Atlantic Refining Co. v. Noel

• Citation: 443 S.W.2d 35
• Decision Date: 09 October 1968
• Docket Number: No. B--331,B--331
• Parties: The ATLANTIC REFINING COMPANY, Petitioner, v. W. D. NOEL et al., Respondent.
• Court: Supreme Court of Texas

Page 35

443 S.W.2d 35

The ATLANTIC REFINING COMPANY, Petitioner, v. W. D. NOEL et al., Respondent.

No. B--331.

Supreme Court of Texas.

Oct. 9, 1968.

As Modified on Denial of Rehearing Jan. 15, 1969.

Dissenting Opinion Feb. 19, 1969.

Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., and Durward M. Goolsby, Midland, for petitioner.

Crawford Martin, Atty. Gen., J. Milton Richardson, Asst. Atty., Gen., Austin, Shepperd & Rodman, Odessa, Pat H. Candler, Dallas, for respondent.

POPE, Justice.

Our former opinion is withdrawn and this opinion is substituted for it. This is a vacancy case. Atlantic Refining Company filed a trespass to try title suit against J. S. Lane, Harry Howard and wife, Bankers Life Company, a mortgagee, and W. D. Noel, the holder of a mineral lease covering the alleged vacancies; and the State of Texas intervened on behalf of the Permanent Free School Fund. The case was tried before the court without a jury. The trial court sustained Atlantic's contentions and rendered judgment that there were no vacancies in the area claimed by the defendants. The court of civil appeals reversed that judgment. 414 S.W.2d 718. The basis for the decision of the court of civil appeals was that Atlantic is estopped to deny the existence of the vacancies. We are of the opinion that there is no basis for principles of estoppel to operate so as to defeat Atlantic's title to the disputed lands. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Most of the facts are not in dispute and only a brief summary is necessary. In 1881 H. C. Barton, acting upon valid certificates, located, surveyed and returned the field notes to Blocks 1 and 2, M.K. & T.R.R. Co. in Upton County. All of the odd numbered sections in Blocks 1 and 2 were patented to the railroad. In 1904, John R. Johnston made application to purchase Section 26, Block 1 from the State. In 1905 H. R. Smith made application to purchase Section 10, Block 1. The State awarded the sections to Johnston and Smith, and both awards were based upon the Barton survey and field notes.

Barton's surveys of Blocks 1 and 2 were done as one continuous work. Both the surveyor for Atlantic and the surveyor for the State so testified. Barton worked in Block 1 on October 6 and the next day moved on to Block 2 which adjoined Block 1 on the north. It is undisputed that Barton called for joinders of Blocks 1 and 2, and set a monument at the northeast corner of Section 10, Block 1, which monument was the same point for the southeast corner of Section 1, Block 2. The north line of Sections 26 and 10, Block 1, and the south line of Block 2 were the same. According to Barton, there was no vacancy between Blocks 1 and 2, and it was upon the basis of his work that the State patented the odd numbered sections and made the awards to Johnston and Smith.

In 1909, Union Land Company, through mesne conveyances from the original awardees, was the owner of both Sections 26 and 10. At that time the state debt had not been paid, and the sections were yet unpatented. Union asked the Land Commissioner to cause a resurvey to be made and in 1913 and Land Commissioner instructed H. S. Dod to resurvey Blocks 1 and 3.

Dod made a resurvey of Block 1 in 1913. Block 2 was apparently not resurveyed. It is undisputed that Dod did not follow the Land Commissioner's instructions, by reason of which he did not go to at least twelve different monuments set by Barton in Blocks 1 and 2 which were on the ground then and are still there today. Dod's field notes did not call for adjoinder of the north lines of Sections 26 and 10 with Block 2 which was Barton's admitted intent. Dod's resurvey showed 670 acres of land in each of the sections rather than only 640 acres as described by Barton, but Dod's monuments were located in such a way that they left 60.5 acres between Section 10 in Block 1 and Section 1 to the north in Block 2. His monuments also left 94.5 acres between Section 26 in Block 1 and Section 15 in Block 2 to the north. These are the areas which the court of civil appeals has held to be vacancies. The situation is shown by this sketch.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1926 Union Land Company conveyed Sections 26 and 10 to Cordova Union Oil Corporation. In 1943 Cordova conveyed the minerals to Sections 26 and 10 to Atlantic Refining Company, thereby severing the surface and mineral estates. Thereafter Cordova Union conveyed the surface of Section 10 to J. S. Land and conveyed the surface of Section 26 to Harry and Mabel Howard. In 1944 Cordova Union paid the state debt on both sections upon the basis of 670 acres in each survey. Lane and the Howards, the surface owners, later became indebted to Bankers Life Company, and in January 1946 Bankers Life, the mortgagee of the surface owners, applied for and obtained patents to the two sections upon payment for 670 acres of land to the State. The patents were issued based upon the Dod field notes. They were issued in the name of E. G. King, assignee of H. R. Smith, covering Section 10, Block 1, and in the name of John R. Johnston, the original applicant to purchase Section 26, Block 1.

