                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                  No. 07-14-00006-CV


                    THE CITY OF LUBBOCK, TEXAS, APPELLANT

                                           V.

                       COYOTE LAKE RANCH, LLC, APPELLEE

                          On Appeal from the 287th District Court
                                    Bailey County, Texas
             Trial Court No. 9245, Honorable Gordon Houston Green, Presiding

                                     July 10, 2014

                                      OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


        On motion by Coyote Lake Ranch, the Court, sitting en banc, has withdrawn the

memorandum opinion issued on June 17, 2014, designated said memorandum opinion

as an “opinion,” and re-issues said opinion without further change. See TEX. R. APP. P.

47.6.


        The City of Lubbock, Texas, (the City) brings this accelerated interlocutory

appeal from the trial court’s order granting a temporary injunction in favor of Coyote
Lake Ranch, LLC (CLR).1 The trial court’s order prohibits the City from undertaking

certain activities relating to further development of its proposed water well plan on land

the remaining surface estate of which CLR owns and uses.                      On appeal, the City

maintains that the legal basis underlying the trial court’s temporary injunction is

erroneously applied to this groundwater estate context. We agree and will dissolve the

temporary injunction.


                                  Factual and Procedural History


       In 1953, the Purtell family conveyed to the City of Lubbock the groundwater

rights associated with the land at issue. In pertinent part, the 1953 Deed conveyed to

the City as follows:


       [A]nd 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 and to use the same for disposition to cities and towns situated in
       Bailey, Cochran, Hockley, Lamb and Lubbock Counties, Texas, 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
       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

       1
           See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (West Supp. 2013).

                                                   2
       transmission of water therefrom and delivery of said water to the water
       system of the City of Lubbock only.

       When, in 2012 and 2013, the City proposed a well field plan and began testing

and development in furtherance of that plan, CLR sued the City, alleging a variety of

causes of action. In November 2013, CLR obtained a temporary restraining order and,

later, applied for a temporary injunction by which it sought to enjoin the City from taking

certain actions in furtherance of that proposed well plan. On December 23, 2013, the

trial court signed its order granting CLR’s application for temporary injunction pending

trial on the merits. In its order, the trial court concluded as follows:


       On considering the evidence received and the arguments of counsel, the
       Court finds and concludes that [CLR] will probably prevail on the trial of
       this cause; that pursuit of [the City]’s well field plan has caused damage to
       [CLR], and further damage to [CLR] will occur absent the use of
       reasonable means to ameliorate that damage; that [the City]’s proposed
       well field plan is likely accomplished through reasonable alternative means
       that do not unreasonably interfere with [CLR]’s current uses; and that
       [CLR] has suffered harm caused by [the City]’s activities and will likely
       suffer irreparable harm in the future.

       The Court also finds and concludes that if [the City] carries out their
       intentions regarding the well field project, it will thereby alter the status quo
       and tend to make ineffectual a judgment in favor of [CLR] in that [CLR] will
       suffer harm and will probably be irreparably damaged thereby. Unless the
       [City] is deterred and prevented from carrying out its intentions, [CLR] will
       be without adequate remedy at law because monetary relief would be
       inadequate to make [CLR] whole.

       IT IS, THEREFORE, ORDERED that [the City], its officers, agents,
       servants, employees, attorneys, and those persons who are in active
       concert or participation with it who receive actual notice of this temporary
       injunction by personal service or otherwise are hereby enjoined and
       prohibited from taking any of the following actions during the pendency of
       this cause.

              a. Mowing, blading, or otherwise destroying the growing grass on
              the surface of [CLR land];




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               b. Proceeding with any test hole drilling or water well drilling without
               consulting [CLR] regarding potential impacts to the surface of [CLR
               land];

               c. Erecting power lines to proposed well fields on [CLR land].

The trial court went on to set the cause for trial on November 12, 2014.


       The City perfected its accelerated interlocutory appeal from the trial court’s order

and, on appeal, contends that the trial court abused its discretion by granting a

temporary injunction in favor of CLR when CLR’s claims against the City rely on the

misapplication of the accommodation doctrine to the instant case. We will sustain the

City’s point of error.


                          Applicable Law and Standard of Review


       A temporary injunction’s purpose is to preserve the status quo of the litigation’s

subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198,

204 (Tex. 2002) (op. on reh’g). To be entitled to a temporary injunction, the applicant

for such must plead and prove the following three specific elements: (1) a cause of

action against the defendant; (2) a probable right to the relief sought; and (3) a

probable, imminent, and irreparable injury in the interim. Id. The Texas Rules of Civil

Procedure require that “[e]very order granting an injunction . . . shall set forth the

reasons for its issuance; shall be specific in terms; shall describe in reasonable detail

and not by reference to the complaint or other document, the act or acts sought to be

restrained.” See TEX. R. CIV. P. 683.


