Cox v. Campbell

• Decision Date: 02 October 1940
• Docket Number: No. 6941.,6941.
• Citation: 143 S.W.2d 361
• Parties: COX et al. v. CAMPBELL et al.
• Court: Texas Supreme Court

Page 361

143 S.W.2d 361

COX et al. v. CAMPBELL et al.

No. 6941.

Supreme Court of Texas.

October 2, 1940.

Error to Court of Civil Appeals, Seventh District.

Trespass to try title suit by Edwin B. Cox and others against Fannie B. Campbell and others. To review a judgment of the Court of Civil Appeals, 80 S.W.2d 1000, affirming a judgment for defendants, plaintiffs bring error.

Judgments of trial court and of Court of Civil Appeals reversed and cause remanded with instructions.

W. H. Sanford and Conan Cantwell, both of Dallas, and Black, Graves & Stayton, of Austin, for plaintiffs in error Cox and others.

Bibb & Bibb, of Marshall, for defendant in error Oil Co.

T. D. Gresham and R. S. Shapard, both of Dallas, for defendant in error T. & P. Ry. Co.

Greenwood, Moody & Robertson, of Austin, for defendants in error Campbell and Barton.

SHARP, Justice.

Plaintiffs in error sued the defendants in error in trespass to try title to recover a narrow strip of land, approximately 21.6 varas wide and 1130 varas long, being a part of the north half of the Texas & Pacific Railway Company right of way in Gregg County, Texas. Plaintiffs in error failed to recover judgment in the trial court, and on appeal to the Court of Civil Appeals at Amarillo that court affirmed the judgment of the trial court. 80 S.W.2d 1000.

In 1876 C. B. Carter acquired a 296 acre tract of land. Carter's predecessor in title had conveyed to the Southern Pacific Railway Company a right of way 200 feet wide across this land, which is now owned by the Texas & Pacific Railway Company. After Carter's death his executrix sold T. M. Campbell a tract recited to be 118 acres on the north side of the railroad right of way, which tract, described by metes and bounds, went to the center of the railroad right of way. The executrix also sold Campbell a portion of the land on the south side of the railroad right of way, which conveyance also ran to the center line of the railroad right of way, and it was recited to contain 68 acres. In 1898 T. M. Campbell conveyed to J. R. Castleberry the following described land: "Beginning at a stake on the north boundary of the Texas and Pacific Railway right of way; Thence North 411½ vrs. to a stake from which a black jack brs S 45' E 5 vrs; Thence East 1325 vrs. a stake from which a post oak brs S. 63 ft W. 2 vrs; a sweet gum brs S 60' E 2½ vrs; Thence South 511½ vrs a stake on the north boundary line of the Texas and Pacific Railway right of way from which a pine brs N 26' W 9 vrs; Thence with said Texas and Pacific Railway right of way to the place of beginning, containing 108 acres of land, more or less."

In 1904 T. M. Campbell conveyed to G. B. Turner the 68 acre tract on the south side of the railroad, and described it as follows: "Bounded on the east by a 50 acre tract of land owned by G. B. Turner purchased by him from N. W. Rodden; Bounded on the north by the right of way of the Texas and Pacific R. R.; And on the West by a 50 acre tract owned by the said G. B. Turner and known as the J. F. Neal tract of land; Bounded on the south by the Katie Moore Boham tract of land."

In order to give a general view of the situation, the following plat is inserted:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The land involved in this suit is the strip of land lying between the south line of the tract conveyed by Campbell to Castleberry, extending to the center of the railroad right of way. The sole issue in this case is whether the description in the deed from Campbell to Castleberry had the legal effect to transfer the title from Campbell to Castleberry to the center of the railroad right of way, subject to the rights of the Texas & Pacific Railway Company. Plaintiffs in error contend that the description in the deed carried the title to the center line of the railroad right of way, and defendants in error contend that it stopped at the north boundary line of the railroad right of way. If title to the land passed to Castleberry to the center of the right of way, then plaintiffs in error are entitled to recover here. On the other hand, if title passed only to the north boundary line of the right of way, then defendants in error are entitled to recover here. Of course the claims asserted by all parties are subject to the right of the Railway Company. This has been agreed to by a stipulation between the parties.

