State v. Ohio Oil Co., 9356.

• Decision Date: 09 June 1943
• Docket Number: No. 9356.,9356.
• Citation: 173 S.W.2d 470
• Parties: STATE v. OHIO OIL CO. et al.
• Court: Texas Court of Appeals

173 S.W.2d 470

STATE v. OHIO OIL CO. et al.

No. 9356.

Court of Civil Appeals of Texas. Austin.

June 9, 1943.

Rehearing Denied July 7, 1943.

Appeal from District Court, Travis County; J. Harris Gardner, Judge.

Trespass to try title action by the State of Texas against the Ohio Oil Company and others. From a judgment upon a directed verdict for defendants, the State appeals.

Affirmed.

Gerald C. Mann, Atty. Gen., Will R. Wilson, Jr., Asst. Atty. Gen., Glenn R. Lewis, Asst. Atty. Gen., and Cecil C. Rotsch, Asst. Atty. Gen., Charles W. Trueheart, of San Antonio, J. B. Dibrell, Jr., of Coleman, and Robert G. Hughes, of San Angelo, Special Counsel, for the State.

Myron A. Smith, of Fort Worth, for appellee Southland Royalty Co.

George T. Wilson, of San Angelo, and Ira P. Hildebrand, of Austin, for appellees Yates Heirs.

Clayton L. Orn, of Houston, John W. Stayton, of Austin, and Wm. Pannill, of Fort Worth, for appellee Ohio Oil Co.

Wm. Pannill, of Fort Worth, and Black, Graves & Stayton, of Austin, for appellees Peerless Oil & Gas Co. et al.

BLAIR, Justice.

This is a vacancy suit involving seven separate tracts of land in Pecos County, Texas. The State instituted the suit in trespass to try title against three groups of defendants, the Yates group, the Ohio Oil Company group, and the Southland Royalty Company group, appellees herein, to recover the seven tracts for the permanent school fund as vacant, unpatented land. The petition described each tract, and each tract is delineated and described on the map of Sylvan Sanders, a licensed state surveyor, as tracts Nos. 1, 2, 3, 4, 8, 9 and 10, depicted in black on the map. This map is not a State approved map but was prepared under the direction of and introduced by the State for the purpose of showing its claimed location on the ground of the seven tracts of land sued for. For a better understanding of their claimed location and of the surrounding surveys reference is here made to the maps appearing in the cases of Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792, 797; Stanolind Oil & Gas Co. v. State, 129 Tex. 547, 551, 101 S.W.2d 801, 104 S.W.2d 1; and Pandem Oil Corp. v. Goodrich, Tex.Civ.App., 29 S.W.2d 877, 879; which maps do not show or indicate that either of the seven tracts sued for is vacant land. NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

At the conclusion of the State's evidence the trial court sustained the several motions of appellees for an instructed verdict and rendered judgment denying it a recovery of either of the seven tracts of land sued for, upon the grounds (1) of "no vacancy" shown as to either tract; (2) of res adjudicata; (3) of judicial estoppel; (4) of equitable estoppel; and (5) of stare decisis.

The cases, judgments and decisions relied upon to establish the last four grounds for denying the State a recovery are: Turner v. Smith (Turner case), 122 Tex. 338, 61 S.W.2d 792; Douglas Oil Co. v. State (California case), 122 Tex. 377, 61 S.W.2d 807; State v. Mid-Kansas (Mid-Kansas case), judgment of the district court not appealed from; Douglas Oil Co. v. State (Whiteside case) 122 Tex. 369, 61 S.W.2d 804; Stanolind Oil & Gas Co. v. State (first Stanolind case), 129 Tex. 547, 101 S.W.2d 801, 104 S.W.2d 1; Stanolind Oil & Gas Co. v. State (second Stanolind case), 136 Tex. 5, 133 S.W.2d 767, 145 S.W.2d 569; and State v. Yates, Tex.Civ. App., 162 S.W.2d 747, writ refused. Appellees also cite the cases of Eppenauer v. Ohio Oil Co. (Compton v. Ohio Oil Co.), 5 Cir., 98 F.2d 524; Eppenauer v. Ohio Oil Co., 5 Cir., 128 F.2d 363; certiorari denied in first two cases, 306 U.S. 632, 59 S.Ct. 461, 462, 83 L.Ed. 1034; which decisions involved the question of whether the same seven tracts of land sued for by the State in the instant case were vacant, unpatented public free school land; the circuit court holding that the same vacancies here claimed did not exist, and that by the judgments in the Turner, California, and the Mid-Kansas cases, supra, the lines and corners of all surveys involved in the instant case have been fixed on the ground, adjoining each other as called for in the field notes, and that tracts Nos. 1, 2, 3, 4, 8, 9 and 10 were not vacant land; that tracts Nos. 1, 2, 3 and 4 were a part of Surveys 61, 62 and 63, in block 1; that tract No. 10 was a part of the Yates 34½ survey; that tract No. 8 was a part of sec. 33, block 194; and that tract No. 9 was a part of sec. 32, block 194.

