Price v. Humble Oil & Refining Co.

• Decision Date: 02 May 1941
• Docket Number: No. 12960.,12960.
• Citation: 152 S.W.2d 804
• Parties: PRICE et al. v. HUMBLE OIL & REFINING CO. et al.
• Court: Texas Court of Appeals

152 S.W.2d 804

PRICE et al. v. HUMBLE OIL & REFINING CO. et al.

No. 12960.

Court of Civil Appeals of Texas. Dallas.

May 2, 1941.

Rehearing Denied June 20, 1941.

Appeal from District Court, Van Zandt County; G. O. Crisp, Judge.

Action in trespass to try title by Early Gilchrist Price and others against the Humble Oil & Refining Company and others, wherein various parties filed cross-complaints or intervened. From a judgment for defendants plaintiffs appeal.

Affirmed.

A. A. White, of Tyler, Phil B. Foster, of Del Rio, H. C. Geddie and West & Stanford, all of Canton, and Morriss & Morriss, of San Antonio, for appellants.

R. E. Seagler, Joe S. Brown, John Broughton, D. H. Gregg, E. E. Townes, and John E. Green, all of Houston, Bromberg, Leftwich, Carrington & Gowan, George Schmucker, and John Miller, all of Dallas, Weeks, Hankerson & Potter and Russell Surles, all of Tyler, Joe Estes, of Fort Worth, J. M. Deavenport, of Kilgore, Angus G. Wynne, of Longview, and Wynne & Wynne, B. J. Wynne, and Gordon R. Wynne, all of Wills Point, for appellees.

YOUNG, Justice.

Appellants, as plaintiffs in the trial court, instituted this action in trespass to try title, seeking recovery of 200 acres of land out of the Walling Survey in Van Zandt County, and claiming as heirs of C. H. Gilchrist.

The common source was R. W. Berry, and defendants (aside from the heirs of Berry) claimed under record title originating in a deed from Thomas Duke to a James Berry, of date February 6, 1860, seasonably filed in Rusk County, with certified copy thereof placed in the Van Zandt County records after filing of suit. The property in issue was part of a 2,900-acre tract conveyed by Richard Walling and wife to R. W. Berry, October 19, 1857; and between said date and November 12, 1862, Berry, as grantor, in seven deeds, conveyed to various vendees all the land previously acquired from Walling, save as to this 200 acres, no deed thereto ever appearing out of Berry to anyone. At time of trial, well over 500 persons, either as plaintiffs, cross plaintiffs, or interveners, laid claim to the acreage as heirs of C. H. Gilchrist; comprehending seven distinct groups, each denying the kinship of all rival claimants. Appellants, herein referred to as the "Early Gilchrist Price group," contended and offered proof by legend and family history that C. H. Gilchrist was the eldest son, by the second wife, of Gilbert Scotland Gilchrist, of Alabama; and that he came to Texas in the early fifties, settling near the town of Tyler. A great portion of the testimony is devoted to proof indicating that appellants were the true heirs of this common ancestor. However, their claim to the land is based on circumstantial evidence, equally voluminous, tending to show that R. W. Berry, at some date between October 19, 1857, and the spring of 1861, had executed and delivered to said C. H. Gilchrist a deed to the 200 acres, which was never recorded, but lost. Defendants in said cause are: (a) Sanger Bros. and its successor, Sanger Investment Company, claiming fee simple title under regular chain from the Thomas Duke deed of 1860; (b) Humble Oil & Refining Company and Gulf Oil Corporation, owners of a leasehold estate in the west 100 acres, from Sanger Investment Company; (c) W. F. Bridewell, et al., holding similar leasehold from the Sangers to the east 100 acres; (d) the heirs of R. W. Berry and wife, Mahulda, were defendants, having previously filed suit for the land, claiming against Sangers and their assigns; (e) Gibb Gilchrist was made a defendant, as he had theretofore refused to join in appellants' claims.

Additional to title claims, the various groups of heirs prayed for accounting of oil produced, and damages for alleged illegal possession, in the sum of $2,000,000. Defendant fee holder and each of the leaseholders answered by pleas of not guilty; also five and ten-year statute of limitations, Vernon's Ann.Civ.St. arts. 5509, 5510, and improvements in good faith. They asserted ownership through regular chain of title from 1860, as already mentioned, together with payment of taxes from date of the Duke deed; and use, occupancy, adverse and continuous possession and enjoyment, beginning with the year 1918; that the land was then fenced by Tom Howell, under contract with Sanger Bros., and thereafter continuously devoted by such individual to the purpose for which it was reasonably adapted; maintaining the fencing thereon until 1929, when oil was discovered in that vicinity.