       Whether to grant or deny a temporary injunction is within the trial court’s sound

discretion. Butnaru, 84 S.W.3d at 204. A reviewing court should reverse an order

                                              4
granting injunctive relief only if the trial court abused that discretion. Id.; Walling v.

Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam). The reviewing court must not

substitute its judgment for the trial court’s judgment unless the trial court’s action was so

arbitrary that it exceeded the bounds of reasonable discretion. Butnaru, 84 S.W.3d at

204 (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985) (orig.

proceeding), and Davis v. Huey, 571 S.W.2d 859, 861–62 (Tex. 1978)). A trial court

abuses its discretion when it misinterprets or misapplies the law. See Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding) (“A trial court has no ‘discretion’ in

determining what the law is or applying the law to the facts.”); see also In re M.N.G.,

147 S.W.3d 521, 530 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh’g). More

specifically, a trial court abuses its discretion in granting or denying a temporary

injunction when it misapplies the law to the established facts or when the record fails to

reasonably support the conclusion that the applicant has a probable right of recovery.

See State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975) (“recogniz[ing] the risk

of injustice in the immobilization of a defendant from a course of conduct he may have

the legal right to pursue”); see also ICON Benefit Adm’rs II, L.P. v. Abbott, 409 S.W.3d

897, 902 (Tex. App.—Austin 2013, pet. denied).


       We review the evidence in the light most favorable to the order and indulge all

reasonable inferences in favor of the decision. See City of McAllen v. McAllen Police

Officers Union, 221 S.W.3d 885, 893 (Tex. App.—Corpus Christi 2007, pet. denied). In

an appeal such as this, from an order granting or denying a temporary injunction, our

scope of review is restricted to the validity of the order granting or denying relief. See

Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 220 (Tex. App.—Fort


                                             5
Worth 2009, pet. denied).      It is not this Court’s duty to review the merits of the

underlying case.    See Davis, 571 S.W.2d at 861.        When findings of fact are not

requested or separately filed, a reviewing court must uphold the trial court’s order on

any legal theory supported by the record. See id. at 862; Mabrey v. SandStream, Inc.,

124 S.W.3d 302, 309 (Tex. App.—Fort Worth 2003, no pet.).


                                         Analysis


Identifying Issues on Appeal


      We acknowledge that CLR alleged four causes of action against the City in its

First Amended Petition: inverse condemnation, breach of contract, negligence, and

declaratory judgment. The City contends and CLR seems to agree somewhat that the

sole principle underlying any or all of CLR’s causes of action was the application of the

accommodation doctrine. As is readily apparent, the trial court’s order is silent as to

other causes of action alleged by CLR and focuses exclusively on the concepts

associated with the accommodation doctrine. And the parties seem to agree generally

that the applicability of the accommodation doctrine is the sole issue before us.


      Additionally, there is no other way through any other of CLR’s alleged causes of

action that the trial court could have arrived at its conclusions and enjoined the City’s

development activities as it did. In other words, the trial court could only arrive at its

conclusion—that the City’s “proposed well field plan is likely accomplished through

reasonable alternative means that do not unreasonably interfere with [CLR]’s current

uses”—if it were to have found first that the City owed to CLR a duty to exercise the

City’s rights to the groundwater with due regard to the current surface uses. And it

                                            6
follows from there that the only way by which the trial court could have found that the

City owed to CLR such a duty was by way of the accommodation doctrine. Simply put,

the record does not support any other legal theory upon which the trial court’s order

could be upheld. See Davis, 571 S.W.2d at 862. We, therefore, restrict our review to

the issue concerning the applicability of the accommodation doctrine. Again, it is not

our duty, when reviewing the trial court’s order granting a temporary injunction, to

review the merits of the case in its entirety. See id. at 861.


The Accommodation Doctrine Generally


       The trial court’s order reveals that its issuance is dependent on CLR being able

to maintain a cause of action against the City that would rely on application of the

accommodation doctrine. The accommodation doctrine is based on the concept of the

due regard with which the dominant mineral estate owner must exercise his rights to

use the surface as those rights relate to the servient surface estate owner’s rights. The

doctrine, also referred to as the “alternative means” doctrine, was first fully articulated in

Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex. 1971), as a way to balance the rights

of the surface owner and the mineral estate owner in regard to the use of the surface of

the land. The Texas Supreme Court explained the relationship:


       [W]here there is an existing use by the surface owner which would
       otherwise be precluded or impaired, and where under established
       practices in the industry there are alternatives available to the lessee
       whereby minerals can be recovered, the rules of reasonable usage of the
       surface may require the adoption of an alternative by the lessee.

