Opinion filed June 27, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00236-CV

__________

KADANE CORPORATION, Appellant

V.

CHOLLA PETROLEUM, INC., Appellee

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. C42625

M E M O R A N D U M O P I N I O N

Kadane Corporation sued Cholla Petroleum, Inc. for trespass and 

unreasonable interference. The lawsuit was based upon Kadane’s belief that

Cholla’s use of an upstream pipeline to transport gas from its high-pressure wells 

on its Texas mineral lease in the Possum Kingdom Lake area unlawfully prevented 

Kadane from using that same upstream pipeline “as a compressor inlet line” to 

transport gas extracted from Kadane’s three Brazos River Authority (BRA) lowpressure wells to Kadane’s compressor for compression and transport through a 
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downstream pipeline. The trial court granted a final summary judgment that Cholla 

had not trespassed or unreasonably interfered with Kadane’s operations. We 

affirm. 

I. Background Facts

Kadane Corporation operates gas wells on a peninsula in Possum Kingdom 

Lake as part of a Brazos River Authority oil and gas lease that the BRA executed 

in favor of Kadane Oil Company in 1976. Kadane Corporation is the successor in 

interest to Kadane Oil Company. We will refer to both entities as Kadane. Kadane 

agreed to sell the gas production under the lease to Texas Utilities Fuel Company 

(TUFCO). In 1983, Kadane entered into a line use agreement with Southwestern 

Gas Pipeline, Inc. whereby the parties agreed that the TUFCO gas was to be 

marketed and delivered through a pipeline owned by Southwestern. Enbridge

G&P (North Texas) L.P. is the successor in interest to Southwestern Gas Pipeline, 

Inc.

In the line use agreement between Kadane and Southwestern, the parties 

agreed that Kadane was to add 1,500 feet to the existing 12,000 foot pipeline and 

maintain “the approximately 13,638 feet of pipeline and use the same free of 

charge as a compressor inlet line only until you receive written notice from 

Southwestern that we intend to use this line for another service or you give written 

notice that you no longer need this line for gathering gas to your owned or leased 

compressor from wells now producing or capable of producing and additional 

wells which you or others may complete and have connected under the terms of 

Gas Purchase Agreements, as amended from time to time.” The parties to the 

agreement also provided that either party could terminate the agreement on thirty 

days’ written notice.

Kadane drilled multiple wells on the BRA lease prior to 1985 and has since 

plugged BRA Wells Nos. 1 and 4. Kadane’s BRA Wells Nos. 3, 5, and 8 tied into 
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the upstream pipeline to transport gas to the Kadane compressor, which, after 

compression, transported the gas to TUFCO through the downstream pipeline. 

Kadane’s BRA Wells Nos. 2 and 6 tied directly into the downstream pipeline. 

More than twenty years later, Kadane drilled BRA Well No. 10, which is a prolific 

producer, and Kadane also tied it into the downstream pipeline.

In 2005, Cholla obtained a mineral lease from the State of Texas. The lease 

covered a portion of a riverbed channel lying under Possum Kingdom Lake. 

Because of surface use restrictions and disagreements, Cholla filed a condemnation 

suit to secure surface rights from Kadane and BRA, but later nonsuited after 

entering into a Surface Use Agreement (SUA) with BRA. BRA granted Cholla 

“the right to use the surface estate of [BRA] lands,” subject to certain terms and 

conditions. One such condition was a “Reservation in Favor of [BRA]” that 

Cholla must “not unreasonably interfere with the existing use of such land by 

[BRA]’s surface and mineral lessees.”

Cholla executed a gas purchase contract in 2005 with Enbridge that amended 

the gas purchase contract between Cholla and Enbridge’s predecessors. Later, 

Cholla drilled State Mockingbird Wells Nos. 3 and 6 and BRA Well No. 9, all of 

which are prolific, high-pressure wells, and Cholla sought to transport that gas 

through Enbridge’s pipeline. Enbridge wanted to transport Cholla’s gas production 

upstream and convert its upstream pipeline to a high-pressure line. In 2007, 

Enbridge sent written notice to Kadane that it was terminating all line use 

agreements, including the 1983 agreement, and that Kadane was to disconnect its 

nominal, low-pressure wells. 

