(dissenting).
I dissent in the view that the agreements in question authorize nothing more than a license to do certain things for certain purposes on the lands in question, and did not convey an easement interest in realty as presupposed in the majority opinion; that *284disuser occurred when the City took the permissive rights for a predetermined destructive use, whereupon the rights lapsed; and that the landowners are entitled to recover the full value of their lands in the pending condemnation proceeding.
The problem is novel and inheres in long prior contracts by which Respondents or their predecessors in interest granted to the Alamo Soil Conservation District “the right, privilege and authority * to enter upon (the lands in question), construct, operate and maintain an Earthen fill dam and other structures for the retardation of the flow of floodwaters and reduction of sedimentation,” which permission was to continue “for so long as the grantees, their successors and assigns, shall continue to use said easement or right-of-way for said purposes.”
The retardation dams were subsequently constructed with government funds and formed permanent lakes with attendant benefits to the landowners of soil preservation, improvement of the land for purposes of pasturage, availability of water for cattle, and recreational opportunities. Years later, and for purposes of a different and inconsistent use in connection with public works identified as the Calaveras Creek Watershed Project, the City acquired the permissive rights by conveyances and “friendly” condemnation suits involving the Conservation District, the San Antonio River Authority and the City Public Service Board of San Antonio. The date of the taking of the rights was July 13, 1967, and the stated purpose was “the construction of a dam and reservoir which, as planned, will inundate the flood retarding structures located” on the Ruble and Harrison lands. The taking for this purpose obviously discontinued the uses for which permission was granted the Conservation District. Thereafter, on August 10 and November 8, 1967, the City took the Harrison and Ruble lands in a condemnation proceeding. This suit was instituted pending the appeal of the landowners from the award of the Commissioners to obtain a judicial solution of the problem of whether the landowners were entitled to recover the full value of their lands or the value depressed by the previously authorized permissive rights. The majority has assumed that the permissive rights constituted interests in realty and has held that they burdened the lands until the actual inundation and destruction of the earthen dams and other structures following the construction of the Calaveras Creek dam and reservoir.
Cited in support of the majority opinion are Hamman v. City of Houston, 362 S.W.2d 402 (Tex.Civ.App.—Fort Worth 1962, writ ref., n. r. e.); City of San Antonio v. Congregation of Sisters of Charity of the Incarnate Word, 360 S.W.2d 580 (Tex.Civ.App.—Waco 1962, writ ref., n. r. e.); and State by Mondale v. Independent School District, 266 Minn. 85, 123 N.W.2d 121 (Minn. 1963). I do not regard these cases as controlling or in point. Each involved a conveyance of fee title subject to a condition subsequent of forfeiture or abridgment. These grants are of the nature variously characterized as the retention of a possibility of reverter, or as a defeasible title in fee, or as a fee simple defeasible. As indicated in the quotation from the Minnesota case in the majority opinion, the problem in these cases is whether “realty” has reverted “where the use specified in the deed is discontinued solely because of a taking under the power of eminent domain.” This is not the problem here. The original contracts quite clearly, it seems to me, give the Conservation District nothing more than a license — the “right, privilege and authority” — to engage in specific activities, and certainly not an interest in the lands themselves. The agreements did not purport to impose any conditions of defeasance affecting fee title, nor purport to convey an interest in the lands. The most that was granted was a permissive right to use the lands in certain particulars in furtherance of the program of retarding floodwaters and *285reducing soil sedimentation. The characteristics of an easement as distinguished from a license were stated in Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014 (1925):
“An easement is a liberty, privilege, or advantage without profit which the owner of one tract of land may have in the lands of another. Though incorporeal, it is an interest in land, and must be created by grant, covenant, or agreement, express or implied.
“A license is a privilege or authority given to one or retained by one to do some act or acts on the land of another, but which does not amount to an interest in the land itself
The distinction I would draw here is illustrated in the case reported as Ropte v. Evans, in 67 S.W.2d 396 (Tex.Civ.App.—Austin 1934), and as Evans v. Ropte, in 128 Tex. 75, 96 S.W.2d 973 (1936). The agreement in question, in part, granted certain water rights with free access to the land to obtain the water, the exclusive use of a warehouse building on the land, and the right to erect other structures. The Court of Civil Appeals concluded:
“We do not think, however, that the rights granted to Apple under said contract amount to an easement, but rather constitute a mere license. While the distinction between a license and an easement as applied to real estate is sometimes rather subtle, generally an easement constitutes an interest in the land itself, while a license merely confers a privilege to do some act or acts upon the land without possessing any estate therein. Settegast v. Foley Bros., supra; 15 Tex. Jur. 775; 19 C.J. 871; 37 C.J. 279.
“ * * * It is obvious, therefore, that Apple’s rights of access to the premises, and his use thereof, were solely for the purpose of bottling and preparing for shipment the water in question, after it had been taken from the well by the owners of the land, had become personal property, and had been delivered to Apple on the premises. This we think constituted but a privilege or license upon the land and vested in Apple or his assigns no estate whatever in the land itself.”
