No. 14-0572 - Texas Courts

FILED 14-0572 5/21/2015 4:06:14 PM tex-5385937 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK

No. 14-0572 IN THE SUPREME COURT OF TEXAS Coyote Lake Ranch, LLC, Petitioner, v. The City of Lubbock, Respondent. On Review from the Seventh Court of Appeals at Amarillo, Texas No. 07-14-00006-CV RESPONDENT’S BRIEF ON THE MERITS

Jeff Hartsell State Bar No. 09170275 [email protected] Richard Casner State Bar No. 03969220 [email protected] THE CITY OF LUBBOCK P.O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2222 Facsimile: (806) 775-3307

Dale Wainwright State Bar No. 00000049 [email protected] Lindsay E. Hagans State Bar No. 24087651 [email protected] BRACEWELL & GIULIANI LLP 111 Congress Avenue, Suite 2300 Austin, Texas 78701 Telephone: (512) 472-7800 Facsimile: (800) 404-3970

ATTORNEYS FOR RESPONDENT THE CITY OF LUBBOCK

IDENTITIES OF PARTIES AND COUNSEL Petitioner: (Plaintiff/Appellant)

Coyote Lake Ranch, LLC

Petitioner’s Counsel:

Rachel Ekery 515 Congress Avenue, Suite 2350 Austin, Texas 78701 Roger Townsend Jennifer Josephson 1844 Harvard Street Houston, Texas 77008 ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP Appellate Counsel Marty Jones C. Brantley Jones 701 S. Taylor Street Amarillo, Texas 79101 SPROUSE SHRADER SMITH PLLC Trial and Appellate Counsel

Respondent: (Defendant/Appellee)

City of Lubbock, Texas

Respondent’s Counsel:

Dale Wainwright Lindsay E. Hagans 111 Congress Avenue, Suite 2300 Austin, Texas 78701 BRACEWELL & GIULIANI LLP Appellate Counsel Jeff Hartsell Richard Casner P.O. Box 2000 Lubbock, Texas 79457 THE CITY OF LUBBOCK Trial and Appellate Counsel -i-

TABLE OF CONTENTS Page(s) IDENTITIES OF PARTIES AND COUNSEL ........................................................ i INDEX OF AUTHORITIES................................................................................... iv REFERENCES...................................................................................................... viii STATEMENT OF THE CASE ............................................................................... ix STATEMENT OF JURISDICTION.........................................................................x ISSUES PRESENTED............................................................................................ xi STATEMENT OF FACTS .......................................................................................1 A.

Extended Drought Conditions Prompt an Updated Strategic Water Plan ............................................................................................2

B.

Conveyances to the City in the 1953 Deed ..........................................4

C.

New Ranch Owners Challenge Terms of the Deed .............................7

SUMMARY OF THE ARGUMENT .......................................................................9 ARGUMENT ..........................................................................................................12 I.

II.

The Court Does Not Have Jurisdiction To Review This Interlocutory Appeal And Should Dismiss The Ranch’s Petition For Review. .................12 A.

There is no conflict or inconsistency among decisions, because no Texas court has ever applied the accommodation doctrine to a groundwater estate. ..........................................................................13

B.

The Ranch identifies no cases that indicate any uncertainty in the law. ...............................................................................................18

The Court of Appeals Correctly Determined that the Accommodation Doctrine Does Not Apply To Groundwater Estates. ....................................18

-ii-

A.

In contrast to a mineral estate, no Texas court has ever held that a groundwater estate is dominant over the surface estate; therefore the principles and rationales underlying the accommodation doctrine in the oil and gas context do not apply here. ....................................................................................................18

B.

The 1953 Deed controls on the facts presented and expressly permits all of the City’s actions challenged by the Ranch. ................27

C.

Even if a court were to determine that the Deed is silent on a challenged issue, the law would imply reasonable terms under general contract law, and the City’s actions are in compliance. ........40

CONCLUSION AND PRAYER ............................................................................42 CERTIFICATE OF COMPLIANCE ......................................................................44 CERTIFICATE OF SERVICE ...............................................................................45 APPENDIX .............................................................................................................46

-iii-

INDEX OF AUTHORITIES Page(s) CASES Acker v. Guinn, 464 S.W.2d 348 (Tex. 1971) ........................................................................ 13-14 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002).................................................................................38 Chevron v. Stoker, 666 S.W.2d 379 (Tex. App.—Eastland 1984, writ dism’d) ...............................38 City of Lubbock v. Coyote Lake Ranch, LLC, 440 S.W.3d 267 (Tex. App.—Amarillo 2014) ................................... ix, 9, 15-16 Clark v. Briscoe Irr. Co., 200 S.W.2d 674 (Tex. Civ. App.—Austin 1947, no writ) ................................... 2 DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96 (Tex. 1999)...................................................................27, 29, 31, 38 Edwards Aquifer Auth. v. Day, 369 S.W.3d 814 (Tex. 2012) ............................................. 2, 12, 15-16, 19-20, 23 El Paso Field Servs., L.P. v. MasTec N.A., Inc., 389 S.W.3d 802 (Tex. 2012) ..............................................................................39 Evans v. Ropte, 96 S.W.2d 973 (Tex. 1936).................................................................................29 Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653...................................................................................................39 Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971) .......................................................................passim Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474 (Tex. 2014) ..............................................................................28 Gulf Prod. Co. v. Kishi, 103 S.W.2d 965 (Tex. 1937) ..............................................................................40 -iv-

Hamrick v. Ward, 446 S.W.3d 377 (Tex. 2014) ..............................................................................29 Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468 (Tex. 2012) ................................................................................ 1 HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998) ..............................................................................40 Humble Oil & Refining Co. v. West, 508 S.W.2d 812 (Tex. 1974) ........................................................................ 13-14 In re Adjudication of the Water Rights of Upper Guadalupe Segment of Guadalupe River Basin, 642 S.W.2d 438 (Tex. 1982) ................................................................................ 1 Landreth v. Melendez, 948 S.W.2d 76 (Tex. App.—Amarillo 1997, no writ)....................... 27-28, 32-36 Lidawi v. Progressive Cnty. Mut. Ins. Co., 112 S.W.3d 725 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ................... 40 Luckel v. White, 819 S.W.2d 459 (Tex. 1991) ..............................................................................39 Med. Towers, Ltd. v. St. Luke’s Episcopal Hosp., 750 S.W.2d 820 (Tex. App.—Houston [14th Dist.] 1988, writ denied).................................................................................................................41 Merriman v. XTO Energy, 407 S.W.3d 244 (Tex. 2013) ..............................................................................21 Moser v. U.S. Steel Corp., 676 S.W.2d 99 (Tex. 1984).................................................................................35 O’Farrill Avila v. González, 974 S.W.2d 237 (Tex. App.—San Antonio 1998, pet. denied)..........................41 Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) ..............................................................................39 Rogers v. Ricane Enters., Inc., 772 S.W.2d 76 (Tex. 1989).................................................................................42 -v-

Sun Oil Co. v. Whitaker, 483 S.W.2d 808 (Tex. 1972) ........................................................................19, 21 Tex. Water Rights Comm’n v. Wright, 464 S.W.2d 642 (Tex. 1971) ................................................................................ 2 W.T. Waggoner Estate v. Sigler Oil Co., 19 S.W.2d 27 (Tex. 1929)...................................................................................40 Wilderness Cove, Ltd. v. Cold Spring Granite Co., 62 S.W.3d 844 (Tex. App.—Austin 2001, no pet.) ...................................... 22-23 Zachry Const. Corp. v. Port of Houston Auth. of Harris Cnty., 449 S.W.3d 98 (Tex. 2014).................................................................................27 STATUTES TEX. GOV’T CODE § 22.001(a)(2) .............................................................................. x TEX. GOV’T CODE § 22.225(b)(4) ............................................................................12 TEX. GOV’T CODE § 22.225(c) .................................................................................12 TEX. NAT. RES. CODE § 53.1631(a)..........................................................................20 TEX. WATER CODE § 36.002(b)................................................................................42 DICTIONARIES AND TREATISES BLACK’S LAW DICTIONARY (10th ed. 2009) ............................................................35 MERRIAM-WEBSTER COLLEGIATE DICTIONARY (10th ed. 1997) .............................34 RESTATEMENT (SECOND) OF CONTRACTS § 204 cmt. d (1981) ................................41 OTHER AUTHORITIES Bruce Kramer, Conflicts Between the Exploitation of Lignite and Oil and Gas: The Case for Reciprocal Accommodation, 21 HOUSTON L. REV. 49, 90 (1984) ..........................................................................................25

-vi-

Jeremy Brown, An Unaccommodating Decision for the Accommodation Doctrine: Tex. Groundwater Law and Severed Estates, ENERGY CTR. BLOG, THE CTR. FOR GLOBAL ENERGY, INT’L ARBITRATION AND ENVTL. LAW AT THE UNIV. OF TEX. SCHOOL OF LAW (July 29, 2014) ........................................................................17 John McFarland, Amarillo Court of Appeals Refuses to Apply Accommodation Doctrine to Groundwater, OIL AND GAS LAWYER BLOG (June 26, 2014) .........................................................................................17 Page Keeton and Lee Jones, Jr., Tort Liability and the Oil and Gas Industry, 35 TEX. L. REV. 1, 2 (1956) ........................................................... 21-22 Tiffany Dowell, Tex. App. Court Rules No Accommodation Doctrine for Groundwater, TEX. A&M AGRILIFE EXTENSION: TEX. AGRICULTURAL LAW BLOG (June 28, 2014) .......................................................17

-vii-

REFERENCES City of Lubbock

“City”

Coyote Lake Ranch, LLC

“Ranch” or “Coyote Lake Ranch”

Deed between City of Lubbock and Purtells, dated January 30, 1953, with Hughes Abell and Coyote Lake Ranch, as successors

“Deed” or “1953 Deed”

City of Lubbock’s Strategic Water Supply Plan

“Strategic Plan”, “Strategic Water Plan”, or “Plan”

Clerk’s Record, followed by page number

CR.123

Reporter’s Record, prefaced by volume and followed by page number

1RR.546

-viii-

STATEMENT OF THE CASE Petitioner asks whether Texas law should be dramatically changed to apply the accommodation doctrine from oil and gas law to a severed groundwater estate. Nature of the Case:

Action for a temporary injunction. It is undisputed that by Deed, the City of Lubbock, owns the percolating and groundwater on the Ranch. Coyote Lake Ranch sued to enjoin the City from engaging in activities specifically authorized by the Deed to produce the water, contending they would harm the surface estate. (CR.11-12). The Ranch asserts that the oil and gas accommodation doctrine applies to bar activities authorized by the Deed and substantially impair the City’s ability to produce the groundwater.

