
    STATE v. BLACK BROS. et al.
    (No. 4056.)
    Supreme Court of Texas.
    June 22, 1927.
    1. Quieting title &wkey;>53—Appellate court erred in quieting title in defendants, who asked no relief or did not appeal from adverse judgment, or were dismissed from suit to their satisfaction.
    Judgment of Court of Civil Appeals quieting title to area sued for in defendants, who filed no pleadings seeking any relief, or who had not appealed from adverse judgment, or who had been dismissed from suit in trial court to their entire satisfaction, held erroneous.
    2. Mines and minerals &wkey;>6—State and its per-mittees held entitled to judgment for title to and possession of bed of Clear fork of Brazos river (Acts 35th Leg. [1917] o. 83).
    • State and those acting under its permit to develop petroleum and natural gas in compliance with Acts 35th Leg. (1917) c. 83, held entitled to judgment for title to and possession of tract of land in Stephens county, which was part of bed of dear fork of Brazos river.
    a, Mines and minerals <&wkey;6—Statute relative to discovery and production of minerals in channels of navigable rivers held not void because repugnant to older statutes (Acts 35th Leg. [1917] c. 83).
    Acts 35th Leg. (1917) c. 83, approved March T6, 1917, providing for discovery and production of minerals in channels of navigable rivers belonging to state, held not void because repugnant to older statutes.
    4. Navigable waters &wkey;>36(l)—Proprietors of riparian lands on navigable stream held to have title only to water line.
    Proprietors of riparian lands on stream declared navigable by Act of 1837 of Congress of Republic of Texas, under patents issued subsequent to passage of act, had title only to water line of stream, since state reserved title to bed of stream.
    5. Navigable waters <&wkey;37(2)—State may determine disposition of beds of navigable streams provided vested rights are not impaired.
    State is clothed as sovereign with power to determine disposition to be made of beds or channels of navigable streams belonging to state, provided such power is exercised without impairing rights already vested.
    6. Navigable waters <&wkey;37(2)—It is province of Legislature to determine how state shall discharge obligations as owner of river beds, including minerals therein.
    It is province of Legislature to determine how state shall discharge all obligations resting on it as owner of river beds, including any minerals that may lie therein.
    7. Mines and minerals &wkey;>6—Permittees of state developing oil and gas in river bed held not entitled to easement across defendant’s lands surrounding such river bed, where right of way was not definitely described/(Acts 35th Leg. [1917] c. 83).
    Holders of permit from state to prospect for and develop petroleum and natural gas in river bed, issued in compliance with Acts 35th Leg. (1917) e. 83, held not entitled to easement granting way of necessity across lands surrounding such river bed, where neither pleadings, evidence, nor judgment described any certain right of way; judgment held erroneous which granted general right of ingress and egress over defendant’s lands, whether contiguous or not, without qualification except that right be exercised without unnecessarily injuring defendant’s lands or interfering with their use thereof.
    Error to Court .of Civil Appeals of Fourth Supreme Judicial District.
    Suit by the State of Texas and others against Black Brothers, and others. The judgment of the trial court was reversed by the Court of Civil Appeals (253 S. W. 576), and the state of Texas brings error.
    Judgment of the Court of Civil Appeals reversed, and that of the district court reformed and affirmed.
    Claude Pollard, Atty. Gen., W. A. Keeling, former Atty. Gen., and W. W. Caves, former Asst. Atty. Gen., and C. W. Trueheart, Asst. Atty. Gen., for the State.
    Scott W. Key, of Eastland, D. T. Bowles, of Breckenridge, H. S. Garrett, of Fort Worth, and Win. E. Hawkins, of Breckenridge, for defendants in error.
   GREENWOOD, J.

The state of Texas, joined by R. O. Brewster and others, brought this suit in the district court of Travis county against A. A. Atkins, \v. H. Atkins, John Robbins, Jack Black, John Black, Will Black, Black Bros., a partnership composed of the three last named persons, R. P. Brown, the Brown Oil Company, P. A. Chapman, Jr., N. A. Moore, and the Humble Oil & Refining Company.

This suit had a dual purpose. In the first place, under the averments of a petition in the statutory form for an action of trespass to try title, the plaintiffs sought to recover the title to, and possession of, a certain tract of land in Stephens county, which was a part of the bed of the Clear fork of the Brazos river. In the second place, the plaintiffs sought to establish the rights of the coplain-tiffs of the state, as the holders of a valid permit from) the state, to prospect for and produce oil and gas from said tract of land, and to enjoin the defendants from interfering with the exercise of such rights, and to secure a decree granting unto plaintiffs a way of necessity across lands of defendants.

