Phillips Petroleum Co. v. State

• Decision Date: 29 July 1933
• Docket Number: No. 7382.,7382.
• Citation: 63 S.W.2d 737
• Parties: PHILLIPS PETROLEUM CO. et al. v. STATE et al.
• Court: Texas Court of Appeals

63 S.W.2d 737

PHILLIPS PETROLEUM CO. et al. v. STATE et al.

No. 7382.

Court of Civil Appeals of Texas. Austin.

July 29, 1933.

Rehearing Denied September 27, 1933.

Appeal from District Court, Travis County; George Calhoun, Judge.

Action by the State against the Phillips Petroleum Company and others. From a judgment awarding the state certain lands and a stated sum for oil taken therefrom and decreeing to E. B. Trigg a prior right to purchase them from the state, defendants appeal.

Reversed and rendered.

Don Emery and Turner, Culton & Gibson, all of Amarillo, Burney Braly, of Fort Worth, Frank Willis and Sanders & Scott, all of Amarillo, R. L. Batts, of Austin, David Proctor, of Fort Worth, and Morgan, Morgan & Britain, of Amarillo, for appellants.

Robert Lee Bobbitt, Atty. Gen., W. W. Caves, Asst. Atty. Gen., C. W. Trueheart, of Longview, G. B. Smedley, of Fort Worth, and Cooper & Lumpkin, of Amarillo, for appellees.

BAUGH, Justice.

This appeal is from a judgment in favor of the state against appellants for the recovery as vacant lands of 525.2 acres in Hutchinson county, a money judgment for $916,578.27 against named oil companies for oil taken from said lands up to September 30, 1928, and decreeing to E. B. Trigg a prior right to purchase said land from the state.

The only issue in the case is the proper location of the Mary Whitley survey. All of the surrounding surveys to which its field notes call to adjoin are senior surveys to the Whitley, and a brief history of these surveys as shown by the record, which is voluminous, will perhaps contribute to a better understanding of the issues presented, and reference at this point to the attached maps will afford a better comprehension of the controversy.

The senior of all the surrounding surveys is H. & T. C. block 46, located along the south bank of the Canadian river. This block of surveys begins in Roberts county on the east and extends entirely across Hutchinson county, numbered serially westward, and the field notes thereof were prepared by Maddox in June and July, 1874, and filed in the general land office on September 15, 1874. No survey of these lands on the ground in Hutchinson county was made at that time, however; the field notes having been prepared by one of Maddox's deputies in his office at Sherman and platted to border upon the Canadian river according to information as to the location of said river then in his hands acquired from surveys he had made north of the river. See Sanborn v. Gunter & Munson, 84 Tex. 284, 17 S. W. 117, 20 S. W. 72. This set of field notes was inaccurate and of little value. In 1888 George Spiller made an actual survey on the ground of block 46, established the corners of surveys 60 to 69, here involved, and filed corrected field notes of these surveys in the general land office. These field notes were approved, patents issued thereon, and the lines of said surveys as located by Spiller are definitely established and are now easily found upon the ground.

Block Y was surveyed in 1875, and the field notes thereof filed in the general land office; and the location of the north line of this block on the ground as originally surveyed is not here controverted. It may be considered as established, fixed, and certain when the Whitley Survey was located and patented.

Block B4 was originally surveyed in 1878 and field notes returned to the general land office. The beginning corner of this block was called for as the southwest corner of survey 60 of block 46. Survey No. 3 of this block was patented in 1880 upon the original field notes thereof. The indorsement on the general land office record of survey No. 4 of said block is "cancelled." It is not controverted, however, that block B4, according to its original field notes, conflicted with block Y on the south to the extent of about 600 varas. Nor can the bearing trees called for in survey No. 2 of said block, upon which survey the other surveys in said block were constructed, be now located with certainty on the ground. However, for the purposes of this suit, we may accept the contention of the state that the lines of surveys 3 and 4, here involved, of said block B4, as they are now accepted, were definitely established on the ground in 1889, when the Whitley was located. The lines and corners of these two surveys appear to have been accepted and recognized by the owners of said lands as fixed on the ground for many years prior to the discovery of oil and the consequent filing of this suit.

