Permian Oil Co. v. Smith

• Decision Date: 19 June 1934
• Docket Number: No. 6351.,6351.
• Citation: 73 S.W.2d 490
• Parties: PERMIAN OIL CO. v. SMITH et al.
• Court: Texas Supreme Court

73 S.W.2d 490

PERMIAN OIL CO. v. SMITH et al.

No. 6351.

Supreme Court of Texas.

June 19, 1934.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action of trespass to try title brought by the Permian Oil Company against M. A. Smith and others. Judgment for defendants was affirmed by the Court of Civil Appeals [47 S.W.(2d) 500], and plaintiff brings error.

Reversed and remanded.

J. B. Dibrell (of Seguin, Dibrell & Starnes) and Critz & Woodward, all of Coleman, John Sayles, of Abilene, and Hart Johnson, of Fort Stockton, for plaintiff in error.

Phillips, Trammell, Chizum, Price & Estes, Burney Braley, and Hiner & Pannill, all of

Fort Worth, Thompson, Knight, Baker & Harris, of Dallas, R. H. Whilden, of Houston, Harris, Harris & Sedberry, Smith & Neill, James Cornell, Gibbs & Lewis, and J. W. Stovall, all of San Angelo, Maxey, Holden & Holleman, of Tulsa, Okl., Brian Montague, of Del Rio, W. C. Jackson, of Fort Stockton, Rex G. Baker and Baker, Botts, Andrews & Wharton, all of Houston, and Thompson, Mitchell, Thompson & Young and Lloyd L. Adams, all of St. Louis, Mo., for defendants in error.

John Rogers, of Tulsa, Okl., and Robert T. Neill, of San Angelo, for defendant in error J. A. Chapman.

LEDDY, Commissioner.

This is a statutory action of trespass to try title for the recovery of the title and possession to a tract of 407 acres of land described as survey 103, block 194, T. C. Railway Company, in Pecos county, Tex., and to recover damages growing out of the waste and wrongful appropriation of royalty oil and gas produced from such land. The royalty on the oil amounted to $431,067.15 on May 1, 1930.

The suit was instituted by plaintiff in error, Permian Oil Company, remote vendee of Hickox, as plaintiff, against Mrs. M. A. Smith, surviving widow, sole devisee and independent executrix of the estate of her deceased first husband, John Monroe, and against her second husband, M. A. Smith, and her immediate vendees, and the oil and pipe line companies running oil from such survey.

Mrs. Monroe Smith died before the trial of the case, and the administrator of her estate and her heirs were properly substituted as parties defendant.

Upon a trial with a jury, plaintiff in error, by proper documentary evidence, established a regular chain of title from the state of Texas down to John Monroe, vesting in him title to section 103, block 194, T. C. Railway Company, and section 35, block 194, G., C. & S. F. Railroad Company, in Pecos county, Texas.

Plaintiff in error offered in evidence the following additional documentary evidence:

(1) The original petition filed by John Monroe on August 22, 1910, showing a statutory action of trespass to try title in cause No. 854, styled John Monroe, Plaintiff, v. T. F. Hickox, Defendant, in the district court of Pecos county, Tex., for the title and possession of three tracts of land situated in said county, being all of section 104, block 194, T. C. Railway Company, original grantee, a part of section 103, block 194, T. C. Railway Company, original grantee, and a part of survey 35, block 194, G., C. & S. F. Ry. Company, original grantee.

(2) The first-amended original petition filed by John Monroe on February 28, 1911, in a statutory form of trespass to try title in said cause No. 854; said amended petition being as follows:

"In the District Court of Pecos County, Texas, February Term A. D. 1911.

"John Monroe vs. T. F. Hickox, No. 854.

"To the Honorable District Court of Said County:

"Now comes John Monroe who resides in Pecos County, Texas, hereinafter called plaintiff, and leave of the Court having first been had and obtained, files this his first amended original petition and complains of T. F. Hickox, hereinafter styled defendant, and for cause of action, plaintiff represents to the Court that on or about the 21st day of April A. D. 1909, he was lawfully seized and possessed of the following described land and premises, situated in the County of Pecos, State of Texas, holding and claiming the same in fee simple, to-wit:

"1st.

"All of Section No. 104, Block 194, T. C. Ry. Co. original grantee, situated in Pecos County, Texas.

"2nd.

"All of Section No. 103, Block 194, T. C. Ry. Co. original grantee situated in Pecos County, Texas, described as follows:

"Beginning at a stake and mound at the N. E. Cor. of Sur. No. 102, Blk. 194, T. C. R. R. Co., Cert. 2302, for the N. W. Cor. of this survey.

"Thence east 1900 vrs. to a stake and mound for the N. E. Cor. of this survey.

"Thence south 1209 vrs. to a stk. and md. for the S. E. Cor. of this survey.