Trial Court:

287th Judicial District Court Bailey County, Texas The Honorable Gordon Houston Green

Trial Court’s Disposition:

Granted a temporary injunction against the City. (CR.54-56).

Court of Appeals:

Seventh Court of Appeals, Amarillo Opinion by Justice Hancock, joined by Chief Justice Quinn and Justice Campbell.

Appellate Disposition:

Order Granting Temporary Injunction reversed, injunction dissolved, and case remanded. City of Lubbock v. Coyote Lake Ranch, LLC, 440 S.W.3d 267 (Tex. App.—Amarillo 2014).

-ix-

STATEMENT OF JURISDICTION The Court does not have jurisdiction over this interlocutory appeal. The Ranch relies on Section 22.002(a)(2) of the Texas Government Code, which grants the Court jurisdiction over interlocutory appeals in which the court of appeals “holds differently from a prior decision of another court of appeals or of the supreme court on a question of law material to a decision of the case ….” TEX. GOV’T CODE § 22.001(a)(2) (commonly referred to as the Court’s “conflicts jurisdiction”). However, the court of appeals’ holding in this case does not differ materially from another Texas appellate court’s decision. As discussed in more detail below, no appellate court, including this one, has suggested, much less held, that the accommodation doctrine does or should apply to severed groundwater estates. Moreover, the court of appeals’ opinion correctly provides legal guidance in this area of the law. What this case boils down to is a contract dispute, and the Ranch cannot evade that fundamental fact by misapplying an inapposite common-law doctrine developed to address wholly different estates and industries. The Ranch has rights and remedies under the binding contract between the parties, just as the City does. But neither the facts presented here nor the court of appeals’ opinion create an inconsistency in the law that needs clarity. The Court should dismiss the Ranch’s petition for review for want of jurisdiction.

-x-

ISSUES PRESENTED 1.

Whether the Court has jurisdiction over this interlocutory appeal in the absence of a jurisprudential conflict.

2.

Whether the court of appeals was correct when it refused to fundamentally alter the common law to apply the accommodation doctrine to a severed groundwater estate, given that the doctrine has never been applied to nondominant groundwater estates and the Deed conveying the water rights expressly authorizes the City’s actions.

-xi-

STATEMENT OF FACTS In 1953, the City of Lubbock purchased the groundwater and percolating water1 on the land that is now the 40-square mile Coyote Lake Ranch. The groundwater and accompanying access rights were conveyed to the City in the 1953 Deed. Pursuant to the Deed, the City owns “all of the percolating and underground water in, under, and that may be produced” from the Ranch. The City’s purchase was a prudent decision during the 1950-57 Texas drought, described as “the most costly and one of the most devastating droughts in 600 years.” 2 That the Deed also documented in great detail the rights conveyed to the City to access the lands, test and produce the groundwater, and any other rights “necessary or incidental” to produce the water, is also testament to the City’s

1

The purchase excludes surface water and a few groundwater exceptions not at issue. See infra, note 6. For simplicity, the City will simply refer to the “groundwater” it purchased. 2

See Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468 (Tex. 2012), explaining:

The 1950s drought reshaped Texas, ruining thousands of farmers and ranchers and pushing rural residents to migrate out of the country and into the cities. Comal Springs stopped flowing out of the Edwards Aquifer for the first and only time in recorded history. In 1952 the Cotton Bowl, the stadium at Fair Park in Dallas, drilled its own well within the stadium to water the field because the city could not furnish the water it needed. By the end of the drought, 244 of Texas’ 254 counties were classified as disaster areas, and losses from the drought were estimated at $22 billion in 2011 dollars. Id. at 472-73 (internal quotation omitted). The Court also explained that “Texas’ longest sustained recorded period of drought was between 1950 and 1957.” In re Adjudication of the Water Rights of Upper Guadalupe Segment of Guadalupe River Basin, 642 S.W.2d 438, 441 (Tex. 1982) (Jack Pope, J.).

-1-

foresight. The City’s water rights at issue are vested property rights. See Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 838 (Tex. 2012); Tex. Water Rights Comm’n v. Wright, 464 S.W.2d 642, 646-47 (Tex. 1971); Clark v. Briscoe Irr. Co., 200 S.W.2d 674, 679 (Tex. Civ. App.—Austin 1947, no writ). A.

Extended Drought Conditions Prompt an Updated Strategic Water Plan

The City emphasizes three overriding objectives for creating sustainable water: (1) conserve water; (2) diversify water supply; and (3) reuse water where possible, with the focus on eliminating the wasting of water. (PX.8). Having experienced years of drought conditions in recent years, it should come as no surprise that the City proposed as part of its updated Strategic Water Plan to utilize its existing groundwater rights to further diversify its water supply and provide its citizens with the water resources they require. (PX.10). For the past 45 years, the City relied upon both surface and groundwater sources. (PX.10 at 4-1). Currently, the City relies on three sources of water: (1) the Canadian River Municipal Water Authority (“CRMWA”), a legislatively created cooperative of eleven member cites;3 (2) the Bailey County Well Field, which includes the Ranch; and (3) Lake Alan Henry, which recently became a

3

The members of CRMWA are Amarillo, Brownfield, Borger, Lamesa, Levelland, Lubbock, O’Donnell, Pampa, Plainview, Slaton, and Tahoka. See Br. of Amicus CRMWA at 2.

-2-

source of water in the fall of 2012. Id. CRWMA has drawn water from Lake Meredith and the Roberts County Well Field, but by 2011 Lake Meredith’s water level had fallen too low for CRMWA’s member cities to continue using water from the reservoir and it is now considered a “dry” lake. Id. For perspective, in 1992 Lake Meredith supplied 87% of the City’s water supply. Id. The loss of the Lake Meredith water supply was a dramatic occurrence for the City. In 2012, 40% of the City’s water supply came from the Bailey County Well Field, which includes the Ranch.

(PX.10 at 4-2).

However, due to drought

conditions and groundwater depletion, current production from existing wells has dropped from 50 million gallons per day to 38 million gallons per day, even though the pipeline connecting the field to the City’s supply line has a capacity of 40 million gallons per day. (2RR.84). As part of its 100-year Strategic Plan, the City will need to drill new wells in the Bailey County Well Field to raise the production to 50 million gallons per day, which would fully utilize the pipeline’s capacity while allowing the City to alternate producing wells, thereby reducing the need to constantly run each and every well. (2RR.90). The city council has approved the approximately $14 million capital improvement project. See Resolution No. 2013-R0076, passed by the City Council of the City of Lubbock on Feb. 28, 2013. The Plan adds capacity to the City’s water supply, allows it to rationally distribute the burden among its sources of -3-

groundwater, and avoids overtaxing any individual source of water for the City’s residents. (2RR.90). B.

Conveyances to the City in the 1953 Deed

Integral to the Plan is the development of the City’s existing water rights, which includes drilling new wells within the bounds of the Ranch, a 26,000-acre property spread over 40 square miles. The City and previous owners of the Ranch entered into an agreement, the 1953 Deed, 4 that granted, sold, and conveyed the Ranch’s groundwater rights to the City and the rights to explore, develop, and produce the groundwater. (2RR.7; PX.1; see also Appendix, Tab A). The Deed has governed the parties, their relationship, and their respective activities on the ranch for over half a century. The Deed is reproduced in its entirety in the appendix and conveys to the City, in pertinent part: … and by these presents do Grant, Sell and Convey unto the said CITY OF LUBBOCK, a municipal corporation of Lubbock County, Texas, all of the percolating and underground water in, under, and that may be produced from the hereinafter described tracts of land, situated in Bailey County, Texas, together with the exclusive right to take such water from said tracts of land . . . together with the full and exclusive rights of ingress and egress in, over, and on said lands, so that the Grantee of said water rights may at any time and location drill water wells and test wells on said lands for the purpose of 4

The 1953 Deed was part of the City’s concerted effort to obtain groundwater rights in the early 1950s; by 1954, the City had purchased nearly 54,000 acres of water rights to create the Bailey County Well Field. By 1957, the City had obtained over 75,000 acres of groundwater rights. Today, the well field consists of approximately 83,000 acres and 175 active wells, and only a few are on the Ranch. (PX.10 at 4-10).