In 1961, W. D. Noel filed a mineral application to lease the 60.53 acre-tract and the 94.5-acre tract above mentioned, contending that such tracts were unsurveyed lands belonging to the Public Free School Fund. See, Article 5421c, Vernon's Ann.Tex.Stats. The alleged vacancies were recognized by the Land Commissioner and Noel's application was approved. Later patents covering such tracts were issued to J. S. Lane and to Harry and Mabel Howard as good faith claimants.

It is not disputed that Atlantic proved its title to the lands and that there is no vacancy unless Atlantic is estopped to claim under the Barton survey. It is our opinion that there is no vacancy. Dod's mistakes in surveying are not the reasons for our conclusion that there is no vacancy. It is our opinion that the court of civil appeals erred in its holding that Atlantic is estopped to deny the existence of the vacancy. There can be only three possible acts which could afford the basis of an estoppel, none of which, in law has ever previously been held sufficient to divest a landowner of his vested rights. They are (1) Union Land's request for a resurvey, (2) the Land Commissioner's acceptance of the resurvey, or (3) the acceptance of a patent by the surface owners who were outside of Atlantic's chain of title and which patents used the Dod field notes in describing the land. No precedents support an estoppel based upon any of the stated theories.

When Johnston and Smith obtained their respective awards for Sections 26 and 10, each for 640 acres, those lands had been segregated from the public domain. At that time Johnston and Smith had rights which would support a legal action including a suit for trespass to try title. Art. 7375, Vern.Tex.Civ.Stats.; Duren v. Houston & T.C. Ry. Co., 86 Tex. 287, 291, 24 S.W. 258 (1893); See, Lange, 3 Texas Practice, Land Titles, § 112.

The survey, location, and return followed by the awards based upon those acts vested legal rights in Johnston and Smith. Threadgill v. Bickerstaff, 87 Tex. 520, 29 S.W. 757 (1895); Ross v. Early, 39 Tex. 390 (1873); Howard v. Perry, 7 Tex. 259 (1851); Stubblefield v. Hanson, 94 S.W. 406 (Tex.Civ.App., 1906, writ ref.); Watts v. Bruce, 31 Tex.Civ.App. 347, 72 S.W. 258 (1903, writ ref.). It was said in Hamilton v. Avery, 20 Tex. 612, 635:

'Our courts have recognized a survey, by virtue of a valid certificate, as a valid right; a right of property, as fully as any other rights. It is a right binding on the government; upon which the government, through the commissioner of the general land office, can be compelled, by judicial process, to issue a patent * * *. It is recognized by the government as his property, and not public domain, by being taxed and sold for taxes, the same as titled lands * * *. It confers the right to maintain a suit upon it, to try the title and eject trespassers. It gives a right which is the subject of possession; of purchase; and of inheritance. It is sold under execution, and administered in courts of probate. It is regarded in the community as possessing but little less marketable value than patented land.' (Emphasis supplied)

In Morrill v. Bartlett, 58 Tex. 644, 649 (1883), the question was whether the rights of a party acquired under a valid certificate followed by a survey, location, and return of the field notes were changed by the issuance of a patent which used a different set of field notes to describe the land. The court wrote:

'It is not disputed but that this grant was located upon vacant land by virtue of a genuine certificate; that it was legally surveyed by the proper officer; that it was correctly traced upon the county map in the surveyor's office; that the certificate, survey, field notes and a copy of the map were duly filed in the general land office; and that, according to these, the land has a common corner with the Gooch survey at the end of its second line. These facts established, and no error in the field notes being shown, nor other reason why the patent should not issue in accordance with the actual survey made, the grantee had a just and equitable right to the whole land thus surveyed and described; a title upon which he could recover, against any party claiming under a junior grant, any portion of the land included within the boundaries of such survey. Not only so, but He became authorized to have his title evidenced by a patent describing the land precisely as surveyed, and to compel the commissioner of the general land office to issue it to him. * * *

'The law no where recognizes his right to change the calls of the field notes, or leave out any portion of them, so as to grant to the patentee a different tract of land from that actually run out by the surveyor.' (Emphasis supplied)

The issuance...