Brightwell v. International-Great Northern R. Co.

• Decision Date: 26 June 1931
• Docket Number: No. 9696.,9696.
• Citation: 41 S.W.2d 319
• Parties: BRIGHTWELL et al. v. INTERNATIONAL-GREAT NORTHERN R. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

41 S.W.2d 319

BRIGHTWELL et al. v. INTERNATIONAL-GREAT NORTHERN R. CO.^*

No. 9696.

Court of Civil Appeals of Texas. Galveston.

June 26, 1931.

Rehearing Denied July 22, 1931.

Appeal from District Court, Anderson County; Ben F. Dent, Judge.

Suit by W. J. Brightwell and others against the International-Great Northern Railroad Company. Judgment for defendant, and plaintiffs appeal.

Affirmed.

Young & Wynne, of Henderson (Toddie L. Wynne, of Henderson, of counsel), for appellants.

Barkley & Webb and McDonald Meachum, all of Houston, amici curiæ.

Andrews, Streetman, Logue & Mobley, Sewell, Taylor, Morris & Garwood, and E. J. Fountain, Jr., all of Houston, for appellee.

GRAVES, J.

Appellants assail an order of the Anderson county district court holding the railroad company to have a fee-simple title to the strip of land involved and refusing, on their application, to temporarily enjoin it from drilling for oil thereon, ably contending that the deed under which the company holds only gives it a mere easement in the surface of the soil for the single purpose of operating its railway "over and upon" the same; the deed involved was on one of the railroad company's printed forms, except as to the underscored recitations, which were written in, apparently, by the grantor in his own handwriting, as a photostatic copy of the instrument attached to the statement of facts indicates, and was as follows:

"Know All Men By These Presents: That for and in consideration of the enhanced value to be given, and is contemplated to arise to my Lands and other property by the location and construction of the International Railroad, and for the further consideration of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, J. M. Thompson of the County of Rusk, and State of Texas, have granted, bargained, sold and released, and by these presents do grant, bargain, sell and release to the International Railroad Company a strip of (200) Two Hundred feet in width of land over the tracts of land particularly described as follows: viz., a tract in Rusk County known as six hundred twenty-eight acres of E. G. Sevier survey and one hundred fifty acres of the W. P. Chisum league over and upon which the said Company has built or may hereafter build its railroad and also the right to have the same strip of land in width, over and upon any other lands now owned or which may be hereafter owned by me in this State, through which said Railroad has been, or may be hereafter built; together with all and singular the rights, members, hereditaments and appurtenances to the same belonging or in anywise incident or appertaining:

"To Have And To Hold all and singular the said premises unto the said International Railroad Company, or its assigns, forever.

"And for the considerations aforesaid, as herein set forth, I do further grant to said Company such earth, material, timber and rock as may be found on my lands herein mentioned, and granted herein as right of way which may be required for the construction of said Railroad; and I do hereby grant to said Company a full release from all claims against said Company for damages that may be sustained by their work in the construction and for right of way of said Railroad over any of the said lands.

                "Witness my hand this Oct. 28th, 1871
                "J. M. Thompson."
                

After adopting as his own the agreed statement of facts the parties had reduced to writing and filed, the learned trial judge stated these conclusions of law:

"1. I conclude as a matter of law that under the terms and provisions of the deed from J. M. Thompson to International Railroad Company, dated October 28, 1871, a fee simple title to a strip of land two hundred (200) feet in width was thereby conveyed to said railroad company and that the defendant herein is the present legal and equitable owner of said strip of land.

"2. I further conclude as a matter of law that it was not the purpose or intention of any of the parties to said deed by inserting in said deed the last paragraph thereof to in any way limit or lessen the fee simple title theretofore granted and conveyed to the railroad company in the granting clause of the deed. I further conclude that it was the intention and purpose of the parties to said deed to give and grant to said company rights additional to those granted in the granting clause of the deed and that the interlineation of the words "and granted herein as right of way" does not in any way limit the fee simple title and that it was not the intention of the parties by such interlineation to place a limitation or condition upon the fee simple title theretofore granted, but that the purpose and intention of the parties by such interlineation were to prevent the grantee in said deed from going upon other lands through which the 200 foot strip was conveyed for the purpose of taking therefrom earth, material, rock, timber, etc., and that this was the only purpose of such interlineation.

"3. I further conclude that by the last paragraph in the deed above mentioned the fee simple title was not in anywise lessened or contracted, but that by said paragraph additional valuable rights passed to the grantee in said deed, in that such grantee was relieved of liability which might be incurred by it in the construction of its railroad. That the insertion of said clause was permissible, but that the use of the words "right of way" therein is not inconsistent with the granting clause in the deed, but the use of said words can be harmonized with the construction I have placed upon the deed, giving all parts of the deed and all of its words and provisions force and effect.

"4. I further conclude as a matter of law that the strip of land involved in this suit is a part of the land conveyed by J. M. Thompson to International Railroad Company on October 28, 1871, that the defendant herein is now and has been in continuous possession thereof since October, 1871; that the defendant herein, being the present legal and equitable owner thereof, and being in possession of said land, is entitled to drill wells thereon and to take oil and gas therefrom. I, therefore, find that plaintiffs are not entitled to the temporary writ of injunction or other injunctive relief.

                           "Ben F. Dent, Judge Presiding."
                

Being in agreement with and unable to improve upon this construction of the deed, this court affirms the judgment based upon it, and cites as supporting the conclusion these authorities: R. S. Articles 1291-2-3; Kynerd v. Hulen (C. C. A.) 5 F.(2d) 160, certiorari denied, 269 U. S. 560, 46 S. Ct. 20, 70 L. Ed. 411; Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268; Lindsay v. Freeman, 83 Tex. at page 263, 18 S. W. 727; Olcott v. Gabert, 86 Tex. 121, 23 S. W. 985; Taylor v. County School Trustees (Tex. Civ. App.) 229 S. W. 670; Cartwright v. Trueblood, 90 Tex. 535, 39 S. W. 930; Calcasieu Lumber Company v. Harris, 77 Tex. 18, 13 S. W. 453; Stephenson v. St. L. S. W. R. Co. (Tex. Civ. App.) 181 S. W. 568, writ of error refused; Crowell & Conner et al. v. Howard (Tex. Civ. App.) 200 S. W. 911; Stevens v. G. H. & S. A. R. Co. (Tex. Civ. App.) 169 S. W. 644; Id. (Tex. Com. App.) 212 S. W. 639; T. & N. O. R. Co. v. Orange County (Tex. Civ. App.) 206 S. W. 539; I.-G. N. R. Co. v. Brady (Tex. Com. App.) 283 S. W. 484; Right of Way Oil Co. v. Gladys City Oil Co., 106 Tex. 94, 157 S. W. 738, 51 L. R. A. (N. S.) 268; New Mexico v. United States Trust Co., 172 U. S. 171, 19 S. Ct. 128, 43 L. Ed. 407; Joy...