-4-

investigating, exploring producing, and getting access to percolating and underground water; together with the rights to string, lay, construct, and maintain water and fuel pipelines and trunk, collector, and distribution water lines, power lines, communication lines, air vents with barricades, observation wells with barricades, if required, not exceeding ten (10) square feet of surface area, reservoirs, booster stations, houses for employees, and access roads on, over and under said lands necessary or incidental to any of said operations, together with the right to erect necessary housing for wells, equipment and supplies, together with perpetual easements for all such purposes, together with the rights to use all that part of said lands necessary or incidental to the taking of percolating and underground water and the production, treating and transmission of water therefrom and delivery of said water to the water system of the City of Lubbock . . . . (PX.1; see also Appendix, Tab A). As evidenced by the above excerpt, the rights conveyed to the City in the 1953 Deed are clear and broad. They include: • Ownership of all groundwater that may be produced on the Ranch; • Expansive rights to access the Ranch lands to produce the water it purchased, including o “full and exclusive rights of ingress and egress in, over, and on said lands” so that it may “at any time and location drill water wells and test wells” on the lands to investigate, explore, produce, and get the water; o the right to lay, construct, and maintain water and fuel pipelines, power lines, employee housing, and access roads “on, over and under said lands necessary or incidental to any of said operations”; o the rights “to use all parts of said lands necessary or incidental” to obtaining the groundwater and to “the production, treating and transmission of water” to the City; and

-5-

• A perpetual easement as a suspender on top of the belt confirming conveyance of these expansive rights. The Ranch conceded that the City not only owns the groundwater but also has broad rights to access, produce, and develop its groundwater.5 (2RR.7). There are three limitations on the conveyance to City, none of which have been mentioned as an issue in this Court.6

The Ranch does not contend that the City’s water

production to date or the proposed Strategic Water Plan will cause a shortfall in its water needs. To date, the City has drilled seven wells (“plus or minus a few”) on the Ranch. (2RR.77). Despite the Ranch’s claims in its briefing, the City has never asserted that it plans to drill 80 wells on the ranch. The Ranch’s general counsel made that statement without attribution to anyone speaking on behalf of the City.

5

The Deed reserved to the grantors “such quantities of water as may be required to carry on usual and normal domestic and ranching operations and undertakings upon said lands,” and the right “to drill and use water from one [specifically located] irrigation well for agricultural, irrigation purposes only.” (PX.1; Appendix, Tab A). By subsequent accommodations by the City, the Ranch has been allowed to drilled 18 irrigation wells. (2RR.65). 6

(1) The Ranch is entitled to the “quantities” of water required a) to carry on usual and normal domestic and ranching operations and undertakings upon said lands, excluding irrigation, and b) “such quantities of water as may be required for normal and customary operations for the production of oil and gas and other minerals.” (2) The Ranch reserved to it “all of the surface and surface rights, not herein expressly conveyed.” (3) There is only one stated limitation on specific conduct of the City in accessing the water and using the broad array of means authorized to produce the water: the City cannot drill a water well within one-fourth mile of any presently existing windmill well, location described in Exhibit “A” of the Deed. The Ranch asserted at the trial court that the City proposed to drill a well within the quarter-mile offset, (CR.38-39, 41), but then abandoned that argument by failing to raise it in the Petition for Review or in its Brief on the Merits.

-6-

(2RR.27-29). The Ranch contends that the City has promulgated a development plan to build “80 municipal water wells, arranged in a checkerboard pattern, across the Ranch,” Br. of Pet. at 16-17 , but that “plan” was merely a conceptual rendering developed by an engineer contracted by the City to provide initial design proposals. (PX.9 at 6; id. Appendix B). The City has not adopted that design proposal and does not know how many wells it will eventually drill or where those wells will be located, because the trial court enjoined the City from completing its test wells. (2RR.89-90). Without the data from test wells, there is no way to determine the number of wells needed to reach the City’s goals, nor the ideal location for each well to optimize output and accomplish the City’s objectives to reasonably provide for the needs of its citizens. If feasible, the wells probably will be located in something close to a grid pattern, because that reduces the amount of pipe and transmission lines needed to connect the wells, which in turn reduces the cost to the City as well as the amount of mowing and potential disturbance to the Ranch surface. (2RR.91-92). But the specific location of the wells is unknown at this point. C.

New Ranch Owners Challenge Terms of the Deed

The current owners of the Ranch purchased the 26,000-acre property in 2008, (2RR.36), and now seek to enjoin the City’s contractually authorized use of the surface, based on an argument that the accommodation doctrine developed in

-7-

oil and gas law applies and that its application requires reversal of the court of appeals’ judgment.

The Ranch complains that the City has mowed paths to

proposed test well sites, which allegedly loosened the ground cover and encouraged cattle to use the paths. Br. of Pet. at 17. The Ranch speculates that the City will aggravate the damage by hauling tractors across the ground, even though the City has not even drilled the test wells yet. Br. of Pet. at 18. The Ranch also elicited testimony, without foundation, from a witness that he believed the City has said that it will not pay for its surface use or for surface damage, in alleged contravention of the 1953 Deed. Br. of Pet. at 16. The trial court issued a temporary injunction prohibiting the City from (1) mowing, blading, or otherwise destroying the growing grass on the surface of the ranch; (2) proceeding with any test hole or water well drilling without consulting the Ranch regarding the potential impacts; (3) and erecting overhead power lines to proposed well fields. (CR.55). If allowed to stand, the temporary injunction and the Ranch’s position, at a minimum, would substantially impair or bar completely the City’s right to access the land and produce the groundwater. If the City cannot mow, blade, or drive over grass to access well locations because it may kill some grass, its Deed rights and groundwater ownership would be rendered void.

-8-

The City appealed to the Amarillo Court of Appeals, arguing that the accommodation doctrine does not, and should not, apply to severed groundwater estates; that the express terms of the Deed permit the City to take the challenged actions; and that any damages for injury to the surface are explicitly provided for in the 1953 Deed. The court of appeals reversed and remanded the case, concluding that the trial court erred in granting the temporary injunction in the absence of any established law applying the accommodation doctrine to severed groundwater estates. 440 S.W.3d at 275. The court of appeals did not specifically address the City’s point that the Deed governs the entirety of this dispute. Id. at 273 n.2. Pending the Court’s disposition of the issue, the parties agreed to abate further proceedings in the trial court. See Br. of Pet. at Appendix, Tab 10. SUMMARY OF THE ARGUMENT There are limits to the Court’s jurisdiction over interlocutory appeals, which is much more restricted than the Court’s jurisdiction over appeals of final judgments. The Ranch’s sole basis for the Court’s jurisdiction in this case is the Court’s conflicts jurisdiction for interlocutory appeals, but there simply is no conflict between the court of appeals’ holding in this case and any other Texas appellate court decision. No court opinion conflicts with the court of appeals’ opinion in this case that the oil and gas accommodation doctrine does not apply to

-9-

a severed groundwater estate.

Accordingly, the Court does not have the

jurisdiction to review this case and should dismiss the Ranch’s petition. Furthermore, there was no error of law in the court of appeal’s judgment because the accommodation doctrine does not apply to severed groundwater estates. The accommodation doctrine was developed by courts specifically to balance surface rights with the dominant mineral estate’s strong rights to use the surface. The doctrine implies rights and obligations not specifically addressed in a mineral lease.

A groundwater estate is not, and has never been held to be,

dominant over the surface estate; hence, there has been no need to import an implied accommodation doctrine to extend protections to the surface. Accordingly, the doctrine has no correlative applicability to the different property interest at stake. Moreover, the question of whether the accommodation doctrine applies to severed groundwater estates generally is irrelevant to this dispute because each of the actions the trial court enjoined the City from taking is permitted under the express language of the binding Deed between the parties. Thus, there is no “gap” in the contract for a court-fashioned, common-law doctrine to fill. The Deed governs, and the Ranch cannot now supplant express terms for implied terms more favorable to it. It has to abide by the Deed that bound the land it purchased.

-10-

If courts face a dispute in which a groundwater deed does not explicitly authorize activities undertaken to produce the water, there are principles under general contract law that allow the courts to infer reasonable terms consistent with the deal the parties struck. While such principles are not necessary here due to the details in the Deed, a resort to general contract principles, when needed, is not only consistent with Texas law but it also avoids the draconian and imprudent change the Ranch wants of overlaying the oil and gas accommodation doctrine and classifying groundwater as a dominant estate.

Such a new direction in

groundwater jurisprudence would trigger uncertainty and extended litigation to figure out its repercussions and is unnecessary in this case given the terms of the Deed. In fact, the Ranch’s position at a minimum would substantially impair the City’s ability to obtain the groundwater it purchased, and at worst, would bar completely the City’s right to access the land and produce the groundwater. If the City, for example, cannot mow, blade, or drive over grass on the Ranch to identify or access well locations or drill test wells because it may kill some grass, the court would have altered the parties’ agreement and, at a minimum, substantially impaired the City’s ability to produce the groundwater it purchased. Because there was no legal basis for the trial court to enjoin the City from taking or proposing the actions now prohibited by the temporary injunction, the -11-

trial court erred and the court of appeals’ judgment reversing the trial court’s order should be upheld. The Court should deny the Ranch’s petition for review. ARGUMENT I.

The Court Does Not Have Jurisdiction To Review This Interlocutory Appeal And Should Dismiss The Ranch’s Petition For Review. Generally, the Court does not have jurisdiction under the Texas Government

Code over an interlocutory appeal arising from a temporary injunction. TEX. GOV’T CODE § 22.225(b)(4). A judgment of the court of appeals “is conclusive on the law and the facts, and a petition for review is not allowed to the supreme court” in orders in a suit in which a temporary injunction has been granted.

