Douglas Oil Co. v. State, 6339.

• Decision Date: 13 May 1933
• Docket Number: No. 6339.,6339.
• Citation: 61 S.W.2d 807
• Parties: DOUGLAS OIL CO. et al. v. STATE (CALIFORNIA CASE).
• Court: Texas Supreme Court

61 S.W.2d 807

DOUGLAS OIL CO. et al. v. STATE (CALIFORNIA CASE).

No. 6339.

Supreme Court of Texas.

May 13, 1933.

Appeal from Court of Civil Appeals of Third Supreme Judicial District.

Action by the State against the Douglas Oil Company and others. Judgment for plaintiff, and defendants appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.

Questions answered.

Francis H. De Groat, of Duluth, Minn., Chas. A. Holden and Hohn Rogers, both of Tulsa, Okl., Chas. Gibbs and Smith & Neill, all of San Angelo, Baker, Botts, Parker & Garwood, of Houston, and E. F. Smith, of Austin, for appellants.

James V. Allred, Atty. Gen., Ralph W. Yarborough, Asst. Atty. Gen., and George T. Wilson, Sp. Counsel, W. A. Keeling, and Edwin H. Yeiser, all of Austin, James Cornell and Robert G. Hughes, both of San Angelo, Brian Montague, of Del Rio, and Cantey, Hanger & McMahon, Mark McMahon, and Gillis A. Johnson, all of Fort Worth, C. B. Collard, of Odessa, and C. W. Trueheart, of Longview, for the State.

PIERSON, Justice.

This case, commonly called the California Case, was brought by the state of Texas through its Attorney General Claude Pollard as an action of trespass to try title. The land involved, situated in Pecos county, Tex., is described as "all that certain area bounded on the north by survey 34½, on the west by surveys 33 and 35, on the south by surveys 28 and 33, all in Block 194, G. C. & S. F. Ry. Co., and also on the south by the Fred Turner, Jr., survey No. 1, and survey No. 61 in Block 1, I. & G. N. R. R. Co., and on the east by said surveys Nos. 34½ and 61," this being followed by a metes and bounds description that ties the area down to the ground. The Yates survey 34½, the Fred Turner, Jr., survey No. 1, and survey No. 61 in block 1 are all definitely fixed upon the ground, thus leaving in dispute as the principal question in the case the true location of survey 34, block 194, which is included in the area described, and also incidentally surveys 33, 35, and 28 in block 194. The contention of defendants Fred Turner, Jr., and Bob Reid is that the surveys in block 194 lying east of block Z are truly located according to their field note calls for course and distance eastward across the block. With this contention the state was originally in accord. The contention of the defendants constituting the Yates group is that surveys in block 194 should be given an excess west to east by projecting a meridian northward from the position claimed by them as the southwest corner of survey 7, block C-3. The defendants constituting the Douglas or Smith group contend for an adjoinder of the lines of block 194 to the river surveys on the east and Runnels county school land on the north.

The case was tried in the district court of Travis county, and at the conclusion of the evidence the case was submitted to a jury upon the following special issues:

"Question No. 1: Is the stone mound marked `N. E. 33 Bl. Z,' referred to in the evidence as `Canon Corner,' in substantially the same position as the original stone mound corner called for in the field-notes of Survey 33, Block Z, as being at its northeast corner? Answer this question `yes' or `no.'

"Question No. 2: How far in varas is the easting between original S. E. corner of Survey 2, Block Z, referred to in this case as Perry Hill corner, according to an east course arrived at by turning off 115 degrees to the right from the northwest bearing of said corner, to the rock mound marked N. W. 62 as set by R. S. Dod for the northwest corner of Survey 62, Block 1, I. & G. N. Railway surveys in Pecos County, Texas? Answer in varas."

The jury answered these questions in the following manner:

"Answer to Question No. 1. Yes.

"Answer to Question No. 2. 14,016 varas."

The trial court held as a matter of law that the surveys in block 194 were properly constructed by course and distance from the east line of block Z, and, upon the foregoing verdict of the jury, rendered judgment for the state of Texas, subject to the rights of intervener Bob Reed, for a tract of land comprising 101.35 acres, lying east of survey 34, block 194, south of survey 34½, block 194, west of survey 34½, block 194, and survey 61, block 1, I. & G. N., and north of Fred Turner, Jr., survey No. 1, and said survey 61. Judgment was rendered against the state of Texas and Fred Turner, Jr., on their pleas of estoppel as to a tract of land comprising 106.5 acres alleged to lie immediately to the west of survey 34 and between surveys 34 and 35, block 194. Judgment was rendered for the state of Texas against the California Company for the sum of $40,615.71, being the value of royalties on minerals taken from the last described tract which was found to be in survey 34, block 194.

The defendants in the trial court appealed to the Court of Civil Appeals, and, since the question of the location of some of the same surveys was involved in the case of Fred Turner, Jr., v. Mrs. M. A. Smith et al., 61 S.W.(2d) 792, already before this court, the honorable Court of Civil Appeals for the Third Supreme Judicial District, after stating the four methods of locating on the ground block 194 as contended for by the several litigants, has certified for our determination upon the whole record in the case questions based on said methods as follows:

"First Method: This method gives effect to the adjoinder calls in field notes of Block 194 for the E. and N. lines of Block Z and for the lines of surveys in Block 12, but rejects all other adjoinder calls for senior surveys to the south, north and east of the sections in Block 194 lying east of Block Z. Under this method the boundary lines in issue are established by course and distance calls for the E. line of Block Z. This method was urged below in the California case by the State and Turner interests, and is still contended for by the latter. It was adopted by the trial courts in the California and Smith-Turner cases.

"In this connection and in connection with the second and third methods it should be noted that the N. E. corner of Block Z is established in both cases by projection from the concededly established S. E. corner of Block Z (Perry Hill corner) and the N. E. corner of Section 33, Block Z (Canon corner). This latter corner was established by jury finding in the California case and by court finding in the Whiteside case. So located the E. line of Block Z has an excess of 30.2 varas per section. It is contended by appellees Reed et al. in the Whiteside case that Block Z was an office survey, that conon corner was not proved an original corner, and that Block Z must be constructed by its field note calls from its established S. E. (Perry Hill) corner. The issue thus raised becomes material to each of the first three methods.

"Second Method: This method differs only from the first in that it does not reject the adjoinder calls in Block 194 for Block 178 or of the latter for Blocks C-3 and C-4. It does reject the adjoinder calls of Blocks 178 and 194 for Block 1, and of Block 194 for Runnels County School Land. It establishes the S. E. corner of Section 7, Block C-3 at 7 miles plus 476 varas E. of Perry Hill corner, giving each of the intervening seven tiers of sections an excess width of 68 varas over field note calls, thus establishing the S. W. corner of Section 7, Block C-3 at 1968 varas west of its S. E. corner. From the thus established S....