Choice v. Texas Co.
| Decision Date | 16 January 1933 |
| Docket Number | No. 4482.,4482. |
| Citation | 2 F. Supp. 160 |
| Parties | CHOICE et ux. v. TEXAS CO. |
| Court | U.S. District Court — Northern District of Texas |
H. S. Garrett and H. R. Wilson, both of Ft. Worth, Tex., for the motion.
Allen & Allen and E. G. Moseley, all of Dallas, Tex., opposed.
Plaintiffs sue for the value of oil alleged to have been converted by defendant. They say it was taken from a fifty-acre tract of land in Gregg county, Tex. They claim that they were the owners, "in fee simple of all the oil * * * under the tract and parcel of land so situated"; that the defendant, beginning in October, 1931, drilled oil wells on that land and took therefrom 66,631 barrels, "of the reasonable market value at the time of such taking and conversion of $58,845.83"; that this amount was exclusive of the royalty, for which no claim is made; that such conversion was accomplished by the defendant by shipping and transporting the oil to refineries, the whereabouts of which are to the plaintiffs unknown, but that the same was converted into gasoline, which was then disposed of; that the conversion was accomplished by running oil out of the wells, and into the storage tanks, built by the defendant and thereafter transported through pipe lines and otherwise; and that at the time of conversion from the storage tanks the same was the personal property of the plaintiffs because, "it had been previously drained and removed from wells located on said property."
Their suit was brought in the District Court of Dallas county and was seasonably removed.
Gregg county is in the eastern district of Texas, and is about one hundred miles from Dallas. Dallas county is in the northern district.
The defendant moves to abate the cause on the ground that it is a local and not a transitory action in that it is in reality a suit to be determined by the title to the land; that, while it purports to be for conversion of certain oil, it is for ejectment.
In addition to the allegations of the plaintiffs' petition which make no direct claim of possession of the land by the plaintiffs, and which seems to show possession thereof by the defendant, proof was offered tending to support the defendant's theory that it had drilled the wells after having secured a regular chain of title from the sovereignty of the soil into itself, and after having entered into possession of the land thereunder, and after having asserted, in good faith, title thereto.
The evidence, as well as the pleadings, drive the court to the conclusion that it is a battle between the plaintiffs and the defendant for the land, each claiming the title thereto.
Actions of this sort, under the Texas practice, are local and must be brought in the county where the land is situated. A settlement of the question of title between the plaintiffs and the defendant may not be had by a trial for conversion of that which was once a part of the realty.
While it is true that trover is the technical name of the common-law action provided for the redress of a conversion, such form of remedy will not lie when ejectment should be asked. A personal action cannot be substituted for an action to try title. As stated in 38 Cyc., 2040, "trover will not lie when title to land is an issue."
That which is severed from the soil and converted may be salvaged by a plaintiff who is in actual possession of the soil, or when the defendant's possession of the soil was only fugitive, fraudulent, and under no bona fide claim of title, but was a mere wrongdoer. Under such circumstances, a plaintiff of course, would be entitled to immediate possession of the severed minerals.
The rule seems to be, as supported and made by the weight of authority, that a plaintiff out of possession may maintain an action for damages for conversion against a defendant in possession who has taken minerals from the soil, when the defendant came into possession by wrongful seizure of the realty and is a mere wrongdoer with no claim of interest in the land. In other words, when the possession of the defendant is fraudulent, or, when ...
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