Gladys City Oil, Gas & Mfg. Co. v. Right of Way Oil Co.

• Decision Date: 13 April 1911
• Citation: 137 S.W. 171
• Parties: GLADYS CITY OIL, GAS & MANUFACTURING CO. et al. v. RIGHT OF WAY OIL CO. et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

137 S.W. 171

GLADYS CITY OIL, GAS & MANUFACTURING CO. et al. v. RIGHT OF WAY OIL CO. et al.^†

Court of Civil Appeals of Texas.

April 13, 1911.

On Motion for Rehearing, May 4, 1911.

Appeal from District Court, Jefferson County; W. H. Pope, Judge.

Action by the Gladys City Oil, Gas & Manufacturing Company and others against the Right of Way Oil Company and others. From a judgment for defendants, plaintiffs appeal. Reversed and rendered.

D. Edward Greer, Chenault O'Brien, and Geo. Chilton, for appellants. W. D. Gordon, Oswald S. Parker, Parker, Orgain & Butler, and Baker, Botts, Parker & Garwood, for appellees.

REESE, J.

This is an appeal from a judgment of the district court of Jefferson county, in favor of defendants, in a suit by the Gladys City Oil, Gas & Manufacturing Company and the J. M. Guffey Petroleum Company against the Right of Way Oil Company, the Texas & New Orleans Railway Company, the Gulf Pipe Line Company, and Oswald Parker, trustee.

We copy from appellants' brief the following statement of the issues as presented by the pleadings of the respective parties:

This is a suit for the possession of a tract of land, part of the John A. Veatch survey in Jefferson county, Tex., and for the title and possession of all oil produced therefrom, and for an injunction restraining the defendants from drilling oil wells on the land, and taking oil therefrom, and from asserting any right or claim thereto. The plaintiff alleged: That the Veatch survey was granted to John A. Veatch in 1835. That he died, leaving certain parties as his heirs (six in number), and that by mesne conveyance all of the title to that part of the survey embracing the land in controversy became vested in the plaintiff the Gladys City Oil, Gas & Manufacturing Company prior to September 18, 1900. That on that date the said company made a lease to the assignor of plaintiff the J. M. Guffey Petroleum Company, giving it exclusive right to take possession of the said land, drill oil wells thereon, and extract the oil therefrom, and that soon thereafter the said company did take possession of the said land, drilled wells and found oil in great quantities, and has been ever since in possession of the said land, producing oil therefrom. That the oil underlying the land is situated at a depth of from 1,000 to 1,500 feet, and the only way the oil can be reached and extracted is by sinking wells to such a depth, casing up the holes with iron pipe and pumping the oil through such wells. That the producing of oil is a large and separate business, entirely distinct from any business in which a railroad ever engages. That the Texas & New Orleans Railway Company has a line of track which it operates running through the leased premises, and is the successor in interest to the East Texas Railway and the Sabine & East Texas Railway Company, the said railroad track having been built many years before the plaintiff acquired any interest in the land. That there was granted by some of the part owners to the Sabine & East Texas Railway Company a right of way over and across the said survey so far as such grantors had title, to wit: That S. H. Veatch, one of the six heirs of John A. Veatch, in July, 1881, made a deed purporting to grant a right of way across the said tract of land 200 feet in width, a copy of which instrument was attached to plaintiffs' petition as "Exhibit A." That in February, 1891, Geo. W. O'Brien and Emma E. John made a right of way deed to the said railroad company over a strip of 100 feet in width, and about the same date W. C. Averill and P. S. Watts made a similar deed, copies of both of said instruments being attached as exhibits to the petition. At the time the last-mentioned deeds were made, O'Brien and John owned a half interest and Watts and Averill owned four-fifths of a half interest in the survey. That by reason of these deeds the said railroad company has acquired an easement in a right of way over the land, but no other interest, and has no right to take any minerals except such solid minerals on the surface as may be suitable for the construction and maintenance of the railroad. About 1892 the Gladys City Oil, Gas & Manufacturing Company had this land surveyed out and platted, laying the same out in blocks approximately 300 feet square, leaving streets in such parts of this land as were included in Gladys City proper, and laying out the balance of the land in farm lots of from 10 to 40 acres each. That prior to this the railway company had taken possession of a strip 200 feet in width, or 100 feet distant from its track where the land in controversy is located, and that the said company, when it made the survey, respected the possession and claim of the railway that it had for the purposes of a right of way an easement to the strip lying south-east of the northwest corner of block 45 and made its survey and plat accordingly; that is, it left unsurveyed and unplatted the 200-foot strip, and laid off its blocks with the property line 150 feet from the center of the railway, this leaving a street between the strip claimed by the railway as a right of way and the property line 50 feet in width. That the defendant Right of Way Oil Company, acting under a lease from the Texas & New Orleans Railway Company, and having no other title, just prior to the filing of this suit, had entered upon a part of the land embraced in the lease and on the right of way of the railway company, acquired as before stated, and drilled a well thereon that produced a considerable quantity of petroleum oil which had been delivered to the defendant Gulf Pipe Line Company, and sold to it, stating the amount of oil and the amount of money. The particular part of the right of way alleged to have been trespassed upon was described by field notes. The petition set out the exact location of the wells, and showed that, if the railroad company had a right of way of 200 feet in width, the well would be on the right of way; otherwise it would be off the same. The petition also showed that before the well was drilled the plaintiff Guffey Petroleum Company notified the Right of Way Oil Company that, if it drilled any well, it would do so at its peril; that the Guffey Petroleum Company claimed the land and the exclusive right to produce oil therefrom.

