Texaco Inc. v. Parker

• Decision Date: 27 November 1963
• Docket Number: No. 5590,5590
• Citation: 373 S.W.2d 870
• Parties: TEXACO INC., Appellant and Appellee, v. Alvin H. PARKER, Appellee and Appellant.
• Court: Texas Court of Appeals

Page 870

373 S.W.2d 870

TEXACO INC., Appellant and Appellee, v. Alvin H. PARKER, Appellee and Appellant.

No. 5590.

Court of Civil Appeals of Texas, El Paso.

Nov. 27, 1963.

Rehearing Denied Jan. 8, 1964.

Stubbeman, McRae, Sealy & Laughlin, Rush Moody, Jr., W. B. Browder, Jr., W. N. Sands and Johnston S. Rowe, Midland, for appellant.

Will Hadden, odessa, for appellee.

PRESLAR, Justice.

This is an appeal from a trial on the merits in which the plaintiff, Alvin H. Parker, sued Texaco Inc. in trespass to try title, for damages actual and exemplary, and for permanent injunction. While cast as a trespass to try title suit, it is actually the age-old battle between the surface owner and mineral owner, as to their respective rights in the use of Section 2, Block 44, T-2-S, T. & P. Ry, Co. Survey, Ector County, Texas. By separate deeds Texaco Inc. had acquired title to all the minerals under the South half of said Section, and one-half the minerals under the North half thereof. Their deeds provided, in what can be termed the usual language, for the right of ingress and egress for the purposes of developing and producing the minerals. Parker's deed to the surface was acquired after the minerals had been separated from the surface, and contained a reservation that the mineral owner had the right of ingress and egree. The gist of the action was to determine and preserve the rights of the parties by injunction. Two suits in the trial court were combined for this trial by jury. In cause No. 16257 in the trial court, Parker sued Texaco and some 29 other defendants (agents, employees and contractors to Gexaco) in trespass to try title, for monetary damages, and injunctive relief by reason of Texaco's development of its mineral estate under the section; and Texaco cross-acted for injunctive relief to prevent Parker from interfering with such development. In cause No. 19417, Texaco sued Parker and the Commissioners Court of Ector County seeking to set aside a conveyance of a portion of an alleged public road by the County to Paker, and seeking injunction to prevent Parker from interfering with Texaco's use of such road leading to the section in question.

From a trial court judgment denying Parker damages, granting Texaco injunctive relief in certain respects, but also granting Parker injunctive relief in certain respects, both parties appeal, Texaco as appellant and Parker as cross-appellant.

By assignments of error, properly preserved for appeal by reason of having been a part of its motion for judgment on the verdict (Rule 324), appellant Texaco asserts that certain issues determined on this trial have already been determined on the two previous hearings on temporary injunction and are res judicata. In that connection it is noted that Parker brought suit for temporary injunction against Texaco, Texaco cross-acted for injunction, the matter was quite fully tried in the trial court, appealed to this court with three volumes of statement of facts, this court affirmed the trial court's injunction against Parker (cause No. 5384 in this court, 326 S.W.2d 579), and writ was refused N.R.E. by the Supreme Court. A second injunction suit was brought by Texaco against Parker, and it was fully developed in the trial court. The record in the prior suit was introduced in the second suit, and it was appealed again to this court, No. 5396 in this court. The two actions were combined in the trial court for trial on the merits, and the record in the two prior hearings was withdrawn from this court for use in the trial on the merits, which is the case now before us on appeal. This court now has before it many of the exhibits and evidence for the third time, and is called upon again to construe some of the instruments for the third time.

Ordinarily an appeal from an order granting or denying an interlocutory injunction is to be determined on the proper exercise by the trial court of judicial discretion. However, the parties may elect to distinctly put in issue questions of law and matters of fact and fully develop them before the trial court and bring them forward on appeal in such manner that their determination becomes final. Thus, the general rule that an interlocutory judgment will not support a plea of res judicata may have its exceptions. It depends on what was done. This is set out clearly in Wilson v. Abilene Independent School District, 204 S.W.2d 407 (East.Civ.App., 1947 Err. Ref. N.R.E.) where, on the second appeal of a temporary injunction suit, the appellate court upheld the trial court's action of sustaining the plea of res judicata and dismissing the case. The court reasoned that its case conformed to the well-established rule as to the application of res judicata, to-wit:

'The general principle, announced in numerous cases, is that a right, question or fact, disinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense, cannot be disputed in a subsequent suit between the same parties or their privies.'

Of the cases which apply the above rule to temporary injunctions, those more like the one before us are Daniel v. Kittrell, 188 S.W.2d 871 (Waco Court of Civil Appeals), and Hudspeth v. Guggenheim, 12 S.W.2d 238 (San Antonio Court of Civil Appeals, writ dismissed). Even though in the strict sence the decision on appeal from the granting or refusal of a temporary injunction may not be res judicata of the issues on final hearing, it may become the law of the case as to the legal principles declared. Birchfield v. Bourland, Tex.Civ.App., 187 S.W. 422; International Longshoremen's Ass'n v. Galveston Mar. Ass'n, 358 S.W.2d 607 (Civ.App.1962); Baker v. Hill, Tex.Civ.App., 35 S.W.2d 779 (Wr.Dism.); Hayden v. City of Houston, Tex.Civ.App., 305 S.W.2d 798 (Wr. ref. N.R.E.). This is as it should be, for a dissatisfied litigant has a choice--he may appeal or seek a trial on the merits. Having elected to appeal, he should thereafter be bound by matters fully litigated and determined in the same manner as appeals from final judgments. The desirability of ending all litigation as soon as possible is further justification for these exceptions to the general rule.

It would be difficult to conceive of a case where the issues have been more thoroughly litigated on appeal, prior to final hearing, than the case before us. We are of the opinion that many of the matters considered on final hearing were res judicata, as above defined, or became established legal principles so as to be the law of the case within the meaning of the above-cited cases.

By its Points of Error 1 and 2, appellant Texaco sets out some eleven legal principles which it urges are res judicata and should have been found by the trial court when Texaco excepted to plaintiff's pleadings, or on Texaco's motion for directed verdict or their motion for judgment. With that we agree, except for certain differences in the language used, but we do not think it would serve and useful purpose to discuss each of them, for they are not in conflict with the result eventually reached by the trial court except in two instances, which will be discussed. The first of these is also the subject of Texaco's Points numbers 7 and 8, and complains of that portion of the judgment which restricts Texaco's use of the North one-half of Section 2, in connection with development and operation of the South one-half, to travel on and across the North half to reach the South half. In other words, in this respect the judgment requires Texaco to treat the North...