As a basis for the relief sought by plaintiffs other than the recovery of the title to, and possession' of, the tract of land sued for, it was alleged:

First, t^at on June 16, 1920, in compliance with chapter 83, p. 158, General Laws, Regular Session, Thirty-Fifth Legislature, approved March 16, 1917, a permit numbered 7224 was issued to R. C. Brewster to prospect for and develop petroleum and natural gas upon and within said river bed area; that Brewster subsequently assigned his rights in so far as same related to a described part of said area to his coplaintiff, J. Neil Smith, who entered into a valid contract with the remaining coplaintiffs, Inland Oil Company and others, for the drilling of certain wells thereon, at a point authorized by the railroad commission.

Second, “that the drilling of a well for oil and gas in a river bed is a very costly operation, much more costly than the drilling of a well on a flat and dry surface, and is attended with great trouble, labor, and danger ;• that before the actual work of drilling can be commenced a concrete foundation 'must be built up from the bottom of the river bed to a point several feet about the surface of the water; that the river at the point of said location above described is 12 or 15 feet deep; that,said assignees constructed at great expense and labor in said river at said location the form for the placing of the concrete therein; that said assignees and their employees while so engaged in the above work were threatened with physical violence and criminal prosecution by the above named defendants and each of them; that defendant A. A. Atkins and other defendants drove the said assignees of the state’s permittee and their employees away from their work and from the above-described lands, premises, and area included within said permit No. 7224, with loaded shotguns, and refused, and still now refuse, to permit said assignees or their employees from continuing with the work of drilling a well for oil and gas at the above described location; that the said assignees and their employees fear that if they return to the work of so drilling said oil well, or attempt to. do so, they will meet with bodily harm and injury from the said defendants and each of them, and because of said above alleged threats and acts of the said defendants, and each of them, the said assignees find it impossible to secure workmen to work upon said above described area and proceed with the drilling of the aforesaid oil well, and consequently said land, premises, and area above described will remain undeveloped for a long and indefinite period of time.”

Third, “that said river bed, the title to which is in the state, subject to the rights of eoplaintiffs, is virtually a closed-in area, surrounded on all sides by the private property of the adjoining landowners, previously granted to them and their predecessors in title, by the state, and especially is it true that said river bed at this particular location above described is closed in on all sides by the property and properties of the defendants, and each of them, and particularly by the property of defendants Atkins and Brown; that the plaintiff and its permittee, and his assigns, are entitled to a lawful and legal right of ingress and egress over the lands of the defendants and particularly the defendants Atkins and Brown, and each of them, as a way of necessity in order to go to and from and enter upon the land, premises, and area described above in paragraph 2 of this petition, as the property of this plaintiff (subject to the rights of its coplaintiffs herein); that the said defendants, and each of them, have refused and are still now refusing to permit the state of Texas or its per-mittee and his assigns from so entering upon and going through their (defendants’) aforesaid adjoining properties to reach the above described land, ' premises, and area owned by plaintiff as aforesaid; that no public road affords access to plaintiff’s said land, and defendants have refused to sell or lease to plaintiff or its permittees, or to grant by contract to plaintiff and its permittees any means of access over defendants’ sa,id lands, to the land of plaintiff; that it is impossible to develop the said area of this plaintiff unless such right of ingress and egress be granted to plaintiff and its permittee and his assigns over the said adjoining lands of said defendants, and each of them.”

The prayer of plaintiff’s petition was:

“Wherefore, plaintiff (joined herein as aforesaid ' by its eoplaintiffs) respectfully prays this court that an appropriate order be immediately entered granting said plaintiff a temporary injunction restraining the defendants, and each of them, their agents, officials, assignees, servants, employees, or legal representatives, and each of them, from interfering, and attempting to interfere, in any way, manner, or form, with the plaintiff and its permittee, and his assigns, their agents, assignees, servants, employees, and legal representatives, and either of‘them, in the drilling of the aforesaid well for oil and gas at the above-described Smith location, or in the drilling of any oil and gas well, or wells, in the above-described land, premises, and area embraced within said permit No. 7224 and fully described above, and in the development of oil and gas on and under said property and area, from threatening and from running off said premises and area 'and from attacking said plaintiff and its permittee and his assigns, their agents, servants, employees, and legal representatives, and either of them, while on or about said premises from preventing or attempting to prevent in any way or manner said plaintiff and others above named, and each of them, from so drilling, or attempting to drill, and from so developing or attempting to develop said properties, and granting said plaintiff a temporary injunction forcing said defendants, and each of them, their agents, officials, assignees, servants, employees, or legal representatives, and each of them, to permit the plaintiff herein and its permittee, and his assigns, their agents, assigns, servants, employees, and legal representatives, and either of them, to go through and over the property, or properties, adjoining said river bed area, in order to go to and from said river bed area and to and from said Smith oil well location, and to give them the right of ingress and egress thereover, and restraining said defendants, and each of them, their agents, officials, assigns, servants, employees, or legal representatives, and each of them, from interfering with or preventing, or attempting to interfere with or prevent, said parties, and each of them, from going through and over such adjoining property, or properties, in going to and from said river bed area and said Smith location in said river bed area, and from doing any and all of the above acts set forth in the third count of this petition; that defendants and each of them be cited to appear and answer this petition; that on final hearing hereof, said above prayed for injunction, or injunctions, be made perpetual; and that plaintiff and its eoplaintiffs herein have judgment against the defendants, and each of them, for the title and possession of the lands, premises and -areas above described, and removing from the plaintiff’s and its eoplaintiffs’ title the cloud east upon it by the elaims of the defendants, and each of them, and that plaintiff be adjudged to be the owner, subject to the rights of its per-mittee and his assigns, and that they be adjudged to be the owners of their rights and title therein, of the said land, premises, and area, free from the claims asserte.d by the defendants and each of them, and of the petroleum, oil, and natural gas and other minerals in and under the same; that a way of necessity be declared and established by the judgment of the court over the lands of defendants adjoining the property described in paragraph 2 hereof, and that a way of ingress and egress be decreed in favor of plaintiff; for writ of possession, and hosts of suit, and for general and special relief.”

Jack Black, John Black, and Will Black and Black Bros, filed an answer pleading a general denial and not guilty. These defendants pleaded specially:

“That the said tracts of land owned by said defendants are not adjacent or contiguous to the alleged oil well or proposed location therefor by the plaintiffs or the state’s alleged permittees or its assigns in the bed of the Clear fork of the Brazos river, and no occasion exists for any highway, right of way, thoroughfare, or way of necessity across the lands of these defendants, nor is it necessary to cross the lands of these defendants in order to reach said proposed oil well or location therefor in said stream.”

They further plead that to_ establish any highway or way of necessity upon their lands in behalf of plaintiffs, without compensation to them, would deprive them of their rights and property without due course of the law of the land and contrary to the guaranties of the state and federal Constitutions.

A. A. Atkins pleaded a general denial and not guilty. By special plea he averred that the Clear fork of the Brazos river retained an average width of more than 30 feet and was a navigable stream within the meaning of article 5338 of the Eevised Statutes; that the Act of the Thirty-Fifth Legislature in so far as it purported to authorize the prospecting for and the developing of oil and gas in the beds of navigable streams was unconstitutional, and that to grant a way of necessity to plaintiffs across his land would deprive him of his property rights without compensation contrary to law and the Constitution; that he owned certain lands, particularly the Watkins Noble survey adjacent to the river bed area sued for, and the title thereto emanated from the state long prior to the issuance of the oil and gas permit and prior to the passage of the act of the Thirty-Fifth Legislature, and he prayed that permit No. 7224 be declared null and void.

E. F. Brown answered that he owned land bordering on the area sued for, but disclaimed any right, title, or interest in and to the area and all oil, gas, and other minerals therein, except such riparian rights as may belong to him as the owner of riparian lands upon the stream. He further pleaded a general denial and specially that he had not refused to permit the plaintiffs to drill at the point designated in their petitions.'

P. A. Chapman, Jr., and N. A. Moore disclaimed any interest in the river bed area except the right to take water from the stream for certain purposes, and then pleaded a general denial and not guilty.

The Humble Oil & Refining Company disclaimed except as to its right to take water from the stream under a permit from the board of water engineers, and besides pleaded not guilty and for general relief.

