Atchley v. Superior Oil Co., 7351

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation482 S.W.2d 883
Docket NumberNo. 7351,7351
PartiesWalter ATCHLEY et al., Appellants, v. The SUPERIOR OIL COMPANY et al., Appellees.
Decision Date25 May 1972

Page 883

482 S.W.2d 883
Walter ATCHLEY et al., Appellants,
v.
The SUPERIOR OIL COMPANY et al., Appellees.
No. 7351.
Court of Civil Appeals of Texas,
Beaumont.
May 25, 1972.
Rehearing Denied June 29, 1972.

Pat S. Holloway, Dallas, Crawford C. Martin, Atty. Gen., J. Milton Richardson, Asst. Atty. Gen., Austin, for appellants.

E. E. Shouse, Frederic Johnson, Herbert Varner, Thomas H. Lee, Barrow, Bland & Rehmet, William S. Clarke, Houston, William E. Nicholas, Sinton, Guittard & Henderson, Richard Henderson, Victoria, Warren B. Leach, Jr., Houston, Clayton L. Orn, William H. Holloway, Vinson, Elkins, Searls & Smith, Murray Christian, Herbert W. Varner, R. T. Robberson, David T. Searls, Dave C. McNeill, Jr., Harry M. Reasoner, David T. Harvin, Houston, Morrill & Patton, Beeville, John H. Miller, Jr., John H. Flinn, Dist. Atty., Richard D. Hatch, County Atty., Burnett & Burnett, Sinton, Luther E. Jones, Jr., Corpus Christi, for appellees.

KEITH, Justice.

This is a vacancy case in which the trial court entered a summary judgment in favor of the defendants, finding that no vacancy existed . We review a tremendous record which takes up four drawers of a legal filing cabinet; and, it is obvious that while we must make a lengthy statement from the record, many facets thereof will escape mention.

I. Statement of Case

Walter C. Atchley, plaintiff below, instituted suit in the District Court of San Patricio County under the provisions of § 6, Art. 5421c, Vernon's Ann.Civ.St., following the rejection of his vacancy application by the Commissioner of the General Land Office. Plaintiff named as defendants hundreds of individuals, oil companies, and other corporations, alleging that the defendants claimed interests in the alleged vacancy or adjacent lands. Plaintiff, pursuant to statute, also named the State of Texas as a party defendant.

The State intervened in the proceedings, aligned itself with the plaintiff, and sought recovery of the land described in plaintiff's petition as well as hundreds of millions of dollars from the several oil companies for the oil and gas produced from the lands in dispute . The State's plea in intervention was in the form of a trespass to try title action, named the same defendants sued in plaintiff's original suit, and sought recovery of the land described in plaintiff's pleadings. Later, during the course of the litigation, the State filed its first amended petition in intervention as a straight trespass to try title suit for the recovery from the defendants title and possession of the land involved in plaintiff's original suit. This action was severed from Atchley's original suit, docketed under another number, and is still pending.

At issue between the parties is the true location upon the ground of the divisional line between the seven and a half league Portilla grant and the void five and a half league Power and Hewetson grant, both of which are located between the Aransas River on the north and the Chiltipin Creek on the south in what is now San Patricio County. The Power and Hewetson grant was adjudicated to be a void grant in a series of cases originating in Smith v. Power, 2 Tex. 57 (1847), which included: Commissioner of General Land Office v. Smith, 5 Tex. 471 (1849); Smith v. Power, 14 Tex. 146 (1855); Smith v. Power, 23 Tex. 30 (1859); Wood v. Welder, 42 Tex. 396 (1875); and Plummer v. Power, 29 Tex. 6 (1867).

Page 885

The location of the boundary line in question was also the subject of controversy in Welder v. Carroll, 29 Tex. 317 (1867), and in Welder v. Hunt, 34 Tex. 44 (1870).

In bringing our discussion of this basic question into proper focus, a lengthy statement is necessary. To a large extent we take this statement from the brief of the defendants, after examining the record and being convinced of its correctness.

The seven and one-half league Portilla grants comprise a single body of land between the Aransas River on the north and Chiltipin Creek on the south. They were titled to settlers in the Power and Hewetson Colony by the State of Coahuila and Texas on October 23, 1834, in five separate grants. Each grant conveyed a separate and distinct parcel of the seven and one-half leagues. One of the grants for one league was to Felipe Roque Portilla; another for four leagues to four of Portilla's sons; another for one-half of a league to two other sons of Portilla; another for one league to Miguel Musquiz, and another for one league to Antonio Gozeascochechea, the son of Maria Jacinta de la Garza.

