White v. Smyth

• Decision Date: 13 October 1948
• Docket Number: No. A-1347.,A-1347.
• Parties: WHITE et al. v. SMYTH et al.
• Court: Texas Supreme Court

214 S.W.2d 967

WHITE et al. v. SMYTH et al.

No. A-1347.

Supreme Court of Texas.

October 13, 1948.

Rehearing Denied December 15, 1948.

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

Suit by Joe G. Smyth and others against R. L. White and others to partition land and the rock asphalt estate in other lands and to require defendants to account for rock asphalt removed from the common property. Judgment for plaintiffs was affirmed by the Court of Civil Appeals, 214 S.W.2d 953, and defendants bring error.

Judgments of district court and Court of Civil Appeals affirmed.

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

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

SMEDLEY, Justice.

We follow the Court of Civil Appeals, 214 S.W.2d 953, in adopting the statement of the nature and result of the suit as made by White et al., appellants in that court. It is:

"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 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."

The Court of Civil Appeals, in a thorough opinion, affirmed the judgment of the trial court. In this opinion petitioners will be referred to as petitioner or White, since petitioner R. L. White is the active partner and principal owner of White's Uvalde Mines.

The 30,000 acres of land, including the 200 acre tract, known as the Smyth ranch, was the community property of J. G. Smyth and his second wife, Mrs. Espie Belle Smyth. On the death of J. G. Smyth, his one-half interest passed in undivided interests to his nine children, two of whom, Mrs. T. M. West and Mrs. R. L. White, wife of petitioner White, were J. G. Smyth's daughters by his first wife. On September 14, 1923, Mrs. Espie Belle Smyth and the devisees of her deceased husband, except Mrs. R. L. White, executed a lease of the ranch to petitioner White for mining, producing and marketing rock asphalt from the land, the lease providing for the payment to lessors of twenty-five, twenty, and fifteen cents per ton for the rock asphalt sold or taken. The term of the lease is ninety-nine years, but the lessee is given the right to terminate the lease by the execution of a written release and the payment of $1,000.00, with the further sum of $13,222.22 which shall be compensation for 56,000 tons of rock asphalt not then paid for, and the lessee is permitted thereafter to remove from the land all machinery, tools, houses and improvements belonging to him and the rock asphalt for which payment has been made, including the 56,000 tons. The interest of Mrs. Espie Belle Smyth in the lands thereafter passed under her will to respondents, so that respondents became the owners in undivided interests of the entire title except the one-eighteenth interest owned by Mrs. White and the one-eighteenth interest owned by Mrs. West.

Petitioner White entered upon the premises a short time after the execution of the lease and operated under the lease continuously until October 30, 1941. In the year 1932 the owners of the ranch, including Mrs. R. L. White, the wife of petitioner White, both by deeds and by decree in a suit for partition, effected a partition of the land by which specific tracts were set apart to those who had owned the same in undivided interests, except that the 200 acre tract in Survey 122, upon which a mine was being operated by White, and the rock asphalt in all of the lands were excluded from the partition and continued to be owned in undivided interests. The partition decree and some of the pleadings recited that the 200 acre tract and the rock asphalt in the other land were then under rock asphalt mining leases, and further that they were not capable of or subject to equitable partition.

On October 30, 1941, White exercised the right to terminate the lease by executing a release and filing it for record, and by depositing to the credit of the lessors, respondents, $14,222.22. He notified respondents of his action and advised them that when he had mined the rock for which he had prepaid he would then vacate the property.

On October 8, 1942, White acquired by conveyances the undivided one-eighteenth interest of Mrs. T. M. West and the undivided one-eighteenth interest of Mrs. White in the 200 acre tract and in the rock asphalt in all of the lands in the ranch; and on November 13, 1942, he notified respondents by letter that he had finished removing his prepaid rock and further that, having acquired the one-ninth interest from his wife and Mrs. West, he would "now want to take out such part of my share of the rock as is practical before I move my machinery". The letter further stated that he recognized "the right of all other interested parties to do likewise" and that he would keep an accurate account of all that he removed. The position thus taken by White and his continued mining and removal of the rock asphalt after he had terminated the lease and after he had taken all of the prepaid rock asphalt caused the institution of this suit.

The application for writ of error presents under several points three principal contentions: First, that petitioner White owes no duty to account to respondents, because he has not taken more than his fair share of the rock asphalt in place, has not excluded respondents from the premises and in mining has made merely normal use of the property, it having already been devoted to the mining of rock asphalt at the time petitioner acquired his undivided interest therein; second, that if he owes a duty to account, he is liable only for eight-ninths of the value in the ground of the rock asphalt he has mined and not for profits which he has realized; and third, that the jury's findings that the rock asphalt in certain surveys in the ranch and in all of the property outside of certain surveys cannot be equitably partitioned in kind are without evidence to support them. We consider first the points pertaining to partition, since the question whether the property is or is not capable of partition in kind has an important bearing upon the other questions.

The record contains many pages of testimony as to the nature, location, quantity and quality of the rock asphalt in the lands. The evidence shows that the rock asphalt, which is mined and used for constructing roads and streets, consists of porous limestone impregnated with asphalt or bitumen. The limestone generally lies in strata of varying depth and thickness. The depth of the overburden varies even in short distances and in places is so great that the rock asphalt beneath it cannot be profitably mined. Sometimes shale, which has to be thrown away, is found down in the rock asphalt and the thickness of the shale varies from one inch to thirty feet. Generally when the...