Stanolind Oil & Gas Co. v. State

• Decision Date: 03 February 1937
• Docket Number: No. 7174.,7174.
• Citation: 101 S.W.2d 801
• Parties: STANOLIND OIL & GAS CO. et al. v. STATE.
• Court: Texas Supreme Court

101 S.W.2d 801

STANOLIND OIL & GAS CO. et al. v. STATE.

No. 7174.

Supreme Court of Texas.

February 3, 1937.

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

Trespass to try title by the State against the Stanolind Oil & Gas Company and others. Judgment for defendants was reversed and the cause remanded, with directions by the Court of Civil Appeals [96 S. W.(2d) 297], and defendants bring error.

Judgment of Court of Civil Appeals reversed, and judgment of District Court affirmed.

Turner, Rodgers & Winn, of Dallas, and Clay Tallman and Donald Campbell, both of Tulsa, Okl., for plaintiff in error Stanolind Oil & Gas Co.

Robert T. Neill, of San Angelo, for plaintiffs in error J. A. Chapman et al.

J. B. Dibrell, Jr., of Coleman, and John Sayles and Jack Sayles, both of Abilene, for plaintiff in error Permian Oil Co.

R. E. Seagler and Lee M. Sharrar, both of Houston, for plaintiff in error Humble Oil & Refining Co.

Thompson, Mitchell, Thompson & Young and Truman Post Young, all of St. Louis, Mo., for plaintiff in error Shell Petroleum Corporation.

George T. Wilson, of San Angelo, for plaintiff in error Yates.

R. C. Gwilliam, of Tulsa, Okl., for plaintiff in error Marathon Oil Co.

Phillips, Trammell, Chizum, Estes & Edwards, of Fort Worth, for plaintiff in error Empire Gas & Fuel Co.

John Perkins, of Midland, for plaintiff in error Humble, etc.

Vinson, Elkins, Sweeton & Weems and C. E. Bryson, all of Houston, and R. W. Adams, Jr., of Fort Worth, for plaintiff in error Pure Oil Co.

Walter L. Kimmel, of Tulsa, Okl., for plaintiff in error Hargrove Hudson.

Hiner & Pannill, of Fort Worth, for plaintiffs in error Peerless Oil Co. et al.

Smith & Smith, of Fort Worth, for plaintiff in error Southland Royalty Co.

W. A. Keeling, of Austin, Francis H. DeGroat, of Duluth, Minn., Charles A. Holden, of Tulsa, Okl., John M. Deavenport, of Kilgore, and Gibbs & Williams, of San Angelo, for plaintiff in error Douglas Oil Co.

Thompson, Knight, Baker & Harris, of Dallas, for plaintiff in error Sims Oil Co.

D. B. Hardeman, of San Angelo, for plaintiff in error Cornell.

William McCraw, Atty. Gen., and H. Grady Chandler and Russell Rentfro, Asst. Attys. Gen., Hart Johnson, of Fort Stockton, Mark McMahon, Warren Scarborough, and Cantey, Hanger & McMahon, all of Fort Worth, and C. W. Trueheart, R. L. Ball, and Ball, Seeligson & Trueheart, all of San Antonio, for the State.

Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, as amici curiæ.

HICKMAN, Commissioner.

The case is well stated by Justice Higgins in the opinion prepared by him for the Court of Civil Appeals. 96 S.W.(2d) 297. In our statement some of his language will be adopted, but, because of certain changes in arrangement and some omissions and additions here and there, quotation marks will not be employed.

This is an action of trespass to try title and for damages brought by the State of Texas, seeking to recover a tract of land containing about 260 acres in the Yates oil field, Pecos county, and the value of oil taken from the land by the defendants. In the trial court upon an instructed verdict judgment was rendered for defendants. The issue is one of boundary. The State claims the land as unsold public free school land lying just north of Yates survey 34½, while the defendants claim it as a part of T. C. Railway Company surveys 101, 102, 103, and 104. In the alternative some of the defendants assert that, if it is not a part of those surveys, then it is embraced within Yates survey 34½ mentioned in Holmes v. Yates, 122 Tex. 428, 61 S.W.(2d) 771, and Miller v. Yates, 122 Tex. 435, 61 S.W.(2d) 767. For an understanding of the location of the land in suit in connection with the surrounding surveys reference is made to a map appearing in the opinion rendered in Turner v. Smith, 122 Tex. 338, at page 355, 61 S.W.(2d) 792, at page 797. That map does not indicate any vacancy between the T. C. Railway Company surveys and the Yates survey No. 34½. The following sketch, in connection with the map referred to, is deemed sufficient for an understanding of the questions here decided:

The sections bordering on the river form a part of I. & G. N. R. R. Co. block No. 1. The land sued for is described in the petition as follows:

"All of that certain area comprising about 300 acres of land, bounded on the North by the South lines of surveys 101, 102, 103 and 104, T. C. Ry. Co. Surveys, Block 194; and bounded on the East by a southward projection of the East line of Survey 104 to its intersection with the North line of Survey 34½ and bounded on the South by the most southerly North line of Survey 34½ (I. G. Yates), Block 194; and bounded on the West by a southward extension of the West line of said Survey 101, T. C. Ry. Co. Surveys, extending southward from its South West corner to intersect with the said most southerly North line of said Survey 34½ said area being further described by metes and bounds as follows:

"Beginning at a point on the ground, which is ascertained in the following manner: Begin at the S.E. corner of Survey 70, Block 1, I. & G. N. R. R. Co., an old mound of stone (in which a leaf from a car spring has recently been driven) on the West bank of the Pecos River, between two falls, or ripples, about 40 varas North Westerly from a bend in said bank, where two branches enter, one from the West and one from the South, the East edge of ledge of rock bears South 47 deg. East about 600 varas, a stone marked `N.W. 69,'

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

in a mound of stone bears South, 1½ deg. East 408 varas, a pipe set in mound of stone bears 88 deg. West 12.6 varas; thence West 4112 varas to a point; thence South 6121 varas to the beginning point of this tract, being the area herein sued for, same being the true S.W. corner of Survey 101, Block 194, T. C. Ry. Co., as patented.

"Thence East with the South lines of Surveys 101, 102, 103 and 104, T. C. Ry. Co. Surveys 7600 varas to the South East corner of Survey 104, for the North East corner of this tract; thence South to a point in the North line of Survey 34½, which point is 215 varas south and about 250 varas West of a stone mound on a flat rock marked `SE 104 DOD Oct. 15, 1918'; thence West with the most southerly North line of said Survey 34½ for the South line of this area, to a point where the West line of said Survey 101 projected southward intersects with said North line of Survey 34½ thence north to the place of beginning."

During the course of the trial plaintiff filed a trial amendment alleging: "In the alternative that if it be held that the southeast corner of Survey 70, Block 1, I. & G. N. R. R. Co. be located on the ground at a point about 12 varas west from the old mound of stone in which a car spring has recently been driven, or at a point which is 50 varas west and 47.3 varas north from said old mount of stone in which a car spring has recently been driven, then the beginning point or northwest corner of the land here sued for should and may be ascertained by locating said beginning point at a point on the ground 4112 varas west and 6121 varas south from the point so held to be the southeast corner of said Survey 70. The description of the land sued for being otherwise identical with that set out in plaintiff's Fourth Amended Original Petition."

The mound of stone in which a car spring has recently been driven is referred to in the briefs as the car spring corner. The northeast corner of survey 69 in block 1, I. & G. N. Railroad, and the southeast corner of survey 70 in said block is a common corner. That block was surveyed in 1876 by Jacob Kuechler. The surveys therein are on the west bank of the Pecos river and will be herein sometimes referred to as the river surveys. All were located under certificates issued to said railroad company except survey 545, which was located under a senior certificate issued to Torres Irrigation & Manufacturing Company. It was inserted in the block in lieu of survey 66. Kuechler ran a traverse along the west bank of the Pecos river, monumenting and identifying the corners on the river by bearing calls for natural objects. He platted in by protraction the north, west, and south lines of the surveys so as to give each survey 640 acres. The west lines uniformly call for 950 varas each. The field notes call for stakes and mounds at the west corners. Max Lungkwitz was the instrument man in Kuechler's surveying party and directed the actual work upon the ground. At the same time Kuechler surveyed another block for the I. & G. N. Railroad on the east bank of the river directly opposite block 1. Field notes thereof were returned to the Land Office with plat showing the two blocks on the west and east banks of the river. The plat shows a series of 1,280-acre rectangles bisected by the Pecos river.

Kuechler ran his traverse from the north to the south, but in preparing the field notes of the surveys in block 1 he built one survey on the other northward, making common corners of the northeast and southeast corners on the river. Max Lungkwitz testified that he and Kuechler merely ran along the river bank and the latter did the computation on the other lines, which were never surveyed on the ground; that the stake and mound calls for the southwest and northwest corners of these surveys were fictitious or office calls.

Runnels county school land survey No. 3, hereinafter sometimes called survey No. 3, was located by office survey made by L. W. Durrell, deputy county surveyor of Pecos county. His original notes called for the west line of the survey to be 5,040 varas. They were filed in the Land Office March 19, 1881, but were not approved. This indorsement by the Land Office appears thereon: "Cancelled by corrected field notes — contains 26105580 sq. vs. Mch. 28/81."

These original notes read:

"Beginning at the South West Corner of survey No. 70 made for the International & Gt. Northern Railroad Co....