Humble Oil & Refining Co. v. State

• Court: Texas Court of Appeals
• Writing for the Court: Blair
• Citation: Humble Oil & Refining Co. v. State, 104 S.W.2d 174 (Tex. App. 1936)
• Decision Date: 30 September 1936
• Docket Number: No. 8249.,8249.
• Petition History: writ ref'd
• Parties: HUMBLE OIL & REFINING CO. et al. v. STATE et al.

104 S.W.2d 174

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

No. 8249.

Court of Civil Appeals of Texas. Austin.

September 30, 1936.

Rehearing Denied April 14, 1937.

Appeal from District Court, Travis County; J. D. Moore, Judge.

Suit in trespass to try title by the State of Texas and others against the Humble Oil & Refining Company and others. From an adverse judgment, the defendants appeal.

Affirmed.

Jno. C. Jackson, Ira P. Jones, Jr., Lawler, Wood, & Childress, Vinson, Elkins, Sweeton, & Weems, and Jeff D. Farish, all of Houston, T. H. McGregor, of Austin, and Lee M. Sharrar, Robert F. Higgins, and R. E. Seagler, all of Houston, for appellants Texas Co., Frost Bros. Oil Co., Smith & Gates, Inc., Standard Oil Co. of Kansas, John D. Reid, Philip Reid, John Jarmin, Sarah Jarmin, Carrol Reid, Gerald Reid, Elizabeth Reid, Howard Harry, Margaret Harry, Robert Roberts, Rachael Roberts, C. M. Frost, J. M. Frost, Jr., V. W. Frost, V. W. Frost, trustee, J. F. W. Kobs, Arthur Kobs, Emma Kobs, A. N. Cannon, C. F. Hoffman, S. P. Farish, trustee, and Humble Oil & Refining Co.

Wm. McCraw, Atty. Gen., and H. Grady Chandler and Russell Rentfro, Asst. Attys. Gen., for the State.

Greenwood, Moody, & Robertson, of Austin, for appellees Cone, Jones, and Biggio.

Williams & Williams, of Austin, for appellees Holderreith and Doughtie.

BLAIR, Justice.

The State of Texas sued in trespass to try title to recover 103 acres of land in Harris county, alleged to be a vacancy existing between the north line of the International & Great Northern survey and the south line of the lower Hooper and Goodrich surveys. The corrected field notes of the International & Great Northern survey called for the south line of said Hooper and Goodrich surveys, but the State contended and the trial court held that it could not be extended to adjoin said surveys, because the calls for distance of the east and west lines of the International & Great Northern survey fell short of said south line 305.8 varas, and the calls for distance definitely satisfied all acts constituting the survey when considered in the light of the acts done by the surveyor and the parties to the grant in identifying and describing the land intended to be included in the International & Great Northern survey. Judgment was in favor of the State for the 103-acre vacancy, subject to certain patent or preferential purchase, or preferential mineral rights of some of the defendants to parts of the land. The primary question for determination is whether the 103-acre tract lies within or outside the bounds of the International & Great Northern survey; and the secondary questions relate to the patent or preferential purchase, or preferential mineral rights adjudicated.

The attached map shows the location of the 103-acre vacancy as found by the trial court, and shows the location of Willow creek and the adjacent and surrounding surveys as now accepted and established on the ground: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE The Joseph House was the senior survey, its field notes having been made in 1831, and its south line was the base for all surveys south. The four Hooper and Goodrich surveys, constituting a block or system of surveys, were made at the same time by surveyor Trott, in 1838. The upper Goodrich and Hooper called for the Joseph House south line as their northern boundaries; and the lower Hooper and Goodrich were tied to the upper surveys, and the southeast and southwest corners of said lower surveys were, according to their field notes, marked by "a stake and mound in prairie." Each of these surveys was in the form of a square with lines 1900.8 varas in length, and contained 640 acres, and the distance from the south line of the Joseph House survey to the southeast corner of the lower Hooper survey and the southwest corner of the lower Goodrich survey is accepted as 3801.6 varas. Subsequent to surveying the Goodrich and Hooper surveys, Trott surveyed the A. Senechal survey, and fixed its southwest corner 1900.8 varas south of the south line of the lower Goodrich survey. This southwest corner of the Senechal survey as now recognized is the same as the one originally platted by Trott, and is the same as the northeast corner of the George Lamb survey, and the International & Great Northern survey was built up from the north line of the said George Lamb survey, with its beginning point at the northwest corner of said survey. The certificate issued to the International & Great Northern Railroad Company called for 640 acres and was located in Harris county, and surveyed by County Surveyor J. J. Gillespie, in March, 1877, and the certificate and field notes returned to the Land Office and filed April 7, 1877. The International & Great Northern survey was made upon an abandoned survey of 640 acres in the name of E. S. Perkins, assignee of John H. Bowers, made in 1840 by surveyor Henderson, and later forfeited by the Land Commissioner. This abandoned Perkins survey was in the form of a square, with the length of its entire 1,901 varas, and had its east line and its northeast and southeast corners coincident with the west line and the northwest and southwest corners of the A. Senechal survey. The original field notes of the International & Great Northern survey read as follows:

