Outlaw v. Gulf Oil Corporation

• Decision Date: 18 January 1940
• Docket Number: No. 3894.,3894.
• Parties: OUTLAW et al. v. GULF OIL CORPORATION et al.
• Court: Texas Court of Appeals

Page 787

137 S.W.2d 787

OUTLAW et al. v. GULF OIL CORPORATION et al.

No. 3894.

Court of Civil Appeals of Texas. El Paso.

January 18, 1940.

Rehearing Denied February 23, 1940.

Error from District Court, Ector County; Chas. L. Klapproth, Judge.

Action by the Gulf Oil Corporation and others against Rex C. Outlaw, in trespass to try title, wherein defendant filed a demurrer and wherein the State of Texas acting for itself and in behalf of the Public Free School Fund intervened, whereupon plaintiff filed a cross-action against intervener. To review a judgment for plaintiff, defendant and intervener bring error.

Reversed and remanded.

Massingill, Belew, Hill & Paddock, and Ben M. Terrell, all of Fort Worth, for plaintiffs in error.

Gerald C. Mann, Atty. Gen., Geo. W. Barcus, H. Grady Chandler, Robert E. Kepke, and James Noel, Asst. Attys. Gen., P. O. Settle, Wm. L. Wise, W. E. Allen, and James & Connor, all of Fort Worth, Whitaker, Perkins & Turpin, of Midland, H. L. Stone, of Pittsburgh, Pa., John E. Green, Jr., of Houston, and W. H. Burges, of El Paso, for defendants in error.

PRICE, Chief Justice.

We adopt as the statement of the nature and result of this suit that contained in the brief of plaintiffs in error. This was an action of trespass to try title brought by the Gulf Oil Corporation, Federal Royalties Company and Clarence Scharbauer against Rex C. Outlaw to recover title to and possession of a small strip of land alleged to be out of and a part of Sections 21, 22, 27 and 28, Block 44, Township 1 South, T. & P. Railway Company Survey, Ector County, Texas.

In addition to a general demurrer and general denial defendant Rex C. Outlaw disclaimed any right, title or claim to the lands described in plaintiffs' petition, save and except a rectangular strip of land 31½ by 91 varas, containing 10.6 acres and lying between and bounded by the patented sections 21, 22, 23 and 27, in said Block 44.

The State of Texas, acting for itself and in behalf of the Public Free School Fund, filed its intervention, alleging that it was the owner in fee simple of the lands described in the answer of the defendant Outlaw for the benefit of the Public Free School Fund of Texas, subject to State mineral lease No. 22243, executed to Rex C. Outlaw on August 13, 1937. Intervener sued for title to and possession of said land and for damages occasioned by the alleged unlawful acts of plaintiffs.

Plaintiffs filed their answer and cross action against said intervener, and defendant Outlaw filed his answer to said plea of intervention, disclaiming therein any right, title or claim to the land described in said plea of intervention, save and except an undivided seven-eighths of all the oil, gas and sulphur and fifteen-sixteenths of all other minerals in and under said land.

At the conclusion of the evidence, on motion of the plaintiffs, the court instructed the jury to return a verdict in favor of plaintiffs against the defendant and intervener for title and possession of the land sued for. Judgment was rendered in accordance with the verdict and defendant and intervener have duly perfected a writ of error therefrom.

For convenience the parties will be designated as they were in the trial court. Plaintiffs in error being called defendant and intervener, respectively, and the defendants in error will be referred to as plaintiffs.

There is in reality but one question involved in this appeal. This question is the proper construction of the patent issued by the State of Texas to Section 22, in Block 44, Township 1 South, T. & P. Railway Company Survey in Ector County. If a proper construction of this patent was that the south line of said Section 22 and the north line of Section 27, in the same block, are coincident, the action of the trial court in instructing a verdict was proper and should be affirmed.

A question of fact was involved in the construction of the patent; hence a discussion of the evidence is necessary. The land in controversy is within Block 44, Township 1 South, Ector County. This block was surveyed by virtue of Land Certificates issued to the Texas & Pacific Railroad under an Act of May 2, 1873, whereby twenty sections of land were donated for each mile of road completed. Under this Act the Company was required for each Certificate to survey two sections and return the map and field notes to the General Land Office. The Land Commissioner then was required to number such sections and issue patents to the Company for the odd numbered sections. The even numbered sections were reserved to the State for the benefit of the Public School Fund.

Under Certificates held by the Company, on or about March 7, 1876, D. L. Cunningham surveyed said Block 44 for the T. & P. and returned his field notes to the General Land Office. Block 44 as surveyed consisted of forty-eight sections. From east to west it purported to be six miles and from north to south eight miles. In making this survey Cunningham ran out and marked the exterior lines of the block, but did not run the interior lines dividing the block into sections. The interior section lines were an office survey made by Cunningham.