The State of Texas was not a party to these suits in the federal court. Appellees contend, however, that "while these judgments are not binding on the State as res adjudicata, yet the decisions in said cases constitute valuable, and we believe controlling, precedent upon the same issues," and being "the conclusion of the eminent judges participating in the decisions referred to must carry great weight, and as legal precedence are not only highly persuasive, but demonstrate the correctness of the judgment in this suit."

The State presents two points or contentions, as follows:

1. That the court erred in instructing a verdict on the ground of "no vacancy" shown as to either of the seven tracts of land, because its evidence raised a fact or jury issue as to whether a vacancy existed as to each of the seven tracts of land sued for.

2. That the court erred in sustaining the several pleas of res adjudicata, judicial estoppel, equitable estoppel, or stare decisis with respect to each of the seven tracts of land sued for.

The State's evidence did not show either of tracts Nos. 1 to 4 as depicted on Sanders' map to be vacant land. They will be first discussed from the standpoint of the insufficiency of the evidence, apart from any consideration of the aforementioned judgments involving the several surveys in suit.

As depicted on his map, Sanders shows tract No. 1 to lie west of survey 63; tract No. 2 to lie north of survey 63; tract No. 3 to lie north of survey 62; and tract No. 4 to lie south of survey 61, which are a part of the system of river surveys made by Jacob Kuechler in 1876. The State sought to recover each of these four tracts of land as a vacancy existing between Kuechler's senior survey lines as reconstructed by surveyor Sanders and the junior Dod monuments as marked on the ground under his construction of Kuechler's lines when he surveyed and laid in (between 1916 and 1921) the two school files of I. G. Yates, being shown on Sanders' map as I. G. Yates S.F. 12341, a survey of 2,486 acres of land lying between Block 1 or river surveys on the east and Durrell's Blocks 178 and 194 on the west; and the I. G. Yates Survey 34½ of 1107 acres of land lying between Block 1 or river surveys on the east and block 194, T.C.R. surveys 101 to 104, and Runnels County School Land Survey No. 3 on the west and north, which surveys are shown on the maps in the Turner and the first Stanolind cases; and which surveys, the surveyor who made them, and the manner in which they were made are fully set out in the Turner, California, Whiteside, and first and second Stanolind cases.

Kuechler's field notes, excerpts from his field books A and B, and portions of Dod's reports and field notes were introduced in evidence as bearing upon the construction which surveyor and witness Sanders placed upon them in reconstructing the River surveys from the north line of 545 to the south line of 61, and his map herein inserted shows how he applied his findings to the ground, and as establishing the claimed vacancies Nos. 1 to 4. Kuechler's field notes and books merely disclose that he made the River surveys as a system of surveys by running a traverse line for a long distance on the west bank and generally parallel with the Pecos River, beginning at Pontoon Bridge, a point many miles north of the area here involved, and running south along the west bank of the river to the neighborhood of Sheffield, a point many miles south of the area involved, from which direction his field notes were constructed numerically and in sequence of calls. He did not run out or mark on the ground the north, west or south lines of these River surveys, but simply located them by protraction or office survey with reference to the points established by him on or near the river as marked directly or by reference to the northeast and southeast corners of his surveys; and gave the length of the north, south and west lines so as to make the quantity of 640 acres of land called for in each survey. The Red Barn corner, as depicted on Sanders' map, marking the northeast corner of 60 and the southeast corner of 61, is the only Kuechler corner which has ever been definitely located on the ground from said corner north to 70.

In reconstructing Kuechler's work Sanders claimed to have found a "small hill" or a "small round hill" in the north line of 545, referred to in Kuechler's field notes and field books as being 750 varas from the river. Sanders found his hill at 675 varas from the river. He found as had been definitely located on the ground the southeast corner of 61 at the Red Barn corner. The location of the north line of 545 is the only Kuechler point Sanders claimed to have located between there and the south line of 61. As so located Sanders found an excess of 28 varas per survey between the north line of 545 and the southeast corner of 61, which excess he added to the 950 varas called for in Kuechler's field notes, and thereby gave the west or back line of 61, 62 and 63 each a length of 978 varas, and it was in this manner that Sanders reconstructed these river surveys as depicted on his map.

Dod began his surveying and construction of Kuechler's river surveys under the direction of the Land Commissioner some 25 years prior to the time this suit was filed. By his ground work Dod marked both the northwest and southwest corners of all of what he found to be these river surveys, except northwest 59 and southwest 63. Each of these corners is well marked on the ground and calls for...