When Kadane failed to disconnect its low-pressure wells from Enbridge’s 

upstream pipeline, Enbridge sent additional letters and made telephone calls to 

Kadane about disconnecting its wells. After no response, Enbridge disconnected 

Kadane’s wells, laid a new line, and converted its upstream pipeline to a high-
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pressure line. Later, Kadane shut in BRA Wells Nos. 3, 5, and 8, but BRA Wells 

Nos. 2 and 6 continued to produce. Kadane did not sue Enbridge and conceded

that Enbridge had the right to terminate the line use agreement.

Kadane instead sued Cholla and moved for partial summary judgment on its 

trespass and interference claims. To prevail on its trespass claims, Kadane must 

prove wrongful interference with its right of possession of real property. Cargal v. 

Cargal, 750 S.W.2d 382, 385 (Tex. App.—Fort Worth 1988, no writ). To succeed 

on its breach of contract claim as an alleged intended beneficiary of the SUA, 

Kadane must prove that Cholla “unreasonably interfered” with Kadane’s “existing 

use” of the surface estate. Cholla also moved for a final summary judgment and, in 

its motion, asserted that it had not trespassed or interfered. The trial court 

concluded that termination of the line use agreement was within Enbridge’s legal 

right and not caused by any unlawful act by Cholla, that neither Enbridge nor 

Cholla trespassed, and that Cholla did not unlawfully or unreasonably interfere 

with any existing use of the surface by Kadane.

II. Issues Presented

Kadane claims that Cholla is liable for trespass because it assented to, 

adopted, and ratified Enbridge’s unlawful disconnection of Kadane’s wells and 

compressor, which were done for Cholla’s benefit and interest. Kadane argues in 

its second issue that, “[b]y tying its wells into Upstream Enbridge Pipeline rather 

than downstream of the Kadane Compressor thereby knocking the Kadane 

Upstream Wells off production, Cholla unreasonably interfered with Kadane’s 

lawful use of the surface as a matter of law.”

III. Standard of Review

We review a trial court’s ruling on a traditional motion for summary 

judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 

2005). We must determine whether the movant established that no genuine issue 
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of material fact existed and that the movant was entitled to judgment as a matter of 

law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 

548–49 (Tex. 1985); Apcar Inv. Partners VI, Ltd. v. Gaus, 161 S.W.3d 137, 139 

(Tex. App.—Eastland 2005, no pet.). To be entitled to summary judgment, a 

defendant must either disprove an element of each of the plaintiff’s causes of 

action or establish an affirmative defense as a matter of law. Am. Tobacco Co. v. 

Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). 

We consider the summary judgment evidence in the light most favorable to 

the non-movant and indulge all reasonable inferences and resolve all doubts in 

favor of the non-movant. Am. Tobacco, 951 S.W.2d at 425; Nixon, 690 S.W.2d at 

548–49. When the trial court’s order specifies the grounds it relied upon for its 

ruling, as is the case here, we will only consider the propriety of the grounds 

specified. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380–81 (Tex. 

1993). If granting judgment on the specified grounds was improper, “we must 

remand the cause to allow the trial court to rule on the remaining grounds.”

State v. Flag-Redfern Oil Co., 852 S.W.2d 480, 484 n.6 (Tex. 1993).

IV. Scope of Summary Judgment Review

Cholla argues that our review is limited to the evidence offered in support of 

or in opposition to Cholla’s motion for summary judgment. Cholla agrees that 

reviewing courts may consider all of the summary judgment evidence when 

reviewing cross-motions but argues that is not the case here since Kadane’s motion 

sought only partial summary judgment. Cholla’s argument inadvertently merges

three distinct summary judgment principles of review: reviewability, relief upon 

reversal, and evidence to be considered on appeal. 

First, reviewability of a ruling on a motion for summary judgment depends 

on finality. An order denying summary judgment is not final and appealable; such 

a denial means that there is a fact issue or that the elements have not been proven 
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as a matter of law. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 

1996). But an order that denies summary judgment to one party and grants 

summary judgment to another party produces a final judgment; the denial is 

reviewable as part of the appeal from the granted motion. Jones v. Strauss, 745 

S.W.2d 898, 900 (Tex. 1988). “Absent an exception or statutory mandate, the 

parties must have both sought a final judgment for this rule to apply.” Apcar, 161 

S.W.3d at 139 (denying review of the denial of a partial summary judgment motion

while reviewing if trial court properly granted final summary judgment in favor of 

the opposing party). 