Id. §

22.225(b). The only exceptions to this prohibition against a petition for review to the Texas Supreme Court are: (1) if there is a dissent in the court of appeals, or (2) if the court of appeals’ decision holds differently from a prior decision of another court of appeals or of the Court. Id. § 22.225(c). Because neither circumstance is present here, the Court lacks jurisdiction to review this case on the basis asserted by the Ranch. The Ranch argues that the second exception applies and that there is inconsistency between the court of appeals’ opinion and identified opinions of this Court that should be clarified to remove unnecessary uncertainty. Contrary to the Ranch’s arguments, there is no express or implied conflict between the court of appeals’ decision and the Court’s decisions in Edwards Aquifer Authority v. Day, -12-

369 S.W.3d 814 (Tex. 2012); Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971); Acker v. Guinn, 464 S.W.2d 348 (Tex. 1971), or Humble Oil & Refining Co. v. West, 508 S.W.2d 812 (Tex. 1974). A.

There is no conflict or inconsistency among decisions, because no Texas court has ever applied the accommodation doctrine to a groundwater estate.

The Ranch claims that the court of appeals’ decision that an oil and gas doctrine does not apply to a groundwater estate conflicts with the Court’s cases applying the accommodation doctrine. No case from this Court or Texas courts of appeals has suggested that the accommodation doctrine applies in a groundwater context. The City addresses these four cases on which the Ranch relies. The Ranch ignores the materially different contexts presented in each of the four cases cited. In the course of articulating and applying what has become known as the “accommodation doctrine,” the Court in Getty Oil held that a dominant mineral estate owner owes “due regard” for the servient surface estate owner. Getty Oil, 470 S.W.2d at 621-22; see also infra Part II.A for a more in-depth analysis of the doctrine. While the Ranch argues that this rule “should likewise apply to a severed groundwater estate,” Br. of Pet. at 22 (emphasis added), Getty Oil does not suggest that the doctrine should or does apply outside of the oil and gas context. Getty Oil does not conflict with the court of appeals’ decision.

-13-

Similarly, the court of appeals’ decision does not conflict with Acker v. Guinn, which had nothing to do with the accommodation doctrine, much less whether it applies to groundwater estates.

The Court in Acker discussed the

“surface destruction test” in determining whether the parties to a conveyance intended iron ore to be considered an “other mineral,” and thus part of the severed mineral estate, or considered part of the surface estate. Acker, 464 S.W.2d at 35253. Acker’s reasoning that iron ore is not part of the mineral estate is irrelevant to the Court’s analysis of the issues presented herein, and cannot reasonably be construed as being in conflict with the court of appeals’ decision on the wholly unrelated issue in this case, to form the basis of the Court’s conflicts jurisdiction. The Ranch argues that the Court in Humble Oil used “accepted principles of accommodation” to resolve a non-traditional surface use conflict, but the Ranch’s argument misstates the point. Br. of Pet. at 32. Humble Oil, very centrally, concerned the rights of the dominant mineral estate owner.

The only “non-

traditional” difference was that the royalty interest owners sued Humble, which owned both the mineral and surface estates. Humble Oil, 508 S.W.2d at 813. Moreover, the dispute in Humble Oil was whether Humble owned the injected natural gas as personal property, or whether it owed royalty on it to the royalty interest owners; and the Court held that it was Humble’s personal property. Id. at

-14-

819. There is no legal or logical conflict between that holding and the court of appeals’ decision in this case. Finally, Day held that groundwater is owned in place, but never spoke to the applicability of the accommodation doctrine. Day, 369 S.W.3d at 832. The main issue in Day concerned the ownership in place of groundwater and whether such an ownership interest is considered a compensable property interest subject to constitutional protection from a governmental taking. Id. at 829-39. The Ranch focuses on the analogy the Court drew in Day between owning minerals in place like ownership of groundwater in place, to attempt to import the accommodation doctrine to this case. As the court of appeals correctly observed, the Court in Day did not speak to the implied rights of a severed groundwater estate owner to use the surface in production of groundwater. Nor [did the Court] define and delineate the rights and duties as between owners of the severed groundwater estate and the surface estate. City of Lubbock, 440 S.W.3d at 274. Ownership and correlative rights are two distinct legal concepts, and just because the Court considered a mineral ownership concept for the purposes of determining groundwater ownership does not mean that the other tenets of the mineral estate apply in the groundwater context. Thus, the Court’s opinion in Day—which is silent on the issue of a groundwater estate owner’s common-law duties owed to a surface estate owner, if any—does not support the Court’s exercise of conflicts jurisdiction over this interlocutory appeal. -15-

Moreover, the court of appeals did not draw an “artificial and unwarranted distinction” in rejecting the Ranch’s argument that Day should extend to apply broad attributes of a mineral estate to a groundwater estate. Br. of Pet. at 49. In fact, in Day, the Court reasons that, for regulatory purposes, “[g]roundwater is different” from oil and gas “in both its source and uses.” These differences include that, unlike oil and gas, groundwater is replenishable and is not a dominant estate, and groundwater owners have no correlative rights. Day, 369 S.W.3d at 830, 84141. Hence, as the court of appeals recognized, the persuasive reasons to protect surface owners in the mineral context do not persuade here. And as discussed in more detail below, groundwater and minerals historically have not been treated the same, either by statute or by law. Thus, the court of appeals did not err in refusing to extend Day’s holding as advocated by the Ranch. The court of appeals answered a specific question: whether the trial court abused its discretion by granting a temporary injunction in favor of a surface estate owner when the surface estate owner’s claims against the groundwater estate owner rely on the misapplication of the accommodation doctrine. City of Lubbock, 440 S.W.3d at 270. The court of appeals did not analyze the same factual scenario, balance the same rights and duties, or address the same legal question as the Court addressed in each of the four opinions cited by the Ranch. For these reasons, the

-16-

Ranch incorrectly concludes that there exists a material conflict worthy to warrant the Court’s attention. The fact that these cases arose in entirely different contexts is not a distinction without a difference. There is no conflict among holdings because the issues are not the same or even similar.

The Court’s jurisdiction over this

interlocutory appeal is limited, and the Court should not exercise its conflicts jurisdiction to hear a case where there is no meaningful conflict with prior holdings. When the Court’s jurisdiction is constricted, as it is in interlocutory cases such as this one, it should not credit such a stretch of conflicts jurisdiction as advocated by the Ranch. Moreover, there is no need for the Court to clarify any confusion on the law as there is no indication that the lower courts in this state are experiencing confusion or uncertainty. 7

7

The Ranch cites three articles by attorneys who suggest that the question is interesting, but they, like the Ranch, fail to identify any case conflict. See John McFarland, Amarillo Court of Appeals Refuses to Apply Accommodation Doctrine to Groundwater, OIL AND GAS LAWYER BLOG (June 26, 2014); Jeremy Brown, An Unaccommodating Decision for the Accommodation Doctrine: Tex. Groundwater Law and Severed Estates, ENERGY CTR. BLOG, THE CTR. FOR GLOBAL ENERGY, INT’L ARBITRATION AND ENVTL. LAW AT THE UNIV. OF TEX. SCHOOL OF LAW (July 29, 2014); and Tiffany Dowell, Tex. App. Court Rules No Accommodation Doctrine for Groundwater, TEX. A&M AGRILIFE EXTENSION: TEX. AGRICULTURAL LAW BLOG (June 28, 2014).

-17-

B.

The Ranch identifies no cases that indicate any uncertainty in the law.

The City reiterates the Ranch’s point that analysis or application of the accommodation doctrine has been an infrequent occurrence in judicial decisions over the past forty years.

See Br. of Pet. at 31.

This would suggest that

applicability of the accommodation doctrine does not need clarification from the Court. Even if the court of appeals’ decision in this case and the articulation of the accommodation doctrine in Getty Oil in 1971 could be construed as being in conflict with each other, it would, at best, be a nascent split of only two decisions. Given the chasm of time between the two cases, with no identifiable attention or analysis from any other court of appeals, the Court should not grant review of this issue. The Court will have jurisdiction to decide the issue when a final judgment is appealed, because either way the dispute must be remanded to be resolved by the trial court for final judgment. II.

The Court of Appeals Correctly Determined that the Accommodation Doctrine Does Not Apply To Groundwater Estates. A.

In contrast to a mineral estate, no Texas court has ever held that a groundwater estate is dominant over the surface estate; therefore the principles and rationales underlying the accommodation doctrine in the oil and gas context do not apply here.

Courts developed the accommodation doctrine to address the correlative rights of dominant mineral and servient surface estates, intending to provide some reasonable protections for the servient estate. The dominance of a mineral estate -18-

over the associated surface estate has been established in jurisprudence extending back to Spanish rule. See, e.g., Br. of Amicus CRMWA at 10 (citing Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 816 (Tex. 1972) (Daniel, J., dissenting)). Groundwater estates have never enjoyed such dominance, and there has been no need to corral the rights they enjoy over a lesser estate. The Court has made clear that groundwater, unless severed, is part of the surface estate. See Sun Oil, 483 S.W.2d at 813 (“Underground water is part of the surface estate, and unless severed by reservation or conveyance, it belongs to the owner of the surface.”). If it is to be analogized to anything, for a determination of its dominance or servience or equality as an estate, it makes the most sense to analogize a groundwater estate to the estate from which it is carved, and not a mineral estate that itself has engendered distinct and detailed development in the law. 8 However, the Ranch, relying on Day, submits a novel argument that Texas law should view groundwater estate ownership as functionally equivalent to mineral estate ownership. Br. of Pet. at 26-28. The Court in Day analogized groundwater to oil and gas for a very specific purpose—whether the common law regarding the ownership of one could be

8

The City recognizes that oil, gas, and other minerals are also considered part of the fee estate, unless severed. However, mineral estates have engendered a distinct subset of property law that has developed uniquely applicable legal tenets.