The evidence seems to have established, without substantial controversy, that the Clear fork of the Brazos river retained an average width of more than 30 feet since prior to the adoption of the act of 1837, and that the state’s- coplaintiffs held such a mineral permit as they pleaded to the area described in their petition, and that they desired to prospect and develop the oil and gas in such area, and that defendants owned riparian tracts of land, under patents issued after June 12,1837-, to tracts of land, some of which were contiguous to the area covered by the permit and the site of the proposed well, and some of which were remote therefrom.

The district court rendered a judgment dismissing plaintiffs’ suit as against defendants W. H. Atkins and John Robbins. Such judgment proceeded, as between the plaintiffs and the remaining defendants, as follows:

“And it further appearing to the court that the lands owned and claimed by the defendants entirely surround the portion of the river bed of the Clear fork of the Brazos river at and near the point where the permittees of the state of Texas are preparing to drill an oil well, the point where said well is located being described as follows: [Here follows description of the point where the proposed oil well was to be drilled as designated by the said order of the railroad commission.] * * * And it appearing to the court that the plaintiff state of Texas, its agents, permittees, and lessees, have no means of ingress and egress to or near said point wherte the site of said well is located except over the lands of defendants, the court is of the opinion and finds that plaintiff state of Texas is entitled to a way of necessity over and across lands for the benefit of itself, its employees, agents, permittees and lessees.
“It is therefore ordered, adjudged, and decreed by the court that the plaintiff, the state of Texas, have and recover judgment of the defendants, A. A. Atkins, Jack Black, John Black, Will Black, and the firm of Black Bros., composed of the three individuals last named, and R. F. Brown, P. A. Chapman, Jr., N. A. Moore, and the Humble Oil & Refining Company, a private corporation, for the title and possession of the following described land, to wit: [Then follows description by metes and bounds of the river bed area as described in the mineral permit.]
“It is further ordered, adjudged, and decreed in accordance with the agreement of the parties hereto that the above-described land and area covered by said mineral permit includes no more than the actual bed of said river lying between the first banks, and does not embrace or include any portions of the patented lands contiguous thereto or fronting on or calling for said Clear fork of the Brazos river as a boundary.
“It is further ordered, adjudged, and decreed that the coplaintiffs of the state of Texas recover judgment validating the mineral permit, and that they, together with the state of Texas, have the right under said permit to develop the river bed for oil and gas.
“It is further ordered, adjudged, and decreed by the court that the plaintiff state of Texas have an easement for the purpose of ingress and egress of its servants, agents, and employees, permittees, and lessees, including the coplain-tiffs herein and their assigns, over and across the lands of the defendants and each of them to and near to the point' in said river bed where its permittees have located the site of an oil well hereinabove described for the purpose of prospecting for, drilling, and operating oil and gas wells, or for other proper purposes reasonably necessary for the utilization of said area, provided, however, that such right of ingress and egress shall be exercised in such manner as not to unnecessarily injure such lands or unnecessarily interfere with the use thereof by defendants. * * *
“It is further ordered, adjudged, and decreed that this judgment shall in no way interfere with, jeopardize or be .in bar of any riparian rights which any of the defendants herein, or their assignees, may have as riparian owners or proprietors of lands adjoining the river, in or to the waters of the Clear fork of the Brazos river or the uses thereof, nor shall this judgment preclude the defendants, or 'either of them, or their assignees, from hereafter asserting such rights, it being expressly decreed and adjudged that any questions as to any riparian right of the defendants, or either of them herein, or their assignees, were and are not determined or adjudicated in this case.”

Jack Black, John Black, and Will Black, individually and composing the partnership of Black Bros., A. A. Atkins, and R. F. Brown appealed.

The San Antonio Court of Civil Appeals reversed the judgment of the district court and rendered judgment that plaintiffs take nothing by their suit and that all defendants, including those dismissed from the suit and also those who did not appeal, “be quieted in their title to (and) possession of the following described land,” being the area sued for, and that the defendants “go hence without day” and recover all costs. 253 S. W. 576.

The state of Texas thereupon applied for and was granted a writ of error to review the judgment of the Court of Civil Appeals.

It does not admit of debate that the judgment of the Court of Civil Appeals is erroneous in so far as it proceeds to quiet title to the area sued for in the defendants, who had filed no pleadings seeking any such relief, or who had not appealed, or who had been dismissed from the suit in the trial court to their entire satisfaction.

