Atlantic Oil Producing Co. v. Hughey

• Decision Date: 11 June 1937
• Docket Number: No. 1663.,1663.
• Citation: 107 S.W.2d 613
• Parties: ATLANTIC OIL PRODUCING CO. et al. v. HUGHEY et al.
• Court: Texas Court of Appeals

107 S.W.2d 613

ATLANTIC OIL PRODUCING CO. et al. v. HUGHEY et al.

No. 1663.

Court of Civil Appeals of Texas. Eastland.

June 11, 1937.

Rehearing Denied July 9, 1937.

Error from District Court, Gregg County; W. H. Stringth, Judge.

Trespass to try title by M. B. Hughey and others against the Atlantic Oil Producing Company and others. Judgment for plaintiffs, and defendants bring error.

Reversed and rendered.

T. R. Freeman, Bromberg, Leftwich, Carrington & Gowan, and Margaret Clark, all of Dallas, Campbell & Leak, of Longview, and Wm. Hodges, of Texarkana, for plaintiffs in error.

Prentice Wilson, W. H. Sanford, O. F. Wencker, and J. W. Hassell, all of Dallas, for defendants in error.

LESLIE, Chief Justice.

The plaintiff M. B. Hughey instituted this suit in form trespass to try title to recover 3.04 acres of land in Gregg county, Tex., from the Atlantic Oil Producing Company, Byrd-Frost, Inc., Royal Petroleum Corporation, J. B. Stoddard, S. G. Delaney and wife, and Bert Kouns. J. Zeppa intervened, claiming an interest in the land under an assignment from Hughey. The Royal Petroleum Corporation and Bert Kouns were dismissed from the case. Other defendants answered by general demurrer, general denial, and pleas of not guilty. The trial was before the court and jury, and upon answers to special issues, judgment was rendered in favor of M. B. Hughey and the intervener Zeppa. Defendants prosecute error to this court.

Many errors were assigned and extensively briefed. The first assignments and propositions complain of rulings of the trial court (1) in refusing to give an instruced verdict in favor of the defendants on the ground that if the facts proved by plaintiff were true, the same would be insufficient to authorize the rendition of a judgment in favor of plaintiff; (2) refusal of the court to grant defendants a judgment notwithstanding the verdict; and (3) for the further reason that the verdict does not support the judgment rendered. Along with these assignments (based on a statement substantially the same), consideration will be given to proposition No. 1 under assignment of error No. 3, complaining that the court erred in holding as a matter of law in the submission of issue No. 1 that the post oak tree mentioned therein should control and establish the southeast corner of the strip of land in controversy.

The leasehold mineral rights alone are involved. The following plat reflects the subject-matter of the controversy: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The tract of land in suit is ABEG on the plat. The dotted line AJ indicates the line claimed by plaintiff to be the north line of the defendants' lease and necessarily the south line of the 3.04 acres of land. ABXJ is the strip claimed in plaintiff's original petition. (The parties will be referred to as in the trial court. Italics ours.)

Plaintiff seeks to recover this 3.04 acres as part of the M. B. Hughey 80-acre tract which is the east 1/2 of the original Hughey 160 acres in the Wm. McCurry survey. It is not claimed that the 3.04-acre strip was ever a part of the Outlaw tract to the south of the McCurry. The 3.04 acres is described as follows:

"Situated in the State of Texas, County of Gregg, and out of and a part of the Wm. McCurry survey, and particularly described by metes and bounds as follows, to-wit:

"Beginning at a stake set for the northeast corner of the L. B. Outlaw Survey, and the southeast corner of the Wm. McCurry Survey, from which stake a post oak stump bears south 5 deg. west 6 varas; Thence North 0 deg. 18' east with the east line of said McCurry survey 31.8 vrs. to a stake set for the southeast corner of the Magnolia Petroleum Company's M. B. Hughey lease out of the McCurry survey; thence north 89 deg. 36' west with the south line of said Magnolia-Hughey lease 520.6 vrs. to a stake set for the southwest corner of said Magnolia-Hughey lease; thence south 0 deg. 8' west 34.2 vrs. to a stake set in the south line of the McCurry survey and the north line of the Outlaw survey; Thence south 89 deg. 52' east with the common line of said McCurry and Outlaw Surveys 520.5 vrs. to the place of beginning and containing 3.04 acres of land."

The M. B. Hughey tract of 204 acres is out of the northeast corner of the original Outlaw survey, patented in 1847, under the following field notes:

"In Rusk District on the waters of Rabbit Creek near the Sabine River, beginning 1320 varas west and 380 varas north from the NE corner of J. Wilkinsons Survey, from which a post oak 8 inch diameter bears north 6 varas, and a hickory 10 inches diameter bears south 65 east four varas,

"Thence north at two thousand and sixteen varas a post, from which a post oak 12 inches diameter bears south 5 west 6 varas, and a red oak 16 inches diameter bears north 17 east 8 varas,

"Thence west at two thousand and sixteen varas, a post from which a red oak 18 inches dia. bears south 47 west 10 varas, and a black jack 12 inches diameter bears north 40 west 3 varas,

"Thence south at two thousand and sixteen varas a post, from which a hickory 6 inches diameter bears south 36 west three varas,

"Thence east at two thousand and sixteen varas the beginning. Bearings marked X."