Getty, 470 S.W.2d at 622.       The Texas Supreme Court has recently reiterated “the

principle underlying the accommodation doctrine” as “balancing the rights of surface


                                              7
and mineral owners to use their respective estates while recognizing and respecting the

dominant nature of the mineral estate.” Merriman v. XTO Energy, Inc., 407 S.W.3d 244,

250 (Tex. 2013)


      The burden of proving that the use of the surface by the mineral estate owner is

not a reasonably necessary use lies with the surface estate owner. See id. at 249. The

surface estate owner may discharge his burden by demonstrating that the mineral

estate owner’s use of the surface is not reasonably necessary because there are

available non-interfering and reasonable ways and means of producing the minerals

which would permit the surface estate owner to continue his existing use of the surface.

See Tarrant Cnty. Water Control & Improvement Dist. No. One v. Haupt, Inc., 854

S.W.2d 909, 911 (Tex. 1993).


The Parties’ Positions on the Accommodation Doctrine’s Application


      The accommodation doctrine is a well-established concept in the context of

respective rights of mineral estate and surface estate owners. The question presented

to us here is whether the doctrine also applies to the relationship between the

groundwater estate owner and the remaining surface estate owner.


      The City contends that, here, the express terms of the 1953 Deed should govern

the relationship between CLR and the City with respect to the City’s use of the surface

as it exercises its right to access the groundwater.         The City urges that the

accommodation doctrine does not apply to the groundwater context wherein, unlike the

mineral estate and surface estate relationship, neither the remaining surface estate nor



                                           8
the severed groundwater estate enjoys the status as the dominant estate.2 According

to the City, the absence of a dominant estate in this context means that the owner of the

groundwater estate has no implied right to use the surface estate, with “due regard” or

otherwise. See generally Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 811 (Tex. 1972)

(per curiam) (op. on reh’g) (discussing nature and extent of rights “implied by law in all

conveyances of the mineral estate”).


        That said, contends the City, there lacks a basis for application of the

accommodation doctrine, which was designed specifically to balance the rights of the

dominant mineral estate owner and the servient surface estate owner with respect to

use of the surface.        See Merriman, 407 S.W.3d at 250.                 The City maintains that

because the accommodation doctrine does not apply in this case, CLR cannot prevail

on any of the above-listed established criteria for showing entitlement to a temporary

injunction. See Butnaru, 84 S.W.3d at 204. For that reason, the trial court improperly

granted the temporary injunction in favor of CLR. The City acknowledges that CLR

alleged four causes of action against the City but maintains that CLR’s argument in

favor of the temporary injunction and the trial court’s order granting one are restricted to

the application of the accommodation doctrine in this case.


        Indeed, CLR sees the issue as similarly restricted: “The issue to be resolved here

is whether this well-established doctrine applies to the relationship between a surface

owner and the owner of a severed groundwater estate.” In its brief, CLR proposes its

        2
          Alternatively, the City contends, the express, specific provisions in the 1953 Deed would prevail
over general accommodation doctrine principles. The City points out that the trial court did not find that
the City’s proposed well field plan is or would be beyond the City’s contractual rights to explore and
produce the groundwater as set forth in the 1953 Deed. The City cites Landreth v. Melendez, 948
S.W.2d 76, 81 (Tex. App.—Amarillo 1997, no pet.) (op. on reh’g).

                                                    9
answer in the affirmative, drawing an analogy between the groundwater estate and the

mineral estate: “The owner of a subsurface estate in groundwater owes the ‘due regard’

to the surface owner that an oil and gas lessee owes [the] surface owner.” To support

its affirmative answer, CLR advances what it sees as a logical extension of fairly recent

Texas Supreme Court authority: that the severed groundwater estate is treated much

like a severed mineral estate. And, much like the owner of a mineral estate, the City, as

owner of the severed groundwater estate, must exercise its rights to explore and

produce the groundwater with due regard to the rights of the surface estate owner and

the current uses of the surface.


Holdings in Day, Invitation to Extend Those Holdings


      Our research has yielded no case in which a Texas court has applied the

accommodation doctrine to the groundwater context, and CLR has cited us to none that

have. Instead, to support its contention that the doctrine should apply in this context,

CLR relies rather heavily on language from the Texas Supreme Court’s opinion in Day,

in which the court draws an analogy between certain aspects of ownership of

groundwater and ownership of oil and gas. See Edwards Aquifer Auth. v. Day, 369

S.W.3d 814, 831–32 (Tex. 2012). Anchored on Day’s analogy, CLR goes further to

urge that the accommodation doctrine should govern the relationship between owners

of the severed groundwater estate and the surface estate in much the same way that it

governs the relationship between the mineral estate owner and the surface estate

owner. Based on our reading of Day, we cannot take the analogy quite so far based

solely on the analogy drawn and the reasoning applied in Day.