Each grant recites that a special plat of the seven and one-half leagues 'shall be', or as to one grant, 'will be' attached to the title for 'security of the interested party.' Each title also recites that the lands granted are contained within the survey which one of the appointed surveyors made on the Aransas River.

Portilla and his sons, in the applications for their three grants, state that two years prior to their applications, which bear date of September 11, 1834, they introduced stock into the colony and settled and occupied a ranch on the Aransas.

Each title recites that the lands included in the grant were adjudicated to the colonist named in the title; that he was put in possession; that he took possession 'quietly and peaceably without any contradiction, and performing all of the acts of real and true possession; having been informed that within one year he shall construct fixed boundaries and shall observe that part of the Colonization Law which pertains to them.'

The original grants (protocols) were deposited in the General Land Office of the Republic of Texas on November 1, 1837, and had been of record for nearly 130 years when this vacancy action was brought. The plats, however, to which the grants refer are not in the General Land Office.

Some seven days after the State of Coahuila and Texas executed the five Portilla titles, it granted to the empresarios Power and Hewetson on October 30, 1834, a tract of land said to contain five and a half leagues. The lands granted to them called to be bounded on the west by lands of Don Felipe Roque Portilla, on the north by the Aransas River, on the south by Chiltipin Creek, and on the east by the confluence of the Aransas and Chiltipin.

The five and a half leagues were described as being 'an imperfect triangle,' as 'shown by the special plat which is attached.'

Recitals of the delivery of juridicial possession, similar to those found in the five grants to the seven and a half leagues, are also contained in the grant to the empresarios.

The five and a half leagues granted to the empresarios were some of the lands they had selected under a purchase they made on December 24, 1829, from the Mexican Government of two concessions of eleven leagues each. Their application dated September 23, 1834, states that they acquired by purchase two concessions of eleven leagues each; that they had taken only seven and a half leagues, and asks that ten leagues more 'be surveyed and adjudicated' to them between the Chiltipin and Aransas Creeks. Vidaurri, the Commissioner for the Power and Hewetson Colony, approved their application for the

Page 886

lands requested 'provided they are entirely vacant.'

In subsequent litigation involving the validity of grants made to the empresarios of lands under the two eleven-league concessions, the Supreme Court of Texas held that all grants under the two eleven-league concessions to the empresarios of lands situated within ten littoral leagues of the coast, which were made by the State of Coahuila and Texas without the approval of the General (Federal) Government of Mexico, were invalid. Smith v. Power, supra (2 Tex. 57); Smith v. Power, supra (14 Tex. 146); Smith v. Power, supra (23 Tex. 30); Plummer v. Power, supra (29 Tex. 6). 1

Still later, in a trespass to try title action brought by John H. Wood, who had made entries and locations of land certificates on parts of the five and a half leagues titled to the empresarios and conveyed by them to John Welder, the Supreme Court in Wood v. Welder, supra (42 Tex. 396), refused to reopen the question of the validity of the two eleven-league concessions to the empresarios, thus holding that the grant of the five and a half leagues to Power and Hewetson was invalid. As a result of these decisions the State of Texas gained the title to the five and a half leagues which were bounded on the west by lands of Don Felipe Roque Portilla according to the calls in the Mexican grant to the empresarios.

The location of the common line between the lands titled to Portilla and the five and a half leagues titled to the empresarios and recovered by the State was in litigation from September 24, 1853, when Wilkins Hunt brought an action in trespass to try title against John Welder, until January 11, 1872, when a final judgment was entered in favor of John Welder on a jury verdict.

Hunt, the assignee of Johnston Roselle to whom the State had issued a land certificate, made an entry and location on two tracts of 320 acres each. The two tracts were surveyed by the Deputy Surveyor of the San Patricio Land District on June 25, 1853, and field notes returned to the General Land Office, but the State never patented the lands. Hunt contended in his trespass to try title suit that his entry and location and the field notes returned to the General Land Office covered lands in the five and a half leagues which had been invalidly granted to the empresarios; whereas, Welder contended they covered lands in the seven and a half league Portilla grants which he owned. Thus, the controlling issue in the case was the location of the division line between the five and a half and seven and a half league grants.

On the first trial a jury verdict was returned adverse to Welder, who took an appeal to the Supreme Court from a judgment rendered against him. The judgment was reversed and the cause remanded on March 6, 1867. 2

On the second trial a jury verdict was...

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