Shell Petroleum Corporation v. Ward

• Decision Date: 05 January 1939
• Docket Number: No. 8794.,8794.
• Citation: 100 F.2d 778
• Parties: SHELL PETROLEUM CORPORATION v. WARD et al.
• Court: U.S. Court of Appeals — Fifth Circuit

100 F.2d 778 (1939)

SHELL PETROLEUM CORPORATION v. WARD et al.

No. 8794.

Circuit Court of Appeals, Fifth Circuit.

January 5, 1939.

R. H. Whilden, of Houston, Tex., for appellant.

Chas. S. Pipkin and Oliver J. Todd, both of Beaumont, Tex., for appellees.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was for the title and possession of 5.6 acres of land, occupied by a right of way for an irrigation canal. The claim was that though included within the metes and bounds, it had been excepted out, of a conveyance plaintiffs had made. The defense was that referred to in the deed as "taken up by the rights of way of the Neches Canal Company's lateral" it had been excepted not from the conveyance, but only from the warranties.

The District Judge took plaintiffs' view as to the construction and effect of the instruments in question, the right of way deed from the Wards to the Canal Company, and the deed of conveyance from the Wards to Gregory. He directed a verdict for plaintiffs. This appeal tests whether that construction was right. We do not think it was.

The right of way deed was dated January 4, 1913. For a consideration of $650 it conveyed to the Neches Canal Company "the right of way for an irrigation canal, together with the right of ingress and egress for the purposes of constructing, repairing, maintaining and operating said canal on and across the following described land in the Alexander Horton one fourth league survey situated about eighteen (18) miles West from Beaumont, and described as follows: * * *

"So long as said land is used for an irrigation canal, and should said canal be abandoned, and not used for irrigating lands, for a period of five consecutive years, then the right and title to said land shall revert to, and by such abandonment be reinvested in, the said W. W. Ward, his grantees and legal representatives.

"Grantors shall have the right to enclose, use and occupy said land at all times in a way not to interfere with the use and occupancy of said land as an irrigation canal, as above provided by said Neches Canal Company, or its assigns or successors.

"It is further understood that the grantors herein shall have the right to use the lateral constructed on the right-of-way above conveyed as a drainage ditch for the drainage of such land adjacent to said lateral as would naturally drain into the same, and grantors shall have the right to take from said lateral and use and store such drainage water collected in said lateral in reservoirs that may be constructed by them for such purpose, but said lateral is to be used for this purpose only between the pumping seasons and at times and in a way that shall not in any way interfere with the use thereof by grantee as an irrigation canal, or in anyway injure or impair the same as an irrigation canal."

The deed under which appellant, the defendant below, holds was dated November 23, 1917. For a recited consideration of $4,692 it sold and conveyed to Gregory by metes and bounds, including within them the 5.6 acres in controversy, a tract of land described in the conveyance as "containing 162 acres of land."

The material parts of this deed are —

"have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Thomas Gregory, of the County of Jefferson, State of Texas, all that certain tract or parcel of land situated in Jefferson County, State of Texas, and being a part of the Alexander Horton one-fourth league survey, described as follows * * * containing 162.00 acres of land save and except therefrom 5.6 acres taken up by the rights of way of the Neches Canal Company lateral, making 156.4 acres herein and hereby conveyed.

"To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said Thomas Gregory, his heirs and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators, to warrant and forever defend, all and singular the said premises unto the said Thomas Gregory, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof."

It is a principal of universal application that grants are liberally, exceptions strictly, construed against the grantor. 8 R.C.L. 1094; 14 Tex.Jur. 926; Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551; Barker v. Lashbrook, 128 Kan. 595, 279 P. 12; Bolton v. Dyck Oil Co., Tex.Civ.App., 114 S.W.2d 299; Jones v. Sun Oil Co., Tex. Civ.App., 110 S.W.2d 80; Higdon v. Nichols, 204 Ky. 56, 263 S.W. 665.

This principle is especially vigorous in operation, where, as here, a construction is contended for which would produce the unreasonable result of splitting into two pieces a tract of land, which existed as one tract, subject only to an easement, and which, in reason, must be considered to have been conveyed as such, and not to have been split into separate parts, with a thin wedge of land between.

In Paine v. Consumers' Forwarding & Storage Co., 6 Cir., 71 F. 626, it was said page 632: "The evils resulting from the...