We think, too, that under the pleadings, the agreement of the parties, and the uncontradicted evidence, the plaintiffs were entitled to judgment for the title to, and pos? session of, the premises described in plaintiffs’ petition.

We are unable to agree with tbe Court of Civil Appeals that tbe act of 1917 for tbe discovery and production of minerals in tbe channels of navigable rivers belonging to tbe state is void because repugnant to other statutes, even though such other statutes be tbe older.

This court definitely determined in City of Austin v. Hall, 93 Tex. 597, 57 S. W. 563, that proprietors of riparian lands on a stream declared navigable by tbe act of 1837 of tbe Congress of tbe republic, under patents issued subsequent to tbe passage of tbe act, bad title only to tbe water line of tbe stream, since tbe state reserved tbe title to tbe bed of the stream. This decision has been uniformly approved in tbe subsequent opinions of tbe Supreme Court. Motl v. Boyd, 286 S. W. 468, where tbe court defined what is meant by tbe bed of a stream; Landry v. Robison, 110 Tex. 295, 219 S. W. 819; and Welder v. State (Tex. Civ. App.) 196 S. W. 877, writ of error refused; State v. Grubstake Investment Asg’n, 297 S. W. 202 (opinion delivered June 22, 1927).

We have this day determined that tbe state is clothed, as sovereign, with tbe power to determine tbe disposition to be made of tbe beds or channels of navigable streams belonging to tbe state. Anderson v. Polk, not yet reported. Of course, tbe state’s power must be exercised without impairing rights already vested. But in so far as tbe validity of mineral permit No. 7224 is concerned, tbe case presents no question of impairment of vested rights. For defendants admittedly bad no rights other than as riparian owners of land bordering on the Clear fork of tbe Brazos river. Tbe judgment of tbe district court expressly decreed that it should in no wise interfere with or bar any rights of the defendants as owners of riparian lands nor preclude them from hereafter asserting any such rights. So we shall not undertake to define in this opinion tbe rights of riparian proprietors nor of tbe public in rivers of their beds It is certainly tbe province of tbe Legislature to determine bow tbe state shall discharge all tbe obligations resting upon it as owner of tbe river beds — including any minerals which may lie therein.

We conclude there was no error in tbe action of tbe district court in allowing plaintiffs to recover tbe river bed area in controversy, nor in establishing tbe validity of the mineral permit.

We find no basis in pleadings, proof, or tbe law for tbe trial court’s award of an easement over and across all tbe lands of tbe defendants. Neither tbe pleadings, evidence, nor tbe judgment fix or describe any certain right of way. Tbe judgment grants to plaintiffs a mere general right of ingress

and egress over defendants’ lands — whether contiguous or not — without qualification other than that plaintiffs’ right be exercised so as to not unnecessarily injure defendants’ lands and so as to not unnecessarily interfere with defendants’ use of their lands.

Tbe rule invoked by tbe plaintiffs to maintain their right to a way of necessity across defendants’ lands was clearly stated by the' Supreme ‘Court of Massachusetts in these words:

“The law presumes that one will not sell land to another without an understanding that the grantee shall have a legal right of access to it, if it is in the power of the grantor to give it; and it equally presumes an understanding of the parties that one selling a portion of his land shall have a’legal right of access to the remainder over the part sold, if he can reach it in no other way. This presumption prevails over the ordinary covenants of a warranty deed.” N. Y. & N. E. R. Co. v. Board of Railroad Commissioners, 162 Mass. 83, 38 N. E. 27.

Tbe rule recognizing tbe grantor’s implied reservation of a necessary right of way across tbe part of bis land which be has conveyed seems to have been recognized in Texas in cases where tbe grantor was another than tbe sovereign. Railway v. Rowland, 70 Tex. 301, 7 S. W. 718; Holman v. Patterson, 34 Tex. Civ. App. 344, 78 S. W. 991.

However, one of the latest expressions of this court, in refusing to recognize a claim of implied reservation by a grantor, was in an opinion of Mr. Justice Gaines, in which be used this significant language: .