The prayer was for judgment establishing title in plaintiffs to the land described as the land trespassed upon by the defendants, and the exclusive right of the Guffey Company to drill on the said land and extract oil therefrom; and also establishing the title of the plaintiffs to the well and all oil produced therefrom; also, an injunction on final hearing restraining defendants from drilling any other wells on the land or setting up any claim thereto. All of the defendants answered jointly, first, by a general demurrer; second, by a plea of not guilty; third, by plea of the statute of limitation of three, five and ten years; and, fourth, specifically that, at the time the deed was executed by S. H. Veatch in 1881, he was claiming to own the whole survey in common tenancy with the other heirs of his father, John A. Veatch; that his undivided interest amounted to several hundred acres; that the said survey was all the same kind of land and all parts of it were at the time of equal value; that S. H. Veatch lived in Sabine county, Tex., and that all the other heirs lived in California, and at the time he was the general agent and representative of the other heirs, looking after their landed interests in Texas, and holding power of attorney from two of them; that he had acted as their agent in selling other lands, and they had always ratified what he did; that in making the deed he was acting for all of the heirs and each of them receiving the benefit of building the railroad and acquiesced in and ratified his act in making the deed to the railroad company.

It is further averred that Geo. W. O'Brien was the organizer and principal owner of the Gladys City Oil, Gas & Manufacturing Company; that he was the attorney for the Veatch heirs in the litigation involving title to the said land; and that the said O'Brien and others acquired all the title from the said Veatch heirs, including S. H. Veatch, about 1891, and that this title passed to the plaintiffs; that at the time of the execution of the deeds by O'Brien and Averill to the railroad company O'Brien was the duly authorized attorney representing the Sabine & East Texas Railway Company in all of its legal matters in this section of Texas, and Averill was its vice president. The Gulf Pipe Line Company answered that the Right of Way Oil Company had run a stated quantity of oil into its lines from the land in controversy, and that it had bought the oil, paying the Right of Way Oil Company therefor, but had taken a bond with the Fidelity & Deposit Company of Maryland as security to indemnify it against loss or damage in case the Right of Way Oil Company had no title. It asked for judgment over against the Right of Way Oil Company for the amount of money it had paid the said company in case the plaintiffs recover judgment against it.

The plaintiffs filed a first supplemental petition in answer to the answer of the defendants, containing: First. Special exceptions to that part of the answer claiming an estoppel. Second. Setting up that the defendants were themselves estopped from claiming that the railway company owned more than 100 feet in width across the survey by reason of the fact that, after taking the deed from S. H. Veatch in 1881 for a right of way 200 feet in width, the railroad company in 1891 procured and accepted deeds from Watts and Averill and O'Brien and John for a right of way only 100 feet in width; that they were further estopped from claiming that they owned the entirety of the minerals under the right of way because in the deeds taken in 1891 from Watts and Averill and O'Brien and John no right to use any minerals except earth and stone was...