Taylor v. Gulf Oil Corp.

• Decision Date: 16 May 1957
• Docket Number: No. 6113,6113
• Citation: 303 S.W.2d 541
• Parties: Albert Lee TAYLOR, Appellant, v. GULF OIL CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 541

303 S.W.2d 541

Albert Lee TAYLOR, Appellant, v. GULF OIL CORPORATION, Appellee.

No. 6113.

Court of Civil Appeals of Texas, Beaumont.

May 16, 1957.

Magus F. Smith, McAllen, W. H. Wren, Hamilton, for appellant.

Frank K. Dougharty, Liberty, William C. Spence, Robert F. Carter and R. A. Corcoran, Houston, for appellee.

HIGHTOWER, Justice.

The petition for temporary injunction was filed in May of 1956. The hearing was had six months later in November, 1956. It is ancillary to a suit in trespass to try title between the same parties, and involves 13.2 acres of a 100-acre tract in Liberty County which is alleged to have been conveyed to the plaintiff, Gulf Oil Corporation, in 1915. The defendant claims title under the ten-year statute of limitation. The controversy arose over the plaintiff's attempt to cross a portion of one corner of the said 13.2 acres by burying thereon a salt-water discharge line from a well adjoining it. The line was to flow into a cavity well on other property of the plaintiff also adjoining the 13.2 acres. The order of the court, in full accord with the prayer for relief, reads:

'* * * restraining and enjoining the Defendant, Albert E. Taylor, his agents, servants and employees, from further preventing the entry of Plaintiff, its agents, servants, employees, contractors and representatives upon said land for the purpose of laying said pipe line and making said survey, or preventing them from performing any act appropriate to ownership of same, and from further molesting them or threatening them with bodily harm if they attempt to do such acts upon said premises, or exercise full and complete emjoyment of all the rights and privileges of said ownership and rights to possession thereof * * *.'

It is to be noted that the court's order almost had the effect of determining the merits of the parties' alleged titles to the disputed property; of disrupting the status quo of the parties, and depriving the defendant, under threat of contempt, of any use of the property whether consistent, or not, with the plaintiff's use of the pipe line. $The plaintiff's petition alleged, among other things, that they had been in possession under their title and that the defendant unlawfully entered upon and dispossessed it and withholds from it the possession thereof, etc., and on the hearing its complete chain of title from the sovereign was introduced. One, or more, of its agents testified of the defendant's obstructing, in October, 1955, the plaintiff's efforts to build a road across the 13.2 acres to a new well location of the plaintiff's adjoining the disputed property, the obstruction of the pipe line laying in May of 1956, and that the salt water sought to be diverted by the line, was then being hauled by vacuum trucks at the cost of $50 per day to the plaintiff. There was no showing of an inadequate remedy, at law, irrepable injury, pressing necessity, or insolvency of the defendant, or that the defendant had unlawfully or fraudulently or forcibly ejected the plaintiff. The record shows it to have been in possession of much of the 100-acre tract under its deed, having drilled, and in the process of drilling, oil wells thereon. There is no evidence, however, that it was ever in actual possession of any portion of the 13.2 acres. On the other hand, it is undisputed that the defendant, under his claim of limitation title, was in the last actual, peaceable, uncontested possession of the 13.2 acres.

Along with a proper plea of title under the ten-year limitation statute, the substance of the testimony for the defendant was that his father had first fenced the property in dispute with a hog-proof fence about 1924 or 1926, claiming it as his own and using it for grazing stock to the exclusion of anyone else up to the time of his death about four years prior to the injunction hearing; that this 13.2 acres was adjacent to the old homestead place of his parents where he and his mother still lived, and that such homestead tract had also, for about the same number of years, been under substantial fence; that during the past ten years no one other than the defendant and his father was known to run stock on the 13.2 acres; that the fence had been substantially down for the two years next preceding the hearing; that the defendant's father left no will, and that besides the widow above-mentioned there are six surviving children; that the defendant and his brothers have used and claimed the land since their father's death. There appears to have been no necessity for an administration of the estate.

It may be well to here observe that whatever title the defendant's father may have acquired during his lifetime was cast by law upon his heirs upon proof of the facts which made the heirship. Slaton v. Singleton, 72 Tex. 209, 9 S.W. 876; Steele v. Caldwell, Tex.Civ.App., 158 S.W.2d 867, and that as a cotenant with the other heirs he was entitled, in the circumstances, to defend the possession of all regardless of the fact that he may have claimed, at most, an undivided 1/12th interest of the estate. Steddum v. Kirby Lumber Co., 110 Tex. 513, 221 S.W. 920; Cotenancy, Vol. 11, Tex.Jur., pages 499, 500.

Of the appellant's six points of error, we overrule those relating to appellee's failure to establish an adequate remedy at law irreparable injury, pressing necessity or the insolvency of the appellant, as it appears that these matters are of little, if any, consequence upon a hearing for a temporary injunction, other matters considered. We sustain those points, however, relating to the failure of the court to preserve the status quo of the parties pending trial of the merits and, in effect, transferring possession of the property to appellee.

First, we have determined that the following rules, as announced by the Supreme Court in Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552, are applicable as the facts here exist, Justice Calvert speaking:

(1) 'In a hearing on an application for a temporary injunction the only question before the Court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he...