“There is much that commends them to favorable consideration in the remarks upon this question of Chief Justice Ryan, of the Supreme Court of Wisconsin: ‘We may say, however, in passing, thát it is always safest to let written contracts speak for themselves. This rule is often relaxed with doubtful expediency. Parties ought to make their own contracts complete. Alienations of land are or ought to be grave and deliberate transactions. Every conveyance should contain “the certainty of the thing granted” to the .full extent of the grant. What may be expressed enlarging or restricting the grant in particular cases should not be left to implication. It is often difficult, as the cases show, to determine what shall be implied in conveyances by way of grant or reservation of easement; what parties who might have spoken shall be held to intend by their silence. And because “a deed shall be construed most strongly against the grantor,” this view applies with great force against implied reservations in the servient estate conveyed by the owner of the dominant estate. Indeed, it is remarkable that the doctrine of implied grant of easement in the land of the grantor once rested very much on the principle that the grantor should not be heard to derogate from his grant (Howton v. Prearson, 8 Term Reports, 50); and yet the same doctrine has been extended to implied reservations to the grantor in what he conveys in direct derogation of his grant. On principle, therefore, we should be disinclined to enlarge or limit estates granted by implication of law further than a general current of decisions might oblige us.’ Dillman v. Hoffman, 38 Wis. 573.” Sellers v. Texas Central R. Co., 81 Tex. 460, 461, 17 S. W. 32, 13 L. R. A. 657.

As we are still in accord with the view of the Wisconsin Supreme Court, we should he slow to extend this doctrine of implied reservation of way of necessity to cases where the unity of title on which it reáts can he found only in the sovereign. Counsel for plaintiffs have cited no case where the doctrine has been so extended.

Looking to the authorities, they seem rather harmonious in refusing to apply the doctrine where the tracts were under the same ownership only before title passed from the sovereign.

The Court of Appeal of California, in Bully Hill Copper Mining & Smelting Co. v. Bruson, 4 Cal. App. 180, 183, 87 P. 238, said:

“There is nothing in this record to show that the relation of grantor and grantee ever existed between the plaintiff and any of the defendants. The mere fact that all of the land was originally part of the public domain and hence owned by a common grantor cannot confer the peculiar right out of which a way of necessity arises.”

We believe the reasons which forbid the application of the doctrine here invoked in behalf of the state and her permittees, are clearly stated in United States v. Rindge (D. C.) 208 F. 619, as follows :

“The logical result of this contention is that a way is reserved by implication for the use of such persons over all land granted by the government to reach the remaining subdivisions when there is no other reasonable or convenient means of access, notwithstanding there is no such reservation in the grant, and there is no public law so providing. A doctrine so contrary to the general theory of the rights acquired by patentees of public lands and guaranteed to private owners by the Constitution challenges attention. Its effect is strikingly apparent in the case at bar. The result of the government’s position, if sustained, will be to divide the Malibu ranch by what are in effect public highways’into 10 or 12 different tracts, thus materially impairing its value and usefulness to the owner, and that without compensation. It is, in my judgment, very doubtful whether the doctrine of implied ways of necessity has any application to grants from the general government, under the public land laws. Pearne v. Coal Coke [Min. & Mfg.] Co., 90 Tenn. 619, 18 S. W. 402; Bully Hill C. M. & S. Co. v. Bruson, 4 Cal. App. 180, 87 P. 237. If it exists at all, it can be invoked against the government and its grantees as well as in their favor. Hence every grantee of a portion of the public domain from the time the land laws were extended over the same and those succeeding to his title would have an implied right of way over the surrounding and adjacent public lands, and a junior grant thereof if necessary to reach his own land, and a junior grantee. and his successors in interest would have such a way over a prior grant under similar circumstances simply because they derive title from a common source. The public domain is disposed of under general laws, and the rights conferred and reserved are defined by such laws, and rules and regulations made in pursuance thereof. If the sale or conveyance of one portion of such domain prevents access to another, it would' seem to be a contingency which the government was bound to contemplate in making the conveyance. By public statute Congress has granted rights of way for the construction of highways over public lands not reserved for public use. Act of Congress July 26, 1866, c. 262; 14 Stat. at L. 253 (U. S. Comp. St. § 4919). Beyond this and the full protection of the title which it confers, it would seem that the government owes no duty or obligation and reserves to itself or its subsequent grantees no interest in the land granted except such as may appear on the face of the grant, or the law under which it was made, or be declared by a general statute in force at the time the interest of the grantee was acquired.”

Jones on Easements, § 301, discussing ways of necessity, “founded on implied grant or reservation,” says:

“The right does not exist in any case in favor of a grantee of t]je state over other lands belonging to the state.”