The Commission of Appeals, in an opinion adopted by the Supreme Court, reversed, holding:
“Looking at the contract as a whole and keeping in mind the dominant thing to be accomplished, to wit, the sale of mineral waters in the land to the mutual benefit of all parties, it grants by necessary implication, if not by express words, the right to enter upon the land and take and appropriate the mineral waters within same, and to do everything necessary and appropriate for the accomplishment of that purpose. This right to take and appropriate the waters was practically unlimited and exclusive, * * *
“It seems to be almost universally recognized that a right created by grant to enter upon land and take and appropriate the waters of a spring or well thereon amounts to an interest in real estate, regardless of the term by which such right may be designated. In some states it is held to be an easement, but in other cases it is held to be more than an easement. In all events, it is an interest in land.”
The decision of the Commission of Appeals, citing Texas and P. Ry. Co. v. Durrett, 57 Tex. 48 (1882), turned on its construction of the contract as granting something more than the right to do something on the land, namely, “the right to take something out of and from the soil, which is known in the books as a profit a prendre — a right coupled with a profit.” This element is not present in the contract between the landowners and the Conservation District.
As said in Ropte v. Evans, supra, the difference between an easement interest in land, and a license or privilege to enter upon and use the land for a specific purpose, is often subtle and indecisive. This is illus*286trated again by Markley v. Christen, 226 S.W. 150 (Tex.Civ.App.—San Antonio 1920, writ dism.). The case involved an agreement for the construction of a pumping plant and pipeline for the mutual benefit of the contracting parties. A trial court finding adopted by the Court of Civil Appeals was to the effect that there was an express agreement for an easement. The Court of Civil Appeals found it unnecessary to decide whether the contract “amounted to a mere license,” saying that “[w]hile the facts might not create an easement, which implies an interest in land, and a license does not, still appellees have rights created by parol which would justify the judgment.” The reasoning of the court was this :
"The license to erect the improvements was executed, and it is held that to permit a revocation after an execution would be to permit a palpable fraud, and this is intensified where the licensor, not only grants the right to the licensee to go on the land, but joins in the enterprise and accepts the benefits of the licensee’s labor and expense. As said in Appeal of Clelland, 133 Pa. 189, 19 Atl. 352, 7 L.R.A. 752:
‘A right of this character, while not strictly an easement, is in the nature of one. It is really a permission or license, express or implied, to use the property of another in a particular manner, or for a particular purpose. Where this permission has led the party to whom it has been given to treat his own property in a way in which he would not otherwise have treated it, as by the erection or construction of permanent improvements thereon, it cannot be recalled to his detriment. Having expended his money upon the faith of it, and not being able to be restored to his original position, equity will not allow the permission to be revoked, in breach of such faith. This has given rise to the doctrine of executed or irrevocable licenses.’ ”
Here, the question of whether the rights granted the Conservation District constituted an easement interest in land, or a license or privilege to use the land for certain purposes, must be decided in order to determine whether the landowners are entitled to recover the full value of their land in the pending condemnation proceeding. I would resolve the question in favor of the landowners. The problem is basically one of ascertaining the intent of the parties. In doing so, attention may be paid not only to the terms of the underlying agreement, but to the surrounding circumstances and the purposes sought to be accomplished by the parties. Varying the terms of a written instrument is not involved since we are not determining what the parties bound themselves to do, but merely whether the parties intended the subject of their agreement to be an interest in land. An important circumstance is whether the conveyance of an interest in land was essential to the purposes of the party acquiring the right. Quite plainly, the Conservation District sought only the right to erect structures which would accomplish its statutory purpose of providing for “the conservation of soil and soil resources of this State, and for the control and prevention of soil erosion, and thereby to preserve natural resources, control floods, * * *” See Article 165a-4, Sec. 2(d), Vernon’s Annotated Texas [Civil] Statutes. Its whole object was to preserve, not take from the soil. The rights so granted to the District were precisely described in these terms, namely, “the right, privilege and authority to enter upon, construct, operate and maintain an Earthen fill dam and other structures for the retardation of the flow of floodwaters and reduction of sedimentation.” The accomplishment of the objectives of the District required no more than permission to erect the necessary structures. The District had not profit motive and there is no problem of recalling the permission to the detriment of the District since the District itself was a willing party to the acquisition of the rights by the City for an avowed contrary use.
*287In my view, then, the problem is not one involving the abandonment of an easement, or the reversion or forfeiture of an interest in realty; it is whether the permissive rights lapsed when taken by the City for a predetermined destructive use. I would hold that the disuser was complete when the City condemned and acquired the rights for uses requiring the inundation and destruction of the earthen dams and other structures erected by the Conservation District, and that the landowners are entitled to the full value of their lands in the pending condemnation proceeding.
I would therefore affirm the judgment of the Court of Civil Appeals.
Italics are those of the writer throughout.