Goldsmith v. Humble Oil & Refining Co.

• Court: Texas Supreme Court
• Writing for the Court: Smedley
• Citation: Goldsmith v. Humble Oil & Refining Co., 199 S.W.2d 773, 145 Tex. 549 (Tex. 1947)
• Decision Date: 19 February 1947
• Docket Number: No. A-1059.,A-1059.
• Parties: GOLDSMITH et al. v. HUMBLE OIL & REFINING CO.

199 S.W.2d 773

GOLDSMITH et al. v. HUMBLE OIL & REFINING CO.

No. A-1059.

Supreme Court of Texas.

February 19, 1947.

Rehearing Denied March 19, 1947.

Error to the Court of Civil Appeals of Third Supreme Judicial District.

Suit by the Humble Oil & Refining Company against the Railroad Commission of Texas, its members and secretary, and C. O. Goldsmith, as owner of an oil and gas lease, for cancellation of a permit granted by the commission to C. O. Goldsmith to drill a well as an exception to Rule 37. The court withdrew the case from the jury and rendered judgment for defendants, and the plaintiff appealed to the Court of Civil Appeals. The Court of Civil Appeals, 196 S.W.2d 665, reversed the judgment, and C. O. Goldsmith and others bring error.

Judgment of Court of Civil Appeals reversed and trial court's judgment affirmed.

Pollard, Lawrence, Blackburn, Crawford & Jarrell, of Tyler, T. C. Chadick, of Quitman, and Black & Stayton, and John W. Stayton, all of Austin, for petitioners.

Rex G. Baker, and Nelson Jones, both of Houston, and Powell, Wirtz, Rauhut & Gideon and J. A. Rauhut, all of Austin, for respondent.

SMEDLEY, Justice.

This case had its beginning in an application filed by petitioner Goldsmith with the Railroad Commission of Texas for a permit to drill an oil and gas well, as an exception to Rule 37, on a tract of land 7½ by 75 1/20 varas in dimensions and containing about 1/10 of an acre. The application having been granted, respondent filed this suit to test the validity of the order and to enjoin the drilling of the well. After the evidence had been heard the trial court withdrew the case from the jury and rendered judgment that respondent take nothing by its suit. The Court of Civil Appeals, Associate Justice Blair dissenting, reversed the trial court's judgment and rendered judgment cancelling the permit. 196 S.W.2d 665.

The parties agree that there is one controlling question in the case. It is whether B. A. Wells, administrator of the estate of R. P. McCorkle, conveyed the small tract of land 7½ by 75 1/20 varas in dimensions to T. B. Stewart by his deed executed April 29, 1880. If title to the small tract was not conveyed by that deed, the permit to drill the well is valid; if it was conveyed by that deed, the permit is not valid. This, by reason of the effect of an order of the Railroad Commission which provides that in applying the well spacing rule and in determining the matter of confiscation, no subdivision of property will be regarded if the subdivision was made subsequent to the adoption of the original spacing rule.

R. P. McCorkle in the year 1863 became the owner of 320 acres of land in Wood County. Prior to 1873 he had sold and conveyed several one acre blocks of land out of the southwest part of his 320 acre tract and adjoining the Hawkins townsite. Three of these blocks, each a rectangle and lying the one adjoining the other east and west, were between the Winnsboro and Belzora road on the west and the Hawkins and Big Sandy road on the east. Of these, the block farthest west and near the Winnsboro and Belzora road, was acquired by Sullivan. McCorkle died in 1873 or 1874, and B. A. Wells, as administrator of McCorkle's estate, executed on April 29, 1880, the deed to T. B. Stewart, the effect of which as to the land conveyed controls the decision of this case. The deed describes the land conveyed as follows:

"a part of G. Brewer Headright situated in Wood County and on the waters of Sabine River and

"Beginning 7½ varas North of the N W of a one acre lot Deeded to M. F. Sullivan a stake

"Thence North 9 deg E at 75 4/20 vars a stake for corner

"Thence E. at 75 1/20 vara a stake for corner

"Thence South at 75 1/20 vara a stake for corner

"Thence W 75 1/20, the place of beginning, containing one acre, together with all and singular the rights, members, hereditaments and improvements to the same belonging or in anywise incident or appertaining."

A tract or strip of land owned by the McCorkle estate when the deed was made, being 7½ varas wide north and south and 75 1/20 varas long east and west, and lying immediately north of the Sullivan one acre block, was not included within the metes and bounds description set out in the deed. Petitioners contend that after the execution of the deed the title to that tract or strip remained in the McCorkle estate. Respondent takes the position, which was sustained by the majority of the Court of Civil Appeals, that the deed conveyed the title to the tract or strip to Stewart, the grantee.

The judgment of the Court of Civil Appeals is based upon the well established general rule applied in Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391, which was followed in later decisions, that when a conveyance is made of a lot or a tract of land abutting upon a street or highway, the fee to which belongs to the owner of the abutting land, a presumption is indulged that the grantor intended to convey the fee to the center of the street or highway, or all of it depending upon the circumstances, unless a contrary intention is shown. Cox v. Campbell, 135 Tex. 428, 143 S.W.2d 361; Cantley v. Gulf Production Co., 135 Tex. 339, 143 S.W.2d 912.

It is our opinion that the facts of the instant case neither require nor justify the use of the presumption by which those three cases were ruled. There are two important differences between the facts of those cases and the facts of this case. The first of these is that in each of those cases the deed expressly referred to the right of way or the road or roadway by which the tract conveyed was bounded; whereas there is in the deed from Wells to Stewart no reference whatever to a road, passageway or alley. The second of the important points of difference is that in each of those three cases the tract conveyed was in fact bounded by an existing right of way, road or roadway in which an easement had been created or acquired; whereas in the instant case the strip of land lying north of the Sullivan one acre tract and excluded from the description contained in the deed from Wells to Stewart was not an existing road, passageway or alley in which an easement had been created or acquired when the deed was executed.

Looking to the description contained in the Wells-Stewart deed, we find that it makes no reference to a road, passageway or alley along the south side of the tract conveyed or elsewhere; and further that the deed makes no reference to a map or plat showing a road, passageway or alley. It simply describes the tract conveyed as beginning 7½ varas north of the northwest corner of the Sullivan one acre tract, and thence by courses and distances only to the place of beginning. And thus the description in the deed on its face evidences no intention to convey the narrow tract of land 7½ varas wide lying along the north line of the Sullivan tract. The deed by the metes and bounds contained in it excludes this narrow tract or strip from the land that it purports to convey.

Although we have found no Texas case so holding, it seems to have been decided by the weight of authority that if the property described by metes and bounds actually abuts on an existing highway, the fact that the highway is not mentioned as a boundary does not of itself indicate an intention that the grantee shall not take title to the center thereof. 11 C.J.S., Boundaries, § 35, p. 580; 8 Am.Jur. pp. 772, 773, Sec. 36; Note 2 A.L.R. pp. 6, 31; Note 47 A.L.R. pp. 1276, 1280; Note 123 A.L.R. pp. 542, 551, 552. In some of the cases so holding the court, for support of the presumption that title passes, has looked to other facts and circumstances than the fact that the land conveyed is actually bounded by an existing highway or street not mentioned in the deed. See, for example, Van Winkle v. Van Winkle, 184 N.Y. 193, 77 N.E. 33. It is true, however, that a reference to the highway or street is an important factor in determining from the deed the intention of the grantor as to the highway or street, that is, whether it is intended to be...