-19-

applied to the other—and pointed out that the rule of capture applies to both estates. Day, 369 S.W.3d at 830-32. However, the Court certainly did not hold that groundwater is a mineral, is part of the mineral estate, or should be treated identically as a mineral in other important respects. In fact, while the Ranch focuses on the severability and ownership attributes of the two estates, the Court was careful to note the “important differences between groundwater and hydrocarbons.” Id. at 831. For instance, oil and gas are non-renewable, while groundwater often is a renewable resources; their respective consumptive uses are different. Id. 9 While the Court rejected these distinctions as the sole basis to differentiate between ownership principles, it suffices to say that the two estates are, indeed, different. The Court did not suggest that simply because one attribute of two severed estates is the same means that minerals and groundwater must be treated identically in all aspects of the law. In fact, as the Court noted in Day, the Natural Resources Code specifically rejects likening groundwater to minerals, providing that “groundwater shall not be considered a mineral” in any conveyance by the state. TEX. NAT. RES. CODE § 53.1631(a) (cited in Day, 369 S.W.3d at 831 n.97). Parties are certainly free to contract otherwise, but Section 53.1631 suggests the general rule that groundwater and minerals are not to be treated the same in all

9

Moreover, the manner and difficulty of extraction is different; there are no reports, as far as the City can tell, of “fracking” groundwater formations.

-20-

circumstances. Accordingly, incorporating the accommodation doctrine—which applies to mineral estates—into Texas groundwater law would be anomalous to the differently situated groundwater estate. For greater context, the accommodation doctrine arose because a severed mineral estate is dominant over the surface estate. See Page Keeton and Lee Jones, Jr., Tort Liability and the Oil and Gas Industry, 35 TEX. L. REV. 1, 2 (1956) (“[T]he mineral lease creates and vests in the lessee the dominant estate in the surface of the land for the purposes of the lease.”). As the dominant estate, the common law grants the mineral lessee implied rights to use as much of the surface as is reasonably necessary to exploit the mineral estate, Getty Oil, 470 S.W.2d at 621, including, for example, the use of water from the land to facilitate the production of oil and gas. Sun Oil, 483 S.W.2d at 811. But while recognizing these implied surface use rights, the Court reasoned that the servient estate, and its existing use of the surface, should be accommodated if possible to protect it from excessive exploitation. Getty Oil, 470 S.W.2d at 621-22. If there is only one method for production, the dominant estate can take whatever action necessary to extract and produce the minerals it owns, even if it interferes with the surface owner’s use of the land. Merriman v. XTO Energy, 407 S.W.3d 244, 249 (Tex. 2013).

-21-

As the Court indicated in Getty Oil, the accommodation doctrine is a courtfashioned doctrine to “flesh out” the duty of a dominant mineral estate owner to exercise its implied rights of use of the surface in “due regard” of the surface estate owner. Id. at 621-22; see also Keeton and Jones, 35 TEX. L. REV. at 2-3 (“As the holder of the dominant estate, the mineral lessee is permitted to occupy such space and do such damage as is reasonably necessary to conduct the operations permitted by the lease. This simply means that the lessor has, through the mineral lease, authorized by implication such conduct of the lessee.”) (emphasis original). Thus, as the dominant estate, a mineral owner has the implied right, even if not expressly granted in the mineral lease, to use as much of the surface as is reasonably necessary to exploit the mineral estate in, on, or under the surface, while exercising due regard for the rights of the surface owner. This is not the case for groundwater estates. The Ranch argues that at the point of severance, a groundwater estate becomes like a mineral estate and so “there is no reason to treat the relationship between groundwater and surface estates any differently from the relationship between mineral and surface estates.” Br. of Pet. at 26; see also id. at 31 (“once severed, its character necessarily changes”) (citing Wilderness Cove, Ltd. v. Cold Spring Granite Co., 62 S.W.3d 844, 850-51 (Tex. App.—Austin 2001, no pet.) (holding that a mineral estate [granite], once severed, becomes dominant)). However, there is no basis in law or -22-

fact to liken the two estates in this manner simply because of severance. Taken to its logical conclusion, the Ranch’s argument suggests that any estate severed from another would automatically be dominant and enjoy a whole array of implied rights not bargained for in a granting instrument. The Ranch also makes much ado about groundwater being a “subsurface” estate, see, e.g., Br. of Pet. at 22, 31, 51, but its argument would apply with equal force to timber estates, crop estates, and possibly wind rights, which are only a few examples of severable surface estates; the City can find no case that held these estates to be dominant. And the case the Ranch cites for support of this contention that severability dictates dominance, Wilderness Cove, concerns a mineral estate, and no one disputes it is the dominant estate. No Texas court has held that a severed groundwater estate is dominant over the surface estate, in contrast to the Court’s pronouncement that “[i]t is well settled that the oil and gas estate is the dominant estate.” Getty Oil, 470 S.W.2d at 621 (emphasis added). The Ranch’s argument that “[a] severed groundwater estate is, in all relevant ways, identical to a mineral estate” is an overstatement. Br. of Pet. at 26. The only case the Ranch can point to liken groundwater to minerals is Day, which, as already discussed, dealt solely with the issue of ownership, not the applicability or scope of the accommodation doctrine. Now, however, the Ranch advocates the Court adopt a radical departure in Texas law and find that a -23-

groundwater estate is dominant and grant for the first time groundwater estate holders tremendous rights over the surface landowners. The Deed in this case sets the boundaries between the two parties. In contrast to the Ranch’s argument that the City “asserts dominance over the surface,” Br. of Pet. at 31, the City has never claimed that it owns the dominant estate or enjoys any implied rights associated with the groundwater estate; rather, the City has consistently relied on its contractual rights to carry out its authorized activities. Without the rights of exploitation implied by law to a dominant estate, the accommodation doctrine need not apply. Significantly, prior to the petition for review in this Court, the Ranch never argued that a severed groundwater estate is dominant over the surface estate. Rather, the Ranch argued to the court of appeals that the conveyance of groundwater rights to the City resulted in the “creation of distinct estates of equal dignity.” Br. of Appellee at 11; see id. at 14 (“Clearly, groundwater is severable from the surface estate, and once severed the groundwater becomes an estate of equal dignity subject to the accommodation doctrine.”). Changes in legal strategy are often based on what is good for the client instead of what is best for Texas jurisprudence. The

rationale

for

imposing

the

accommodation

doctrine

to

a

dominant/servient relationship does not equally apply to co-equal estates, as the -24-

Ranch admits is the case here. The accommodation doctrine applies specifically to delineate the scope of a dominant estate’s implied use of the surface; here, not only is the City not the dominant estate but it has an express contractual right to use the surface. Moreover, the Ranch’s citation to an article suggesting that the accommodation doctrine should nonetheless apply to co-equal estates omits one very important aspect from the article: the author advocated applying the doctrine to two co-equal mineral estates.

See Bruce Kramer, Conflicts Between the

Exploitation of Lignite and Oil and Gas: The Case for Reciprocal Accommodation, 21 HOUSTON L. REV. 49, 90 (1984) (suggesting the accommodation doctrine approach “in the case of developmental conflicts between two separate and conflicting mineral owners”). And Kramer’s argument assumes that the two coequal estates would have mutual or reciprocal easements of access and support—a circumstance never considered, much less established, by the parties here. Id. Regardless, no court has accepted Kramer’s thirty-year-old invitation to apply the accommodation doctrine to co-equal estates.

-25-

Thus, the Deed 10, statute, and common law in Texas do not impose any dominant-estate-type duty on a groundwater estate owner to accommodate or use alternative means when exercising its contractual rights to explore and produce its groundwater. No duty exists and there is no justification to impose such a duty now. And yet, the trial court justified its decision to grant the temporary injunction by saying that the City’s “proposed well field plan is likely accomplished through reasonable alternative means that do not unreasonably interfere with the Ranch’s current uses.” (CR.54). Thus, the court’s order granting the temporary injunction is necessarily—and solely—based on an application of the accommodation doctrine to the parties’ contractual relationship, even though there is no legal basis to do so. Since the accommodation doctrine does not apply, and that is the legal theory on which the trial court based its decision to grant the temporary injunction, the trial court abused its discretion and the court of appeals’ decision to reverse and remand should be upheld.

10

The Deed specifically rejects construing the conveyed groundwater as a mineral. See Appendix, Tab A (“It is understood that, for the purpose of this deed, water and minerals in water shall never be construed as minerals.”).

-26-

B.

The 1953 Deed controls on the facts presented and expressly permits all of the City’s actions challenged by the Ranch.

The Court has repeatedly confirmed that where a contract speaks to the rights and duties of the parties, the common law cannot displace their explicit agreement: A person who enters a neighbor’s property and cuts down trees with no contractual right to do so can be held liable in tort. But when, as here, a contract spells out the parties’ respective rights about whether trees may be cut, the contract and not common-law negligence governs any dispute about whether trees could be cut or how trees were cut. DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 105 (Tex. 1999) (emphasis added); see also Zachry Const. Corp. v. Port of Houston Auth. of Harris Cnty., 449 S.W.3d 98, 101 (Tex. 2014) (“The common law permits a contractor to recover damages for construction delays caused by the owner, but the parties are free to contract differently.”). Landreth is also on point. There, the mineral lease conveyed to the mineral estate owner the right “to take all usual, necessary and convenient means for working, preparing, getting out and removing said oil, gas and other minerals from under and away from the hereinbefore described land.” Landreth v. Melendez, 948 S.W.2d 76, 78 (Tex. App.—Amarillo 1997, no writ).