March 26, 1906, patents issued to the T. & P. for the odd numbered sections in accordance with the field notes filed by Cunningham in his construction of such block by sections. Block 44, as divided into sections by this survey, showed all of the sections were tied to each other, and there were no vacancies shown between any of them. In the field notes returned by Cunningham those relating to Section 22 read as follows:

"Said survey is situated in Ector Co. on the Divide between the waters of Colorado and Pecos River, about 16 miles N. 68° W. from Odessa, and known as Survey No. 22, Township 1 South, Block No. 44.

"Beginning at a stake and Earth md. 4 pits, the N.E. Corner of Survey No. 21,

"Thence S. 13° E. 1900 vrs. St. & Earth md. 4 pits,

"Thence N. 77° E. 1900 vrs. St. & Earth md. 4 pits,

"Thence N. 13° W. 1900 vrs. St. & Earth md. 4 pits,

"Thence S. 77° W. 1900 vrs. to the place of beginning."

On January 26, 1904, J. C. Beaty made application to purchase said Section 22 at $1.50 per acre, tendered one-fortieth of the purchase price in cash, together with proper obligations for the deferred payments. His application was accepted and the land awarded to him on January 26, 1904. Thereafter, on February 8, 1909, he made due proof of occupancy and sold and conveyed the Section to J. W. Buchanan, who, as part of the consideration, assumed payment of the balance due on the purchase money. Buchanan purchased a number of other sections in Block 44, among others, Section 27, which he owned on the date Section 22 was patented to Beaty for the benefit of Buchanan.

On September 20, 1912, Buchanan advised the Land Commissioner he desired to make payment and patent Section 22 and other sections in Block 44. The Commissioner advised him that there was an excess in the sections and a resurvey and corrected field notes would be required. Buchanan employed J. R. Wadsworth to make this resurvey. In December, 1912, the corrected field notes as made by Wadsworth were filed with a map and same were passed by the Land Office as correct. Section 22 was recognized by the Commissioner as correct for 652¼ acres. Buchanan paid the required amount and patent was duly issued. The description in the patent was as follows:

"Six Hundred Fifty two and 1/4 (652-¼) acres of land situated and described as follows: In Ector County, known as Sec. No. 22, Blk. 44, Tsp. 1S, T. & P. Ry. Co. Cert. No. 4352, about 13 miles N.W. from Odessa. Said land having been purchased and fully paid for in accordance with an act approved April 19, 1901. Beginning at the N. E. cor, of Sur. No. 21, iron pipe 3" in S. B. line of Sur. No. 16 this Block.

"Thence N. 74° 40' E. at 37 vs. pass iron pipe 3" same being S. W. cor. Sur. No. 15 and S. E. Cor. Sur. No. 16, this Blk. 1938 vs. iron pipe 3" for N. E. Cor. this sur. and N. W. cor. Sur. No. 23 this Blk.

"Thence S. 15° 20" E. 1900 vs. along W. B. line said Sur. 23 to iron pipe for S. E. Cor. this Sur. and N. E. Cor. Sur. No. 27 this Blk.

"Thence S. 74° 40' W. along N. Bdry. line said Sur. No. 27, 1901 vs. pass iron pipe 3" same being N. W. cor. of Sur. No. 27 and N. E. cor. Sur. No. 28, this Blk, 1938 vs. to iron pipe 3" for S. W. cor. this Sur. and S. E. cor. Sur. 21 this Blk.

"Thence N. 15° 20' W. 1900 vs. along E. Bdry line of said No. 21 to the beginning."

The map accompanying the field notes of Wadsworth showed all the sections comprising Block 44 as tied to each other and occupying the whole area within the exterior lines of the block. Corrected field notes were filed by Wadsworth as to Sections 2, 8, 18, 20, 22, 26, 28, 34, 38 and 46. The four corners of each section are described in the field notes as marked either by artificial monument, in the nature of an iron pipe, or by the adoption of an artificial monument, such as a mound of rock. Each of these monuments is described as likewise being the corner of an adjoining or related section. In the office survey of the sections made by Cunningham throughout the whole block the adjoining surveys bear this relationship to each other. Of course the interior corners of that survey are not marked by monuments.

The purpose of the Wadsworth survey was to determine the excess acreage contained in the ten sections above enumerated which Buchanan was seeking to patent and did pay for and patent. At the time the patent to Beaty to Section 22 was issued we have this situation: The map on file in the Land Office showed the southerly line of Section 22 to be the northerly line of Section 27, which was likewise owned by Buchanan; the field notes describing the Wadsworth survey described the south line of 22 as the north line of 27. It is fair, then, to assume that Wadsworth, in making the survey, intended that the south line of 22 should be the north line of 27; likewise, the Land...