State v. Superior Oil Co.

• Decision Date: 26 June 1975
• Docket Number: No. 937,937
• Parties: The STATE of Texas, Appellant, v. The SUPERIOR OIL COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 581

526 S.W.2d 581

The STATE of Texas, Appellant, v. The SUPERIOR OIL COMPANY et al., Appellees.

No. 937.

Court of Civil Appeals of Texas Corpus Christi.

June 26, 1975.

Rehearing Denied Aug. 29, 1975.

John L. Hill, Jr., Atty. Gen., J. Milton Richardson, Asst. Atty. Gen., Austin, John H. Flinn, Sinton, Richard D. Hatch, III, Aransas Pass, for plaintiff.

Anderson, Smith, Null & Stofer, Victoria, William J. Ayers, The Permian Corp., Houston W. Newton Barnes, Mockingbird Tower, W. S. Barron, Jr., Geary, Brice, Barron & Stahl, Dallas, Louis H. Beard, Wells, Duncan, Beard, Greenberg & Hunt, Beaumont, Marshall Boykin, III, Wood, Boykin & Wolter, Corpus Christi, Robert L. Bradley, Andrews, Kurth, Campbell & Jones, Houston, H. A. Burnett, Burnett & Burnett, Sinton, Butler, Binion, Rice, Cook & Knapp, Claude C. Roberts, William S. Clarke, Texaco Inc ., Houston, J. W. Cooper, Jr., David M. Coover, Davis & Hale, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, Robert M. Ewing, Ewing & Gerger, Dallas, Samuel L. Fly, Forest Oil Corp., San Antonio, Foy, Cobb, Campbell & Gall, Clifford G. Campbell, Joe H. Foy, Houston, Ralph J. Graham, Corpus Christi, Graves, Dougherty, Hearon, Moody & Garwood, Austin, Head & Kendrick, Corpus Christi, Richard Henderson, Guittard & Henderson, Victoria, Frederic Johnson, Sinton, Allen S. Lawrence, Jr., Ellis, Andrews & Lawrence, Aransas Pass, Warren B. Leach, Jr., William H. Holloway, Marathon Oil Co., Thomas H. Lee, Lee & Babcock, Houston, Fritz L. Lyne, Lyne, Klein, French & Womble, Dallas, Dave McNeill, Jr., Harry M. Reasoner, David T. Harvin, Vinson, Elkins, Searls, Connally & Smith, Houston, Frank R. McWhorter, Tenneco, Inc., Houston, M. W. Meredith, Jr., Meredith & Donnell, Corpus Christi, John H. Miller, Jr., Sinton, Walter B. Morgan, Ezzon Co., U.S.A., B. W. Morris, Sinclair Oil & Gas Co., Houston, William E. Nicholas, Sinton, Clayton L. Orn, Anderson, Brown, Orn & Jones, Houston, D. Dean Patton, Morrill & Patton, Beeville, Roy E. Pitts, J. Harold Goode, Lone Star Gas Co., Dallas, Bernard W. Schrader, Coastal States Gas Producing Co., E. E. Shouse, Herbert W. Varner, R. T. Robberson, The Superior Oil Co., Houston, Milton W. Walton, M. Harvey Weil, Kleberg, Mobley, Lockett & Weil, Corpus Christi, David A. Witts, Dallas, Claude D. Bell, Jr., Dallas, R. J. Delahoussaye, Corpus Christi, J. P. Greve, Jr., Rufus N. McKnight, Jr., Sun Oil Co., Dallas, J. R. Keeling, Corpus Christi, Kliewer & Hood, Dallas, Fred A. Lange, Austin, Dabney, Northrop & Garwood, Houston, J. R. Sorrell, Sorrell, Anderson & Sorrell, Corpus Christi, Renfro Speed, Hexter-Fair Title Co., Dallas, R. F. Thompson, Fort Worth, Atwood McDonald, McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, Fort Worth, J. Patrick McGloin, Kleberg, Mobley, Lockett & Weil, Corpus Christi, Morrison, Dittmar, Dahlgren & Kaine, San Antonio, Perkins, Davis, Oden & Warburton, Alice, Hubert M. Preston, San Angelo, for defendants.

OPINION

NYE, Chief Justice.

This is a vacancy case. The cause originated as a suit filed by an applicant, Walter C. Atchley, acting under article 5421c, section 6, Tex.Rev.Civ.Stat.Ann. seeking to purchase 12,068.4 acres of state land. Atchley's application had been rejected by the commissioner of the General Land Office before he filed suit. The State of Texas acting under the authority of article 5421c, section 6(j), Tex.Rev.Civ.Stat.Ann. intervened in the cause as an active plaintiff in trespass to try title, asserting ownership of the area of land claimed to be State lands by Archley as well as other areas. The purpose of the vacancy suit was to claim the lands for the State of Texas and the public free school fund. Atchley, the individual claimant, was then given statutory priority to purchase the lands from the State of Texas, if he were successful in proving the vacancy. As a result, the State was required to intervene in the suit under Article 5421c, section 6(j). That article reads in part: '. . . When such litigation shall have been prosecuted to a final judgment, said judgment shall be binding upon the State of Texas. It shall be mandatory for the Attorney General to intervene in behalf of the State in such cases.' Under the provision of section 6(j) of Article 5421c, the issues to be tried in a vacancy suit are 'boundary, title and ownership'.

