The application for writ of error is “Refused, No Reversible Error.” Lest the judgments of the trial court and the Court of Civil Appeals be misconstrued, we hold that the “take nothing” judgment of the district court, construed in the light of the pleadings, did not have the effect of vesting title to' the surface in the defendant, respondent here. The Court of Civil Appeals, in modifying and affirming the judgment of the district court, did not pass upon the title to the surface estate.

Opinion delivered October 16, 1946.

Rehearing overruled December 11, 1946.