dissenting.
I respectfully dissent. I would utilize the original opinion, with slight revisions, at 786 S.W.2d 368 (Tex.App. — Beaumont 1989). While I have many disagreements with the majority, in an effort towards brevity, my dissent is in the following areas.
Res Judicata and Collateral Estoppel
Appellants argue appellees are bound by the pronouncements of the declaratory judgment entered in an earlier suit between trustees for Turkey and M.U.S.T. and Mapco, Inc., declaring the mineral lessee owns the salt in the mineral estate of the same tract, the surface owner has the right to leach caverns out of the salt formation for the purpose of creating storage facilities, the cavities thus formed would belong to the surface owner, the mineral owner has the right to mine the salt if the operations do not make unreasonable use of the surface, the mineral owner can claim the salt leached from the salt formation if it is removed within a reasonable time, without making an unreasonable use of the surface, and the mineral owner pays the surface owner the reasonable expense of bringing the salt to the surface, and if the mineral owner did not claim the salt within a reasonable time, the surface owner may dispose of it. Turkey was a party to this suit and bound by it. Appellants argue the Carters were represented by Turkey as their mineral lessee and were collaterally estopped by the terms of the judgment and the issues determined therein.
A party seeking to invoke the doctrine of collateral estoppel must establish (1) the facts sought to be litigated in the second *280action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816 (Tex.1984). Persons are privies to a judgment whose succession to the rights of property therein adjudicated are derived through or under a party to the action. Likewise, a person is bound by the adjudication of a litigated matter as if a party where he has a proprietary or financial interest in the judgment. Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex.1971). The parties will be bound by estoppel where they represented the same legal right. Olivarez v. Broadway Hardware, Inc., 564 S.W.2d 195 (Tex.Civ.App.—Corpus Christi 1978, writ ref'd n.r.e.). Appellants argue the Carters, by virtue of their mineral lease with Turkey, which was a party to the first suit, are estopped to deny the cavern belongs to appellants.
The judgment here appealed denied ap-pellees’ waste and damage claims and awarded owelty. Partition was not decided in the first suit. Appellants do not object to the finding of fact that the prior judgment did not adjudicate partition or owelty. However, they argue the enhanced value of the property set aside to Speer due to the presence of the cavern cannot be considered in the partition because the prior litigation awarded the cavern to the surface owner, therefore the trial court’s findings that the salt walls of the cavern belonged to the mineral estate and were amenable to owelty were in error.
The burden of establishing collateral es-toppel is on the party seeking to invoke it. Tompkins v. Hooker, 200 S.W. 193 (Tex.Civ.App.—Texarkana 1917, no writ). At trial, appellants introduced a judgment in the prior case which established M.U.S.T. obtained a declaratory judgment against Turkey. They established through cross-examination of Turkey’s trustees that Turkey was the lessee of the mineral interests of the Carters, the leases were signed before the first suit was filed, the Mssrs. Carter knew what was going on between Turkey and M.U.S.T. before the first suit was filed, and James Ross Carter supposed Turkey’s trustee had a power of attorney to sue on his behalf, and anything the trustee did was all right with him. Apparently, the Carters were not named as parties in the first suit, nor was Turkey named therein as their representative. We do not find in the record of this cause a power of attorney giving Turkey the power to file the first suit. One of the Carters testified he would receive 1/3 of a judgment against Mapco, but appellants did not establish this to be true of the first suit. The mineral lease states the lessor retains a 1/3 royalty interest and shall receive 1/3 of any rents received by a storer, presumably in the cavern. The interests of Turkey and the Carters are not identical; Turkey owned the mineral interests subject to the royalty interests of the Carters. In the first opinion, the majority held the trial court did not err in failing to find the Carters were collaterally estopped by the findings in the first suit, 786 S.W.2d at 371. I would now hold completely opposite as we are bound by this court’s analysis of res judicata in City of Bridge City v. City of Port Arthur, 792 S.W.2d 217, 224 (Tex.App.—Beaumont 1990, writ denied).
Valuation and Division of the Mineral Estate
Appellants argue the owelty award is incorrect because the salt is evenly distributed throughout the tract, the salt has no market value, the amount removed from the minerals was less than M.U.S.T.’s share as a cotenant, there is no inequality because M.U.S.T.’s successor is entitled to use the cavern, and the award is 142 times the value of the portion of the mineral interest awarded to M.U.S.T.’s successor.
