*1 186 42 per gross cent on these sales have element of would Armstrong’s this case.
submit 279; 324, Here, “pure Rule profit” Tex.R.Civ.P. represented Armstrong. Rule Armstrong, by general objection, urged modified subsequently testimony this He 9, July should run from the term by that recall AMCO the he upon extent that 31,1975; however, the motion to December the amount of Armstrong’s know not did complains only of the trial for new trial gross sales. on its expenses to find that failure the contract was court’s evidence leaves much to be desired This 9, 1974, 30, July to June 1975. Arm- showing as the amount of Arm- insofar point is strong’s fourth overruled. Nevertheless, strong’s damage. there is ev- Armstrong’s final point dropped seeks to Armstrong’s gross sales idence of the court’s complain failure to submit an of the breach of the contract because construing guaranty signed issue by Armstrong. profits this reduced the of guarantors. appeal perfected three No was Therefore, are points AMCO’sno evidence guarantors the three Battery merit. See Southwest without them on against Armstrong the guaranty. Owen, 423, v. 131 Tex. Corp. part not affected this is 1097, (Tex.1938). now be complain cannot heard to is af- court of the trial Texas, Appellate Procedure in same. Sec. firmed. event, any objection In no 18.13. was made Armstrong to the court’s failure to sub regarding the guaranty. an issue Arm
mit waived error in the
strong thus 279, such to submit an issue. Rule
failure
supra. difficult question present
A more cross-points urges
ed AMCO’s wherein it is no evidence to support there ux., Appellants, W. WYLIE et C. finding Armstrong damaged was jury’s breach of the contract. Arm by AMCO’s REED, trustee, co-partnership, Bette strong was the distributor the San Anto Appellee. beauty supplies for lines of distrib area nio through AMCO several uted franchised No. 5558. There was testimony distributors. Texas, Appeals of Civil Armstrong predecessors and its had handled Waco. years. lines for over 14 When AMCO these 9, 1974, contract on it July breached necessary Armstrong to secure became 27, 1976. May from other sources. This took time
supplies Rehearings Denied June gross in a loss of sales and resulted Armstrong. Armstrong’s damage amount of upon testimony of Mr. Bauhs and
based prepared by him. This exhibit
an exhibit Armstrong’s total of sales for
shows the January, through month from
each
December, 1974, with the monthly average Bauhs testified that his year.
for each gross sales
analysis drop of the showed a cent after June forty per of 1974.
about Armstrong’s testified that since
He fixed, were
expenses mark-up of about
by virtue of a certain mineral reservation Warranty Wylie and Deed from set out September James F. Baker dated wife to Wylie and Reed sued defendants Plaintiff all the wife, alleging plaintiff is owner from lignite under produced and or coal mining strip land or open pit described methods; Sep- on Wylie that defendants 30,1950 James to the land conveyed tember Baker, res- following mineral making F. “* ** except- hereby there is ervation: to ¼ grantors reserved herein ed and oil, gas and interest in and to all undivided and on and under the land minerals conveyed herein described and premises * * * reservation cast a that such title; plain- plaintiff’s prayed cloud possession for title and have tiff lignite may all coal for by pit strip from the lands or removed mining methods. by plea answered of not
Defendants guilty. moved for thereafter
Plaintiff asserting questions there were no fact; plaintiff owns all material if mined property coal and strip mining open pit or removed methods; in Acker Supreme that the Tex., 348, held that Guinn, effec- was not reservation as here mineral minerals that would reserve to tive methods; strip mining open pit or mined coal and thus owns all plaintiff mining methods strip or by open mined property. from Athens, Bolding, Life & appellants. for de- 1) the deed from attached: Plaintiffs Keils, Jr., Teague, W. A. appellee. for Baker; conveyances the mesne fendants referring to (all into Baker from OPINION deed), to Baker Wylie in the reservation McDONALD, Chief Justice. Hill, land man A. 2) affidavit of J. which states mining appeal by company This is an Wylie, Defendants for premises summary judgment lignite removed from from that Plaintiff coal and methods; Reed is owner all coal and bybewill substantially impair mined and by open pit removed will which agricultur- methods from a tract estate for 223.385 the surface the use of and in his County. judg- purposes; land in Freestone grazing al or recovered Wylies decrees the own no can be coal and ment coal and on such land methods. interest replied Baker, plaintiff’s Defendants affidavits of James F. motion Mrs. asserting for the reser- Baker, Honorable Bowlen Bond are al- in Acker v. Guinn vation was substantially to the Wylies’ most identical affidavits. distinguishable different that con- granted plaintiff’s The trial court motion deed; Wylie-Baker tained summary judgment, decreeing plaintiff reservation Wylie-Baker “was broad *3 the all owner of all coal and and enough scope in its and sufficient as a mat- be royalties due therefrom which is or shall include, include, to and ter of law did coal or removed from the tract mined described minerals”, as well as lignite, other and and methods; pit strip mining or and by open alternatively if the reservation did not in- in- acquired decreed defendants no coal and law, clude as a matter of the terest in coal and that ambiguous it and subject then expla- tract, virtue mined or removed parties nation as to what was intend- Wylie- the mineral reservation in the of ed. Baker deed. Defendants attached affidavits of them- appeal points on contending Defendants selves, Baker, James F. Baker, Mrs. and matters; among other Bowlen Bond. erred in considering The Court the affida- Wylies’ affidavits state that Sep- on A. Hill establishing J. as a material vit of 30,1950, they tember sold the land to James cause, in this towit: That coal and fact Baker; that they agreed F. with Baker that lignite in area of the lands made the “ n would reserve they in interest the coal lawsuit basis of this can be recovered lignite, along oil, and with the gas and methods, or for the open minerals”; other that the deed was drawn opinion estab- testimony cannot reason Bond, by Mr. Bowlen attorney in Teague, as in