State v. Black Bros.

• Decision Date: 22 June 1927
• Docket Number: (No. 4056.)
• Parties: STATE v. BLACK BROS. et al.
• Court: Texas Supreme Court

297 S.W. 213

STATE v. BLACK BROS. et al.

(No. 4056.)

Supreme Court of Texas.

June 22, 1927.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by the State of Texas and others against Black Brothers and others. The judgment of the trial court was reversed by the Court of Civil Appeals (253 S. W. 576), and the state of Texas brings error. Judgment of the Court of Civil Appeals reversed, and that of the district court reformed and affirmed.

Claude Pollard, Atty. Gen., W. A. Keeling, former Atty. Gen., and W. W. Caves, former Asst. Atty. Gen., and C. W. Trueheart, Asst. Atty. Gen., for the State.

Scott W. Key, of Eastland, D. T. Bowles, of Breckenridge, H. S. Garrett, of Fort

Worth, and Wm. E. Hawkins, of Breckenridge, for defendants in error.

GREENWOOD, J.

The state of Texas, joined by R. C. Brewster and others, brought this suit in the district court of Travis county against A. A. Atkins, W. H. Atkins, John Robbins, Jack Black, John Black, Will Black, Black Bros., a partnership composed of the three last named persons, R. F. Brown, the Brown Oil Company, P. A. Chapman, Jr., N. A. Moore, and the Humble Oil & Refining Company.

This suit had a dual purpose. In the first place, under the averments of a petition in the statutory form for an action of trespass to try title, the plaintiffs sought to recover the title to, and possession of, a certain tract of land in Stephens county, which was a part of the bed of the Clear fork of the Brazos river. In the second place, the plaintiffs sought to establish the rights of the coplaintiffs of the state, as the holders of a valid permit from the state, to prospect for and produce oil and gas from said tract of land, and to enjoin the defendants from interfering with the exercise of such rights, and to secure a decree granting unto plaintiffs a way of necessity across lands of defendants.

As a basis for the relief sought by plaintiffs other than the recovery of the title to, and possession of, the tract of land sued for, it was alleged:

First, that on June 16, 1920, in compliance with chapter 83, p. 158, General Laws, Regular Session, Thirty-Fifth Legislature, approved March 16, 1917, a permit numbered 7224 was issued to R. C. Brewster to prospect for and develop petroleum and natural gas upon and within said river bed area; that Brewster subsequently assigned his rights in so far as same related to a described part of said area to his coplaintiff, J. Neil Smith, who entered into a valid contract with the remaining coplaintiffs, Inland Oil Company and others, for the drilling of certain wells thereon, at a point authorized by the railroad commission.

Second, "that the drilling of a well for oil and gas in a river bed is a very costly operation, much more costly than the drilling of a well on a flat and dry surface, and is attended with great trouble, labor, and danger; that before the actual work of drilling can be commenced a concrete foundation must be built up from the bottom of the river bed to a point several feet about the surface of the water; that the river at the point of said location above described is 12 or 15 feet deep; that said assignees constructed at great expense and labor in said river at said location the form for the placing of the concrete therein; that said assignees and their employees while so engaged in the above work were threatened with physical violence and criminal prosecution by the above named defendants and each of them; that defendant A. A. Atkins and other defendants drove the said assignees of the state's permittee and their employees away from their work and from the above-described lands, premises, and area included within said permit No. 7224, with loaded shotguns, and refused, and still now refuse, to permit said assignees or their employees from continuing with the work of drilling a well for oil and gas at the above described location; that the said assignees and their employees fear that if they return to the work of so drilling said oil well, or attempt to do so, they will meet with bodily harm and injury from the said defendants and each of them, and because of said above alleged threats and acts of the said defendants, and each of them, the said assignees find it impossible to secure workmen to work upon said above described area and proceed with the drilling of the aforesaid oil well, and consequently said land, premises, and area above described will remain undeveloped for a long and indefinite period of time."

