Anderson & Kerr Drilling Co. v. Bruhlmeyer

• Decision Date: 21 February 1940
• Docket Number: No. 7543.,7543.
• Citation: 136 S.W.2d 800
• Parties: ANDERSON & KERR DRILLING CO. et al. v. BRUHLMEYER et al.
• Court: Texas Supreme Court

Page 800

136 S.W.2d 800

ANDERSON & KERR DRILLING CO. et al. v. BRUHLMEYER et al.

No. 7543.

Supreme Court of Texas.

February 21, 1940.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Action by F. A. Bruhlmeyer and others against Anderson & Kerr Drilling Company and others, to set aside a judgment. From an order appointing a receiver to take over the management and control of a tract of land upon which there were producing wells which defendants were operating under a lease, defendants appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.

Questions answered.

Catlett & Kerr, of Oklahoma City, Okl., for appellant Kerr.

Cantey, Hanger, McMahon, McKnight & Johnson, of Fort Worth, and Hayes, Richardson, Shartel, Gilliland & Jordan, of Oklahoma City, Okl., for appellant Portman.

John W. Culp, of Gainesville, Fred H. Minor, of Denton, A. A. White, of Tyler, Wynne & Wynne and Wm. A. Wade, all of Longview, and A. W. Walker, Jr., and Preston Shirley, both of Austin, for appellees.

SMEDLEY, Commissioner.

The Court of Civil Appeals for the Second District has certified three questions to this court by certificate which briefly and clearly sets out the nature of the case, the material facts and the questions as follows:

"This is an appeal from an order appointing a receiver to take over the entire management and control of a tract of land in Cooke County, Texas, on which there are a number of producing wells, which are being operated under a lease by the appellants.

"The appellees, who prayed for the appointment of the receiver, and all parties interested, are circumstanced as follows: N. J. Johnson and his wife, M. E. Johnson, owned this tract of land on April 28th, 1891, and conveyed same to one J. R. Cother. The following reservation is found in this deed: `And the said N. J. Johnson and M. E. Johnson reserves one-half interest in all Minerells Paint Rock &c found or will be found on said tract of land.' The appellees, who are heirs of the Johnsons, contend that this reservation entitles them to one-half of the oil and gas in and under the said lands.

"The appellants, on August 4th, 1936, brought suit in the district court of Cooke County against N. J. and M. E. Johnson and their unknown heirs, and others, in trespass to try title, and judgment for plaintiffs was had on October 29th, 1936; the service on the defendants being had by publication.

"On August 21st, 1937, appellees, who are heirs of the Johnsons, filed their original petition, seeking to set aside said judgment and amended their petition on August 29th, 1937. No citations were issued upon the defendants in this action, and the hearing was set for November 5th, 1937, in vacation, and appellants were required to answer the application for receivership by telegraphic notices. Upon a hearing, the trial court appointed a receiver, on November 23rd, 1937, giving such receiver full authority to take over the entire management and control of the property and the producing wells.

"The undisputed testimony discloses that the wells on the premises are being operated in a prudent and economical manner. There is no evidence of waste or extravagance in the operation thereof.

"It is undisputed that the appellants have the fee simple title to and are entitled to the possession and control of the property, so far as an undivided one-half interest in the oil and gas in and under the lands is concerned, and that the fee to the surface rights belongs absolutely to the appellants.

"When the matter was being tried before the District Court and such court indicated that the petition for a receiver would be granted, the appellants requested the trial court to limit the powers of the receiver to that of taking over and protecting the proceeds from the portion of the oil claimed by appellees and to provide for the impounding of such funds in some bank to be selected by the court, or, in the alternative, that the trial court require a bond, conditioned in such manner that it would protect the appellees with respect to the operation of the properties, and to compel appellants to account for the proceeds of the oil produced from the premises.

"The trial court declined to do either or any of these things and appointed a receiver to take full and complete control of the properties, including all wells, equipment, machinery, etc.