Second, the relief we grant upon reversal depends on whether a final 

judgment or partial judgment was requested. Reviewing courts can reverse a 

summary judgment in favor of one party and render judgment for the other only 

when both parties moved for a final summary judgment in their cross-motions. See 

Bowman v. Lumberton Indep. Sch. Dist., 801 S.W.2d 883, 889 (Tex. 1990); 

Runyan v. Mullins, 864 S.W.2d 785, 788 (Tex. App.—Fort Worth 1993, writ 

denied). If both parties did not seek final judgment, and we reverse a trial court’s 

summary judgment, then we must remand for a trial and determination of a fact 

issue or for the party to prove its case. Jones, 745 S.W.2d at 900. 

Finally, the evidence we can consider on appeal is not limited by the type of 

relief sought, as Cholla contends. Instead, we consider the evidence that was 

“properly before the court at the time judgment was rendered.” DeBord v. Muller, 

446 S.W.2d 299, 301 (Tex. 1969). At the time of judgment, cross-motions and 

accompanying summary judgment evidence that have been properly and timely 

filed under Rule 166a(c) are “properly before the court” and may be considered by 

the trial court when ruling on the motions. Id. Further, the evidence is not limited 

to what was offered in reply to a motion for summary judgment. Futch v. Greer, 

353 S.W.2d 896, 898 (Tex. Civ. App.—Amarillo 1962, writ ref’d n.r.e.). “In our 
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opinion appellees’ own motion for summary judgment supported by affidavits and 

exhibits attached thereto, together with the deposition of appellee . . . , constituted 

sufficient opposition to appellants’ motion.” Id. at 898–99. 

Kadane moved for partial summary judgment on its claims; Cholla moved 

for a final summary judgment on traditional and no-evidence grounds. In its 

summary judgment response, Kadane incorporated by reference the evidence it had 

already offered in its motion for partial summary judgment. Both parties filed 

objections and responses, and the trial court heard the motions and noted that it had 

considered them and the parties’ responses. Therefore, the arties’ motions and 

their attached evidence were properly before the trial court. Because Kadane only 

moved for a partial judgment, while Cholla moved for final judgment, we review 

whether the trial court erred in granting summary judgment in favor of Cholla. See 

Apcar, 161 S.W.3d at 139.

V. Discussion and Analysis

A. Issue One: Trespass

Kadane contends that the interference or physical trespass occurred when 

Enbridge disconnected Kadane’s upstream wells from the upstream pipeline and

that, because Cholla “assented, adopted and ratified the acts and entry by Enbridge 

done for Cholla’s benefit and interest,” Cholla is equally liable for the trespass. 

See Schievink v. Wendylou Ranch, Inc., 227 S.W.3d 862, 864 (Tex. App.—

Eastland 2007, pet. denied). “If, by any act of his, the actor intentionally causes a 

third person to enter land, he is as fully liable as though he himself enters. Thus, if 

the actor has commanded or requested a third person to enter land in the possession 

of another, the actor is responsible for the third person’s entry, if it be a trespass.” 

RESTATEMENT (SECOND) OF TORTS § 158 cmt. j (1965); see also City of Mineral 

Wells v. McDonald, 170 S.W.2d 466, 469 (Tex. 1943). 
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The summary judgment evidence established that, when Enbridge decided to 

convert its upstream pipeline to a high-pressure line, it sent written notice to 

Kadane on September 5, 2007, terminating all line use agreements between the 

parties, including the 1983 line use agreement. When Kadane failed to disconnect 

its wells, Enbridge again sent written notice on February 18, 2008. In the second 

letter, Enbridge advised Kadane to “make immediate efforts to disconnect your 

wells from these line agreements so that you will no longer be trespassing upon 

property belonging to Enbridge.” When Kadane again failed to disconnect its 

wells, Enbridge called and advised Kadane that it would disconnect the wells the 

following day. The following day, Enbridge disconnected Kadane’s wells and 

compressor. Enbridge then laid a new line and converted the upstream pipeline to 

a high-pressure line. 

