Boothe v. McLean

• Decision Date: 19 March 1954
• Docket Number: No. 3048,3048
• Citation: 267 S.W.2d 158
• Parties: BOOTHE et al. v. McLEAN et al.
• Court: Texas Court of Appeals

Page 158

267 S.W.2d 158

BOOTHE et al. v. McLEAN et al.

No. 3048.

Court of Civil Appeals of Texas, Eastland.

March 19, 1954.

Rehearing Denied April 16, 1954.

V. S. Donoghue, Vinson, Elkins, Weems & Searls, Houston, Kilgore & Kilgore, Dallas, Wayland G. Holt, Snyder, for appellants.

Prentice Wilson, Dallas, Wagstaff, Harwells, Wagstaff & Alvis, McMahon, Springer, Smart & Walter, Abilene, for appellees.

GRISSOM, Chief Justice.

J. M. Boothe, Sr., and wife, Lydia Grabow Haines and husband, and Jake L. Hamon, William P. Castleman and Warren Petroleum Corporation sued William J. McLean and others in trespass to try title to the minerals in strip of land 260 feet wide, subject to roadway and railroad easements, out of the north end of Survey 179 in Scurry County. The court rendered judgment that plaintiffs take nothing and J. M. Boothe, Sr., and wife, and Jake L. Hamon and William P. Castleman, hereinafter called the Boothe plaintiffs, and Lydia Grabow Haines and husband and Warren Petroleum Corporation, hereinafter called the Haines plaintiffs, perfected separate appeals.

The controversy is over the title to the minerals in said 260 foot strip of land, subject to the following easements: (1) on the east, a 60 foot county road, sometimes known as highway 7, which had been used for the prescriptive period in 1915, there being no conveyance of a right of way; (2) in the middle, a 100 foot right of way occupied by the Sante Fe Railway Company for railroad purposes; (3) on the west, a 100 foot strip formerly occupied by the Roscoe, Snyder & Pacific Railway Company hereinafter called the Roscoe Railway, for railroad purposes. The latter right of way was abandoned in 1949, the tracks were removed and it is no longer used for railroad purposes. The strip, over which there were the three right of way easements, angles generally north and south across Section 179. In the north end of Section 179, adjoining said 260 foot strip on the east, Boothe owns the fee title and Hamon and Castleman own the oil and gas leasehold. Lydia Grabow Haines owns the fee title and Warren owns the oil and gas leasehold to the west of said strip, there being a dispute, however, as to their eastern boundary.

The Boothe plaintiffs' claim to a portion of the eastern part of the 260 foot strip is based on the application of the rule quoted below to the deed from Grabow to Yoder. In Cox v. Campbell, 135 Tex. 428, 143 S.W.2d 361, 366, the court said:

'The rule has been definitely announced in the Warwick and Weed cases that where a deed conveys by specific field notes land abutting on a street or public highway or railroad right of way, it conveys title to the property to the center of the street, public highway, or railroad right of way; and such rule is not overcome even though the filed notes describing the land stop at the side line of the street, public highway, or railroad right of way, unless a contrary intention is expressed in plain and unequivocal terms.'

In Joslin v. State, Tex.Civ.App., 146 S.W.2d 208, 211 (Writ Ref.), the court said:

'While the intention of the parties to a grant, where ascertainable, generally controls, the following significant language is used in the Rio Bravo case ((Rio Bravo Oil Co. v. Weed), 121 Tex. 427, 50 S.W.2d (1080) 1087, 85 A.L.R. 391): 'The primpe object and purpose of such rules (of construction) is to enable them to ascertain and give effect to the true intention of the parties unless such intention is inconsistent with some settled rule of law.' (Italics ours.) And the settled rule of law therein announced and followed in Cox v. Campbell, supra, is that, absent an express reservation, the grant is conclusively presumed to go to the center of the non-navigable stream, highway or railroad right of way. There being no such reservation in the grant, under such rule of construction, other evidence as to what was the intention of the parties becomes unimportant.'

In Cantley v. Gulf Production Co., 135 Tex. 339, 143 S.W.2d 912, 916, the court said:

'Applying the foregoing principles announced by this Court to the facts involved here, the conclusion is inescapable, from the language used in the conveyance from Douglass and his children to the grantees, that it was the intention of the grantors to include this strip of land in such conveyance. Any other construction of such conveyance would nullify the rule announced in the decisions above cited, and which has become the public policy of this State.'

In Texas Bitulithic Co. v. Warwick, Tex.Com.App., 293 S.W. 160, 164, the court said:

'Therefore we think the courts are exactly right when they say that a deed does carry the property to the center of the adjoining street unless such deed contains a clause which expressly declares the contrary intention or contains some other declaration equivalent to such an express declaration.' See also 11 C.J.S., Boundaries, § 35, p. 586.

