Carter v. Texas Co., 1909-6456.

• Decision Date: 04 December 1935
• Docket Number: No. 1909-6456.,1909-6456.
• Citation: 87 S.W.2d 1079
• Parties: CARTER et al. v. TEXAS CO.
• Court: Texas Supreme Court

87 S.W.2d 1079

CARTER et al. v. TEXAS CO.

No. 1909-6456.

Commission of Appeals of Texas, Section A.

December 4, 1935.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by the Texas Company against G. W. Carter, C. Andrade III, and others. Judgment for defendants was reversed and cause remanded by the Court of Civil Appeals, [52 S.W.(2d) 1063] and defendants bring error.

Judgment of Court of Civil Appeals affirmed.

J. P. Rice, Golden & Croley, Hamilton & Hamilton, and W. B. Hamilton, all of Dallas, and W. E. West, of Canton, for plaintiffs in error.

H. S. Garrett and H. R. Wilson, both of Fort Worth, for defendant in error.

HARVEY, Commissioner.

This is a suit in trespass to try title brought by the Texas Company against G. W. Carter, C. Andrade III, and others. The suit is one of boundary, involving the oil and gas leasehold estate in a strip of land about 80 feet wide and containing about 4 acres of land. The lease held by the Texas Company is prior in point of time to the lease held by Andrade. Both leases emanated from G. W. Carter and wife. The case was tried before a jury, but at the conclusion of the plaintiff's testimony the trial court concluded that no fact issue was raised, and peremptorily instructed the jury to return a verdict for the defendants. The verdict was so returned and judgment was entered accordingly. The Court of Civil Appeals reversed the judgment and remanded the cause. Texas Co. v. Andrade, 52 S.W.(2d) 1063.

The testimony offered by the plaintiff, the Texas Company, shows the following facts, which, omitting all details not presently material, will be stated in narrative form:

On April 20, 1928, G. W. Carter and wife executed to John Easterwood an oil and gas lease on a tract of land which is recited in the lease as containing 158 acres of land, more or less. Easterwood assigned the lease to the Texas Company, and the company claims that said lease embraces the strip of land in controversy. The lease contains the following description of the tract:

"All that certain tract of land situated in the County of Van Zandt, State of Texas, and containing 158 acres, more or less, described as follows, towit:

"Being a part of the Wm. Daniel Survey and fully described in deed from S. M. Murphree and wife to M. C. McKenzie which said deed is recorded in Vol. 27, page 404, deed records of Van Zandt County, Texas, to which reference is hereby made for a description of said lands."

The deed from S. M. Murphree and wife to M. C. McKenzie, to which reference is made in the lease, was executed and recorded in the year 1869, and the land is described therein as follows: "All that certain tract or parcel of land known and described as follows lying on Village Creek in the County of Van Zandt known as part of the south third of the William Daniel League patented to him by the authorities of the State above named by Patent No. 143 Vol. 10 dated at the City of Austin on the 22nd day of February A. D. 1861 said lands are bounded as commencing one-half a mile west of the southeast corner of the south third of said league; thence running west with original league line one half a mile; thence north with a marked line one half mile; thence east one half a mile; thence south to the place of beginning, to contain one hundred and sixty acres of land, more or less."

G. W. Carter subsequently acquired from M. C. McKenzie the same land by deed which contains the same description as contained in the deed of 1869. Carter still owns said tract of land.

As the land covered by the lease held by the Texas Company is the same, so far as the present controversy goes, as that covered by the deed of 1869, the description of the land as contained in that deed rules the case. It appears in testimony that the true location on the ground of the east boundary line of the tract and of the west...