The McCurry survey to the north and adjoining the Outlaw was patented in 1851 under field notes as follows:

"Beginning at the NE corner of Jesse Bartlett assignee of L. B. Outlaw's 730 acres survey from which a post oak brs. S 5 W 6 vrs., a red oak brs. N 17' E 8 vrs.

"Thence West 1344 vrs. with the north line of said survey to a post, from which a hickory brs. S 29' E 6 1/10 vrs., a post oak brs. N 80 W 6.2 vrs.

"Thence N. 1344 vrs. to a post, from which a hickory brs. 50½ W 8 vrs., a post oak brs. N 41½ E 25 vrs.

"Thence E at 310 vrs. a branch 1344 vrs. to a post from which a post oak brs. S 44' E 3 vrs;

"Thence S. 1344 vrs. to the place of beginning.

"Bearings marked X."

Obviously, the southeast corner of the McCurry and the northeast corner of the Outlaw survey is a common point, and the south line of the former coincides with the north line of the latter, running west from beginning point evidenced by "a post, from which a post oak brs. S 5 deg. W 6 vrs., a red oak brs. N 17 E. 8 vrs."

About April 24, 1869, J. B. Hughey, father of plaintiff, and W. W. Hughey acquired said 160-acre tract in the McCurry survey. After the death of J. B. Hughey and W. W. Hughey, their respective heirs entered into a partition of the 160 acres. This was September 13, 1912, and in that partition the west 88.4 acres of the 160 acres (so-called) was conveyed to J. B. Hughey and the other children of W. W. Hughey and the east half of the 160 acres was conveyed to S. P. Hughey, mother of plaintiff M. B. Hughey, and the other heirs of said J. B. Hughey. The east and west halves of this 160 acres were described by metes and bounds, calling for 88.4 acres each, although the general description referred to the whole tract as 160 acres. The partition left the heirs of J. B. Hughey owners of the east 88 acres in the McCurry and the 204 acres in the Outlaw surveys. The west 88.4 acres in the McCurry were thereafter sold to a man named Brittain who subsequently sold same to one Dickson. This west 88 acres will be referred to as the Brittain tract. As noted, the partition called for the 160 acres to be in the McCurry survey and to be bordered on the south by the north line of the Outlaw, etc.

After the patents to the McCurry and Outlaw surveys were issued in 1847 and 1851, respectively, calling for the southeast corner of the McCurry and the northeast corner of the Outlaw to be at a post witnessed by "a post oak brs. S 5 W 6 varas, a red oak brs. N 17 E 8 varas," no other conveyances were made (so far as shown by the record) involving a location or description of said northeast corner and north boundary line of the Outlaw survey until 1918, at which time said lands lying on both sides of the north line of the Outlaw had been acquired by the ancestor of M. B. Hughey.

With the view of acquiring the interest of his mother and brothers and sisters in the Hughey land in each of said surveys, plaintiff M. B. Hughey had same resurveyed in 1918 by J. C. Choice, a surveyor. In all the conveyances thereafter made by which the plaintiff acquired said land, or leased the same, the call for the disputed northeast corner of the Outlaw and the southeast corner of the McCurry is for "a stake for corner from which a pine tree brs. north 9 feet." Among the instruments of conveyance so designating the corners and adopting the Choice field notes, which M. B. Hughey employed that surveyor to make, are the following:

1. Deed from Mrs. S. P. Hughey to M. B. Hughey dated November 16, 1918, conveying her community interest in said tracts of land.

2. Petition of M. B. Hughey for partition in his suit against Sally Spinks, his sister, and others, dated November, 1918.

3. Judgment rendered in said suit December 11, 1918. Receiver appointed to sell said land.

4. Deed from M. L. Cunningham, receiver, to M. B. Hughey of said land dated December 11, 1918.

5. Deed of trust executed by M. B. Hughey to M. L. Cunningham, trustee, December 11, 1918.

6. Oil and gas lease from M. B. Hughey and wife to Bert Kouns, dated October 15, 1930.

7. Bert Kouns assigned to Magnolia Petroleum Company on February 11, 1931, lease on lands acquired by him in the McCurry survey.

8. Bert Kouns conveyed January 6, 1931, oil and gas lease on the 204 acres out of the Outlaw to J. C. O'Brien,

9. And the same thereafter came into the ownership of defendants (plaintiffs in error), by the same description.

With the title to the two contiguous tracts of land in M. B. Hughey, as above stated, he and his wife, on October 15, 1930, executed said oil and gas lease to Bert Kouns, calling also for the north line of the Outlaw and the south line of the McCurry to be a common line, and for the northeast and southeast corners of said surveys,...