Trice v. State

• Decision Date: 13 June 1986
• Docket Number: Nos. 85-1106-3,10-85-265-CV,s. 85-1106-3
• Citation: 712 S.W.2d 842
• Parties: John R. TRICE, Individually, and T & H Materials, Ltd., d/b/a J & J Sand & Gravel Company, Appellants, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 842

712 S.W.2d 842

John R. TRICE, Individually, and T & H Materials, Ltd. d/b/a J & J Sand & Gravel Company, Appellants, v. STATE of Texas, Appellee.

Nos. 85-1106-3, 10-85-265-CV.

Court of Appeals of Texas Waco.

June 13, 1986.

Rehearing Denied July 10, 1986.

Charles B. McGregor, Greg White, McGregor & White, Waco, for appellants.

Jim Mattox, Atty. Gen., Mary F. Keller, Executive Asst. Atty. Gen. for Litigation, Nancy N. Lynch, Asst. Atty. Gen., Chief, Environmental Protection Div., John R. Carter, Asst. Atty. Gen., Austin, for appellee.

OPINION

THOMAS, Justice.

This is a suit by the State of Texas to remove a bridge which had been constructed without its approval across the Brazos River near Waco in McLennan County. John R. Trice, individually, and T & H Materials, Ltd., doing business as J & J Sand & Gravel Company, are defendants-appellants. Trice was a general partner of T & H Materials, a limited partnership, which operated J & J Sand & Gravel. ¹ Trice claimed that he had been granted permission to erect the bridge under a permit from the U.S. Army Corps of Engineers and that he did not need the State's permission due to a conflict between its regulatory scheme and that of the federal government. Therefore, he contended that the State's regulatory authority had been preempted by the Supremacy Clause of the United States Constitution to the extent of the conflict. See U.S. Const. art. VI, cl. 2. The State, which sought damages, attorney's fees and injunctive relief, alleged that it owned the bed and bottom of the river and that the bridge not only obstructed the river and its navigation but constituted a trespass, a purpresture, and a public nuisance. ² Trice tried to transfer the suit from McLennan County to Dallas County where he had his domicile, but the court denied his motion to transfer. The court issued a preliminary restraining order and later entered a temporary injunction which enjoined Trice from using or completing construction of the bridge "until judgment in this cause is entered by [the trial] Court".

The jury found that the bridge obstructed navigation and that $42,000.00 would reasonably compensate the State for the cost of removing the bridge and restoring the bed and bottom of the river to its natural condition. The jury also found that 317 cubic yards of sand and gravel had been disturbed or taken from the river during the bridge's construction and that $46,000.00 would reasonably compensate the State as attorney's fees for the preparation, trial and appeal of the case. The State waived its right to recover the $42,000.00 in damages to remove the bridge in favor of a permanent mandatory injunction which would require Trice, at his own expense, to remove the bridge and restore the bed and bottom of the river. Accordingly, the court entered a judgment in favor of the State which ordered Trice to: (1) remove the bridge from the river and restore the bed and bottom of the river to its natural condition; (2) pay the State $79.25 (317 cubic yards X $0.25) for the value of sand and gravel which had been removed from the river during the bridge's construction; and (3) pay the State $46,000.00 in attorney's fees, with specific amounts to be credited against this award at various levels of the appellate process. The questions on appeal relate to venue, the Supremacy Clause of the United States Constitution, the court's charge and the award of attorney's fees. This appellate court granted the State permission to file a motion to hold Trice in contempt for violating the temporary injunction while the appeal on the merits was pending. The judgment is affirmed, but the motion for contempt is denied.

The disposition of the first three points of error, which relate to venue, depends upon whether venue was controlled by article 4656, as Trice contends, or section 11.078 of the Texas Natural Resources Code, as contended by the State. Article 4656, which was in effect at the time the suit was filed and tried, provided in part:

[W]rits of injunction for other causes, if the party against whom it is granted be 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.

