Cordell Petroleum Co. v. Michna
| Citation | 276 F. 483 |
| Decision Date | 23 November 1921 |
| Docket Number | 3602. |
| Parties | CORDELL PETROLEUM CO. v. MICHNA et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
W. D Gordon, of Beaumont, Tex., and K. C. Barkley, of Houston Tex., for appellant.
B. K Goree and Wm. E. Allen, both of Fort Worth, Tex., and P. B Cox, I. W. Keys, Tarlton Morrow, and W. F. Weeks, all of Wichita Falls, Tex., for appellees.
Before WALKER, BRYAN, and KING, Circuit Judges.
This is an appeal from a final decree dismissing appellant's bill of complaint, in which the following averments were made:
That on May 6, 1889, the state of Texas by letters patent conveyed to Newton S. Walton a tract of land described in the A. A. Durfee survey; that Walton died in 1894; and that appellant purchased from his devisees certain described land included within the said Durfee survey.
That Walton by his will appointed Robert J. Hill and Jefferson Johnson independent executors, with power to sell real estate which in their opinion could not be partitioned; that Hill failed to qualify as executor; but that Johnson qualified and acted as sole executor, as it is conceded he had the right to do under the terms of the will.
That on April 22, 1913, Johnson, as independent executor, for a consideration of $100, executed a deed to one D. P. Taylor of all the land in the Durfee survey; that appellees claimed to have acquired title by deed from Taylor to appellant's land in the Durfee survey, and were exercising acts of ownership; and that some of them had placed on record leases and documents which constituted clouds upon appellant's title.
That the deed from Johnson to Taylor was void, for the reasons that Johnson's authority to make it had long since ceased; that the consideration was inadequate; and that title had theretofore become vested in the devisees under Walton's will.
That oil had been discovered in the vicinity of the land; that appellees were executing leases and conveyances thus casting clouds upon appellant's title, and were striving to prevent by force and violence the exercise of acts of ownership by appellant.
The bill prayed for an injunction restraining appellees from interfering with appellant, and from committing further trespasses upon the land; that the deeds under which appellees claim be canceled as clouds upon appellant's title, and for general relief.
Appellees pleaded title (1) under the deed from the independent executor to Taylor; (2) by adverse possession under the Texas statutes of limitations; and (3) under prior letters patent, issued by the state of Texas in 1879, of a tract of land described in the F. W. Huseman survey, which included the land in suit. It was thereupon averred that the later patent of the land described in the Durfee survey was void.
Walton's will contained the following instructions:
Appellant's deed from the devisees under this will was dated July 26, 1919, at a time when the discovery of oil upon the lands in litigation was considered probable.
In the year 1861, R. F. Luckett, district surveyor for the state of Texas, made surveys of a number of tracts of land south of Red river in Wichita county, Tex., among them being survey 819, in the name of William Droddy. The field notes of the Droddy survey were not introduced in evidence, but the survey is represented by a map filed in the General Land Office as being bounded on the north by Red river, on the west by survey 820, in the name of Lewis Powell, and on the east in part by survey 818, in the name of T.E. & L. Co.
The field notes of the Huseman survey were introduced in evidence, and are as follows:
The Huseman survey is given the number 819, which is represented on the official surveyor's map as being the number of the Droddy survey.
Survey 818 is bounded on the east by survey 812, in the name of Elizabeth Stanley, and the Stanley survey in turn is bounded on the east by survey 810, in the name of William R. Rivers. The field notes of each of these surveys were introduced in evidence. The field notes of the survey lying farthest east, which is survey 810, represent its western line as 'beginning at a stake on the bank of Red river'; thence south and east and north 'to a stake on the bank of Red river'; thence 'up the river with its meanders to the place of beginning.' The field notes represent the Stanley survey, 812, as beginning at the northwest corner of survey 810, and thence 'up the river with its meanders,' to a 'stake in bottom chittim,' etc. The field notes represent the T.E. & L. Co. survey, 818, as lying 'on the south bank of Red river,' and as 'beginning at the upper or N.W. corner of No. 812, a stake in river bottom a chittim'; thence 'up the river with its meanders' to a 'stake in bottom.' ...
To continue reading
Request your trial
-
State of Oklahoma v. State of Texas United States
...Tex. 257, 271, 272, 94 Am. Dec. 304; Schnackenberg v. State, supra; Stover v. Gilbert, supra, and cases there cited; Cordell Petroleum Co. v. Michna (C. C. A.) 276 F. 483. The evidence, as pointed out by the master, does not admit of the conclusion that the surveyor mistook a bayou or other......