Defendants, Humble and Gulf, also pleaded the five and ten-year statute of limitations under their oil and gas leases, together with payment of taxes and continuous production of oil; all defendant leaseholders pleading a development of their properties for oil, and improvements made in good faith.

At the close of testimony on behalf of plaintiffs (the Early Gilchrist Price group), all other groups refused to proceed under instructions of the court, whereupon, the jury was instructed to find against them, with no exception taken by said parties. The only issue then remaining, so far as heirship was concerned, was whether the Early Price claimants (appellants) were heirs of C. H. Gilchrist, and whether the latter was the son of Gilbert Scotland Gilchrist.

On February 8, 1939, after several weeks' trial, the jury made, in substance, the following findings: That R. W. Berry did not execute a deed to C. H. Gilchrist; (2) that C. H. Gilchrist was not a son of Gilbert Scotland Gilchrist (from whom appellants claimed their ancestry); (3) that the Early Price group were not the heirs of C. H. Gilchrist; (4) that appellants and their attorneys were negligent after their suit was filed on December 23, 1935, in failing to have process issued until March 23, 1936; (5) that Sanger Investment Company had peaceable, continuous and adverse possession of the tract of land in controversy, using and enjoying the same and paying all taxes thereon, and claiming the same under a deed, or deeds, duly registered, continuously using the same as a pasture for grazing purposes for a period of five consecutive years before the commencement of this suit. (6) That Sanger Investment Company, after the land was fenced in the fall of 1918, and prior to the commencement of the suit herein, held peaceable and adverse possession of the land in controversy, under fence, using the same as a pasture for grazing purposes for a period of ten consecutive years. (7) That the Humble Oil & Refining Company and the Gulf Oil Corporation, by their agents and employes, had held peaceable and adverse possession of the west 100 acres of the land in controversy, using and enjoying the same by drilling, operating and producing oil and gas from said property, and paying all taxes thereon, claiming ownership under an oil and gas lease, and assignments thereof, duly registered, for a period of five consecutive years prior to the commencement of this suit. (8) That W. F. Bridewell, et al., had, in good faith, improved the north 44 acres of the east 100 acres. (9) That W. F. Bridewell, et al., had, in good faith, improved and developed the south 50 acres of the east 100 acres. (10) That the Humble Oil & Refining Company and the Gulf Oil Corporation had, in good faith, developed the west 100 acres.

Upon these jury answers and facts found by the court, judgment was rendered against plaintiffs, cross plaintiffs and interveners, and in behalf of all defendants. No adjudication was made as between Sanger Investment Company and those holding under it, and the heirs of R. W. Berry. Here, it should be noted that the only complaining parties to this appeal are the Early Gilchrist Price group of heirs; with the Sanger Investment Company, its leasehold assigns, and the R. W. Berry heirs as the only appellees.

The statement of facts embraces some 2,300 pages of testimony; supplemented by more than 260 exhibits, either copied, photostated, or brought up in original form.

Appellants' assignments and propositions are numerous and of varied length. Inasmuch as the jury verdict on all ten issues was favorable to appellees, other than the Berry heirs, the major challenge thereto is, that such findings of fact are contrary to the evidence and against the latter's overwhelming weight. Other errors presented involve many rulings on testimony, both in exclusion and admission; on motions, both in overruling and sustaining; errors assigned to the court's charge; arguments of adverse counsel; and prohibited kinship of a juror to some of the parties, i.e., the Berry heirs.

At the outset, we are faced with the dual problem, not only of giving utmost consideration to all points brought to issue by the briefs, but of confining our conclusions thereon to reasonable bounds. It is obvious that jury finding No. 1 (of no deed from Berry to Gilchrist) and No. 5 (of five-year limitation title in Sanger Bros.), if supported by evidence, are each determinative of this appeal, unless neutralized by appellants' assignments on procedural errors, later to be considered. Our discussion of the entire case can be materially shortened, therefore, if we may first examine appellants' series of propositions, arguing that the overwhelming weight of testimony proved the execution of a deed from Berry to their common ancestor; and defendants offering no evidence contradictory thereof, that a jury verdict supported by no probative facts or circumstances, should be set aside. On the other hand, Sanger and its assigns show that, under the whole record, presumption of deed from Berry to Gilchrist was not raised; but if in error here, that the jury finding of no deed, based on sufficient defensive testimony, is final. This leads to a digest of material facts relied on by the respective parties.

All that part of the John Walling League, except five tracts theretofore partitioned to the Walling heirs, which tracts lie in connecting rectangles on the northeast part of the League, was conveyed to...