Kynerd v. Hulen

• Decision Date: 29 April 1925
• Docket Number: No. 4339.,4339.
• Citation: 5 F.2d 160
• Parties: KYNERD v. HULEN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

5 F.2d 160 (1925)

KYNERD v. HULEN et al.

No. 4339.

Circuit Court of Appeals, Fifth Circuit.

April 2, 1925.

Rehearing Denied April 29, 1925.

Joseph Manson McCormick, of Dallas, Tex. (Francis Marion Etheridge, Henri Louie Bromberg, and Paul Carrington, all of Dallas, Tex., on the brief), for plaintiff in error.

J. H. Barwise, Jr., G. W. Wharton, and H. S. Garrett, all of Fort Worth, Tex., and Alex S. Coke, of Dallas, Tex. (Cruce & Potter, of Ardmore, Okl., Thompson, Barwise & Wharton, of Fort Worth, Tex., and Coke & Coke, of Dallas, Tex., on the brief), for defendants in error.

Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.

BRYAN, Circuit Judge.

This is an action of trespass to try title under the Texas practice, by which the plaintiff, Kynerd, seeks to recover the value of oil extracted from two parcels or strips of land forming parts of a railroad right of way, and to establish his right to extract oil therefrom in the future.

The petition sets out a separate deed of each of the two parcels of land in controversy, executed in 1903 by the then owners to the defendant railway company. One of the deeds recites a cash consideration of $129.25, and conveys: "All that certain tract, lot or parcel of land lying and being situate in the county of Limestone in the state of Texas, being a part of what is known as Pedro Varola original grant in said county and being more particularly described as follows, to wit: A strip of land one hundred feet wide being fifty feet on each side of the center of the main line track of said Trinity & Brazos Valley Railway Company as the same may hereafter be constructed, laid and fixed by said company upon, over and across the following tract of land owned by us which said tract owned by us is described as follows," etc.

It then describes by metes and bounds a tract of 122.54 acres. The remaining parts of the deed are:

"It is understood that the land herein surveyed is a strip one hundred feet wide through and over the land and premises herein last above described, said strip commencing on east side of said tract and extending through the same in a general westerly direction to the west side of said tract.

"To have and to hold the above-described land and premises, together with all and singular the rights and appurtenances thereunto belonging or in any wise appertaining unto the said Trinity & Brazos Valley Railway Company, its successors and assigns forever, and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said Trinity & Brazos Valley Railway Company, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof."

The other deed recites a cash consideration of $117.75 and in like manner describes a tract of land of 101.1 acres, "through and over" which a "strip of land" 100 feet wide is conveyed. It is identical in form with the first mentioned deed, except that in the explanatory clause appearing next after the description of the whole tract the word "conveyed" is used instead of the word "surveyed." The petition then alleges that before the line of railway was built a committee of citizens undertook to provide a right of way for it through Limestone county, either by procuring deeds or by condemnation proceedings; that in order to accomplish its purpose that committee either brought or threatened to bring condemnation proceedings against landowners; that the deeds, the interpretation of which is involved in this controversy, were executed to avoid the expense of condemnation; that the form of deed used was prepared by the grantee, and the grantors were informed that no greater estate would be thereby conveyed than could be obtained by condemnation and that the consideration was calculated on the basis of what would be allowed in condemnation proceedings; and that the grantors and grantee believed that the deeds in question would not pass the mineral rights but would grant only a perpetual right of way, which was the only use the railway company had for the lands conveyed to it.

Finally, the petition alleges that since November, 1921, the defendants have extracted oil of great value from those portions of the right of way conveyed by the two deeds above described; and that plaintiff, in December, 1922, by oil and gas leases from the railway company's grantors or their heirs, became entitled to all the mineral rights in the two parcels of land above described upon which the railway company has its right of way.

The trial court sustained a demurrer to, and dismissed, the petition. Plaintiff assigns error and contends that the railway company acquired only an easement, whereas it is the position of defendants that each of the deeds conveyed an estate in fee simple.

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