White v. Smyth

• Decision Date: 09 April 1947
• Docket Number: No. 11662.,11662.
• Citation: 214 S.W.2d 953
• Parties: WHITE et al. v. SMYTH et al.
• Court: Texas Court of Appeals

214 S.W.2d 953

WHITE et al. v. SMYTH et al.

No. 11662.

Court of Civil Appeals of Texas. San Antonio.

April 9, 1947.

Rehearing Denied May 28, 1947.

Appeal from District Court, Uvalde County; K. K. Woodley, Judge.

Suit by Joe G. Smyth and others against R. L. White and another, for partition by sale of fee-simple estate in certain 200-acre tract and of a rock asphalt estate in and under a 30,000-acre tract owned by parties as tenants in common, and to require defendants to account to plaintiffs for rock asphalt removed from the common property. From an adverse judgment, the defendants appeal.

Affirmed.

Judgment affirmed, 214 S.W.2d 967.

Critz, Kuykendall, Bauknight, Mann & Stevenson, of Austin, L. D. Hill, Denman, Franklin & Denman, T. M. West and John A. Bitter, Jr., all of San Antonio, and Black & Stayton, of Austin, for appellants.

Carl Wright Johnson, of San Antonio, Ross Doughty, Jr., David R. White, Suttle & Kessler and D. W. Suttle, all of Uvalde, and Simmons & Smyth and Murray G. Smyth, all of Houston, for appellees.

NORVELL, Justice.

Appellants make the following statement of the nature of the case:

"This suit was filed in the District Court of Uvalde County, Texas, by Joe G. Smyth et al., hereinafter called appellees, against R. L. White et al., hereinafter called appellants, and against Lewis M. Smyth et al., who assumed the position of plaintiffs below and who are hereinafter referred to as appellees. Appellees alleged that they and the appellants owned the fee simple estate (including all rock asphalt) in and to a certain 200 acre tract of land in Uvalde County; that the same parties owned all the rock asphalt estate in and under approximately 30,000 acres of land which is mostly in Uvalde County but is partly in Zavala County; that appellants R. L. White and White's Uvalde Mines had removed a large quantity of rock asphalt from the property owned in common and had failed to account to appellees for their portion of such rock asphalt. Appellees prayed that the 200 acre tract, including the rock asphalt estate therein, and the rock asphalt estate in the 30,000 acres, be found to be incapable of partition in kind and that the same be ordered sold and the proceeds divided among the owners thereof; and that the appellants R. L. White and White's Uvalde Mines be required to account to appellees for the rock asphalt removed from the common property and that appellees have judgment against said appellants for any sums that such an accounting showed to be due appellees.

"It is undisputed that appellants own an undivided one-ninth interest in the 200 acre tract and in the rock asphalt estate in the tract of approximately 30,000 acres.

"The case was tried before a jury; and in answer to special issues the jury found that the rock asphalt estate in the land in question cannot be partitioned in kind; that the reasonable value in the ground of the 397,338.11 tons of rock asphalt mined by appellants during the period of time involved in this controversy, that is from October 29, 1942, to September 30, 1945, was $99,334.53; that the net profit realized by appellants from the conduct of their rock asphalt business during this period of time was $250,180.56; that appellants' mining operations during the same period were not of such nature as to exclude the other owners of rock asphalt (appellees) from mining; and that appellants had not during the period in question `mined more than one-ninth in value in the ground of the rock asphalt minable from all of the rock asphalt involved in this suit.'

"The trial court entered a decree reciting that the tract of 200 acres, including the rock asphalt estate therein, and the rock asphalt estate in the tract of approximately 30,000 acres, cannot be partitioned in kind. The decree ordered the common property sold and the proceeds distributed among the owners thereof, and awarded appellees a judgment against appellants R. L. White and White's Uvalde Mines in the sum of $222,382.72 (this being eight-ninths of the net profit realized by appellants from their asphalt business) with interest thereon at six per cent per annum until paid."

Appellants rely upon eleven points for reversal or modification of the judgment. The first three points are grouped and described by appellants as "presenting the proposition that the trial court erred in holding that appellants, who have not mined more than their fair share of the rock asphalt in place, owe appellees the duty to account for rock asphalt mined by appellants."

The fourth and fifth points present the "proposition that if appellants owe appellees the duty to account, which appellants deny, appellants must account only for the value in the ground of the rock asphalt mined by appellants."