The E. Tumlinson and Mary Whitley certificates were issued in 1881 and each called for 1,280 acres. Gunter and Munson, who then owned both certificates, in a single application dated November 25, 1881, filed with the surveyor for the Jack land district a request for the location of these certificates on certain vacant lands, the first of which tracts was described as follows:

"Beginning at a point in the south line of Survey 61 in Block No. 46 for the Houston and Texas Central Railroad Co. where said Block 46 intersects the West line of Survey No. 2 in Block B 4.

"Thence West and South with the S. and E. boundary lines of said Block No. 46 until it intersects the North line of Block y.

"Thence East with the North line of said Block Y, to a point in the W. line of Survey No. 4, in Block B 4,

"Thence North to its N. W. corner;

"Thence East to the S. W. corner of Survey No. 3 in said Block B 4;

"Thence North to the Place of Beginning; meaning hereby to file on all vacant land lying South of said block 46, North of Block Y and West of Block B4, as far as the N. W. corner of Block Y."

This application also contained the following: "Should there be an excess of land after exhausting the certificates herewith filed, you will leave it out the extreme East end of the tract herein first described."

On July 1, 1882, this application, together with field notes of the Tumlinson, certified to have been surveyed on February 1, 1882, and field notes of the Mary Whitley, certified to have been surveyed on February 2, 1882, were filed in the general land office, and patent issued on the field notes of the Tumlinson on December 27, 1883. The south line of the Tumlinson called for natural objects and bearings now definitely located on the ground. Its east line called to be 1,456 varas long and for adjoinder on the south line of survey 69 in block 46, thence west with the south lines of block 46, closing on the north line of block Y.

The field notes of the Mary Whitley, prepared by McLean, called to begin at an artificial mound at the N. E. corner of survey 13 of block Y, thence east 556 varas to the lower southeast corner of the Whitley; thence north with the west line of survey 4 of block B4 1,413 varas to its northwest corner; thence east 1,344 varas to its northeast corner; thence north 1,700 varas to the south line of survey 61, block 46; thence west 419 varas to its southwest corner; thence with the lines of block 46 westward to the Tumlinson survey; thence south with the east line to its established southeast corner; thence closing on the north line of block Y. McLean undoubtedly knew the location on the ground of the east line of the Tumlinson and the north line of block Y. But it may be doubted that he knew the true location of block B4, since he called for a distance from his beginning corner of 556 varas to the west line of block B4, whereas the true distance is only 207.5 varas. We think it is conclusive, however, that he did not know the location on the ground of the south lines of block 46, because they, so far as the record shows, had never been actually located on the ground, and Maddox' field notes of same were prepared in his office on inaccurate data; and the true location of these surveys was not made until seven years later by Spiller by an actual survey on the ground. We think it equally true and apparent, however, that McLean intended, as called for in the application for its location, to include in its boundaries all of the vacant lands between block 46, block B4, block Y, and the Tumlinson. Such also was the clear intention of the land commissioner, because the Tumlinson was located on the same application, and was patented, including all the lands therein described between block 46 and block Y.

However, McLean's field notes of the Whitley were not accepted by the general land office. For what reason is not expressly shown. The only notation thereon in the general land office is, "Contains 1550 acres Sept 6/82," and an undated notation, "Cancelled by corrected field notes." It may reasonably be inferred, we think, that the rejection of McLean's survey of the Whitley, which in part at least was obviously an office survey, was due to his inclusion therein of 1,550 acres when the donation certificate called for only 1,280 acres; or because of the uncertainty of the true location of block 46.

The next survey of the Whitley, according to field notes filed in the general land office on May 18, 1883, is certified to have been made by J. W. Wells on January 8, 1883. This survey called to begin at the same starting point as that of McLean, followed substantially the east lines of the Whitley as called for by McLean, but changed materially McLean's calls for the north lines of the Whitley. Wells' survey did not call for adjoinder to block 46 on the north; and on the west called to adjoin the east line of the Tumlinson for a distance of 1,171 varas to the Tumlinson southeast corner; thence east following the same line and distance called for by McLean. Wells' field notes for the Whitley contained 1,280 acres. These field notes, however, were not accepted by the general land office, and the records of that office disclose the notation thereon, "Cancelled by corrected field notes."

The next survey of the Whitley was that made by Yarbrough, dated June 17, 1889, on which the land was patented to Gunter and Munson, on February 21, 1895. In June and July of 1888, Spiller had...