Uvalde Rock Asphalt Co. v. Asphalt Belt Ry. Co.

• Decision Date: 12 June 1924
• Docket Number: (No. 556-4097.)
• Citation: 262 S.W. 736
• Parties: UVALDE ROCK ASPHALT CO. v. ASPHALT BELT RY. CO. et al.
• Court: Texas Supreme Court

262 S.W. 736

UVALDE ROCK ASPHALT CO. v. ASPHALT BELT RY. CO. et al.

(No. 556-4097.)

Commission of Appeals of Texas, Section A.

June 12, 1924.

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

Suit by the Uvalde Rock Asphalt Company against the Asphalt Belt Railway Company and others. From a judgment of the San Antonio Court of Civil Appeals (256 S. W. 675), reversing an order granting a temporary injunction, and rendering judgment that the order for injunction be not granted, plaintiff brings error. Affirmed.

Kampmann & Burney, of San Antonio, Martin & Martin, of Uvalde, and Andrews, Streetman, Logue & Mobley, of Houston, for plaintiff in error.

Boyle, Ezell & Grover, of San Antonio, J. D. Wheeler, of Aransas Pass, and Mason Williams, of San Antonio, for defendants in error.

CHAPMAN, J.

Petitioner in the Court below, who is plaintiff in error in this court, applied to the judge of the district court of Uvalde county to restrain defendants from building their line of railway along and across certain lands in Uvalde county.

Petitioner alleged that it was the owner in fee simple, in actual, open, and notorious possession, and entitled to the possession of said lands, to wit, certain valuable deposits of a mineral on, upon, and under said land, known as rock asphalt; that said rock asphalt is of such a nature, and the deposits thereof so located with reference to the surface of the earth, that the only practical and feasible method of removing the same is by quarrying, or, as it is termed, strip-mining, the same; that is to say, by removing the surface covering of earth, stone, and the like, superimposed upon said mineral deposit (where said mineral deposit does not, as it sometimes does, crop out or lie exposed on the surface of the earth) by blasting, steam and hand shovels, and the like, and by then blasting and otherwise removing the deposit from its natural location, without the use of tunnels, shoring, or subsurface digging.

Petitioner further alleged that as the owner of said mineral deposits it was vested with the right of possession of said land, particularly of the surface thereof, for the purpose of developing said mineral deposits, and further alleged that it had theretofore been engaged in producing said mineral deposits from its lands, contiguous to the land over which defendants were proceeding to construct their railway track. The only relief sought by petitioner was the writ of injunction, and that upon final hearing it be made permanent.

The allegations of petitioner as to the domicile of defendants are as follows:

"Defendant Asphalt Belt Railway Company is a railroad corporation created and existing under the laws of the state of Texas, by virtue of a charter authorizing it to construct a line of railway into and through Zavalla county and Uvalde county, Texas, into both of which counties its line of railway extends, and having its principal office and place of business in San Antonio, Bexar county, Texas, where its president, H. P. McMillan, upon whom service for said defendant may be had, resides and has his office. Defendant San Antonio, Uvalde & Gulf Railroad Company is a railroad corporation created and existing under the laws of the state of Texas, with a line of railway extending into Uvalde county, and with its principal office and place of business in the city of San Antonio, Bexar county, Texas, where its president, A. R. Ponder, upon whom service for said defendant may be had, resides and has his office. The defendant A. R. Ponder, receiver, is the duly appointed, qualified, and acting receiver of the properties and assets of said San Antonio, Uvalde & Gulf Railroad Company, appointed by and acting under the orders of the District Court of the United States for the Western District of Texas, at San Antonio, in a certain cause pending upon the docket of said court and is sued herein in his capacity as such receiver but not individually."

The judge of the district court of Uvalde county granted the writ without notice, and the Court of Civil Appeals at San Antonio (256 S. W. 675) reversed the action of the district court and rendered judgment that the order for injunction be not granted.

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