The remaining points attack the jury's findings to the effect that the mineral estates involved cannot be partitioned in kind.

After a thorough study and analysis of this case, we have come to the conclusion that the jury's findings that the property cannot be partitioned in kind have support in the evidence and control the disposition of this case. For that reason, we first discuss appellants' sixth to eleventh points, inclusive.

Some history of prior relationships between the parties and their mining experiences in developing the Smyth Ranch property may be of value in discussing these points.

The property here involved was the community property of J. G. Smyth and his second wife, Epsie Belle Smyth. J. G. Smyth died in 1915 and devised one-ninth of his one-half community interest in the property to each of his nine children. Two of these children, Mrs. R. L. White and Mrs. T. M. West were the daughters of J. G. Smyth's first wife. Their interests were acquired by R. L. White and amount to an undivided one-ninth interest in the entire estate. White did business under the name and style of "White's Uvalde Mines," and in 1941 conveyed an undivided one-twelfth interest in the business to each of his three children.

Mrs. Epsie Belle Smyth died in 1930, and her interest in the property passed by will to her six sons and the four children of her deceased daughter. An agreed partition of the Smyth Ranch, save and except as to the rock asphalt therein, was effected in 1932. Also excepted from this partition was the 200 acre tract above mentioned, as a rock asphalt mine was then situated upon this tract. It seems to have been considered by the parties to this partition, that it was impracticable to attempt a partition in kind of the rock asphalt estate, so that the White interests continued to hold an undivided one-ninth portion thereof, while the Smyth interests held the remaining undivided eight-ninths fraction thereof.

On September 14, 1923, Mrs. Epsie Belle Smyth and the devisees of J. G. Smyth, deceased (with the exception of Ethel Smyth White, the wife of R. L. White, who was the owner of an undivided 1/18th interest in the property), entered into an agreement with R. L. White under the terms of which White acquired the right to mine and take rock asphalt from the premises. The royalty agreed upon was 25¢ per ton for the first 5000 tons taken from the land per month; 20¢ per ton for any amount over 5000 tons and up to 10,000 tons per month; and 15¢ per ton for any amount in excess of 10,000 tons per month. Under the agreement the lessors were to receive 17/18ths of the royalty in proportion to their respective interests. White also guaranteed that he would pay to lessors a minimum of $1,180.55 per month.

This contract provided for a ninety-nine year term, with a proviso which allowed White to terminate the same by paying to lessors the sum of $1000 and the additional sum of $13,222.22 as full compensation for the right to mine and take an additional 56,000 tons of rock asphalt from the premises.

In 1935 White moved to his present location, opened a mine, and since said date has been extracting rock asphalt therefrom.

White became dissatisfied with the provisions of the Smyth lease. He objected to the price agreed upon for royalty and to the provision whereby he was obligated to pay a minimum of $1,180.55 per month under his contract.

Being unable to secure the modifications of the lease which he desired, White, on October 30, 1941, took advantage of the cancellation clause in the contract and made a bank deposit of $14,222.22 to lessors' credit, which, under the provisions of the contract, entitled him to remove 56,000 tons of rock asphalt from the premises without further payments. White notified lessors that he would "mine the rock for which I have prepaid and then vacate the premises."

On November 13, 1942, White notified certain of the Smyths that he had taken his prepaid rock from the mine, but that instead of vacating the premises he intended to remove such part of his one-ninth interest in the rock asphalt as was practicable before moving his machinery. White also stated that he recognized the right of all other interested parties to do likewise.

On February 18, 1943, this suit was filed. The plaintiffs, among other things, sought to enjoin White's taking of further rock asphalt from the premises. No injunction was issued, however, and from October 29, 1942, when White completed the taking of the prepaid rock asphalt up to September 30, 1945 (the end of the accounting period insofar as this suit is concerned), White removed 397,338.11 tons of rock asphalt from the premises.

The record shows that the chief commercial use of rock asphalt is for street and highway paving purposes. The rock asphalt upon the Smyth property is primarily limestone, permeated with asphalt or bitumen. The bitumen content varies, depending upon the porosity of the basic rock and other geological and structural conditions. There is evidence that the beds on the Smyth Ranch vary from barren limestone to rock which is thirty per cent asphalt. Commercial rock asphalt generally carries from five to twelve per cent bitumen content. Highway...