The surface owner

contended that the rights reserved to the mineral owners were limited to usual, necessary, and convenient means of production, and the limitation necessitated the

-27-

application of the accommodation doctrine, which he considered to be “not inconsistent with the language of the reservation.” Id. at 80. The court of appeals disagreed, reasoning that the situation was one “where the mineral owners are under no obligation to accommodate the surface owners in the existing use made of the surface so long as the mineral owners use all usual, necessary and convenient means in conducting their operations.” Id. at 81. In sum, the mineral owners’ rights at issue were reserved in the lease; therefore, the trial court erred in supplanting those terms with implied rights under the common law. The court of appeals then remanded the case for proof of any alleged departures from the lease provisions. Id. at 81-82. The Ranch states that the City relies only on Landreth for the proposition that the express terms of the Deed authorize its actions and therefore render irrelevant any discussion of the accommodation doctrine. Br. of Pet. at 35. While Landreth is perhaps the most applicable to these facts, it is by no means the only case law in this state that supports the City’s argument that parties may limit or expand their common-law liability by contract. As stated above, the Court has routinely recognized parties’ right to do so. See, e.g., Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474, 485 (Tex. 2014) (“Ultimately, we held that when a contract between two parties ‘spells out the parties’ respective rights about whether trees may be cut, the contract and not common-law -28-

negligence governs any dispute about whether trees could be cut or how trees were cut.’”) (quoting DeWitt Cnty. Elec. Coop., 1 S.W.3d at 105). Thus, the accommodation doctrine is irrelevant to the facts presented, because the 1953 Deed expressly allows all of the actions taken or proposed by the City. 11 If the Ranch objects to the City’s current or proposed exercise of its contractual rights, that is a contract dispute to which the accommodation doctrine simply does not apply. Instead, the Ranch wants the Court to supplant express contract terms and imply contradictory terms in its favor. The trial court never found that the City’s proposed activities were beyond the scope of the rights granted to it in the 1953 Deed. Rather, the trial court imposed, at the Ranch’s request, an independent duty to accommodate the Ranch’s current uses of the surface—notwithstanding the clear, express surface use rights granted to the City in the Deed. Here, the Deed granted broad rights to the City to explore and produce its groundwater; in contrast, the Ranch only reserved to itself a quantity of water “as may be required to carry on usual and normal domestic and ranching operations”

11

In the absence of such a contractual grant, the City would be in a far different position, likely forced to rely on an implied easement by necessity. See Evans v. Ropte, 96 S.W.2d 973, 974 (Tex. 1936); Hamrick v. Ward, 446 S.W.3d 377, 382 (Tex. 2014). But that is not the situation presented by the facts nor the legal question at issue. It only serves to highlight the different contexts in which this suit and oil-and-gas accommodation doctrine cases arise. The City has no implied rights as would a mineral estate owner.

-29-

and as may be necessary for the production of oil and gas and other minerals, but did not specify or restrict any particular manner or method by which the City could perform its contractual rights. The Ranch now wants to strip the City of its expressly permitted means of producing the groundwater. The temporary injunction ordered by the trial court enjoins the City from: (1)

Mowing, blading, or otherwise destroying the growing grass on the surface of the Ranch;

(2)

Proceeding with any test hole drilling or water well drilling without consulting the Ranch regarding potential impacts to the surface of the Ranch; and

(3)

Erecting power lines to proposed well fields on the Ranch.

(CR.55). And yet, the Deed specifically permits the City to: (1)

“[U]se all that part of said lands necessary or incidental to the taking of percolating and underground water.”

(2)

“[D]rill water wells and test wells on said lands for the purpose of investigating, exploring, producing, and getting access to percolating and underground water,” at “any time and location.”

(3)

“[S]tring, lay, construct, and maintain . . . power lines.”

(PX.1; Appendix, Tab A). Thus, the second and third prongs of the trial court’s order granting the injunction are specifically addressed by the 1953 Deed and expressly allow the City to take the challenged actions.

-30-

As to the first activity prohibited by the trial court’s order, mowing the grass is necessary to the production of groundwater for at least three reasons: (1)

Access: mowing allows the City to access its well sites and other production facilities.

(2)

Transportation: mowing the grass allows the City to drive across the Ranch and deliver supplies to the well fields and/or carry the extracted groundwater to a delivery point.

(3)

Fire suppression and prevention: the City’s vehicles have catalytic converters, with resultant increase in fire danger if tall vegetation is present around the engines.

(2RR.88-89). Mowing the grass is also, at minimum, incidental to the City’s exploration and production of its groundwater for the same reasons. Therefore, under the grant of “necessary or incidental” surface use, the City’s actions comply with the Deed. A prohibition on mowing or otherwise killing some grass on the 26,000 acre Ranch in the process of laying pipe, stringing electrical wires, and producing groundwater would substantially, perhaps severely, impede the City’s ability to produce the groundwater it owns. As a result of this express language—which “spells out the parties’ respective rights” and thus limits the applicability of any common-law obligations, DeWitt Cnty. Elec. Coop., 1 S.W.3d at 105—the test for whether the Ranch has any basis for enjoining the City’s activities depends on a showing that the City’s surface use violates the terms of the 1953 Deed. The Ranch has not shown that the challenged surface use is not explicitly provided for by the contract terms or is not -31-

“necessary or incidental” to the exploration and production of the groundwater from the wells drilled by the City at “any location” it selects. Instead, the Ranch argues that the City cannot engage in conduct expressly authorized in the Deed. The City’s actions comply with the terms of the Deed,12 and the trial court did not find that they did not. Therefore, the specific language of the 1953 Deed—even if the accommodation doctrine applied to a groundwater estate, and the City strongly denies that it does—prevails over any general accommodation principals. See Landreth, 948 S.W.2d at 81 (holding that the mineral owners had no obligation to accommodate the surface owner given the recitals in the deed permitting “all usual, necessary and convenient means” to produce the minerals) (“Given the rights reserved . . . it follows that this is not a situation where the usual rights implied from a standard lease in favor of the mineral estate are to be exercised with due regard to the rights of the surface owners to be accommodated in the existing use being made of the surface.”). In response, the Ranch compares the contractual language in Getty Oil, Landreth, and the 1953 Deed to contend that the Deed fails to adequately express the manner in which the City can exercise its contractual rights. Br. of Pet. at 36-

12

The City does not contend that “any contractual right of surface use negates the accommodation doctrine,” Br. of Pet. at 45 (emphasis added), but rather that the express grant of rights in the 1953 Deed governs the issue presented.

-32-

39. According to the Ranch, if a contract permits “usual, necessary and convenient means,” then that language sufficiently specifies the manner of use such that the accommodation doctrine is not implicated. Br. of Pet. at 40 (quoting Landreth, 948 S.W.2d at 78). But if the contract does not include those magic words, as the mineral lease did not in Getty Oil, then the contractual language allocating rights, duties, and obligations has no bearing and the accommodation doctrine supersedes. Br. of Pet. at 45. As related above and contrary to the Ranch’s attempt to distinguish the terms of the 1953 Deed, the Deed expressly provides the right to the City to locate wells “at any location” and to conduct all the activities specified therein that are “necessary or incidental” to the exploration and production of the severed groundwater. There is some language in the Getty Oil lease, similar to that in the 1953 Deed, that permitted the lessee to build roads, lay pipe lines, and construct housing. However, those activities are not the grant of surface use at issue here. The lease in Getty Oil conspicuously does not contain language regarding the lessee’s right to use the surface in any means “necessary or incidental”—or convenient, or usual, or any other descriptor—for the production of the mineral estate. The 1953 Deed does include such language. These express terms go well beyond a mere generalized grant of rights and actually describe how and where and in what manner such rights may be exercised. -33-

Importantly, the language in the 1953 Deed is broader than the terms at issue in Landreth. The right to use “all that part of said lands necessary or incidental” to produce groundwater authorizes a broader range of activities than the grant of permission to use “all usual, necessary and convenient means.” (emphases added) The City’s actions only need be “necessary” or “incidental,” while in Landreth the conduct had to satisfy all three conditions and be “usual,” “necessary,” and “convenient.” Accordingly, the accommodation doctrine is inapplicable. And, the Ranch’s admission that the language in Landreth precludes resort to the accommodation doctrine logically also indicates that the Ranch’s position results in the same conclusion here—i.e., the language of the 1953 Deed precludes reference to the accommodation doctrine. Like in Landreth, in which the grantee was permitted to use “all usual, necessary and convenient means,” the Deed speaks to “how the right of surface use can be exercised,” which is how the Ranch characterizes the defining distinction between Landreth (contract pre-empts accommodation doctrine) and Getty Oil (accommodation doctrine applies). Br. of Pet. at 40. By the Ranch’s own read of these cases, the Deed here is more analogous to that in Landreth than in Getty Oil. The City also points out that it would be an extremely strained construction of language to distinguish “means” from “use.”