"Thence West 1900 vrs. to a stk. and md. for the S. W. Cor. of this survey.

"Thence North 1209 vrs. to the place of beginning. And said Section No. 104, Block No. 194, T. C. Ry. Co. is described by metes and bounds as follows, to-wit:

"Beginning at a stake and mound at the N. E. Cor. of Survey No. 103, Block No. 194, for the N. W. Cor. of this survey.

"Thence East 1900 vrs. to stake and mound for N. E. Cor. of this survey.

"Thence South 1209 vrs. to stake and mound for S. E. Cor. of this survey; thence West 1900 vrs. to stake and mound for S. W. Cor. of this survey; thence North 1209 vrs. to the place of beginning.

"That on the day and year last aforesaid, defendant unlawfully entered upon the premises and ejected plaintiff therefrom and unlawfully, withholds from him the possession thereof to his damage in the sum of $2,000.00. That the reasonable rental value of said land and premises is $100.00 per annum; that on the date that defendant entered upon plaintiff's said land, plaintiff had on same a wire fence composed of wire nailed on the posts set in the ground, that defendant has, since said date, broke, tore down and destroyed plaintiff's said fence and the posts and wire composing the same, to the plaintiff's damage in the sum of $100.00.

"Therefore, plaintiff prays judgment of the court that inasmuch as the defendant has been duly cited to appear and answer this petition, that plaintiff have judgment for the title and possession of said lands and premises above described, and that writ of restitution issue, and for his rents, damages and costs of this suit, and for such other relief, special and general, in law and in equity that he may be justly entitled to, etc."

(3) The original answer of defendant T. F. Hickox in said cause, which consisted of a general denial, and a plea of not guilty.

(4) The judgment rendered and entered in the minutes of the district court of Pecos county in said cause No. 854, which is as follows:

"In the District Court of Pecos County, Texas, Feb. Term 1911.

"John Monroe vs. T. F. Hickox, No. 854.

"On the 28th day of February A. D. 1911, came on to be heard the above numbered and entitled cause in its regular order on the docket, and thereupon came the plaintiff in person and by attorney, and also came the defendant in person and by attorney, and all parties announced ready for trial, and no jury having been demanded and all issues of law and fact being submitted to the court, the pleadings were thereupon read, the evidence introduced and argument of counsel made, and the court after hearing same, thereafter on the 4th day of March A. D. 1911, in open court pronounced judgment in favor of the defendant. It is therefore ordered, adjudged and decreed by the court that the plaintiff John Monroe take nothing by his suit against the defendant T. F. Hickox, and that the defendant T. F. Hickox, go hence without day and recover against the plaintiff John Monroe all costs of suit, for which execution will issue. To which judgment of the court the plaintiff John Monroe in open court excepted and gave notice of appeal to the Court of Civil Appeals of the 4th Supreme Judicial District of Texas, sitting at San Antonio, Texas, and upon plaintiff's request and good cause being shown he is hereby given sixty days after the adjournment of this court within which to file his statement of facts herein."

(5) Probate proceedings in the estate of T. F. Hickox, including his probated will, whereby he devised all of his estate to his surviving wife, Leona A. Hickox, and appointed her independent executrix.

(6) A regular chain of title from Mrs. Leona A. Hickox, individually and as sole devisee and independent executrix of the will and estate of her deceased husband, T. F. Hickox, to plaintiff in error, Permian Oil Company.

(7) Parol and written evidence of the location on the ground of survey 103.

(8) Evidence of the amount and value of the oil produced from survey 103, the 1/8 royalty oil produced from said land from September 16, 1927, to May 31, 1930, amounted to 586,014.25 barrels, of the market value of $431,067.15.

Objections were made by some of the defendants to the pleadings and judgment in cause No. 854, Monroe v. Hickox. These objections were overruled at the time the evidence was offered, and these records were admitted in evidence. At the conclusion of the testimony offered by plaintiff in error, the defendants in error, with the exception of the oil and pipe line companies, presented a motion to strike out the pleadings and judgment in cause No. 854, John Monroe v. T. F. Hickox, introduced in evidence by plaintiff in error as a link in its chain of title; and said defendants also moved that the jury be peremptorily instructed to return a verdict in their favor.

In support of the motion of defendants in error, Jerry Monroe et al., to strike out such pleadings and judgment, they tendered, and the trial court considered in evidence, the papers in cause No. 854, Monroe v. Hickox, including the findings of fact and conclusions of law. Such findings of fact and conclusions of law are as follows:

"Findings of Fact.

"1. Block C-4, G. C. & S. F. Ry. Co., is composed of sixty-four surveys. The field notes show that they were all made by H. C. Barton, Deputy Surveyor of Pecos County, between the 5th and 20th days of October, 1881. According to the field notes of Surve...