"The appellant, R. A. Elliott, on April 1, 1919, instituted this suit against the unknown heirs of E. T. Hilliard in the usual form of trespass to try title to recover the land hereinafter mentioned, with special allegations to the effect that the defendants were claiming mineral rights under a deed from E. T. Hilliard to Joseph Holt, dated February 2, 1883, to the east half of section No. 38, surveyed by the Texas & Pacific Railway Company as an alternate or public school section and situated in Shackelford and Stephens counties. The plaintiff further specially pleaded the five-year statute of limitation.
"On June 5, 1919, Ina G. Nelson, joined by her husband, John R. Nelson, appeared and answered, declaring herself to be the sole heir of E. T. Hilliard, deceased. She denied the allegations of plaintiff's petition, and by cross-bill alleged that she was the owner in fee simple of all minerals in the land described in said petition, and she prayed judgment therefor.
"The trial resulted in a judgment for Mrs. Nelson, and the plaintiff has appealed, and the appeal is now pending before us.
"The material questions involved arise from the following state of facts:
"The land in controversy is known as the east half of section No. 38 in block No. 7, of the surveys made by the Texas & Pacific Railway Company, same being state school land and was appraised and classified under the act of July 8, 1879, as amended by the act of April 6, 1881, and duly placed on the market. It was classified as dry grazing and appraised at $1 per acre. At that time all of this half section was in Stephens county, but later, by the location of a new county line, a part of the tract was included in Shackelford county. On January 3, 1882, E. T. Hilliard duly filed his application to purchase this half section, under said act of 1881, and same was awarded to him. He made the first cash payment, $16, and executed his obligation to the state for $304, for the balance of the purchase money, as required by the act of the Legislature referred to. Afterwards, on the 2d day of February, 1883, E. T. Hilliard, as party of the first part, sold this tract to Joseph Holt for a cash consideration
of $200, and `for the further consideration mentioned,' and executed and delivered to said Holt a deed to the land, which deed contains this clause: `It is further considered and agreed between the parties hereto as a part of the consideration hereof that the said party of the first part hereby reserves the right to and proprietorship of all minerals in, upon and under the said land, together with the free and unimpeded right of entry thereto, and to operate for and pursue and remove the same if any be found, and of prospecting therefor for himself, his agents, employees and assigns, and their agents and employees, provided there shall be by said party of the first part, his agents or assigns no wanton damage done to or destruction of any improvements or buildings by said party of the second part erected upon said land, and the party of the second part hereby accepts this conveyance with all consideration and conditions herein named as for himself and his heirs and assigns forever.'
"This deed was duly recorded, and later filed in the general land office, on February 10, 1890, and on March 28th of that year, the unpaid money having been paid (by whom it does not appear), the land was patented to Joseph Holt `as assignee' of E. T. Hilliard. The patent contains no reservations or exceptions. Through a long chain of deeds and judicial proceedings, whatever title the patent vested in Joseph Holt became vested in one J. A. Sullivan, who, on October 11, 1917, conveyed the land to the appellant, R. A. Elliott, and his wife. This deed contains the following clause: `It being understood that this deed conveys all right, title and interest of the grantors in the above described land, but it is further understood that the grantors do not claim and do not intend to convey the mineral rights in and under the east 1/2 of survey 38, block 7, T. & P. Ry. Company lands.'
"Later, after the appearance and answer of Ina G. Nelson to wit, on the 19th day of September, 1919, Sullivan and wife executed another deed to the same land to R. A. Elliott and wife without exceptions and with general warranty.
"As related to the issue of limitation, it was shown that W. R. Whitehead, the immediate predecessor of J. A. Sullivan in title, on July 2, 1909, leased the whole of section 38, block 7, to the Texas Company for oil and gas development; this lease was seasonably recorded in Shackelford and Stephens counties, but was later, to wit, on July 1, 1913, assigned by the Texas Company to the Producers' Company, which in turn cancelled the lease on August 27, 1913.
"No adverse claims to the minerals other than as indicated by said lease were made prior to the institution of this suit, nor was any effort ever made to explore the land for minerals or to take actual possession thereof. Appellant, Sullivan, and Whitehead, however, claiming as owners, held actual possession of the half section of land in controversy for at least the full period of five years prior to the institution of the suit, paying all taxes due thereon.
"The appellant, Elliott, testified, among other things, that he was 55 years of age and had lived in Shackelford county, with the exception of two years, since 1877, and further testified that: `In 1881, 1882, and 1883 there was not any character of mining going on in Stephens county that I know of. There was not any mining going on in Shackelford county that I know of. There was not anybody mining for anything in the counties, that I can now recall, in 1881, 1882, and 1883. Well. I do not remember what year, but I know that some coal mines — that there were some coal mines over in toward Graham, some place. That was years ago. I do not remember what year. Also had some copper mines a little west of here.'
"Judge B. F. Reynolds testified to the effect that he had lived in Throckmorton county since 1859, and further testified: `I do not know whether or not there was any coal being mined or attempted to be mined in Stephens county in 1881, 1882, and 1883. There was some coal found. There was some discovery of coal down there. That discovery was in above Crystall Falls there. I could not say the year. It has been many years ago. I do not know just — must have been as early as before '75 — before 1875. Crystall Falls is in Stephens county, I believe. That was above Crystall Falls, in about the mouth of King creek, right on the Clear fork of the Brazos. During the years 1880, 1881, 1882, and 1883, I never heard anybody discuss the existence of natural gas and coal oil in this section of the country. I never heard it mentioned during that time. I have been hearing it mentioned for the last 10 years. I never heard of either gold or silver being mined up there. I never heard of any copper being mined in this county. Some was up in Stonewall county — I first heard of copper up in Stonewall county 20 or 30 years ago. It was a long time ago. There was some mining up there.'
"The record is silent as to whether either E. T. Hilliard or Joseph Holt, at the time of the conveyance to Holt, knew or had ever heard of oil or gas, or had ever heard or discussed the possibility or probability of either oil or gas or other minerals being in or under the land in controversy. It is undisputed that at the time of the said purchase by E. T. Hilliard and of his conveyance to Holt that the appellee, Ina G. Nelson, was the lawful wife of said E. T. Hilliard, long since deceased, and is now his sole and only heir, entitled to recover whatever interest, if any, that exists by virtue of the reservation in the deed from Hilliard to Holt; and she testified that she first learned of an adverse claim to the mineral rights in the land in controversy in June, 1919. * * *
"We deem it advisable to certify to your honors for determination the following questions arising upon the facts heretofore stated:
"(1) Did E. T. Hilliard by his purchase from the state acquire any interest or right to the minerals in and under the land so purchased to which the reservation in his deed to Holt attached and became operative and effective?
"(2) If question No. 1 be answered in the affirmative, then did the reservation include within its operative effect oil and gas?
"(3) If question Nos. 1 and 2 be answered in the affirmative, then is Mrs. Ina G. Nelson precluded from a recovery herein by either the state patent to Holt or by laches or limitation?"