See, e.g., MERRIAM-WEBSTER

COLLEGIATE DICTIONARY, at 1301 (10th ed. 1997) (“use” defined as “a method or -34-

manner of employing or applying something”; or as “the legal enjoyment of property that consists in its employment, occupation, exercise, or practice”) (emphasis added); BLACK’S LAW DICTIONARY, at 1775 (10th ed. 2009) (“use” defined as “the application or employment of something; esp., a long-continued possession and employment of a thing for the purpose for which it is adapted”). Thus, the Deed precisely does speak to the means or manner of surface use, and renders any hypothetical application of the accommodation doctrine irrelevant. The Ranch also cites Moser v. U.S. Steel Corp., 676 S.W.2d 99 (Tex. 1984), to refute the supremacy of the Deed over the accommodation doctrine, Br. of Pet. at 41, but the issue of whether the contract language pre-empted the application of the accommodation doctrine was not considered or decided in Moser. Moreover, the conveyance in Moser only reserved to the mineral estate owner the “necessary and convenient easements” for the purpose of producing the minerals. 676 S.W.2d at 100. Here, the Deed prescribes “necessary or incidental” use of the land, which is arguably a more expansive grant than anything described as “necessary and convenient”; also, the Deed concerns the entirety of surface use, not a more limited easement. Together with the other terms in the Deed, the grant of “necessary or incidental” surface use goes beyond the narrower language quoted from Moser. Likewise, the Deed’s “necessary or incidental” language is broader than either the deed in Landreth or the form easement that the Ranch likens to the -35-

Landreth deed, both of which the Ranch concede are unaffected by the accommodation doctrine. See Br. of Pet. at 43 n.12 (citing Amicus CRMWA’s form easement, which authorizes the grantee “to engage in such activities as may be reasonably necessary, requisite, convenient or appropriate”); Landreth, 948 S.W.2d at 78 (grantee authorized to use “all usual necessary and convenient means”). Therefore, judging by the language in of those two instruments, the terms of the Deed similarly preempt the rule’s application to the City’s contractual rights. The Ranch credits CRMWA’s form easement as “reflect[ing] a level of detail and respect . . . that is absent from the Coyote Lake deed,” and so exempt from the accommodation doctrine’s reach. Br. of Pet. at 43-44. While the form easement is certainly longer, it is the terms of the Deed not the length of the contract that authorizes the City’s actions. Here, the language of the Deed permits the City to take all the actions the trial court enjoined it from doing, and the trial court abused its discretion in granting the temporary injunction. The Ranch admits that when the parties have addressed the manner in which the right of surface use may be exercised, or when they have negotiated their own accommodation rules, then the accommodation doctrine is unnecessary. Br. of Pet. at 44. Here, the terms of the 1953 Deed govern the parties’ respective rights,

-36-

duties, and obligations. The Ranch cannot ask the Court to supplant specific terms of the Deed and imply terms that are more to the Ranch’s liking. However, the Deed reasonably incorporates certain principles in respect of the surface owner. For example, the City cannot drill any well within one-fourth mile of any presently existing windmill wells, as described in the attached exhibit to the Deed; and the City, at the option and request of the surface owner, must install and maintain cattle guards, if it constructs new roads through an outside fence. In fact, the Ranch even acknowledges that the accommodation doctrine is consistent with the terms in the Deed. See Br. of Pet. at 46 (“The Coyote Lake deed contemplates that the City would act with due regard for the Ranch operations.”).

So, according to the Ranch’s own argument, since the Deed

includes reasonable accommodations, the accommodation doctrine is unnecessary. See id. at 44. As evidenced, then, the terms of the 1953 Deed authorize each of the actions the trial court has now enjoined the City from doing. Yet the Ranch also makes accusations that the City will not pay for any alleged surface damage or surface use, even though that has no bearing on the City’s interlocutory appeal of the specific actions enjoined by the temporary injunction. But even if it were relevant, the Deed still governs. The Deed provides for payment in the event of damage to the surface. (PX.1; Appendix, Tab A). What the dispute boils down to is a breach -37-

of contract claim, to which the accommodation doctrine simply does not have any relevance. Moreover, injunctive relief is simply inappropriate. “Contractual rights are not enforced by writs of injunction absent exceptional circumstances, since an inadequate remedy at law and irreparable injury are rarely shown when a suit for damages for breach of contract is available.” Chevron v. Stoker, 666 S.W.2d 379, 382 (Tex. App.—Eastland 1984, writ dism’d); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). Since the Deed provides for a remedy in the case, the Ranch cannot seek injunctive relief for a breach of contract. Not only are the City’s broad and exclusive rights to the groundwater clearly laid out in the Deed, but they are also supported by the express grant of a perpetual easement to the City. “But when, as here, an easement is created by an express grant, the scope of the easement holder’s rights must be determined by the terms of the grant.” DeWitt Cnty. Elec. Coop, 1 S.W.3d at 103. The Deed expressly grants the City the rights the Ranch attempts to ban in this case. *

*

*

*

*

The Ranch states that “both owners have interests worth protecting.” Br. of Pet. at 29. The City certainly agrees with that statement, but points out that both owners did, in fact, protect those interests—by entering into a detailed contractual deed, bargained for at arms’ length and for consideration. Just because the current -38-

owners of the Ranch would have bargained differently does not mean that the 1953 Deed is invalid or does not control the parties’ relationship and their respective rights and obligations. See Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991) (“The primary duty of a court when construing such a deed is to ascertain the intent of the parties from all of the language in the deed by a fundamental rule of construction known as the ‘four corners’ rule.”) (citations omitted); Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 664-65 (absent public policy concerns, courts will enforce contracts as written, furthering Texas’s general policy favoring freedom of contract). The current owners bought the Ranch in 2008, knowing full well the conveyance of groundwater rights, and the concomitant surface use, to the City; and, under market principles, they paid a price that presumably took into consideration the property rights conveyed and those that were not conveyed. See Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2003) (“These policies constitute the allocation by market participants of risks and benefits regarding an insured’s possible future disability. The Court’s role is not to redistribute these risks and benefits but to enforce the allocation that the parties previously agreed upon.”); see also El Paso Field Servs., L.P. v. MasTec N.A., Inc., 389 S.W.3d 802, 810 (Tex. 2012).

The Deed controls and precludes any

-39-

application of accommodation doctrine principles. It was error for the trial court to ignore the express terms in the 1953 Deed. C.

Even if a court were to determine that the Deed is silent on a challenged issue, the law would imply reasonable terms under general contract law, and the City’s actions are in compliance.

Even in the mineral estate context, which the Ranch thinks should be controlling here, the Court “‘cannot make contracts for the parties.’”

HECI

Exploration Co. v. Neel, 982 S.W.2d 881, 888 (Tex. 1998) (quoting Gulf Prod. Co. v. Kishi, 103 S.W.2d 965, 968 (Tex. 1937)). Thus, in mineral leases, the Court has imposed implied covenants “only when they are fundamental to the purposes of a mineral lease and when the lease does not expressly address the subject matter of the covenant sought to be implied.” Id. at 889 (emphasis added). Implied contractual terms “‘are justified only on the ground of necessity,’” but “necessity” does not include reformation of the contract through the use of an implied covenant in order to achieve what a court views as a more balanced agreement. Id. (quoting W.T. Waggoner Estate v. Sigler Oil Co., 19 S.W.2d 27, 31 (Tex. 1929)). The Ranch wants the Court to reform the Deed to reflect the current owner’s desires, but the Court should not override the expressed agreement of the original parties to the Deed. When a contract is silent on an issue, Texas courts will infer reasonable terms. Lidawi v. Progressive Cnty. Mut. Ins. Co., 112 S.W.3d 725, 731-32 (Tex.

-40-

App.—Houston [14th Dist.] 2003, no pet.) (citing Med. Towers, Ltd. v. St. Luke’s Episcopal Hosp., 750 S.W.2d 820, 822-24 (Tex. App.—Houston [14th Dist.] 1988, writ denied) (concluding lease agreement silent as to method of appraisal required; and inferring comparable sales approach the proper method for determining value of property using accepted rules of construction)). Likewise, the Restatement instructs courts to supply missing terms only when necessary to effectuate the purposes of the parties under the agreement. RESTATEMENT (SECOND)

OF

CONTRACTS § 204 cmt. d (1981) (“When the parties to a bargain . . . have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court.”); see also O’Farrill Avila v. González, 974 S.W.2d 237, 244 (Tex. App.— San Antonio 1998, pet. denied). If we were to assume that the Deed is silent as to the manner in which the City may perform its rights and that that omission is essential to a determination of the parties’ rights and duties, a court may supply a “reasonable” term. “Reasonable” performance of the City’s rights, under the circumstances, can include performing the contract without negligence, but it does not necessarily dictate a wholesale cooption of an uniquely developed and uniquely applicable common-law rule like the accommodation doctrine.

-41-

To do so would infuse

confusion and trigger litigation throughout Texas, in attempts to settle the terms of a dramatic change in the law. There is no allegation that the City’s actions have caused waste, malicious drainage, or subsidence. Cf. TEX. WATER CODE § 36.002(b). And any damage to the surface alleged to have been caused by the City’s negligence is remedied under the terms of the Deed. So, if terms may be implied, the City’s actions must be judged in light of the purpose and terms of the Deed. The purpose and those terms clearly support the City’s actions to produce the groundwater conveyed. But fundamentally, it is not proper to imply terms that contradict the express contract language. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989) (“[A] court should not . . . imply terms in opposition to the express language that the parties themselves have written into the contracts.”) (internal quotation omitted). Even if a court were to imply terms, they could not contradict existing terms, which, in the Deed, grant the City broad and expansive surface use rights to produce the groundwater it owns. CONCLUSION AND PRAYER There is no conflict between the court of appeals’ decision and any other appellate court decision in this State. The Ranch’s only argument for enjoining the City’s use of the surface is to seek to void express authorization in the Deed by reliance on the accommodation doctrine. No court has applied the accommodation

-42-

doctrine to a groundwater estate, because it is inapplicable. Because there is no jurisprudential conflict on this issue, either by an express holding or by implication, the Court cannot exercise its limited jurisdiction over this interlocutory appeal. Further cementing the reasons to deny this petition for review and uphold the court of appeals’ decision is that the 1953 Deed expressly provides the City’s rights to use the surface to produce its groundwater and supplements those rights with the authority to act as “necessary or incidental” to produce the groundwater. The Ranch has not and cannot show that the City is acting outside of the express rights conveyed in the 1953 Deed. Because the accommodation doctrine does not apply, and because the Deed specifically authorizes each of the challenged actions taken by the City, the trial court erred in granting the temporary injunction and the Court should deny, or dismiss for want of jurisdiction, the Ranch’s petition for review and allow the court of appeals’ judgment to stand, which dissolved the temporary injunction.