As to whether or not a conveyance with field notes which describe property to the boundary line of a street or public highway carries title to the center of the street or public highway has long been a fruitful source of controversy. Many decisions may be found upon both sides of the question. We shall not review them here. In the early case of Mitchell v. Bass, 26 Tex. 372, this Court announced the following rule: "The established doctrine of the common law is, that a conveyance of land bounded on a public highway, carries with it the fee to the centre of the road, as part and parcel of the grant. Such is the legal construction of the grant, unless the inference that it was so intended, is rebutted by the express terms of the grant."

The rule announced in the foregoing case has been consistently followed and applied in this State. In the important case of Texas Bitulithic Co. v. Warwick, Tex. Com.App., 293 S.W. 160, it was held that a deed to a city lot, fronting or abutting on a street, described by metes and bounds, carries the fee to the center of the street, unless the contrary is expressly declared. The deed involved in that suit described the property conveyed by metes and bounds, stopping at the line of the street. Judge Powell wrote the opinion in that case, and, after an exhaustive review of the authorities held that the conveyance carried the title to the center of the street.

Later the case of Rio Bravo Oil Co. et al. v. J. F. Weed et al., 121 Tex. 427, 50 S.W.2d 1080, 1083, 85 A.L.R. 391, reached this Court. That suit involved the title to .43 of an acre of land, being a narrow strip included within the right of way of the Texas-New Orleans Railway, and being a part of a 52 acre tract which was partitioned by the owners. The railroad ran across the 52 acres. The land was divided into eight tracts. A plat was made thereof, and each tract was definitely described by field notes and the number of acres in each tract specifically named. The lines of the plat stop at the railroad right of way, and all of the field notes of the tracts of land abutting the right of way specifically call for the boundary line of the right of way, and not the center thereof; and both the field notes and the acreage described in said lots exclude the land in the railroad right of way.

J. M. Hebert owned an interest in the 52 acre tract of land partitioned. He received as his share of the land lots Nos. 2 and 4, which lie on one side of the railroad right of way, and lots Nos. 6 and 8, located on the opposite side of the railroad right of way, as shown by the plat made of said partition. The plat inserted in the opinion rendered in the Weed case shows that lots 4 and 6 adjoin the railroad right of way on opposite sides. Hebert conveyed to Weed, by specific field notes calling for the line of the railroad right of way, the S. E. one-half of lot No. 6, containing 3.45 acres of land. It also appears that the land included in the railroad right of way abutting the land conveyed by Hebert to Weed was excluded in the field notes and also in the acreage expressed therein. At the time Hebert conveyed the land to Weed he owned land on both sides of the railroad right of way. The land involved in that suit, as shown from the plat set out in the opinion, was part of the right of way of the railroad company, and not included in the field notes,—just as is the case here. Perhaps no other case was ever considered more seriously and for a greater length of time by this Court than was the Weed case. It was referred to the two sections of the Commission of Appeals, and the opinions written by each section were not acceptable. Finally it was argued to the Court and the two sections of the Commission of Appeals; and the conferences held by the Court and the two sections of the Commission, in reaching a conclusion in that case, are still fresh in the memory of those who participated therein. It was contended in the Weed case, as it is contended here, that, by reason of the fact that the field notes in the deed specifically describing the land stopped at the line of the railroad right of way, the deed did not convey title to the center of the right of way. Judge Leddy wrote the opinion of the Court. Inserted below is the pertinent part of the plat of the land involved in the Weed case, which shows the land owned by Hebert abutting the railroad right of way at the time he conveyed part of lot No. 6 to Weed, and its relation to the railroad right of way.

NOTE:...