Gulf Coast Water Co. v. Hamman Exploration Co.

• Decision Date: 05 March 1942
• Docket Number: No. 11326.,11326.
• Parties: GULF COAST WATER CO. v. HAMMAN EXPLORATION CO. et al.
• Court: Texas Court of Appeals

160 S.W.2d 92

GULF COAST WATER CO. v. HAMMAN EXPLORATION CO. et al.

No. 11326.

Court of Civil Appeals of Texas. Galveston.

March 5, 1942.

Rehearing Denied March 26, 1942.

Appeal from District Court, Matagorda County; M. S. Munson, Judge.

Suit in trespass to try title by the Gulf Coast Water Company against the Hamman Exploration Company and others. From an adverse judgment the plaintiff appeals.

Judgment affirmed.

Strasburger, Price, Holland, Kelton & Miller and R. B. Holland, all of Dallas, for appellant.

C. A. Erickson and Styles & Erickson, all of Bay City, J. C. Hutcheson, III, Baker, Botts, Andrews & Wharton, F. V. Phipps, Harry R. Jones, and Andrews, Kelley, Kurth & Campbell, all of Houston, for appellees.

MONTEITH, Chief Justice.

This action was brought by appellant, Gulf Coast Water Company, to recover from appellees, Hamman Exploration Company et al., the title to and possession of two tracts of land in Matagorda County, Texas. While the suit was brought as a straight trespass to try title action, the appeal involves the proper construction of the deed under which appellant's predecessors in title acquired the land in controversy.

Appellees answered by a general denial and a plea of not guilty. They specially pled various statutes of limitations.

In a trial before the court, without a jury, judgment was rendered that appellant recover from appellees a perpetual easement for the flowing of water through its canals upon and over the land in controversy, but that, except as to said easement, appellant take nothing by the suit. Findings of fact and conclusions of law were filed by the trial court. They were excepted to by appellant.

By deed dated December 22, 1909, appellees, Louis Huebner, Franz Huebner, and Elise Richards, conveyed to Gravity Irrigation & Power Company certain interests in the land in controversy. By subsequent conveyances appellant acquired the interest of Gravity Irrigation & Power Company under this instrument. Appellees in the case are the Huebners and Mrs. Richards and the subsequent grantees and lessees from them of portions of the property conveyed therein. The sole question presented in the appeal is whether the deed in question conveyed to appellant's predecessor in title the fee simple title to the land in controversy, or whether it conveyed only an easement therein.

The pertinent portions of said deed are as follows:

"Know All Men By These Presents:

"That we, Louis Huebner, * * *, Franz Huebner, * * *, Elise Richards, * * *, for and in consideration of the sum of Two Thousand Dollars ($2,000.00) to us cash in hand paid, by the Gravity Irrigation and Power Company, the receipt whereof is hereby acknowledged, and confessed, have granted, sold, and conveyed, and by these presents do grant, sell, and convey unto the Gravity Irrigation & Power Company, the following described property, and premises situate in the County of Matagorda, State of Texas, to-wit:

"* * * Third. 11.25 acres, right-of-way of the eastern lateral across Section X-3,I.& G.N.Survey, and being a strip 100 ft. wide and lying 50 ft. on each side of the center line of the said lateral. Beginning at the point where said lateral intersects the north line of said Section near its NW corner; thence S.23 deg.E.2200 ft.; thence S.8¼ deg.E.2700 ft. to the S. line of said Section X-3, including 11.25 acres.

"* * * Fifth. Being a strip 75 ft. wide and being 37½ ft. on each side of the center line of said canal, and being a part of Section No.X-3, I.& G.N.Survey. Beginning at a point in the Huebner Bros. pasture, at 22,550 ft. from where lateral A leaves the main canal; thence E.3500 ft. to the eastern line of the Huebner Bros. lands;

"As a part consideration moving to the execution of this conveyance, the said Gravity Irrigation & Power Company for itself, its successors and assigns, agrees as follows:

"I. That the said Gravity Irrigation & Power Company, its successors and assigns, will not fence or permit to be fenced the said right of way or strips of land herein conveyed, nor lease or permit same to be leased for grazing purposes, but the live stock of the grantors shall have free use of same, without cost to them. * * *

"4. The said grantee, for itself, its successors and assigns, agrees to construct across said lateral A, of said right of way, conveyed herein, a wagon bridge at what is known as the Wesly Hobbs place, and the said grantors herein shall and are hereby given the right without charge for the privilege to construct across said right of way herein conveyed, any bridge they may desire, such bridges, however, to be constructed so as not to impede the flow of water through said canal.

"5. The right to fence the rights of way herein conveyed by the grantors, their heirs and assigns, is expressly reserved, but in the event of fencing across such rights of way, then the party so fencing shall construct and maintain a gate upon or immediately adjoining said right of way, for the use of the Gravity Irrigation & Power Company or its employees.

"To have and to hold, the above described lands and premises, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said Gravity Irrigation & Power Company, a corporation duly incorporated under the laws of Texas, its successors or assigns, forever. And the said grantors do hereby warrant and forever defend all and singular the said land and premises unto the said Gravity Irrigation & Power Company, its successors or assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof."

The appeal involves the title to the 3rd and 5th tracts in the above deed.

The trial court found, in substance, that said deed was not ambiguous and that it was not the intention of the grantors to convey, or of grantee to acquire, by said deed a fee simple title to the property in controversy but only an easement through and over said land for canal purposes, and that the parties to said instrument, both grantors and grantee, and their successors in title had, by their use of the property involved, invariably treated said instrument as conveying only a perpetual easement over and through said land for canal purposes and not as conveying the fee simple title thereto.

The court found, as a matter of law, that said deed was unambiguous and that, on its face, it only conveyed a perpetual easement in the property in controversy for canal purposes, but that, if he was in error in his first conclusion and said deed was ambiguous, it should be construed in accordance with the undoubted intention of the parties and the construction uniformly given it by them as conveying only a perpetual easement in said property for canal purposes.

It is the settled law in this state that, where the granting clause of a deed conveys a right of way of designated width across, over and through a tract of land, it is a conveyance of a mere easement in the property and not a conveyance of the fee simple estate therein.

This rule is announced by the Supreme Court in the case of Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co. et al., 106 Tex. 94, 157 S.W. 737, 739, 51 L.R.A., N.S., 268. In that case the questions involved were similar in all material respects to those in the instant case. The habendum and warranty clauses of the deed involved were in general terms. The granting clause read: "Grant, sell and convey unto...