Gulf Oil Corp. v. Deese

• Decision Date: 09 May 1963
• Docket Number: 1 Div. 861
• Citation: 275 Ala. 178,153 So.2d 614
• Parties: GULF OIL CORPORATION et al. v. G. H. DEESE.
• Court: Alabama Supreme Court

Page 614

153 So.2d 614

275 Ala. 178

GULF OIL CORPORATION et al. v. G. H. DEESE.

1 Div. 861.

Supreme Court of Alabama.

May 9, 1963.

C. C. Richmond and Wm. R. Harris, Jackson, Miss., and Sam. W. Pipes, III, Lyons, Pipes & Cook, Mobile, for appellants.

Vincent F. Kilborn and Benjamin H. Kilborn, Mobile, for appellee.

GOODWYN, Justice.

Action of trespass quare clausum fregit brought by appellee, G. H. Deese, against appellants, Gulf Oil Corporation, et al., to recover damages for injury to the surface of land owned by Deese in the Citronelle Oil Field, allegedly resulting from the construction and operation by Gulf of an oil well on adjacent land. Gulf, at the time, held a lease of the oil under both parcels. The appeal is from a judgment rendered on a jury verdict in favor of Deese.

On December 14, 1949, Deese purchased several parcels of land in Mobile County from Thomas J. Taylor, et al., subject to certain exceptions and reservations. The property is described in the deed as follows:

'Lots One, Two, Three, Four, Five, Six of Block One, and Lots One, Two, Three, Five, Six and South half of Lot Four, Block Two, W. B. Miller's Second Addition to Town of Citronelle, according to plat thereof recorded in Deed Book, 132 N.S., page 132, EXCEPTING from Lots Five and Six of W. B. Miller's Second Addition to Town of Citronelle the following property:

'Four and 1/8 acres sold to Donald Ray and Camilla Odom described as follows: That piece or parcel of land commencing 130 feet North from where Forest Street intersects Highway 45 on the West side of said Highway; thence North along the West side of Highway 45 Nine Hundred Seventy eight (978) feet to line between Lots Six and Seven of Miller's Addition to Town of Citronelle; thence South along said line Nine Hundred Twenty Four (924) feet to a stake 130 feet North of Forest Street; thence East Three Hundred Sixty Six (366) feet to place of beginning on the West side of Highway 45, being a portion of Lots Five and Six of W. B. Miller's Subdivision of the Town of Citronelle, containing 4 1/8 acres, more or less.

'Part of South end of Lots Five and Six sold to J. W. Newburn described as follows: Start at the Southwest corner of Lot Six, Block 2, Miller's Second Addition to Citronelle, run East along North side of Forest Street to West side of Highway 45; thence North along the West side of Highway 45 to west boundry line of Lot Six; thence South One Hundred Thirty (130) feet to place of beginning, being part of South end of Lots Five and Six of Miller's Second Addition to Town of Citronelle.

'ALSO EXCEPTING and reserving unto the parties of the first part any and all oil, gas and minerals of any and every nature upon or under the above said lands, it being distinctly understood that no oil, gas or mineral rights are hereby conveyed with said lands, but all of said rights are expressly reserved and retained by the grantors herein named.'

The habendum clause of the deed is as follows:

'TO HAVE AND TO HOLD the said above described property unto the said party of the second part, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, except all of the oil, gas and minerals and all the oil, gas and mineral rights above expressly excepted and reserved by the parties of the first part, and unto his heirs and assigns in fee simple.'