It was undisputed the salt was evenly distributed throughout the property. Ap-pellees’ expert witness testified the salt had a market value as salt and a separate value if removed as brine as a result of the leaching operation. He testified there was a market for salt and brine, although the total available supply may exceed demand. Appellees argued at trial the salt removed by M.U.S.T. had a value of $947,319. *281There was sufficient evidence to establish the salt had some value. However, the uncontested findings of fact entered by the trial court state the value of the mineral estate was $200 per acre, for a total of approximately $25,275 for the entire mineral estate, and $900 per acre for the entire surface estate. The finding submitted by appellees and contested by appellants was the underground storage facility was worth $1,750,840 including the salt walls and mineral support, which the trial court found to be part of the mineral estate. The findings do not state the cavern ownership or right of use. The $450,000 owelty award is in fatal conflict with the uncontested finding of the value of the partitioned mineral estate. Apparently, the trial court considered some unspecified part of the value of the underground storage facility to belong to the mineral estate, but there is no finding of fact on that issue. Nor do the findings of fact specify what costs of creating the cavern are considered.
The judgment stated Speer should have the underground storage facility and a 15.-797-acre parcel with the well at its center set aside to him as his 1/8 mineral interest, subject to the compensating owelty judgment. The evidence produced at trial about the value of the walls of the cavern was limited to testimony regarding the value of the cavern itself. There are no findings of fact to support a judgment attributing the value of the cavern to the mineral estate, which is essential to its being considered for owelty purposes. There is insufficient evidence to support the $450,000 award of owelty out of an estate valued $25,275. Appellees cannot be entitled to owelty under the findings of fact in this cause.
The structure was created at the sole expense of M.U.S.T. The cost of creating the structure was $9,300,000. Appellees argue the cost of creating a similar cavern would be $800,000. As a cotenant producing minerals and creating an improvement, M.U.S.T. had the duty to account to its non-consenting cotenants for the minerals produced, less the necessary and reasonable costs of production. Cox v. Davison, 397 S.W.2d 200 (Tex.1965). It appears from the record the cost of production was far greater than the value of the minerals produced. There is some evidence the costs of production were not reasonable through testimony it cost less to dig the salt out than to leach it and that the value of solid salt is greater than brine. This would support an action for damages, which was denied by the court and not appealed from. It would not support owelty on partition. Appellees argue appellants acted in bad faith in creating the cavern, and therefore are not entitled to contribution for the cost of creating it. A non-joining cotenant has no obligation to pay for improvements. Perez v. Hernandez, 658 S.W.2d 697 (Tex.App.—Corpus Christi 1983, no writ). Neither does he own the improvements erected at the sole expense of his cotenant. Where improvements have been made on the partitioned property, the improved portion will be allotted to the joint owner who had made the improvement. Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472 (Tex.Comm’n App.1943, opinion adopted); Bouquet v. Belk, 404 S.W.2d 862 (Tex.Civ.App.—Corpus Christi 1966, writ ref'd n.r.e.). If the improvement cannot be allotted to the party who made it, then that party has a right of compensation from the cotenants receiving the improvement. Whitmire v. Powell, 103 Tex. 232, 125 S.W. 889 (1910); Poenisch v. Quarnstrom, 386 S.W.2d 594 (Tex.Civ.App.—San Antonio 1965, writ ref’d n.r.e.). Appellees claimed a share in their cotenanf s improvement without paying for its construction. Owelty is an inappropriate remedy because the overwhelming weight and preponderance of the evidence supports the finding the salt is of uniform value throughout the partitioned estate. There is no evidence that the minerals comprising the cavern walls have more or better minerals than the rest of the estate. There is no evidence beyond the existence of the cavern to support enhanced value of the portion allotted to Speer. Appellees’ state in their brief the cavern is the most essential factor in the disparity in value between the tracts. Therefore, even if the cavern were an improvement to the mineral estate *282as asserted by appellees, M.U.S.T. created the cavern and is entitled to its improvement without regard to the enhancement of the value of the estate partitioned to it caused solely by the presence of that improvement.
In Personam Judgment Against Mapco, Inc.
Owelty is properly awarded between co-tenants to effectuate an equitable partition of their property. Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769 (1942); Bouquet v. Belk, 376 S.W.2d 361 (Tex.Civ.App.—San Antonio 1964, no writ). Appellees produced no evidence at trial that Mapco, Inc. was an owner of the property, nor did they produce evidence showing M.U.S.T. was an alter ego of Mapco, Inc. We can find no pleadings where appellees made Mapco, Inc. a party defendant, no allegations of agency or alter ego between Mapco, Inc. and M.U.S.T., no allegations Mapco, Inc. is or was an owner of an interest in the mineral estate. There is insufficient evidence to support the trial court’s findings that M.U.S.T. is the alter ego of Mapco, Inc. and that Mapco, Inc. is the equitable owner of M.U.S.T.’s interest in the mineral estate.
For the reasons noted, I respectfully dissent.