"This court passed judgment on the cause, as is reflected in the opinions published in Tex.Civ.App., 115 S.W.2d pp. 1212 to 1217, and the matter having been brought to the Supreme Court by petition for a writ of mandamus, in obedience to the judgment and opinion of the Honorable Supreme Court, we respectfully certify to you, for determination, the following questions:

"No. 1. Did the clause of exception and reservation contained in the deed from N. J. Johnson and wife, M. E. Johnson, to J. R. Cother, reading as follows: `And the said N. J. and M. E. Johnson reserves 1/2 interest in all Minerells Paint Rock &c found or will be found on said described tract of land', except and reserve as a matter of law, a fee simple title in said grantors in and to an undivided one-half interest in all oil and gas in and under the land conveyed by said deed, or is such provision so ambiguous, or so lacking in definiteness, that its meaning requires proof and explanation?

"No. 2. If, in the opinion of the trial court, the appellees have a probable interest in the fee simple title to an undivided one-half interest in and to the oil and gas in and under the lands in controversy, are the appellees entitled, as a matter of law, under the terms of Article 2293, Sec. 1, Revised Civil Statutes, 1925, to have a receiver appointed to take complete control of the oil and gas estate and all equipment, machinery, wells and to have such receiver take complete charge of all operations, pending the final determination of litigation instituted by appellees to obtain a judicial determination of their ownership, where appellants, being the owners, and lessees of the owners, of an unquestioned undivided one-half interest in the lands and mineral rights, are in exclusive possession of the lands and have drilled a number of producing wells thereon, from which they have produced and sold, and are continuing to produce and sell large quantities of oil and gas, and are denying the right of appellees to possession of the property, to drill thereon, to lease the lands to others, or to share in the proceeds of the oil and gas being produced therefrom?

"No. 3. The trial court being of the opinion that appellees have a probable right of recovery of an undivided one-half interest in and to the oil and gas in and under the lands in controversy (or if such interest be undisputed, as a matter of law), and if it be held that under the provisions of Subdivision 1 of Article 2293, Revised Civil Statutes, 1925, appellees were, under the allegations and proof, entitled to the appointment of a receiver, was the request, or motion, made by appellants, to have the trial court limit the power and authority of the receiver to that of protecting and controlling the proceeds of the portion of oil in which appellees have an absolute or probable interest, less the necessary and reasonable cost of operation, and the offer to protect the probable interest of appellees by a sufficient bond, or by impounding the portion of the net proceeds to which appellees have a probable interest, in some bank to be selected by the court, sufficient to render the appointment of a receiver of the entire lands, leases, wells, machinery and equipment, improper where such motion and offer were made subject to appellants' exceptions to the appointment of any receiver and without waiver of such objections, and when such motion and offer were made after the trial court indicated that the prayer for a receiver would be granted?"

As to the first question, the appellees take the position that the clause of exception or reservation contained in the deed from N. J. Johnson and wife, M. E. Johnson, to J. R. Cother, excepted or reserved as a matter of law a fee simple title in said grantors in and to an undivided one-half interest in all oil and gas in and under the land conveyed by the deed. The appellants, on the other hand, contend that the meaning of the said clause of exception or reservation is sufficiently uncertain or indefinite to require or permit the court to construe the language used in the instrument with any light that may be shed thereon by a full consideration of the entire transaction as shown by the attending facts.

The original deed and photostatic copies thereof which accompany the record will be considered in connection with the facts set out in the certificate, as both parties in their briefs and oral arguments have invited such consideration. The reservation appearing in the deed is as follows: "and the said N J & M E Johnson reserves 1/2 interest in all Minerells Paint Rock &c found or will be found on said discribed tract of land."

Attention is directed to the erroneous spelling of the word minerals and the word described and to the absence of punctuation. The deed is on a printed form, the names of the parties, the statement of the consideration, the description of the land and the reservation being written in longhand. In many places the draftsman failed to insert periods where they should have been used. There are a number of semicolons in the description of the land by metes and bounds, but we have found only one comma, or possibly two, in the part of the deed written in longhand, although there are many places where commas should have been inserted. Often a dash appears where ordinarily a comma or period would be used.

Errors in spelling are usually unimportant. In an early Pennsylvania case, Watters v. Bredin, 70 Pa. 235, 237, the court, after setting out a deed to be construed, said: "I have omitted the inaccuracies in...