Those claiming under Scurry County must depend on the same rule.

The three McLeans, brothers and sister, owned all of Section 179 when the two railroad right of way easements and the 60 foot roadway easement were acquired some time prior to 1915. The record title to Section 179 is shown as follows: (1) the three McLean heirs are the agreed common source of title; (2) prior to 1915, the two railroad rights of way were condemned and the rights of the public in the 60 foot county road vested by prescription; (3) in 1915, in a partition suit between said three McLeans, William J. McLean was awarded the north end of Section 179. The minerals in dispute are in the north part awarded to W. J. McLean and within said 260 foot strip. The middle of said section was awarded to Annie McLean, now Freeman, and the south end was awarded to Milton B. McLean. (4) In 1924, William J. McLean conveyed the north part of the section to A. F. Grabow. (5) In 1929, A. F. Grabow conveyed to D. P. Yoder the east part of the north end of Section 179, adjoining on the east the 60 foot county road. Said county road is the east side of the 260 feet in controversy. (6) The title of the Boothe plaintiffs is deraigned under D. P. Yoder. All subsequent conveyances in their clain of title contained the same description as the deed to Yoder. (7) Grabow died intestate leaving a wife and two daughters who, in 1932, partitioned his property by agreement and conveyed all of the north end of Section 179, except that previously conveyed to Yoder, to Lydia Grabow Haines. In this deed the property was described as follows:

'* * * all that certain tract or parcel of land situated in Scurry County, Texas, and being out of the North part of Survey No. 179 in Block No. 3 made by virtue of Certificate No. 9/1825 issued to the Houston & Great Northern Railway Company by patent No. 248 Volume No. 66 and more particularly described as follows, to-wit:

'Beginning at the N.E. corner of said Survey at a mound and four pits;

'Thence W with the N. line of said survey 1900 vrs to the NW corner of same at a mound;

'Thence S with the W line of said Survey 777-1 vrs to the corner of 178 acres set apart to Thelma McLean in partition of said 640 acres;

'Thence E with the N line of said Thelma MeLean tract, 1900 vrs in E line of said 640 acre survey; being NE corner of Thelma McLean 178 acre tract;

'Thence N with E line of said survey 777-1 vrs to the beginning, containing an area of 246.6 acres of land exclusive of right of way of RR and Highways which is excepted from this conveyance; and being the same tract of land conveyed to A. F. Grabow by William J. McLean and Mary McLean by Deed dated 29th of November 1924 and Recorded in Volume 51 page 363 Deed Records of Scurry County, Texas, said deed by book, volume and page of said Record Book being here referred to and made a part hereof for description of said tract of land.

'There is excepted, however, from said tract of land and this conveyance 127.8 acres of land heretofore conveyed out of same by A. F. Grabow to D. P. Yoder by Deed dated February 6th, 1929 and of record in the Deed Records of Scurry County, Texas, said Deed being referred for description of land excepted herefrom.'

Thereafter, Mrs. Haines conveyed to Scurry County a 100 foot strip adjoining on the west the Roscoe Railway easement 'for highway purposes,' with provision for reversion in event of abandonment for highway purposes. This 100 foot strip is now Highway 84.

Plaintiffs contend (a) there is nothing in the McLean partition proceedings which shows an intention that the fee title to the 260 foot strip was not intended to be partitioned, subject to the easements, and, therefore, it was partitioned to William J. McLean, subject to said easements; (b) that when William J. McLean conveyed the north part of Section 179 to Grabow, his deed contained nothing amounting to a reservation of the fee title to said 260 feet, subject to said easements, and, therefore, title thereto passed to Grabow, subject to the easements; (c) the Boothe plaintiffs contend that when Grabow conveyed 128 acres out of the northeast part of Section 179 to Yoder, with calls for the east side of the 60 foot county road as the western boundary of the tract conveyed, Yoder thereby acquired title to part of the 60 foot county road as a part and parcel of that grant under the rule heretofore quoted.

Defendants take the opposite view. They specially contend that the Haines plaintiffs do not have title to any portion of the minerals underlying the 260 foot strip because Mrs. Haines conveyed the fee title to Scurry County to a 100 foot strip which adjoins the 260 feet in controversy on the west and, thereby, conveyed to Scurry County her interest in the minerals under said adjoining 260 foot strip of land to the east. The Boothe plaintiffs say that Mrs. Haines' deed to Scurry County conveyed only an easement, but, regardless of its effect otherwise, Mrs. Haines' deed could not divest the Boothe plaintiffs of their fee title to the eastern part of the 260...