Texas Co. v. Newton Naval Stores Co.

• Decision Date: 16 March 1955
• Docket Number: No. 39508,39508
• Citation: 223 Miss. 468,78 So.2d 751,49 A.L.R.2d 1182
• Parties: , 49 A.L.R.2d 1182 The TEXAS COMPANY v. NEWTON NAVAL STORES COMPANY, Inc.
• Court: Mississippi Supreme Court

Page 751

78 So.2d 751

223 Miss. 468, 49 A.L.R.2d 1182

The TEXAS COMPANY v. NEWTON NAVAL STORES COMPANY, Inc.

No. 39508.

Supreme Court of Mississippi.

March 16, 1955.

Welch & Gibbes, Laurel, John W. Kelly, Jr., New Orleans, La., for appellant.

Newton & Blass, Wiggins, for appellee.

LEE, Justice.

The bill of complaint of The Texas Company, a corporation, and the answer and cross bill of Newton Naval Stores Co., Inc., presented, in their final analysis, a controversy involving, as between them, title to gas, oil and minerals on about 15 acres of land, as described in the pleadings. Other parties were joined; but by disclaimers or otherwise, they were eliminated. At the conclusion of the trial, the court denied the claim of The Texas Company, and granted the relief prayed for by the Newton Naval Stores Company. From the decree entered, The Texas Company appealed.

On March 25, 1944, Newton Naval Stores Company executed an oil and gas mining lease to J. R. Garrison on the following described land in Forrest County, Mississippi, to wit: 'E 1/2 of Lot 6, Lots 7 & 8 (except G & S I R R Right-of-way through said lots) and Lots 9 & 10, and a parcel of land described as: beginning at the SE corner of Lot 11, and running thence North 1298 feet, thence West 531 feet, thence South 1 degree east 365 feet, thence South 9.05 degrees east 304 feet to Public Road, thence South 50.45 degrees west 109 feet, thence South 63.08 degrees west 942 feet to SW corner of said Lot 11, thence East 1316 feet to the point of beginning; all lying and being in Section one (1), Township 1 South, Range 13 West.'

A delayed semi-annual rental of $97.50, that is, $195 annually was provided for. It represented $1 an acre for 195 acres. There were 210 acres in the whole tract. The 200 foot strip in the right of way across the E 1/2 of Lot 6 and Lots 7 and 8 approximated 15 acres. In due course the lease was assigned to The Texas Company, and when it applied for an ad valorem tax exemption, under House Bill 868, Laws of 1946, c. 409, the acreage, claimed on account of this lease, was 195 acres.

The appellee had acquired this land many years before. The G & S I R R Company, at the time, was operating trains between Columbia and Maxie, Mississippi, over this right of way. But on April 22, 1933, it filed with the Interstate Commerce Commission an application to abandon this line; and on December 11, 1933, a certificate of the Commission for permission to abandon was issued; and thereafter in 1936 and in 1937, the railroad company took up its tracks.

The sole question is whether the phrase 'except G & S I R R Right-of-way through said lots' excludes the strip of approximately 15 acres from the lease.

In Black's Law Dictionary, Deluxe Edition, at p. 1561, it is said that: 'Right of way has a twofold significance, being sometimes used to mean the mere intangible right to cross, a right of crossing, a right of way, and often used to otherwise indicate that strip of land which a railroad appropriates to its own use, and upon which it builds its roadbed.' (Emphasis supplied.)

It is true that the conveyance of a 200 foot right of way for a railroad does not convey the land, but merely a right of passage through it. In New Orleans & Northeastern R.R. v. Morrison, 203 Miss. 791, 35 So.2d 68, 70, the strip was not identified with certainty, and it was there held to be 'only a floating easement or right of user'.

But in this case the evidence showed that the G & S I R R Company in 1933 had obtained authority to abandon its line of railroad, and that pursuant to such authority, it did, in fact in 1936 and in 1937 take up its tracks, and consummate the abandonment. Cf. Krohn v. L. N. Dantzler Lbr. Co., 208 Miss. 691, 45 So.2d 276. Since the right of way through the lots was abandoned, there no longer remained any right on the part of the railroad company to cross over the lots. Its easement was dead. It seems altogether unlikely that the appellee, by the use of that phrase, meant merely to exclude the dead easement of the railroad company.

On the contrary, the strip of land was visible and was capable of an easy identification. The appellee, after the abandonment, became the fee owner also of the surface of the right of way. It seems inescapable that, in excepting the right of way from the lease, the appellee purposed and intended to except the strip of land situated in the railroad right of way through the lots.

