Livingston Oil & Gas Co. v. Shasta Oil Co., 3622.

• Decision Date: 20 January 1938
• Docket Number: No. 3622.,3622.
• Parties: LIVINGSTON OIL & GAS CO. et al. v. SHASTA OIL CO. et al.
• Court: Texas Court of Appeals

114 S.W.2d 378

LIVINGSTON OIL & GAS CO. et al. v. SHASTA OIL CO. et al.

No. 3622.

Court of Civil Appeals of Texas. El Paso.

January 20, 1938.

Rehearing Denied February 24, 1938.

Appeal from District Court, Gregg County; D. S. Meredith, Jr., Judge.

Suit by the Livingston Oil & Gas Company and others against the Shasta Oil Company and others, involving conflicting claims to a tract of land. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Harrington & Harrington, of Longview (H. M. Harrington, Jr., of Longview, of counsel), for appellants.

W. H. Sanford and Conan Cantwell, both of Dallas, Bramlette & Levy and Clyde F. Winn, all of Longview, and Phillips, Trammell, Estes, Edwards & Orn, of Fort Worth, for appellees.

NEALON, Chief Justice.

This suit was brought by appellants, as plaintiffs, against Shasta Oil Company and others. It involves a triangular tract of approximately an acre. The lawsuit grows out of the following facts:

In 1901 R. M. Gee and others conveyed by warranty deed to Wm. Cobb a certain 53 1/3-acre tract of land situated in the south half of the Carl Rhodes survey in Gregg county, Tex. The land location and lines of the block are shown by the following plat: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Locating the tract thus conveyed, the only surveyor testifying in the case placed the land to run from point B to point C, to point S, to point U and back to point B. Thereafter in 1912 William Cobb and wife gave a deed to B. F. Phillips covering 23½ acres of land out of the above-mentioned 53 1/3-acre tract. The description reads as follows:

"All that certain tract or parcel of land lying and being situated in the County of Gregg and State of Texas and more fully described as follows, to-wit:

"Beginning at a stake in road, the SW corner of a 53 1/3 acre tract belonging to George Bridgers;

"Thence west 284 vrs. an iron stake;

"Thence north 540 vrs. to right of way T. & P. Railroad;

"Thence east with said T. & P. railroad right of way in an eastward direction 284 vrs "Thence south 400 vrs. to place of beginning, containing 23½ acres more or less."

Appellants contend that the entire lawsuit turns on the construction to be placed upon this last-mentioned Cobb-Phillips deed. There is no dispute between the parties as to the beginning corner being located at point U on the plat. From that point plaintiffs contend the calls run first "west 284 varas" to point T; thence north 540 varas to the right of way of the T. & P. Railroad to point J; thence "east with said T. & P. Railroad right of way in an eastward direction 284 varas" to point K; and thence "south 400 varas to place of beginning," point U, thus omitting from the deed the triangular tract in issue which extends from point U to point L, to point K and thence back to point U. The plaintiff, Livingston Oil & Gas Company, claims title to the oil and gas leasehold estate covering said triangular tract ULK by oil and gas leases from the plaintiffs, other than H. R. Smith, who are the heirs of Wm. Cobb. H. R. Smith claims title to one-half interest in the mineral and royalty rights under said tract ULK by mineral deed from said other plaintiffs. The remaining plaintiffs are the owners of the fee and other one-half of the minerals and royalty rights under said tract ULK. The defendants Shasta Oil Company et al. claim title to the oil and gas leasehold, mineral and royalty rights by mesne conveyances from B. F. Phillips covering the 23½-acre tract mentioned above. All conveyances into these defendants use the identical field notes used in the Cobb-Phillips deed herein referred to. The defendants E. A. Lamb et al. join with the plaintiffs in their contention that the field notes in the Cobb-Phillips deed do not include the triangular tract ULK. Said defendants E. A. Lamb et al. then seek to show a superior title to the plaintiffs by a plea of ten years' limitation use and enjoyment of the triangular tract ULK by G. W. Richey, and subsequent conveyances from G. W. Richey to themselves. They did not give notice of appeal.

The case was heard before the court without a jury, and the court found that the deed from Will Cobb and wife, Seland Cobb, to B. F. Phillips dated November 7, 1912, recorded in Volume Z, page 145, of the Deed Records of Gregg County, Tex., covered and included the tract of land in controversy and gave judgment that plaintiffs take nothing as to both groups of defendants, save as to G. W. Richey, against whom a default judgment was rendered.

Plaintiffs perfected their appeal from this judgment.

Opinion.

This case was tried to the court. Findings of fact and conclusions of law were not filed, further than that the court in its judgment recited that "the court finds that deed from Will Cobb and wife, Seland Cobb, to B. F. Phillips dated November 7, 1912 and recorded in Volume Z, page 145, of the Deed Records of Gregg County, Texas, covers and includes" the strip of land in controversy. Further findings and conclusions were not requested.

We are, therefore, called upon first to determine whether the facts in evidence warranted this finding and the judgment based upon it. The controversy hinges upon the interpretation of the third and fourth calls contained in the deed from Cobb to Phillips. There is no dispute as to the correct locations of corners U, T, and J shown on the foregoing plat, nor as to the length and course of the western boundary of the George Bridgers' tract, which was the east line of the tract partitioned to Wm. Cobb. The third call is from a corner of the right of way of the T. & P. Railroad "thence east with said T. & P. railroad right of way in an eastward" direction 284 varas; and the fourth call immediately following reads: "Thence south 400 varas to the place of beginning, containing 23-½ acres more or less." When the description is applied to the ground, an ambiguity appears. The T. & P. Railroad right of way does not run due east from the west line of said tract. It runs southeasterly, its course more accurately stated being south 65 degrees east. Nor does the fourth call run due south to the beginning point of the tract if it is considered as starting at a point on the right of way 284 varas distant from the northwest corner of the tract. If so placed,...