The parcels allegedly trespassed upon and damaged by Gulf, principally by leveling and grading the ground for the well site, cutting trees, removing wire fencing, and pouring oil and salt water thereon, are Lots 1, 2, 3 and 5 of Block 2 of W. B. Miller's Second Addition. The bore of Gulf's well is on the North half of Lot 4 of Block 2, with a part of the well site being on Lot 5. It will be noted that the North half of Lot 4 was not included in the Taylor deed to Deese. There is no dispute that Gulf, during the time here pertinent, held a valid lease to the oil under Lots 1 through 5, unless the Taylor deed to Deese, as Deese contends, conveyed to him the minerals thereunder as well as the surface (except as to the North half of Lot 4, the mineral interest in which Gulf acquired through a chain of title beginning with a deed from William B. Miller and wife to Emily B. Warren, dated August 7, 1908). The following is a rough sketch of the lots showing the location of the well site:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The alleged trespass appears to be based on the following two premises:

1. Deese, and not Gulf, owns the minerals under Lots 1, 2, 3, and 5, as well as the surface thereof, and Gulf has no right to use the surface. The insistence is that Deese acquired the minerals under the Taylor deed to him.

2. Even if Gulf owns the minerals under these lots, it has no right, in connection with the construction and operation of this well, to go upon or damage the surface owned by Deese because the well is not located on land of which Deese owns the surface, but is on adjacent land in which Deese has no interest.

Our conclusion is that neither premise is meritorious, and that Gulf's requested affirmative charge should have been given.

1.

Deese's position as to this premise is thus stated in his brief:

'It is the contention of the appellee that the last 'exception' paragraph clearly only excepted and reserved to the grantors therein the minerals under Lots 5 and 6 of the Second Addition, following as it does in order the Exceptions mentioned in paragraph one of the description pertaining to Lots 5 and 6 of the Second Addition. At best it is ambiguous what this 'exception' covers. Does the exception from 'the above said lands' apply to all the land described in paragraph one of the description or just to Lots 5 and 6 in the Second Addition? Does the allegation that no oil, gas and mineral rights are conveyed 'with said lands' apply to all the land described in paragraph one of the description or just to Lots 5 and 6 in the Second Addition? And for that matter since said deed conveys two Lots 5 and 6, one set being in Block One and the other being in Block Two of the Second Addition to which set of Lots 5 and 6 is the mineral exception making reference?'

We are unable to follow this contention.

'The real inquiry in constructing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, including its several parts, resort to arbitrary rules of construction is not required.' Hardee v. Hardee, 265 Ala. 669, 674, 93 So.2d 127, 131. From a consideration of the entire deed, it seems clear it was intended to except and reserve the minerals upon or under all of the land conveyed. To hold that the provision excepting and reserving 'all oil, gas and minerals * * * upon or under the above said lands' refers only to Lots 5 and 6 would require a strained and unwarranted construction of this very general provision, especially when considered in connection with the habendum clause. Nor can there be basis for saying the provision has reference to the parts of Lots 5 and 6 excepted from the conveyance. In excepting such land, the exception itself quite obviously had the effect of excluding the minerals thereunder, thus making it clearly unnecessary to specifically exclude and reserve such minerals. This leads to the inescapable conclusion that the exception and reservation of minerals contained in the deed did not refer to the minerals upon or under the land excepted from the deed.

2.

Deese recognizes the principle that 'the owner of a mineral interest under land has the right to the reasonable use of the surface of said land to extract the minerals therefrom' (citing in support: Phillips v. Sipsey Coal Mining Co., 218 Ala. 296, 118 So. 513; Bagley v. Republic Iron and Steel Co., 193 Ala. 219, 69 So. 17; Bibby v. Bunch, 176 Ala. 585, 58 So. 916; Hooper v. Dora Coal Mining Co., 95 Ala. 235, 10 So. 652; Williams v. Gibson, 84 Ala. 228, 4 So. 350, 5 Am.St.Rep. 368), but insists that application of the following principle makes Gulf a trespasser on the surface owned by him, viz: 'The right to use the surface of land as an incident of ownership of mineral rights does not carry with it the right to use the surface in aid of mining or drilling operations on other or adjoining lands' (citing in support: Phillips v. Sipsey Coal Mining Co., 218 Ala. 296, 118 So. 513, supra; Corona Coal...