The exception of the right of way cannot be said to be so vague as to be void for uncertainty under the rule that 'in order to except certain property out of a conveyance, which without the exception would carry all, the words of exception must be as definite as those required to convey title; and that, if they are not so, the whole property passes.' Richardson v. Marqueze, 59 Miss. 80, 42 Am.Rep. 353; McAllister v. Honea, 71 Miss. 256, 14 So. 264; Nunnery v. Ford, 92 Miss. 263, 45 So. 722; Beasley v. Beasley, 177 Miss. 522, 171 So. 680; and Ates v. Ates, 189 Miss. 226, 196 So. 243.

Appellant seems to rely largely on New Orleans & Northeastern R.R. v. Morrison, supra, Kansas City Southern Railway Co. v. Marietta Oil Corporation, 5 Cir., 1939, 102 F.2d 603 and Shell Petroleum Corporation v. Ward, 5 Cir., 1939, 100 F.2d 778. But in the first two cases, the railroad companies were then still operating their lines. In the last case, the irrigation canal was likewise still in operation. In each instance, those rights of way were being used, and, of course, constituted mere easements. Obviously conveyances, in which they were excepted, simply excluded the easements.

But in the case here, the G & S I R R Company had abandoned the operation of its railroad, and the full title had become vested in the appellee. Hence the exception of the railroad right of way through the lots excluded the strip of land formerly occupied by the railroad.

While great weight is to be given to the construction placed by the parties on a deed, when it is doubtful, Cummings v. Midstates Oil Corporation, 193 Miss. 675, 9 So.2d 648, the inquiry of Robert M. Newton, President, concerning his unexpressed intentions at the time of the execution of the lease was improper. However, this was harmless in view of the obvious exclusion of the right of way.

The proof showed that the royalty purchasers, at the time of their purchases, fully understood that the right of way was excepted from the original lease. Hence, those deeds did not constitute a ratification or confirmation that the original lease embraced the right of way.

From which it follows that this cause must be, and is, affirmed.

Affirmed.

McGEHEE, C. J., and ROBERDS, HALL, KYLE and ARRINGTON, JJ., concur.

HOLMES, J., took no part.

GILLESPIE, Justice (dissenting).

The question in this case involves the meaning and effect of the parenthetical clause in the description contained in the oil, gas and mineral lease as follows: '* * * except G & S I R R Right of way through said lots.'

An oil, gas and mineral lease conveys an estate in lands, a determinable fee to the underlying minerals and the use of the surface for various purposes such as the laying of pipelines, building tanks, structures, etc. The courts have applied to such leases the rules applicable to other conveyances involving land except that various clauses in such leases, which have been written and developed by the oil industry, are construed favorably to the lessor.

The lease in question contained what is usually called the 'Mother Hubbard' clause following the description in the following words: 'It is the intention of the lessor and lessee that this lease shall also include, and there is hereby included and leased for the purposes and consideration herein stated, all the land owned and claimed by lessor adjacent or contiguous to the land above described, whether in the same or different surveys. * * *'

Courts have not looked with much favor on this clause in leases. It would serve no purpose to discuss that clause except to say that it should be given some effect. I think the correct application of that clause is to cure minor defects in descriptions and to close up gaps, wedges and omitted strips. This case, I think, is a typical one for the application of the clause; to do so would prevent an unreasonable result.

In considering the exception here involved, certain of the rules governing the construction of conveyances should be stated. A comprehensive rule for the construction of a deed is found in the Court's opinion in the case of Dunn v. Stratton, 160 Miss. 1, 133 So. 140, 142, as follows:

'It is the duty of courts in constructing deeds to effectuate the intention of the parties, but, since deeds must be in writing, the intention must be found in the writing either by way of complete delineation of the description on the face of the deed or by dependable references therein made which, when applied, render the delineation complete. The sundry rules that have been formulated by the courts for the interpretation of descriptions are but aids in arriving at the probable true intention of the written instrument. These rules, so far as applicable to this case, may be summarized thus: In construing a deed, (1) effect must be given, if possible, to each item of the written contents and no item included in the deed as a part of the description is to be rejected as erroneous, or shall be varied, so long as it is reasonably possible to make all of them harmonize; and (2) those parts which are the more certain and dependable as descriptive items will interpret those items which are the less certain and dependable, and, when it is necessary in order to satisfy and harmonize all items, the more certain will, if reasonably possible, draw to themselves those that are the less certain; and (3) if any item is to be rejected as impossible, or varied as erroneous, the item which is the less certain and about which it is the more probable the grantor was...