns mineral leases within the pooled unit and is the surface owner of lots 67 and 110. The mineral lease on lots 67 and 110 specifically granted the lessee the right to pool the acreage.

Woolf & Magee holds a permit from the Railroad Commission to drill a well on land located outside of the subdivision, not on lots 67 and 110. However, the Railroad Commission has required that an emergency evacuation route be established because the well is expected to produce hydrogen sulfide gas. To comply with the Railroad Commission's order, Woolf & Magee created an emergency evacuation route by constructing a limestone road with culverts across lots 67 and 110. However, subdivision restrictions prohibiting the lots from being used for a street, access road, or public thoroughfare, and restricting the use of the lots to single family residential purposes were imposed on the lots in the subdivision in 1968, subsequent to the severance of the mineral and surface estates on the lots.

Property Owners objected to the use of the lots as an emergency evacuation route. They requested the trial court to declare that construction of the emergency road on the lots was unrelated to the mineral interest owner's right of access, that it was not a permissible use of the surface, and that it was an excessive use violating the subdivision restrictions.

The judgment included the following declarations regarding Woolf & Magee's proposed use of the lots as an emergency road:

(1) it was a use related to the right of the lessee of a severed mineral interest to use the surface estate for access and for reasonably necessary usages in the removal of oil, gas, and other minerals;

(2) such use did not constitute an excessive or unauthorized exercise by the mineral owner's lessee of the mineral owner's rights to use the surface for removal of the reserved minerals; and

(3) the restrictive covenants imposed on the lots did not affect or limit the rights of the owners or lessees of the severed mineral estate to reasonably use the surface inasmuch as such covenants were imposed subsequent to the reservation and severance of the mineral estate.

The trial court's challenged findings of fact and conclusions of law stated that the emergency evacuation road did not constitute a "street, access road, or thoroughfare" within the meaning of the restrictive covenants, that the emergency road across the lots was a reasonable and necessary use of the surface, and that the restrictive covenants did not affect the rights of the owner or lessee of the severed mineral estate to use the surface.

Property Owners contend that although Woolf & Magee is the surface owner of the two lots, its use of the surface, i.e., construction of the emergency road on the lots, was in violation of the subdivision restrictions, unduly burdening all the other lots in the subdivision. Property Owners argue that although the mineral owner or lessee has the right to reasonably burden the surface estate for the benefit of its own estate, the mineral owner or lessee cannot burden the surface estate of other lots in the subdivision, some of which are not pooled within the unit.

Woolf & Magee counters that the trial court's judgment should be affirmed because creation of the road on the lots does not violate the restrictions, the restrictions do not apply to the owner of the severed mineral interest, and the mineral owner's (and lessee's) right to reasonably use the surface estate includes the right to pool and the right to reasonably use the pooled or unitized surface area.

In their first point of error, Property Owners contend the trial court erred in concluding that the restrictive covenants limiting the use of the surface did not affect or limit the rights of the owners or lessees of the severed mineral estate to reasonably use the surface because the covenants were imposed subsequent to the reservation and severance of the mineral estate. The findings of fact and conclusions of law complained of, in pertinent part, are as follows:

. . . .

3. The restrictive covenants imposed on Lots 67 and 110 of the Del Mar Subdivision do not affect or limit the rights of the owners and lessees

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