Tex.Rev.Civ.Stat.Ann. art. 4656 (Vernon 1940), repealed effective September 1, 1985, and now codified at Tex.Civ.Prac. & Rem.Code Ann. § 65.023 (Vernon Supp.1986)). However, section 11.078 of the Natural Resources Code provides: "A suit brought under the provisions of ... Section 11.077 of this code shall be brought in the county in which the land or any part of the land is located." Tex.Nat.Res.Code Ann. § 11.078 (Vernon 1978). Section 11.077 provides: "If any public land is held, occupied or claimed adversely to the state or to any fund of the state by any person or if land is forfeited to the state for any reason, the attorney general shall file suit for the land, for rent on the land, and to recover damages to the land." Tex.Nat.Res.Code Ann. § 11.077 (Vernon 1978).

Trice relies primarily on Brown v. Gulf Television Company, 157 Tex. 607, 306 S.W.2d 706 (1957), to support his argument that venue was controlled by article 4656. In Brown, the Texas Supreme Court held that article 4656 was mandatory and governed venue when "the petition discloses that the issuance of a perpetual injunction is the primary and principal relief sought". Id. 306 S.W.2d at 708. Therefore, he contends that the original petition, which was the operative pleading at the time the venue question was raised, reflects that the State sought injunctive relief as its "primary goal". Trice admitted during discovery that the State owned the title to the bed and bottom of the river. Consequently, he argues that the State's title was not an issue between the parties and that he was not claiming title to or an interest in the bed and bottom of the river but was simply asserting a permissive right, granted by preemptive federal authority, to erect and use the bridge. However, the State insists that the allegations in the original petition disclosed that the suit was primarily to recover the possession of and damages to state-owned land and to remove the bridge as an unlawful encroachment. Therefore, it claims that the injunctive relief was "merely ancillary." Trice's arguments on venue must be rejected. ³

Whether a suit is of the type or character described in section 11.077 of the Natural Resources Code, formerly article 5420, must be determined from the allegations in the petition. See Heard v. State, 149 S.W.2d 237, 238 (Tex.Civ.App.--Beaumont 1941, no writ). Likewise, the allegations in the petition will also determine whether the relief sought by the State was "purely or primarily injunctive". See Ex parte Coffee, 160 Tex. 224, 328 S.W.2d 283, 287 (1959). In its original petition, the State alleged that it held title to the water, bed and bottom of the Brazos River as a trustee for the public, that the river was navigable in fact and in law, that the bridge obstructed navigation and that Trice had constructed the bridge "on public lands without the consent of the State and [had] thus occupied public lands". The State also charged in its original pleading that the bridge constituted a purpresture, a public nuisance and a trespass, and among other remedies, sought permanent injunctive relief "to compel [Trice] to remove the obstruction to navigation and to restore [the State] to possession of its property".

The State's original petition showed on its face that the suit was brought under section 11.077 of the Natural Resources Code because it contained allegations that (1) public land (2) was being occupied (3) adversely to the State (4) by Trice. See Tex.Nat.Res.Code Ann. § 11.077. Thus, the suit was to recover possession of and damages to state-owned land that had been "occupied" by Trice without lawful authority. See Heard, 149 S.W.2d at 238. Moreover, the original petition disclosed that the suit was not one purely for injunctive relief, as Trice contends, but was related to land or rights appurtenant to land owned by the State. See Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 420 (1959).

Trice insists that the holding in Brown controls the disposition of the venue points. However, in Marshall v. Ballard, 314 S.W.2d 368, 371-73 (Tex.Civ.App.--Eastland 1958, writ dism'd), which the Supreme Court cited with approval in Southwest Weather Research, the Eastland Court of Civil Appeals pointed out why Brown is not controlling under the facts presented. In Brown, the pleadings did not raise any question involving the plaintiff's land or rights appurtenant to his land but merely sought injunctive relief to remove an antenna tower from the defendant's land. Marshall, 314 S.W.2d at 371. Here, the State's pleading reflected that its own land was involved and that it was seeking to protect, through a suit for injunctive relief and damages, its own land from Trice's alleged unlawful encroachment. Because the allegations of the original petition established that the suit was brought under section 11.077 of the Natural Resources Code and that the principal relief sought by the State was not "purely or primarily injunctive", section 11.078 of the Natural Resources Code governed the venue of the suit. Therefore, venue was proper in McLennan County where the bridge was located, and the court did not err when it denied Trice's motion to transfer the case to Dallas County. Points one through three are overruled.

The concurrent or joint right of the federal and state governments to regulate the construction of bridges over navigable waterways is well established. See Montgomery v. Portland, ...