lish material fact a matter of law Texas; they told Mr. Bond what the summary judgment a case. was, agreement and Mr. Bond drew the Supreme Court in Acker v. with the Our Guinn following deed mineral reserva- (Tex.1971)464 held that a min- tion: S.W.2d * * * conveying “an deed undivided ½ inter- eral “In addition there is hereby oil, gas in and to all of and other est accepted reserved to and the Grantors land, a under certain tract of minerals” herein a Viundivided in interest and to all no interest in the iron ore. The conveyed oil, other gas and minerals on and under that while the iron is a court held ore premises1 land and herein described mineral, it since had to be mined conveyed; and and it hereby expressly which would or methods agreed and understood that Grantors surface, destroy substantially impair or herein, have, their heirs and assigns shall contemplation par- not in the of the it was hereby have they right and ingress of conveyed. The court further ties to be egress for the sole only purpose and and oil, held: operating of for gas and minerals, all and under said or reservation of minerals grant “A land,2 mine, produce, and to save and effects a sever- fee owner horizontal products, care of said take and to take all separate the creation of two ance usual, necessary and convenient means estates: an estate in the surface distinct * * * working, preparing and removing said
for an estate minerals . away from and under and minerals parties to mineral lease or deed premises;” land and said usually think of the mineral estate as including valuable substances parties Mr. Bond advised the he was that are re- included the the ground by the reservation coal and moved from means of sure mine shafts. This lignite. wells or estate is domi- Emphasis Emphasis added. 1. 2. added. or premises, deplete it will substan- course,
nant, and its owner is entitled the use of the surface estate impair use of the surface for tially reasonable make grazing purposes. or agricultural his minerals. It is not production however, contemplated, ordinarily his further states “Affiant agricultural surface for utility of the in the area of the that coal destroyed will be purposes basis of this law suit can grazing made lands substantially impaired. only by open pit Unless the con- recovered is affirmatively fairly intention trary mining methods.” therefore, grant or reserva- expressed, Guinn, supra holds Acker rights’ ‘mineral ‘minerals’ tion that the coal and proving the burden had be construed to include a sub- should not case at bar must be removed that must be stance removed methods deplete methods that would consume or will, in effect consume or the surface. * * *.3 *4 estate” surface is the evidence only affidavit The Hill Motors, Tex., v. General 450 S.W.2d Gibbs and lignite the coal can be recovered that summary judgment holds should 827 methods, and such is only by granted if granted, should af- opinion. an firmed, only summary judgment proof if sus- supra contention Defendants’ right thereto as a matter of establishes tained. n law. and REMANDED. REVERSED opinion testimony And cannot estab fact as a lish material matter of law. HALL, (concurring). Justice Co., 522, Ind. v. Texas Ins. 146 Tex. Hood the reversal and remand. in I concur 345; Gibbs v. General Motors However, wish to make it clear that it is I 827; Tex., 450 S.W.2d Corp., Lancaster v. the in my question reservation Bank, Wynnewood Tex.Civ.App., State Guinn, not, the words of in Acker v. does NWH, 470 (Waco) S.W.2d 78. fairly” “affirmatively express on its by parties Hill’s affidavit in full follows: an intention to it “to face a substance that must be removed include name is J. A. Hill. I “My am senior will, effect, methods in consume or by Services, land man for Texas Utilities surface estate.” Dallas, Texas. part my Inc. As duties, position in such which I have held summary must judgment be reversed past years, I have been in case remanded and the for another trial acquisition of the land charge and title (1) pleaded because for and in an area of County, work Freestone title to all awarded was Texas, wherein Industrial Generating may by open-pit be mined lignite that has and is Company producing been now when, question from the tract in methods premises by the lands and Guinn, holding in Acker v. she under methods and grant review by under received none other. by must be removed such meth- lignite that ods; (2) proof states that he is fa-
“Affiant further law that as a matter of not establish does knows the locale of the with and miliar by controversy in must be mined premises in this law lands and involved methods. open-pit suit; mined and that coal premises removed from said will be JAMES, (dissenting). Justice strip mining methods. open pit or dissent. I would reform respectfully I further states that “Affiant judg- the trial court’s affirm coal or removing lignite by open ment. mining methods from said lands Emphasis 3. added. holding in majority agree
I with not, question PROPERTIES, Appellant, in does the reservation REGAL Guinn, affirmatively v. of Acker words its an intention face fairly express GREENBERG, Appellee. Gilbert a substance that must to include parties 18863. No. effect, will, methods that be removed deplete the surface estate. consume Texas, Appeals of of Civil Dallas. bar, Plaintiff-Appellee at case In the Trustee, Reed, has sued for a declara- Bette May her asking the court to tell judgment, tory Denied June 1976. Rehearing Wylie reserved the 1950 rights what reservation, insofar as coal and deed of this determination concerned.
are strictly question, a law and is
matter Acker v. Guinn.
governed
However, is in the trial
error, Plaintiff-Appellee it held that in that owner of “the all the coal and
Reed was methods.” What the trial
strip-mining *5 should have held was that
Plaintiff-Appellee Reed was the owner lignite that be mined must
all the coal methods, strip-mining which bring har- would into
holding Acker v. with Guinn and Williford
mony 1975) (Waco, Tex.Civ.App.,
Spies, 127, no writ.
S.W.2d judgment so that it reform the
I would Plaintiff-Appellee Reed is hold
would of the coal of all owner and removed
must reformed, and as I would af-
strip-mining, judgment proof
firm same. there is land
shows
controversy, and that is all the proof adjudicate needed to this than the
controversy, conveyance in- before us. The J. A. Hill affida-
struments disregarded.
vit