-43-

Respectfully submitted,

THE CITY OF LUBBOCK

BRACEWELL & GIULIANI LLP

Jeff Hartsell State Bar No. 09170275 [email protected] Richard Casner State Bar No. 03969220 [email protected] P.O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2222 Facsimile: (806) 775-3307

By: /s/ Dale Wainwright Dale Wainwright State Bar No. 00000049 [email protected] Lindsay E. Hagans State Bar No. 24087651 [email protected] 111 Congress Avenue, Suite 2300 Austin, Texas 78701 Telephone: (512) 472-7800 Facsimile: (800) 404-3970

ATTORNEYS FOR RESPONDENT THE CITY OF LUBBOCK

CERTIFICATE OF COMPLIANCE Based on a word count run in Microsoft Word, this brief contains 10,822 words, excluding the portions of the brief exempt from the word count under Texas Rule of Appellate Procedure 9.4(i)(1). /s/ Dale Wainwright Dale Wainwright

-44-

CERTIFICATE OF SERVICE I certify that on May 21, 2015, a copy of the Respondent’s Brief on the Merits was electronically filed with the Clerk of the Court using the eFile.TxCourts.gov filing system which will send notification of such filing to the following: Rachel A. Ekery State Bar No. 00787424 [email protected] ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue Suite 2350 Austin, Texas 78701 Telephone: (512) 482-9300 Facsimile: (512) 482-9303

Roger D. Townsend State Bar No. 20167600 [email protected] Jennifer Josephson State Bar No. 11031450 [email protected] ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 1844 Harvard Street Houston, Texas 77008 Telephone: (713) 523-2358 Facsimile: (713) 522-4553

Marvin “Marty” W. Jones State Bar No. 10929100 [email protected] C. Brantley Jones State Bar No. 24079808 [email protected] SPROUSE SHRADER SMITH PLLC 701 S. Taylor Street Amarillo, Texas 79101 Telephone: (806) 468-3300 Facsimile: (806) 373-3454 Attorneys For Petitioner Coyote Lake Ranch, LLC

/s/ Dale Wainwright Dale Wainwright

-45-

APPENDIX 1953 Deed……………………………………………………………………..Tab A

-46-

TAB A

ux

City of Lubbock

ALL

BY '.I'Hi:i:SE

PURTELL, of Lubbock

a, for 11nd

or-

h

1nes, tion walls with the barr or surface

, not

raa, raaervoira,

on, over

a tau

under

nae

or

to erect na aasary

the r

with prpetua l ea aement:i for all , together

th

to use all that part of a

id landa

to the taking of percolating and underground water

t

tranamia

tar therefrom and delivery of

or the wife,

BI

a

be production,

id wa

subjao t to the

eaaary

to the

raaarvad in BI

wife,

wife, JOHNNIE

uah

undertakings

t

uant tiaa of water aa ha production

la la

, thalr

uantlt1a1 of water as rna7 be raqulred to carry on ra

normal and

L.

oll

ba required for norms 1 and

gas and

ther minerals from s id

tomary opera tlons for the produo ti on of oil and gas auah operations as are now normal and customary in the

is located, and subject also to the exceptions and reservations

d; 173, Sutton County School land; Sutton County School land;

172, Sutton County School Land, except also

id

ertaln

acre tract of lend ou

gue 172, being Labors

pipe the

axca~t

and

Labors 3

of the Northeast (NE)

thereof, more particularly described

theast corner of League No. 172, Sutton

County,

to a

1051.4 1900 va :ru to

, and

plpe set tor a corner; pipe

t ror a

corner;

pipe set for a corner;

t 18 known as the A.A. Kuehn Survey 2, Block .. R", situated

to 11, both inclusive; 16 to 22, both inclusive; 27 to 33, th 1nclus1ve; inclusive;

to

both 1milusive;

both

to

to 92, both tm:lusive, all situated in Blook A,

Survey; to

4,

both inclusive ot Block 0 of the T.H. Jones

land being s 1 tua ted in

iley County, Texas.

bject to the rights reserved by the re spec ti vet wife, CORDIE BIRDWi::LL; J.E. BIHDWELL and wife, G&'iENE wU'e, AHLE:NE f:HELPS; and W.R. BROWN and wl.t'e, JOHNNIE

beh!len such Granto rs and U..PURTELL,da ted the 30th day of reference is here made for a more particular description of property he:reinabove described, and their t to drill and us

respective

water from one irrigation well for

poses only, :such wells to be equipped with one (l) pu:np , which pipe shall not el(ceed ten (10") inche:s in diameter, described tracts ot land, out ot the land herein

19 acres of Section the West • , Sec. all in Block A, Melvin Blum Sec. Jones and two such in Block O, for a tobl ti on 2, Block o. T.H. Jones no r,:ore than one well to on which two wells are thet as to the land above described on which the right reserved and excepted by JOHN L. BIRDliELLand wife, CORDIE wife, GENENE BIRDViELL; BERNARD Plil:.1-PS and wife, ARLENE wife, JO!ilUiIE BROWN, neither they,nor their heirs or assigns ntee herein, its successor:s and a:ssigns, shall ever have any nst each otl::er, or their heir , suecessors

nd assigns,

ter from said lands or any part thereof. the purpo:se of this deed, wator and minerals in water minerals, but there is reserved and excepted unto the owners nd interests in the oil, gas and other mlnerals, in, on, under lbed, such water as may be appurtenant thereto. ng th1s daed, the City ot TIT ee and no 11,)0

its successors and assigns,

.OO) Dollars per acre per year tor

by housing tacllltles, fenced enalosure:s and roads construct. fo:r damiages to any surftHJa property proximately caused ivitlea on said land by the City of

, 1ts agents and

1a otherwise p:rovlded hereln, and shall, within s reasonany operations on l!bld land, remove therefrom any trash,

or objects which clutter up or thereof. through

~here

the City of

tract from the uaefulne:ss

its euaaesaors an1

outside fence, the City of

shall

h openlng, gates of durable construction; or, at the Of

land, the City of

k will install and

the City of Lubbock, lte successors and aa:signs, constructs fences, the said City of Lubbock wtll install and

from.

in t

er wlth

premls isa ual::rngl

County,

mun lo 1pal oor

its suoaassors

igns

helrs, executors

ourselves,

int;ula:r the t1on

1d CITY

unt

•

r,

ll

trators,

unto the

s1d

C!'I'Y

s, 1ts successors

k

iming, or to

homsoever lawfully

im the

195).

this

L.h. PUHTELL

.)0 IRS Attoahed and Cinaallad

PURTELL

:r..;..

Jr. tor Lub

it:A

9, 1700

1

Ol"

t and

County• tion ll,

e or

County, Texas. A POI tion

1

s.,

more or

POINT 100 1

18, Block A,

A, Bailey County,

Sl'i

1500 1

'"· •

corner ot section

more or less, from

900 1 E. and 1800 1 N., more or less, from the SW

County, Texa • A

Sec

2,

w.

6o0 1

O,

'N.,

1ley County, Texas. A POINT

corner of Section

, Block A, Ba 1ley

JOO' N., more or le N.

I

.r

omer

t1on

e or less, from the

500 1 E.

ley County,

orner of Section 55, Block A,

500 1 N.,

1ley County, Texas. A POINT

less, from the SW corner of Section 3, Block O, Balley

nd 300• N., more or less, from the SE corner

POINT 1500 1 N. end 2300 1 W.,

s.

r Section

or less, !'om

1ley County, Texas. A POINT 2000 1 W. and 900 1

corner of Sect!.on

, more

79. Block A, &.!.ley County,Texes.

r rom the SE

less,

orner of Section

BlockA,

E. and 6oO' S., more or less, from the Nii corner

6:)Qt

POI~~

Bal.lay County,Texas. A

1

1000 1 W. and

SE corner of Survey 172, Sutton County School Land

s.,

3000 1 E., and 900'

more or less, from

ty School Land, Bailey Coimty,Texas. A corner of Survey 173, Sutton County School Land, Balley E. and 1500 1

s.,

more or les , from tie NW corna:-

Couiity,'rexa •

Land, &!.

SE corner of Survey 1

,.A POINT

or

W. and School Land,

Sutton

• , more or less, from the SE corner

W. and

School Land , Bailey County,T6A.!l!!I. 1953, at

4

F.M.,

, Deed Records

or

PEBRUARY

rd, 1953, at 11:00

iley County, TeX9So

G.

Clerk ty • Tux as

Bailey County.Texas.

RI HIT-OF-.VAY

ALL

BY THE:SE PHE:SENTS t of Baney, State of Texas

Loia Ken Lenau, of the s urn

a!'ld no 1100 Dollars to us in hand pa id

of which 1s hereby acknowledged and confessed, have GRANTED these prei:ents GRANT, SELL

uninterrupted uee,

CONVEY unto the Balley

iberty and priv

following dirncr!.bed tract or psroel more part!.cularly descd.bed

or

of passage, 1n, land situated in

s follows: beginntng at

t corner of Section No. point; Thenc

t

East

to

t the

7 fee id Bailey

County, feet to e point; Thence e of beginn!.ng.

• in cons1derat!.on

or

the