O'Fiel v. Brooks

• Decision Date: 04 November 1936
• Docket Number: No. 5015.,5015.
• Parties: O'FIEL v. BROOKS.
• Court: Texas Court of Appeals

98 S.W.2d 266

O'FIEL v. BROOKS.

No. 5015.

Court of Civil Appeals of Texas. Texarkana.

November 4, 1936.

Rehearing Denied November 12, 1936.

Error from District Court, Upshur County; Walter G. Russell, Judge.

Action in trespass to try title by Carrie Brooks against David E. O'Fiel and another. Judgment was rendered, and the named defendant brings error.

Affirmed.

David E. O'Fiel and D. C. Bland, both of Beaumont, for plaintiff in error.

Edwin M. Fulton and Robert W. Cummins, both of Gilmer, for defendant in error.

HALL, Justice.

This is an action in trespass to try title brought by defendant in error against plaintiff in error and G. C. Bradfield concerning 60 acres of land, a part of the Davidson headright located in Upshur county, Tex. G. C. Bradfield was dismissed from the suit and will not be considered on this appeal. Defendant in error's petition stated a simple action in trespass to try title to the land in controversy and alleged that defendant in error and Bradfield were residents of Jefferson county, Tex. To this action plaintiff in error filed his plea of privilege to be sued in the county of his residence. This plea was controverted, and, upon hearing, the plea of privilege was overruled, to which action of the court plaintiff in error duly excepted. Subject to his plea of privilege plaintiff in error answered, alleging that he was the owner of 3/256 interest in all the minerals in and under the land in controversy. He disclaimed as to all other interest in the land, except the right of ingress and egress. Trial was had before the court without a jury upon an agreed statement of facts, and resulted in a judgment for plaintiff in error to:

"An undivided 3/256 interest in and to all the oil, gas and other minerals in place, in and under the above described tract of land, subject to the terms of the oil and gas lease existing thereon, now owned by Magnolia Petroleum Company, and 3/256 of the 1/8 royalty on all the oil, gas and other minerals created or retained by the terms of the said lease, which is equivalent to 3/2048 of all the oil, gas and other minerals produced and saved from said lease premises, while said lease originally executed by Carrie Brooks to Rowan & Nichols and now held by Magnolia Petroleum Company and recorded in Book ____ page ____ of Oil and Gas Records of Upshur County, Texas, is in full force and effect."

Defendant in error in the judgment was given "all the oil, gas and other minerals in and under said land save and except such interest decreed in O'Fiel (plaintiff in error) as above mentioned, and the title to and possession of all oil, and gas royalty created or excepted under the terms of said lease mentioned save and except that interest decreed in the defendant (plaintiff in error) O'Fiel." From this judgment, plaintiff in error O'Fiel has prosecuted his appeal to this court.

Plaintiff in error contends, first, that the trial court erred in overruling his plea of privilege to be sued in Jefferson county, Tex. R.S. art. 1995, subd. 14, provides that:

"Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie."

A careful examination of plaintiff in error's petition, and we may look to the petition to determine the character of the cause of action, Walter v. Hammonds (Tex.Civ.App.) 42 S.W.(2d) 1084; Sims v. Trinity Farm Construction Co. (Tex. Civ.App.) 28 S.W.(2d) 856, reveals that the action is one vitally affecting the title to the land in controversy. The answer of plaintiff in error shows his claim to a certain interest in the land and the judgment of the lower court awards to him an interest in the land in controversy. That this suit in reality only involved the title to a part of the minerals in and under and that may be produced from said land, would not, in our opinion, remove it from the provisions of subdivision 14, R.S. art. 1995, relating to the venue of suits with respect to the title to land. As said by Judge Levy in Nunnally v. Holt (Tex.Civ.App.) 1 S.W.(2d) 933, 934, in discussing the venue of a suit involving minerals in and under land, "It would seem that the relief sought and obtainable would be so far immediately concerned with or relating to title to realty as to operate, in view of the statute, to restrict the venue to the location of the realty." Clearly, we think, the venue of this suit was properly laid in Upshur county where the land in controversy was located.

By several assignments plaintiff in error complains of the action of the trial court in limiting his recovery to 3/2048 of the entire mineral estate in and under said land. To properly discuss these assignments, it will be necessary to state the facts with respect to the several transfers of the mineral interest in the land prior to the assignment to plaintiff in error of the interest claimed by him. From the agreed statement of facts, it appears that on September 22, 1930, defendant in error, Carrie Brooks, executed and delivered to Rowan & Nichols an oil and gas lease to the...