Then, the author adopts as the balance of the section the following excerpt from an opinion of the Supreme Court of Tennessee in Pearne v. Coal Creek Min. & Mfg. Co., 90 Tenn. 619, 627, 18 S. W. 404, to wit:

“By public statutes she provides for the establishment and maintenance of public roads," penetrating every neighborhood and sufficiently numerous to meet the general wants of her citizens. Beyond this, and the full protection of the title conferred she owes her grantees, as such, no duty or obligation. It would be ruinous to establish the precedent contended for,- since by it every grantee from the earliest history of the state, and those who succeed to his title, would have an implied right of way over all surrounding and adjacent lands held under junior grants, even to the utmost limits of the state.”

Of similar purport is the early opinion of the Supreme Court of Illinois in Wilcoxon v. McGhee, 12 Ill. 381, 54 Am. Dec. 409.

This court has strongly emphasized that strict necessity is the basis for any such right as that here asserted. The same necessity does not exist in the ease of the sovereign as in the case of the individual landowner. As long as title remains in the state and as long as mineral development may be authorized for the benefit of the state and all her people, there can be no doubt that the state, in the exercise of the power of eminent domain in such mode as the Legislature may authorize, can obtain any and all reasonable rights of way. In Morgan v. Oliver, 98 Tex. 223, 82 S. W. 1028, 4 Ann. Cas. 900, the court, through Chief Justice Gaines, declared:

“At common law every proprietor holds his property subject to the right of the sovereign to take it for public use.”

Of course, under section 17 of article 1 of the Texas Constitution, the proprietor must be compensated before his property is devoted to the use of the public. Travis County v. Trogdon, 88 Tex. 309, 31 S. W. 358; Bounds v. Kirven, 63 Tex. 159. It is not material here whether the Legislature has made proper provision for the exercise of the state’s power of eminent domain. The existence of the power would seem to negative the strict necessity on which the implication of the reservation of the right of way by the state must be grounded. Alley v. Carleton, 29 Tex. 79, 94 Am. Dec. 260.

However, even if defendants’ land were held charged with the servitude of a way of necessity for the benefit of the lands of plaintiffs, we could not sustain the trial court’s, judgment establishing such way either on the pleadings or the proof.

We quote sufficient of the elementary rules governing the establishment of ways of necessity to show how impossible it is to sustain any such right as that which was sought by plaintiffs or that which was granted by the decree of the trial court.

Jones on Easements declares:

“The way implied is a convenient way over some part of the grantor’s surrounding land, and not a way in every part of it. -It is not a right to' go indiscriminately over any part of the land of the grantor. * * * If the parties cannot agree upon the location of the undefined way, this may he determined in equity. * * * A right of way that is too indefinite for a determinate description cannot be established and protected by a court of chancery.” Jones on Easements, §§ 329, 354 [citing Fox v. Pierce, 50 Mich. 504, 15 N. W. 880].

The Supreme Court of Maine says:

“It would be idle to assert as matter of neces sity, a right to a 40-foot opening to a 15-foot passage way.” White v. Bradley, 66 Me. 263.

Nevertheless, the right of way asserted and established in this ease seems to cover an area miles in extent.

When a passage way was found to have been reserved, the New Hampshire Supreme Court pointed out that this did not authorize passing over all parts of the servient tract at pleasure. Gardner v. Webster, 64 N. H. 522, 15 A. 144.

As said in the headnote to Brice v. Randall, 7 Gill & J. (Md.) 349:

“When the owner of a large tract of land grants a portion-of the soil, which is surrounded by his own land, the right of way incidental to the grantee’s land, is to a convenient way over some part of the grantor’s surrounding land, not in every part of it.”

Plaintiffs having failed to plead or prove any right to a way of necessity, it follows that so much of the judgment of the trial court as established such a way as against the defendants who appealed from the judgment of the trial court, and as against the lands of such defendants, must be reversed. The judgment of the Court of Civil Appeals is reversed. The judgment of the district court is reformed so as to vacate and eliminate so milch thereof as establishes any easement in behalf of the state and its per-mittees, lessees, agents, servants, and employees, over and across the lands of the defendants A. A. Atkins, Jack Black, John Black, Will Black, Black Bros., R. E. Brown, and the Brown Oil Company; and, as reformed, the judgment of the district court is affirmed. The costs of this writ of error are taxed against, defendants in error, and all other costs of the appeal are taxed against the' state and her coplaintiffs in the trial court.

CURETON, C. J., not sitting. 
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