5 F.2d 160 (5th Cir. 1925), 4339, Kynerd v. Hulen

Docket Nº:4339.
Citation:5 F.2d 160
Party Name:KYNERD v. HULEN et al.
Case Date:April 02, 1925
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 160

5 F.2d 160 (5th Cir. 1925)

KYNERD

v.

HULEN et al.

No. 4339.

United States 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.

Page 161

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...

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