Following the intervention by the Attorney General, the State filed its first amended petition in intervention in which it sought to recover, in trespass to try title, the same 12,068.4 acre tract that Atchley claimed was vacant. In addition, the State sought damages in the amount of $262,523,437 for the oil and gas produced from the subject tract of land.

The trial court ordered the issues and claims of the State asserted in its motion for summary judgment, be severed from Atchley's suit and tried as a separate suit, to be separately numbered and styled on the civil docket of the court as the State of Texas v. Superior Oil Company, Et Al, and tried after Atchley's suit had been tried.

The tract of land in question covers almost 5 1/2 leagues of land and is known as the Portilla grant. The State of Coahuila and Texas, on October 23, 1834, in five separate grants, granted to Felipe Rogue Portilla and his six sons 5 1/2 leagues as a part of the Power & Hewetson Colony pursuant to the colonization of this particular area by Mexico in 1834. The State's plea in intervention was in the form of a trespass to try title action naming the same defendants that were sued in Atchley's original suit.

The State filed its second amended petition in the severed cause in which it alleged that it was entitled to recover (in trespass to try title), the 5 1/2 leagues of land known as the Portilla grants in San Patricio County, Texas. On June 24, 1971, the district court entered judgment in the Atchley case in favor of the defendants. Atchley appealed and the Beaumont Court of Civil Appeals affirmed, holding that the subject tract of land was within the boundaries of the 5 1/2 league Portilla grants and therefore was not vacant land. The Supreme Court refused the application for writ of error, N.R.E. Atchley v. Superior Oil Company, 482 S.W.2d 883(Tex.Civ.App.--Beaumont 1972, writ ref'd n.r.e.).

Following the affirmance of the judgment in the original Atchley case, the defendants filed their Motion for Summary Judgment along with the State's Motion for Summary Judgment. The motions were heard on August 23, 1974 by the District Court. The defendants' Motion for Summary Judgment (which for all practical purposes answers the State's motion), included as its grounds the following: (1) that titles to the land in question originally granted to Portilla were vested in defendants under various conveyances; (2) that the course of conduct of the duly authorized officers of the State of Texas, with regard to ancient grants, have, by their failure to act for 130 years, raised a conclusive presumption that the grants were validly issued and that the Portillas have performed all conditions, precedent and subsequent, for ownership; (3) that the judgment rendered in Atchley v. Superior Oil Company in which the State had intervened is res judicata and thus, bars the claim the State now makes; (4) that Portilla and his sons did not abandon their land and establish themselves in Mexico because the law conclusively presumes at this late date that no such abandonment took place; (5) that the removal from the Republic of Texas to Mexico by the Portillas did not ipso facto vacate title to the land the Portillas acquired under the colonization laws; (6) the State's claim that the Portillas failed to occupy the land for six consecutive years is without merit; (7) the law presumes that the Portillas did not leave Texas to avoid participating in the Texas War; (8) that the Portillas were not aliens of the land; (9) the law presumes at this late date that all monies due and owing on the land in question were paid, and that the land did not escheat to the State of Texas; (10) the State's claim that two of Portilla's sons were not residents was without merit; and (11) the Courts of Texas have long accepted as valid the Portilla grants.

The District Court entered its judgment holding that the State's Motion for Summary Judgment be denied, and sustained the defendants' Motion for Summary Judgment. The trial court adjudged that the State of Texas take nothing by its suit against the defendants. The State brings this appeal from that summary judgment.

The trial court did not indicate upon which of the eleven grounds alleged in the defendants' Motion for Summary Judgment that it based its judgment, whether it be one or all. For that reason, the State of Texas argues in its brief against each ground asserted in defendants' Motion for Summary Judgment contending that each is without merit. The State contends that the trial court erred in granting the defendants' Motion for Summary Judgment and contends alternatively that the State's Motion for Summary Judgment should have been granted. It prays that the judgment be reversed and rendered accordingly, or in the alternative that the case be reversed and remanded to the District Court for trial on the merits.

In Summary Judgment cases where the merits of the case have not been reached and the summary judgment rests upon the proof before the Court, the question on appeal as well as in the trial court is not whether the summary judgment proof raises fact issues with reference to the essential elements of the State's claim or cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the State's cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970). The provisions of Rule 166--A, Texas Rules of Civil Procedure are applicable to the State, as well as to the defendants who moved for summary judgment. The...