Strayhorn v. Jones

• Decision Date: 06 March 1957
• Docket Number: No. A-5871,A-5871
• Citation: 300 S.W.2d 623,157 Tex. 136
• Parties: J. R. STRAYHORN et al., Petitioners, v. Ruth Legett JONES et al., Respondents.
• Court: Texas Supreme Court

Page 623

300 S.W.2d 623

157 Tex. 136

J. R. STRAYHORN et al., Petitioners, v. Ruth Legett JONES et al., Respondents.

No. A-5871.

Supreme Court of Texas.

March 6, 1957.

Rehearing Denied April 24, 1957.

Adkins, Folley, McConnell & Hankins, Amarillo, McMahon, Smart, Walter, Sprain & Wilson, Abilene, Lester Whipple, San Antonio, Sayles & Sayles, Abilene, for J. R. Strayhorn et al.

John Ben Shepperd, Atty. Gen., Burnell Waldrep, Asst. Atty. Gen., A. T. Mullins, Atty. for General Land Office, Austin, Will D. Davis, Asst. Atty. Gen., for State of Texas.

Wagstaff, Harwell, Alvis & Pope, Abilene, for Ruth Legett Jones et al.

Harry G. Dippel, Ft. Worth, Morris Watson, Roby, Andrews, Kurth, Campbell & Bradley, W. M. Streetman and Richard F. Burns, Houston, for General Crude Oil Co. and Continental Oil Co.

Ratliff, Conner & Walker, Spur, Fountain, Cox & Gaines, Joyce Cox, Houston, Vinson, Elkins, Weems & Searls, Tarlton Morrow and Ben H. Rice, III, Houston, for Texas Gulf Producing Co. and Wrightman et al.

Shank, Dedman & Payne, Robert H. Dedman, Dallas, Erwin, Wagner & Hodson, Willard B. Wagner, Jr., Willard B. Wagner, Williams, Lee & Kennerly, Jesse J. Lee, Houston, for Mrs. Maggie Wood, et al. (Lamar Hunt and The Superior Oil Co.)

Stubbeman, McRae & Sealy, Midland, for Kewanee Oil Co., et al.

Childers & Childers, Abilene, for Joe E. Childers et al.

GRIFFIN, Justice

This was an action in trespass to try title filed in the District Court of Kent County, Texas, by Ruth Legett Jones and other plaintiffs. The pleadings of Ruth Legett Jones and other plaintiffs put in issue the title to about 141.27 acres of land in Sections 1, 3 and 5 of the John Rodman Survey in Kent County, Texas, most of which land is located in the bed of the Salt Fork of the Brazos River. All parties stipulated that this river was a navigable stream under Article 5302, Vernon's Annotated Texas Civil Statutes. A group of intervenors, who aligned themselves with the plaintiff, put in issue the title to all of Sections 3 and 5 and the south one-half of Section 1 of the Rodman Survey. The State of Texas, as intervenor, put in issue the portion of the Salt Fork of the Brazos River located in Sections 1, 3 and 5 of the John Rodman. The original plaintiffs (respondents) and the intervenors aligned with them plead the statutory action of trespass to try title and adverse possession and title by limitation under the three, five and ten year statutes. The intervenors additionally plead the twenty-five year statute. Vernon's Ann.Civ.St. art. 5519.

Title to a small tract of land located in Sections 1 and 3, John Rodman, was also sought to be recovered by plaintiffs, Ruth Legett Jones et al. Various parties holding oil, gas and other mineral leases under plaintiffs and intervenors also intervened seeking to establish their respective interests in the lands sued for.

In the trial on the merits defendants did not file a cross action, but stood on their plea of not guilty and general denial. The evidence showed the entire controversy to be over 239 or more acres of land in Sections 1, 3 and 5 and that such land was in the bed of the Salt Fork of the Brazos River and in tracts contiguous to the river. The case was tried before a jury who returned a verdict, and judgment was rendered by the court in favor of the plaintiffs and intervenors (respondents) and against the defendants and the State of Texas.

Defendants duly filed a motion for instructed verdict, a motion to disregard certain findings of the jury, a motion for judgment non obstante veredicto, and a motion and an amended motion for a new trial; all of which were overruled, and defendants perfected their appeal to the Court of Civil Appeals for the Seventh Supreme Judicial District of Texas, which court affirmed the judgment of the trial court. 289 S.W.2d 321. Defendants Strayhorn et al. applied for and were granted a writ of error to the judgment of the Court of Civil Appeals.

