Southwest Weather Research, Inc. v. Jones

• Decision Date: 08 July 1959
• Docket Number: A-7201,Nos. A-7199,s. A-7199
• Citation: 327 S.W.2d 417,160 Tex. 104
• Parties: SOUTHWEST WEATHER RESEARCH, INC., et al., Petitioners, v. George Asa JONES et al., Respondents. SOUTHWEST WEATHER RESEARCH, INC., et al., Petitioners, v. Jim DUNCAN et al., Respondents.
• Court: Texas Supreme Court

Page 417

327 S.W.2d 417

160 Tex. 104

SOUTHWEST WEATHER RESEARCH, INC., et al., Petitioners, v. George Asa JONES et al., Respondents.

SOUTHWEST WEATHER RESEARCH, INC., et al., Petitioners, v. Jim DUNCAN et al., Respondents.

Nos. A-7199, A-7201.

Supreme Court of Texas.

July 8, 1959.

Rehearing Denied Oct. 7, 1959.

Raymond A. Lynch, Turpin, Kerr, Smith & Dyer, Midland, for petitioners.

Hunter Metcalfe, William H. Earney, Marfa, Dan Moody, Susette Meyer, Austin, for respondents Jim Duncan and others.

Henry Russell, Pecos, Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., and Milton L. Bankston, Midland, for respondents George Asa Jones and others.

NORVELL, Justice.

These are artificial weather control cases. In both causes the trial judge issued temporary injunctions which were modified substantially by the Court of Civil Appeals. See, Southwest Weather Research, Inc. v. Rounsaville, Tex.Civ.App., 320 S.W.2d 211 (the Jones case in this Court) and Southwest Weather Research, Inc. v. Duncan, Tex.Civ.App., 319 S.W.2d 940. For all practical purposes the two cases present identical questions of law and may be disposed of in one opinion.

The respondents assert that this Court is without potential jurisdiction of these cases and that the writs of error should be dismissed because they were improvidently granted. By an amendment to the application for writs of error, petitioners assert jurisdiction under the provisions of Article 4662, Vernon's Ann.Tex.Stats.

(1) In Weaver v. Board of Trustees of Wilson Independent School District, 143 Tex. 152, 183 S.W.2d 443, it was held that this Court, by virtue of the provisions of said Article 4662, 'has jurisdiction to review, by writ of error, the ruling of the trial court in granting or refusing a temporary injunction where the main case out of which the application for injunction grew is one over which the Supreme Court has jurisdiction. Houston Oil Co. of Texas v. Village Mills Co., 109 Tex. 169, 202 S.W. 725 (266 S.W. 1075); Spence v. Fenchler, 107 Tex. 443, 449, 180 S.W. 597; 24 Tex.Jur. 286, § 230.' This Court clearly has jurisdiction of the main cases out of which the temporary injunctions were issued.

The Weaver case was decided after the adoption of the 1941 Rules of Civil Procedure which resulted in the purely procedural aspects of Article 4662 being carried forward in rule form as a part of Rule 385, while the jurisdictional provisions of the Article in statutory form remained unaffected. Acts 1939, 46th Leg., p. 201, Article 1731-a, Vernon's Ann.Tex.Stats.

Respondents contend that State v. Wynn, Tex., 301 S.W.2d 76 and International Harvester Co. v. Stedman, Tex., 324 S.W.2d 543 are authorities sustaining their position. Both cited cases relate to pleas of privilege under the writ of error practice outlined by the 1953 amendments to Articles 1728 and 1821 of Vernon's Ann.Tex.Stats. Acts 1953, 53rd Leg., p. 1026. The cases before us involve temporary injunctions and in order to construe the 1953 amendment to Articles 1728 and 1821 as precluding Supreme Court review of such injunctions it would be necessary to hold that the 1953 Act impliedly repealed certain provisions of Article 4662. This position is foreclosed by the holding of this Court in Houston Oil Co. of Texas v. Village Mills Co., 1918, 109 Tex. 169, 202 S.W. 725, 726, 226 S.W. 1075 construing the predecessor statutory articles comparable to the present Articles 4662 and 1728, Vernon's Ann.Tex.Stats. This Court, speaking through Chief Justice Phillips, said:

'We have not failed to consider the defendant in error's motion to dismiss the cause. The ground of the motion is that the Supreme Court is without jurisdiction to grant a writ of error in appeals from interlocutory orders granting, refusing, or dissolving injunctions-which we have heretofore held is possessed by the court under Articles 4644, 4645 and 4646 where the cause in not of that class of which the jurisdiction of the Courts of Civil Appeals is made final by Article 1591-because, it is urged, these articles were in effect repealed by the Amendment of 1913 to Article 1521, defining the general jurisdiction of the Supreme Court. As was announced during the argument, we have heretofore determined this question in assuming the jurisdiction here disputed by our action upon numerous applications for writs of error in causes of the class of the present one since amended Article 1521 became effective. The purpose of Articles 4644, 4645 and 4646 was to confer a special jurisdiction upon the Supreme Court in a particular proceeding. They are particular statutes and relate solely to a certain kind of appeals. Amended Article 1521-since amended by the Act of 1917 (Acts 35th Leg. c. 75, § 1 (Vernon's Ann.Civ.St.Supp.1918, Art. 1521))-was a general statute and was expressed in only affirmative terms. It contained no negative provisions. Its purpose was only to define the general jurisdiction of the Supreme Court over causes determined in the Courts of Civil Appeals. It evinced no intention of impairing the special jurisdiction conferred upon the Supreme Court under Articles 4644, 4645 and 4646. There was no absolute repugnancy between it and Articles 4644, 4645 and 4646 since under its terms it was possible for it to have, and it did have, an extensive operation beyond the limited scope of these articles. Under familiar rules there was no implied repeal. Sutherland on Statutory Construction, §§ 274-278; Cole v. State (ex rel. Cobolini), 106 Tex. 472, 170 S.W. 1036; State (ex rel. St. Paul Gaslight Co.) v. McCardy, 62 Minn. 509, 64 N.W. 1133.'

Having disposed of the question of this Court's jurisdiction, we turn to the facts of the case. It appears that the petitioners, Southwest Weather Research, Inc. and others, were employed by a large number of farmers in and around Fort Stockton and other areas lying generally in an easterly direction from the Davis Mountains to conduct a hail-suppression program. The petitioners fly airplanes through clouds and 'seed' them with chemicals and thus prevent hail precipitation. The respondents are owners or lessees of lands in Jeff Davis County and contended that this 'cloud seeding' process results in the suppression and prevention of rain to the damage of their lands which are used primarily for ranching purposes. So, with the advance of science we find another point of cleavage and conflict in the long struggle between the ranchman and the farmer.

The trial judge issued pendente lite injunctions restraining petitioners' cloudseeding activities until the case could be finally determined upon the merits. These injunctions were modified by the Court of Civil Appeals. In the Rounsaville-Jones case the injunction was rendered applicable only to lands owned by respondents, George Asa Jones, Ted Gray, Walter McElroy, Jr., Davis Medley, H. C. Patterson, Nelson Lethco, Peeler Mathews and Richard Hoefs. The injunction was dismissed insofar as it related to Joe Rounsaville and numerous other plaintiffs in the district court and dissolved as to all lands in Culberson, Terrell, Winkler and Loving Counties, 320 S.W.2d 217. Similarly in the Duncan case, the injunction of the trial court was held to be unnecessarily broad in that it restrained defendants (petitioners here) from any activity with reference to the area of plaintiffs' lands and was accordingly modified so as to restrain defendants from 'cloud seeding' only as such activities apply directly to plaintiffs' lands. 319 S.W.2d 945. As we construe the injunctions as modified, they apply only to cloud seeding activities over lands which are owned by the respondents now before us and which directly affect such lands.

(2) The respondents raise a venue (or jurisdictional) question which must be considered. Article 4656, Vernon's Ann.Tex.Stats. provides:

'Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered; writs of injunction for other causes, if the party against whom it is granted by an inhabitant of the State, shall be returnable to and tried in the district or county court of the county in which such party has his domicile, according as the amount or matter in controversy comes within the jurisdiction of either of said courts. If there be more than one party against whom a writ is granted, it may be returned and tried in the proper court of the county where either may have his domicile.'

Petitioners contend that under this article the injunctions issued by the District Court of Jeff Davis County and returnable to such court were void because none of the petitioners reside in Jeff Davis County. It is sufficient answer to...