The line use agreement gave both Kadane and Enbridge the right to terminate 

the agreement upon written notice, and Enbridge gave written notice on two 

occasions that it was terminating the line use agreement. Kadane did not sue 

Enbridge but, instead, conceded that Enbridge had the right to terminate the 

agreement. Enbridge did not commit a trespass when it disconnected Kadane’s 

wells and compressor because Kadane had failed to timely disconnect them after 

Enbridge terminated the line use agreement. Cholla was never involved in this 

agreement or action and cannot be held liable for Enbridge’s actions. In addition, 

Cholla was not involved with Enbridge’s actions and, as a mineral lessee with a 

surface use agreement, had a legal right to drill its wells and to tie into the Enbridge 

pipeline when and where it did so. Therefore, neither Enbridge nor Cholla

trespassed, and Kadane’s first issue is overruled.

B. Issue 2: Unreasonable Interference

Kadane claims that it “used the surface of the [land] for the entire length of 

the Upstream Enbridge Pipeline to gather and market the gas produced from the 
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Kadane Upstream Wells” and that Cholla’s acts to tie wells into that upstream 

pipeline were an unreasonable interference with Kadane’s rights. Kadane argues 

that Mid-Texas Petroleum Co. v. Colcord controls because that court held that

Mid-Texas was entitled to exclusive and full use of the “north 20 acres” and “south 

20 acres” along the Clear Fork of the Brazos River for its oil and gas development. 

Mid-Tex. Petroleum Co. v. Colcord, 235 S.W. 710, 715 (Tex. Civ. App.—Fort 

Worth 1921, no writ). Kadane asserts that, like Mid-Texas, it should be allowed to 

continue to exclusively use the entire upstream pipeline “as a compressor inlet

line.” We disagree. In Mid-Texas, the court held that Mid-Texas was entitled to 

the south twenty acres for oil and gas development because of the original lease 

grant and the lease it held with Seaboard Oil, who could not execute a surface use 

lease with a third party that contravened its lease with Mid-Texas. Mid-Tex., 235 

S.W. at 715. But in this case, the issue is whether Kadane can compel Enbridge to 

maintain the upstream pipeline “as a compressor inlet line” for Kadane’s sole 

benefit and force Cholla to tie its wells into the downstream pipeline. 

The only existing use Kadane alleges is of the surface of the land over the 

length of Enbridge’s pipeline. Kadane used the surface when it installed the 1,500 

feet of pipeline as required by the line use agreement. See Cole v. Anadarko 

Petroleum Corp., 331 S.W.3d 30, 37 (Tex. App.—Eastland 2010, pet. denied)

(explaining that a mineral lessee uses the surface during installation and that, once 

installed, the use becomes a pipeline easement); Exxon Pipeline Co. v. Zwahr, 88 

S.W.3d 623, 626 (Tex. 2002) (“Like the Koch [Pipeline Company] easement, the

Exxon easement does not affect the [surface owner’s] continued use of the surface 

for farming cotton.”). While Kadane argues that losing its wells “as a result of 

Cholla’s entry under the auspices of the SUA as a matter of law constitutes an 

unreasonable interference with Kadane’s rights as contemplated under the terms of 
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the SUA,” the question is whether Cholla interfered with an “existing use” of the 

surface.

Cholla argues that, while a mineral lessee “has dominant rights precluding 

interference with its existing uses,” the obligations of “due regard” and the duty to 

“accommodate” prevent Kadane “from claiming that it is using all lands along a 

gas purchaser’s pipeline and that, as a result, no other oil and gas operator can 

connect its wells to such pipeline without interfering.” We agree. The summary 

judgment evidence is undisputed that Enbridge gave Kadane the right to use its

pipeline as a compressor inlet line, but Enbridge reserved the right to terminate 

Kadane’s exclusive use by providing notice of its intent “to use [the] line for 

another service” or to terminate the agreement by giving thirty days’ written 

notice. The evidence was undisputed that terminating the line use agreement did 

not prevent Kadane from marketing or selling the oil and gas it produced but,

rather. terminated Kadane’s exclusive use of the upstream pipeline. Furthermore,

Cholla’s wells connected to the upstream pipeline at a separate location from 

Kadane’s connection. Therefore, the summary judgment evidence established and 

supported as a matter of law the trial court’s judgment that Cholla did not 

unreasonably interfere with an existing use of the surface by any surface or mineral 

lessees. Kadane’s second issue is overruled.

This Court’s Ruling

We affirm the judgment of the trial court. 

JIM R. WRIGHT

CHIEF JUSTICE

June 27, 2013

Panel consists of: Wright, C.J., 

McCall, J., and Willson, J.