All parties will be designated as they appeared in the trial court. We will first dispose of the claim urged by the State of Texas that there is an excess of approximately 19 acres above the 640 acres patented in each of Sections 1, 3 and 5, John Rodman; that such excess is in the bed of the Salt Fork River and that the State is the owner of such excess as the sovereign of the soil and by virtue of the provisions of Section 2, Article 5414a, Vernon's Annotated Texas Civil Statutes, commonly known and hereinafter referred to as the 'Small Bill.' Generally speaking, the Small Bill confirmed and ratified title to the patentees, awardees and their assigns of patents which had been issued and outstanding for a period of ten years prior to March 3, 1929 which was the effective date of the Small Bill, and which patents had not been cancelled or forfeited; and which patents and awards were to lands lying across or partly across water courses or navigable streams, and including the beds of such navigable streams. The Salt Fork of the Brazos River was included within the field notes of Sections 1, 3 and 5, John Rodman, as patented. We have attached to our opinion a sketch of the lands, including the river bed which is the subject of this litigation. The Small Bill, Section 2, provides, among other things that '* * * nor shall (this Act) relinquish or quit-claim any number of acres of land in excess of the number of acres of land conveyed to said patentees or awardees in the original patents granted by the State, * * *.' If there is any acreage above 640 acres (including the acreage in the river bed) in any of Sections 1, 3 and 5, then the State is entitled to recover such excess acreage. Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728, 734(7). It is the contention of plaintiffs that there is no more than 640 acres, including the river bed, in any one of the three sections; that, in fact, each section has less than 640 acres, and therefore the State is not entitled to recover any land at all.

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

The Rodman Block is a junior block to the adjoining blocks on the north, east and south. The Rodman consists of 13 sections, and the field notes for each, as well as the patents issued on each, call for a tract of land 1900 varas square, and totaling 640 acres. Applications to purchase Sections 1 to 10, inclusive, in the Rodman Survey were dated July 12, 1882, and the applications to purchase Sections 11 to 13, inclusive, were dated July 18, 1882. Louis C. Wise surveyed all 13 sections of the Rodman as one piece of work. The field notes for each of the 13 sections were issued on the same day in 1882, and in 1884 patents were issued for each section calling for 640 acres of land. The total acreage patented was 8,320 acres, and payment was made by the patentees for a total of 8,320 acres. A resurvey of the Rodman Block established a conflict between the Rodman on the south and east with a senior block of surveys. As a result, it was determined that the Rodman, as it was located on the ground, contained only 7,454.6 acres of land creating an actual deficit of 865.4 acres between what was patented and paid for by the patentees and their assigns and what was actually received. It was stipulated that the northwest corner of Section 12, H. & G. N. Ry. Co., Block 1, was an original corner. This corner is also the southeast corner of Section 1, Block 2, H. & G. N. Ry. Co. and is the southwest corner of Section 13, Block 1, H. & G. N. Ry. Co. Wise begins his field notes of the 13 Rodman sections at this corner, which he calls for as the northeast corner of Section 1, John Rodman, and from this corner builds the 13 sections. Throughout the whole of the Rodman block all the sections are tied together and each section is dependent for its location on the section immediately preceding it. That section, in turn, is dependent upon the section which precedes it. Although as many as nine different surveys had been made by various surveyors in later years not one surveyor found any of the Wise corners or lines on the ground except the one all parties stipulated to be an original corner and being the northeast corner of Section 1, Rodman. Some of the surveyors, attempting to reconstruct Wise's work, prepared field notes that showed an excess of 19 acres in each of Sections 1, 3 and 5, Rodman, and it is upon this testimony that the State relies for recovery. This excess is accounted for by the fact that the later surveyors made the north and south boundary lines of each of these three sections approximately 1955 varas in length. The length of these lines was arrived at because the corners established on the ground by these later surveyors showed the distance between the southeast and southwest corners of Section 1, Block 2, H. & G. N. Ry. Co. and of Section 12, Block 1, H. & G. N. Ry. Co. to be approximately 1955 varas. Since Wise's original field notes for the Rodman Sections 1 and 5 called for adjoiner with the above sections, and also called for the southeast and southwest corners of the sections in the H. & G. N. Ry. Co. Blocks 1 and 2 the State seeks to extend the north lines of Sections 1 and 5, Rodman, to a distance of 1955 varas. This would cause an excess of approximately 19 acres in Sections 1 and 5, Rodman.

The State's contention is that these later surveys, although none of the original Wise corners of the Rodman were found on the ground, show, as a matter of law, that excess acreage actually exists in Sections 1, 3 and 5. The south boundary lines of Sections 1, 3 and 5 would be extended a corresponding amount because the Wise field notes place the southeast and southwest corners of these sections at 1900 varas south of their respective northeast and northwest corners. The testimony of all surveyors shows that the north boundary line of Section 1, John Rodman, is a common line with the south boundary line of Section 1, Block 2, H. & G. N. Ry. Co., and the north boundary...