Third, "that said river bed, the title to which is in the state, subject to the rights of coplaintiffs, is virtually a closed-in area, surrounded on all sides by the private property of the adjoining landowners, previously granted to them and their predecessors in title, by the state, and especially is it true that said river bed at this particular location above described is closed in on all sides by the property and properties of the defendants, and each of them, and particularly by the property of defendants Atkins and Brown; that the plaintiff and its permittee, and his assigns, are entitled to a lawful and legal right of ingress and egress over the lands of the defendants and particularly the defendants Atkins and Brown, and each of them, as a way of necessity in order to go to and from and enter upon the land, premises, and area described above in paragraph 2 of this petition, as the property of this plaintiff (subject to the rights of its coplaintiffs herein); that the said defendants, and each of them, have refused and are still now refusing to permit the state of Texas or its permittee and his assigns from so entering upon and going through their (defendants') aforesaid adjoining properties to reach the above described land, premises, and area owned by plaintiff as aforesaid; that no public road affords access to plaintiff's said land, and defendants have refused to sell or lease to plaintiff or its permittees, or to grant by contract to plaintiff and its permittees any means of access over defendants' said lands, to the land of plaintiff; that it is impossible to develop the said area of this plaintiff unless such right of ingress and egress be granted to plaintiff and its permittee and his assigns over the said adjoining lands of said defendants, and each of them."

The prayer of plaintiff's petition was:

"Wherefore, plaintiff (joined herein as aforesaid by its coplaintiffs) respectfully prays this court that an appropriate order be immediately entered granting said plaintiff a temporary injunction restraining the defendants, and each of them, their agents, officials, assignees, servants, employees, or legal representatives, and each of them, from interfering, and attempting to interfere, in any way, manner, or form, with the plaintiff and its permittee, and his assigns, their agents, assignees, servants, employees, and legal representatives, and either of them, in the drilling of the aforesaid well for oil and gas at the above-described Smith location, or in the drilling of any oil and gas well, or wells, in the above-described land, premises, and area embraced within said permit No. 7224 and fully described above, and in the development of oil and gas on and under said property and area, from threatening and from running off said premises and area and from attacking said plaintiff and its permittee and his assigns, their agents, servants, employees, and legal representatives, and either of them, while on or about said premises from preventing or attempting to prevent in any way or manner said plaintiff and others above named, and each of them, from so drilling, or attempting to drill, and from so developing or attempting to develop said properties, and granting said plaintiff a temporary injunction forcing said defendants, and each of them, their agents, officials, assignees, servants, employees, or legal representatives, and each of them, to permit the plaintiff herein and its permittee, and his assigns, their agents, assigns, servants, employees, and legal representatives, and either of them, to go through and over the property, or properties, adjoining said river bed area, in order to go to and from said river bed area and to and from said Smith oil well location, and to give them the right of ingress and egress thereover, and restraining said defendants, and each of them, their agents, officials, assigns, servants, employees, or legal representatives, and each of them, from interfering with or preventing, or attempting to interfere with or prevent, said parties, and each of them, from going through and over such adjoining property, or properties, in going to and from said river bed area and said Smith location in said river bed area, and from doing any and all of the above acts set forth in the third count of this petition; that defendants and each of them be cited to appear and answer this petition; that on final hearing hereof, said above prayed for injunction, or injunctions, be made perpetual; and that plaintiff and its coplaintiffs herein have judgment against the defendants, and each of them, for the title and possession of the lands, premises and areas above described, and removing from the plaintiff's and its coplaintiffs' title the cloud cast upon it by the claims of the defendants, and each of them, and that plaintiff be adjudged to be the owner, subject to the rights of its permittee and his assigns, and that they be adjudged to be the owners of their rights and title therein, of the said land, premises, and area, free from the claims asserted by the defendants and each of them, and of the petroleum, oil, and natural gas and other minerals in and under the same; that a way of necessity be declared and established by the judgment of the court over the lands of defendants adjoining the property described in paragraph 2 hereof, and that a way of ingress and egress be decreed in favor of plaintiff; for writ of possession, and costs of suit, and for general...