Lamb v. WASHINGTON OIL CO. OF TEXAS

• Decision Date: 25 May 1939
• Docket Number: No. 8974.,8974.
• Citation: 103 F.2d 711
• Parties: LAMB et al. v. WASHINGTON OIL CO. OF TEXAS et al.
• Court: U.S. Court of Appeals — Fifth Circuit

103 F.2d 711 (1939)

LAMB et al. v. WASHINGTON OIL CO. OF TEXAS et al.

No. 8974.

Circuit Court of Appeals, Fifth Circuit.

April 26, 1939.

Rehearing Denied May 25, 1939.

Richard U. Simon, of Fort Worth, Tex., for appellants.

R. L. Dillard, Jr., Conan Cantwell, W. H. Jack, Jr., and W. H. Sanford, all of Dallas, Tex., for appellees.

Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit involved a tiny strip of land, 52×66 ft., containing 5/100 of an acre, in a proven oil field. It was in equity to settle boundaries and for an injunction. The claim was, that it was a part of the South ½ of the Carl Rhode Survey, which had been partitioned into and had been subsequently owned and recognized as three substantially equal tracts with no strip between them, and that the claim of defendants, Lamb, et al., that because of restricted calls for distance in subsequent deeds one had developed between the middle and the western one-third, was not a real, but a pretended one.

In addition to making defendants, Lamb, et al., whose claim to the strip, with the threat of drilling an oil well on it had brought on the suit, plaintiffs made defendants Loyce Phillips, Bond & Dillard Corporation and Washington Oil Corporation, owners of the land in the vicinity.

The answer of Phillips and Bond & Dillard Corporation admitted that the three tracts in the Carl Rhode Survey as originally partitioned had adjoined, and still adjoined. Alleging that there was and for many years had been a recognized, established and acquiesced in common boundary between them, and that Lamb, et al. were asserting an unjust and unfounded claim, it concluded with a prayer that the boundary line as then established between the tracts be adjudicated, and the cloud of Lamb's claim be cleared and removed.

The answer of the Washington Oil Corporation admitted the existence of the common, recognized, and acquiesced in boundary line, denied that there was any strip or vacancy to which Lamb, et al. had or could claim title, and prayed an adjudication of the common boundary and a quieting of its title.

The answer of the defendants, Lamb, et al., admitted the truth of the jurisdictional allegations as to residence and amount in controversy. It denied, however, that there was any recognized and acquiesced in common boundary line between the middle and western tracts as originally partitioned. It insisted on the contrary, that whatever the facts as to the boundaries as originally partitioned, subsequent deeds had created, between them, the strip Lamb, et al. claimed. The answer of these defendants, just as plaintiff's petition and the answers of the other defendants had done, prayed that the boundaries be determined and adjudicated as between all the parties to the suit.

Commencing on April 13, 1938, the trial was on that day recessed to April 25 to permit defendants, Lamb, et al., to obtain witnesses. On that day plaintiffs filed and presented in evidence a supplemental pleading in which they stated that "they admitted that the tract described in their petition was well vested in defendant Lamb and those claiming under him, and that those defendants may have a judgment against these complainants for title and possession of the tract; wherefore they pray that these defendants be permitted to take judgment against plaintiffs for title and possession of said tract, but that all costs be adjudged against said defendants."

Defendants Lamb, et al. then further cross-examined a surveyor witness for the other defendants, and offered a surveyor witness on their own behalf, when, the trial completed, the court proceeded to judgment upon findings of fact and conclusions of law. The effect of these was: that there was a well marked and established, and long recognized and acquiesced in boundary line between the middle and the western third; that there was not on the ground, in fact or in law, any strip or vacancy between them; and that in accordance with the said recognized boundary the 5/100 acre tract sued for belonged in part to the Bond & Dillard Drilling Corporation, and Loyce Phillips and in part to the Washington Oil...