Collier v. Caraway

• Decision Date: 29 May 1940
• Docket Number: No. 3596.,3596.
• Citation: 140 S.W.2d 910
• Parties: COLLIER et al. v. CARAWAY et al.
• Court: Texas Court of Appeals

140 S.W.2d 910

COLLIER et al. v. CARAWAY et al.

No. 3596.

Court of Civil Appeals of Texas. Beaumont.

May 29, 1940.

Appeal from District Court, Hardin County; Robert A. Shivers, Special Judge.

Suit in trespass to try title by T. J. Caraway and others against Mrs. Vera Collier and others. From the judgment, plaintiffs and defendants appeal.

Affirmed in part, and reversed and rendered in part.

Fortenberry & Fortenberry and E. E. Easterling, all of Beaumont, James F. Parker, of Kountze, and W. O. Bowers, Jr., and Orgain, Carroll & Bell, all of Beaumont, for appellants.

J. L. Goggans, of Dallas, and J. R. McDougald and J. R. Beck, both of Beaumont, for appellees.

COMBS, Justice.

This is a suit in trespass to try title, involving the ownership of the oil, gas, and other minerals in 53 acres of the Joseph Ellery League of land in Hardin County. Appellee T. J. Caraway and his wife, now deceased, were common source of title. Appellants T. J. Caraway et al. claim to the oil and gas estate originated as follows:

By general warranty deed, dated March 19, 1907, T. J. Caraway and wife conveyed the 53 acres of land in question to their daughter Mrs. M. J. Calloway as a gift. That deed, after the description of the land and immediately before the habendum clause, contained the following clause: "The privilege to drill an oil well is hereby reserved unto the grantors, upon the hereinabove described tract of land." That clause is the only reference in the deed to the mineral reservation. The deed was recorded on the date of its execution. By deed dated April 17, 1922, Mrs. Calloway, then Mrs. Jackson (she having married W. A. Jackson in the meantime), joined by her husband conveyed the land to John Haynes, who, joined by his wife, conveyed it to J. N. Collier by deed dated August 31, 1925. Said two deeds carried the clause reserving the right to drill an oil well in haec verba as set forth in the deed from T. J. Caraway to Mrs. Calloway and above quoted. By deed dated November ___, 1929, J. N. Collier and wife conveyed the land to S. C. Harris, reserving in said deed one-half of the mineral rights. No reference was made to the reservation in the former deeds of the right to drill an oil well on said land. April 19, 1931, S. C. Harris conveyed the land to Emma P. Theus, subject only to the reservation of one-half the minerals by the Colliers. March 6, 1934, Mrs. Theus and husband executed an oil and gas lease to J. W. Parr, who assigned it to Humble Oil and Refining Company April 17, 1934. There were several subsequent conveyances of mineral interests, leases, royalties, etc., none of which made any reference to the Caraway-Calloway reservation of the "right to drill an oil well." Neither the Caraways nor anyone holding under them have ever entered on the land and drilled for oil and, so far as the records show, the Caraways never executed any lease or conveyance of the mineral rights or claim, whatever it was, reserved by the Caraways in the deed to Mrs. Calloway in 1907, until January 28, 1938, when T. J. Caraway and the heirs of his deceased wife executed an oil and gas lease to appellant David E. Coffman. It was stipulated: "That prior to the early summer of the year 1936 there had not been any actual drilling for oil in that immediate vicinity of the land in question; the nearest oil field to the land in controversy prior to the early summer of the year 1936 being about nine miles distance, which oil field came in about 1928." This suit was filed August 29, 1938.

As above stated, the Caraways' suit is in the form of trespass to try title and they assert ownership of the entire oil and gas estate by virtue of the reservation above set forth, subject to the lease which they made to Coffman. The first count of their pleading was in ordinary form of trespass to try title. The second count was to the effect that the reservation clause was ambiguous, and therefore the court should permit parol evidence to show the intention of the parties, which intention was to reserve all the oil, gas, and other minerals. The third count alleged in the alternative that if the language of the reservation was insufficient to reserve to them the oil, gas, and other minerals, that same was the result of a mutual mistake of which the defendants had notice, and they sought reformation of the instrument to make it speak the true intention of the parties so as to reserve the oil, gas, and other minerals. The appellees in addition to their plea of not guilty, specifically, plead title in themselves by virtue of the 3, 5, 10 and 25 year statute of limitation. They further plead the 2, 4, and 10 year statute of limitation in bar of appellants' suit, and further plead specifically laches, and the statute of frauds. Two oil companies were originally parties to the suit by virtue of leases. But the controversy as to them seems to have been settled. So, the controversy before us is simply between the Caraways and others claiming title by virtue of the reservation and Mrs. Collier and others claiming under deed from the Caraways to Mrs. Calloway.

The facts as above briefly stated appeared without dispute. The trial court instructed a verdict and entered judgment to the effect that the appellees, Caraway et al., take nothing "except as to the right to enter in and upon said above described tract of land and drill one oil well thereon and to receive, sell and dispose of any oil produced from said well together with the right to egress and ingress upon the above described land for the purpose of drilling said well and producing and removing therefrom the oil to be so produced and removed therefrom if any." Both sides have perfected appeals from that judgment.

Opinion.

For convenience we will refer to the parties claiming under the reservation as the Caraways, and the parties claiming under the deed to Mrs. Calloway as the Colliers.

The first contention of the Caraways is to the effect that the clause in the deed to Mrs. Calloway reading, "The privilege to drill an oil well is hereby reserved unto the grantors, upon the hereinabove described tract of land", reserved to the grantors the same character of ownership of the oil and gas estate with the incidental rights of exploration, production, and marketing, as vests in the lessee by an ordinary oil and gas lease, except that it did not provide any limitation or condition which would defeat the fee title so reserved. Thus, as we construe their contention, it is that the Caraways by virtue of the reservation, retained the oil and gas estate in fee to be enjoyed at will and in perpetuity. As against that contention the Colliers contend that the clause in question is too vague and uncertain to reserve anything, and, second, that in any case, what was reserved was not in the nature of fee ownership of the oil and gas but only the personal right to enter upon the land in question and drill one well. They contend further that since the alleged reservation created a mere equitable right it was such right as could be lost, and under the facts has long since been lost, under the doctrine of laches and stale demand.

In the outset, and without any extended discussion, we overrule the contention that the clause in question was of no force and effect because too vague and indefinite to reserve anything to the grantors. By its plain terms it reserved to the grantors "the privilege to drill an oil well" on the land which was conveyed. True it said nothing about incidental rights of use of the surface. But several oil fields notably Spindletop in Jefferson County, and Sour Lake, Saratoga, and Batson in Hardin County, all within a radius of some thirty miles of the land in question, had been developed by the drilling of wells and the production of oil for several years. The necessary incidental rights to the drilling of an oil well and the producing and marketing of oil therefrom were then established in this region and were doubtless understood by the grantors and the grantee. Therefore such incidental rights were embodied by necessary implication in the reservation.

We overrule the contention of the Caraway's that the reservation had the effect of reserving to them the oil, gas and mineral estate under the land. There were no apt words specifically reserving the mineral estate or the oil and gas. In fact there was no mention of or direct reference to the mineral estate or oil and gas as such. What was reserved by apt words was simply "the right to drill an oil well." That and nothing more. Hence the reservation clause contained no apt words either specifically reserving the oil and gas or from which it can be inferred that the oil and gas estate was the subject of the reservation. Ownership of the oil estate was not essential to the exercise of the right reserved to drill an oil well. Certainly one may by appropriate contract acquire or reserve the right to drill an oil well upon the land of...