"Said Survey is situated on the waters of Willow Creek about 25 miles N.W. from the City of Houston;

"Beginning at the N.W. corner of a survey of 320 acres in the name of George Lamb;

"Thence North 1900 varas to a corner in the prairie on the South line of a survey of 640 acres in the name of J. M. Hooper;

"Thence East 1900 varas along the Hooper and Goodrich south lines to the N.W. corner of the Senechal Survey;

"Thence South 1900 varas along the West line of Senechal Survey to Lamb's N.E. corner;

"Thence West 1900 varas along Geo. Lamb's North line to the place of beginning."

These field notes were rejected and on January 11, 1878, Gillespie filed corrected field notes of the International & Great Northern survey, which read as follows:

"Beginning at the N.W. corner of a survey of 320 acres in the name of George Lamb;

"Thence North 1595 varas to a corner in the prairie on the South line of a survey in the name of J. M. Hooper;

"Thence East 1900 varas along the Hooper and Goodrich south lines to the W. line of the Senechal Survey;

"Thence South 1595 varas along the West line of the Senechal Survey to Lamb's N.E. corner;

"Thence West 1900 varas along George Lamb's North line to the place of beginning."

It will be noted that there was no change in the beginning point of the corrected field notes, but the east and west lines were shortened from 1900.8 varas to 1,595 varas, and the call for the south line of the Hooper survey, as well as the call to run east with said south line and the south line of the lower Goodrich survey were retained. However, the northeast corner under the corrected field notes was fixed at a point in the west line of the A. Senechal survey 1,595 varas north of its southwest corner, instead of in its northwest corner as called for in the original International & Great Northern field notes. The corrected field notes were approved by the Land Office February 5, 1878, and a patent was issued, delivered and accepted in accordance therewith, calling for a rectangular tract of land 1,595 by 1900.8 varas, and for 536 and 4780/5645 acres of land; and the original certificate was endorsed satisfied to that extent. An unlocated balance certificate for the residue of 103 and 865/5645 acres of land was issued to the International & Great Northern Railroad Company on November 21, 1878, and same was located in Webb county and patent issued in 1880, thus fully satisfying the original certificate for 640 acres of land; and neither the International & Great Northern Railroad Company nor any one claiming or holding under it ever protested in any manner against the correction of the field notes, but accepted patents to the 536 and a fraction acres in Harris county, under the original certificate for 640 acres, and to the 103 and a fraction acres in Webb county, under the unlocated balance certificate.

In addition to the above undisputed facts, the trial court found as follows:

"The north line of the George Lamb Survey is not in controversy, but is well located on the ground and is now recognized as being in its true and original position. The south lines of the Lower Hooper and Goodrich Surveys were open, unmarked prairie lines, and both the southwest and southeast corners of the Hooper Survey, as well as both the southwest and southeast corners of the Goodrich Survey, were never marked except by stakes and mounds in the prairie, which cannot now be found and identified, all of which were indefinite and uncertain, both on the ground and in the General Land Office, when the survey and corrected field notes of the I. & G. N. Survey were made in 1877 and 1878. * * * At the time Gillespie surveyed the I. & G. N. Survey and filed corrected field notes thereon in January, 1878, he began at the northwest corner of the George Lamb Survey, but did not locate on the ground or reach the south line of the Hooper or Goodrich Surveys. * * *

"The Court further finds that by fixing the northwest corner of the I. & G. N. R. R. Company Survey at a point 1595 varas north of the northwest corner of the George Lamb Survey, and with its northeast corner in the west line of the Auguste Senechal Survey 305.8 varas south of the northwest corner of said Senechal Survey, according to the corrected field notes, there will be the full amount of acreage called for, or 536-4780/5645 acres, and the calls for course, distance, and configuration contained in the corrected field notes will be fully respected."

From the foregoing facts, the trial court concluded that the call for the "unmarked prairie lines" of the lower Hooper and Goodrich surveys as same existed in 1877-78, should not...