                                           10
      In Day, the Texas Supreme Court discussed at length the rule of capture as it

has developed over the years in Texas and how the rule of capture applies to and

impacts groundwater ownership. See id. at 823–830.               Day also discussed the

ownership of groundwater in place, drawing an analogy between ownership of

groundwater in place to the ownership of oil and gas in place:


      In our state the landowner is regarded as having absolute title in severalty
      to the oil and gas in place beneath his land. The only qualification of that
      rule of ownership is that it must be considered in connection with the law
      of capture and is subject to police regulations. The oil and gas beneath
      the soil are considered a part of the realty. Each owner of land owns
      separately, distinctly and exclusively all the oil and gas under his land and
      is accorded the usual remedies against trespassers who appropriate the
      minerals or destroy their market value.

Id. at 831–32 (quoting Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558, 561

(1948)). Immediately thereafter, the Day court expressly adopted this position with

respect to ownership of groundwater in place: “We now hold that this correctly states

the common law regarding the ownership of groundwater in place.” Id. at 832.


      The relationships at issue in Day are obviously distinguishable from those

presented in the instant case. The landowners—ultimately owners of both the surface

and groundwater estates, the Edwards Aquifer Authority, and the State of Texas were

involved in Day, and the issue presented in that case was “whether land ownership

includes an interest in groundwater in place that cannot be taken for public use without

adequate compensation guaranteed by article I, section 17(a) of the Texas

Constitution.” See id. at 817–18, 821. Ultimately, Day “decided that landowners do

have a constitutionally compensable interest in groundwater.” Id. at 838. It is in support

of this conclusion that the Day court determined that ownership of groundwater in place


                                           11
is similar to the ownership of oil and gas in place, with certain similar considerations and

certain similar rights associated with ownership of both. See id. at 831–32 (relying on

Eliff, 210 S.W.2d at 561).


       Nowhere in Day, however, does the court speak to the implied rights of a

severed groundwater estate owner to use the surface in production of groundwater.

Nor does it define and delineate the rights and duties as between owners of the severed

groundwater estate and the surface estate. The dynamics and the rights between the

parties before us are different than the rights of the parties addressed in Day. And

simply because a landowner may own the groundwater beneath his land in a manner

similar to the way in which a landowner owns oil and gas beneath his land does not

necessarily translate into the analogy being taken further, all the way into governing the

rights and defining the relationships between landowners and other entities. Indeed,

Day itself seems to recognize a limitation to the analogy it draws between ownership of

oil and gas and ownership of groundwater, observing that, despite some similarities

regarding ownership of oil and gas and ownership of groundwater, “[i]t is true, of course,

that the considerations shaping the regulatory schemes differ markedly.” Id. at 831

(discussing similarities and differences regarding ownership of each substance); see

generally Sun Oil, 483 S.W.2d at 816–18 (Daniel, J., dissenting) (presenting a

comprehensive history and discussion of dominant and servient estate designations in

Texas law with respect to mineral and surface estates).


       We do not read Day to support an extension of the accommodation doctrine to

the groundwater context presented in the instant case. If Day is to be read to support

such an extension of its analogy between groundwater and oil and gas, then this Court

                                            12
respectfully defers to the Texas Supreme Court to recognize and pronounce such an

extension, especially in light of the dramatic implications it could have in the area of

water law in Texas. Generally, changes in the law should be left to the Texas Supreme

Court or the Texas Legislature. See Campus Mgmt., Inc. v. Kimball, 991 S.W.2d 948,

952 (Tex. App.—Fort Worth 1999, pet. denied); Amador v. Tan, 855 S.W.2d 131, 134

(Tex. App.—El Paso 1993, writ denied); Hicks v. Baylor Univ. Med. Ctr., 789 S.W.2d

299, 304 (Tex. App.—Dallas 1990, writ denied).          More specifically, we leave any

extension of the rule expressed in Day to the Texas Supreme Court. See Wheeler v.

White, 314 S.W.3d 225, 242 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (Frost,

J., dissenting).


                                        Conclusion


       Finding no authority to support CLR’s position that the accommodation doctrine

should apply to the relationship between the owners of the severed groundwater estate

and the surface estate in such a way as to alter the manner in which the groundwater

estate owner may use the surface, we conclude that CLR failed to allege a viable cause

of action against the City and similarly failed to show a probable right to the relief

sought. See Butnaru, 84 S.W.3d at 204. Concluding to the contrary on the apparent

basis that the accommodation doctrine does apply to this context and as between these

parties, the trial court abused its discretion by granting the temporary injunction in favor

of CLR. We sustain the City’s issue on appeal from the trial court’s order granting the

temporary injunction.




                                            13
       Accordingly, we reverse the trial court’s order granting a temporary injunction in

favor of CLR, dissolve the temporary injunction, and remand the case to the trial court

for further proceedings consistent with this opinion.




                                          Mackey K. Hancock
                                              Justice




                                            14
