Texas Mortgage Company v. Phillips Petroleum Company

• Decision Date: 05 January 1973
• Docket Number: No. 72-1593.,72-1593.
• Citation: 470 F.2d 497
• Parties: TEXAS MORTGAGE COMPANY, Plaintiff-Appellant-Cross Appellee, v. PHILLIPS PETROLEUM COMPANY and Phillips Pipe Line Company, Defendants-Appellees-Cross Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

470 F.2d 497 (1972)

TEXAS MORTGAGE COMPANY, Plaintiff-Appellant-Cross Appellee, v. PHILLIPS PETROLEUM COMPANY and Phillips Pipe Line Company, Defendants-Appellees-Cross Appellants.

No. 72-1593.

United States Court of Appeals, Fifth Circuit.

December 11, 1972.

Rehearing Denied January 5, 1973.

Frank G. Evans, III, Joe G. Roady, Houston, Tex., for appellant.

E. H. Brown, Eugene C. Marshall, Houston, Tex., for appellees.

Before COLEMAN, AINSWORTH and DYER, Circuit Judges.

COLEMAN, Circuit Judge:

The plaintiff-appellant says:

"The sole issue presented by plaintiff-appellant, Texas Mortgage Company, is whether the District Court erred in refusing to grant judgment decreeing the title and right of possession of Texas Mortgage Company as against Phillips Petroleum Company and Phillips Pipe Line Company to the land in controversy in plaintiff's action in trespass to try title."

The appellees have cross appealed. They argue that plaintiff-appellee should not have been awarded money damages for the construction, over objection, of a second pipeline across property which the plaintiff formerly owned but which, during the progress of the litigation, had been conveyed to the State of Texas, reserving the right to pursue the lawsuit.

We affirm on both direct and cross appeals.

We think we may best describe the facts and the issues by setting forth, in haec verba, the memorandum opinion of the District Court:

MEMORANDUM AND ORDER

The seeds of this lawsuit were sown in 1956, when two groups of cotenants, each owning an undivided one-half interest in a single tract of land, made differing and partially inconsistent pipeline right-of-way grants or easements to the same third party. The courts of the State of Texas have not been confronted with this exact situation and therefore have not passed upon the controlling point of law.

On January 25, 1956, one group of cotenants, which shall be referred to as the Korge group, owners of an undivided one-half interest in the tract of land, granted to Phillips Pipeline Company (hereinafter called Phillips Pipe) the right to construct a single pipeline across the subject land. Two days later, another group of cotenants, to be called the Turner group, owners of the other undivided one-half interest in said land, granted to the Phillips Petroleum Company (hereinafter called Phillips Pet) the right to lay a pipeline or pipelines across the land.

In 1956, subsequent to the aforementioned grants, Phillips Pipe constructed a single line which was not then challenged and is not here in issue. Later that year, the plaintiff M. W. Lee, acquired the Turner one-half interest. Early in 1957, he also purchased the Korge one-half interest. In 1961, Lee conveyed the property to the Texas Mortgage Company which, subsequent to the filing of this suit, conveyed the land to the State of Texas for use as a prison farm.¹

Approximately ten years after his initial purchase, Lee received a letter from Phillips Pet² indicating a desire on the part of that corporation to construct an additional pipeline and suggesting negotiations to resolve the asserted uncertainties resulting from the difference in terms of its two easement grants. This overture being unproductive, Phillips Pet ultimately communicated to Lee its intention to rely upon its claimed easement rights under the Turner grant. Over plaintiff's objection, Phillips Pet entered the land and constructed the additional pipeline at a location of its choice. Plaintiff thereupon filed this action in trespass to try title in the District Court of Brazoria County, Texas, alleging its ouster and trespass to establish its title and right to possession and to recover damages for the trespass. The suit was removed to this Court where jurisdiction exists by reason of diversity of citizenship. 28 U.S.C. § 1332.

Thereafter, the cause was tried and the facts were submitted to a jury on eleven special interrogatories, Rule 49(a), Fed.R.Civ.P., which, together with the jury's answers, are set out in full in the appendix. The jury's answers were consistent and cast defendants in liability.

Both parties thereafter filed motions concerning the jury's verdict. Plaintiffs moved for its adoption and the entry of judgment thereon. Defendants likewise moved for judgment contending that the verdict was, in effect, a legal nullity. Defendants' legal contentions are discussed below.

If Phillips Pet had no legal right to construct the second pipeline in 1966, plaintiffs are entitled to recover their damages sustained by reason of that action. The Court concludes that defendants acted unlawfully, and that judgment must enter upon the jury's verdict in favor of plaintiffs.

At no time during the Turner-Korge cotenancy did the defendants enjoy the right to construct more than a single pipeline across the property. It is well settled that a tenant in common cannot, without the precedent authority or subsequent ratification of his cotenants, impose an easement or dedication upon the common property in favor of a third party. Heilbron v. St. Louis Southwestern Ry. Co. of Texas, 52 Tex.Civ.App. 575, 113 S.W. 610 (Tex.Civ.App.—1908, no writ); Chenowth Bros. v. Magnolia Petroleum Co., 129 S.W.2d 446, 447 (Tex.Civ.App.—Dallas 1939, writ dismd. jdgmt. corr.); Clapp v. Atwood, 300 Mass. 540, 16 N.E.2d 67 (1938); Benjamin v. American Telephone & Telegraph Co., 196 Mass. 454, 82 N.E. 681 (1907); 15 Tex.Jur.2d Cotenancy § 13, n. 6; 86 C.J.S. Tenancy in Common § 111, 20 Am.Jur.2d Cotenancy and Joint Ownership § 103; 1 H.T. Tiffany, Real Property § 199, p. 654 (2d ed. 1920). Implicit in this is the principle that a tenant in common cannot effectively grant to a third party an easement conferring a greater liberty, privilege, or advantage than that granted by his cotenants. Id.

The grant of the multiple-line easement by the Turner group of cotenants to Phillips Pet would have "become valid and effective for the purpose of binding the grantor, if supplemented by exactly similar grants to the same person from the other cotenants. . . ."—1 H.T. Tiffany, supra, at p. 685. However, the Turner grant was never exactly supplemented. Instead, the only precedent authority from the Korge group of cotenants was the single-line grant which the jury found was intended by the parties to limit the owner of that grant to the construction, maintenance and operation of only one pipeline. Therefore, while the Turner-Korge cotenancy existed, the unsupplemented Turner multiple-line easement was ineffective to grant to Phillips Pet the right to construct more than a single pipeline over said land. The Korge grant having been restricted in unambiguous language to construction of a single pipeline by Phillips Pipe, its assigns, as well as Phillips Pet, were likewise so restricted. Id.

Thereafter, when Lee acquired the Turner group's interest and was briefly a cotenant with the Korges, and even later, after he acquired the Korge group's interest in the land—merging the fee title into himself—his title was not subject to the multiple-line easement which the Turners had granted to Phillips Pet. The Turner multiple-line grant, although in the plaintiff's chain of title, gave no more rights to defendants after title was merged than before. Benjamin v. American Telephone & Telegraph Co., supra; see also: Clapp v. Atwood, supra.³ In sum, the union of cotenants' interests in a single title terminates the cotenancy, but does not by itself alter, enlarge, or diminish the rights of third persons which were conferred during the cotenancy. Id.

When W. M. Lee purchased the combined rights of the Turner and Korge groups in the land, he purchased their respective interests subject to whatever rights had been granted to defendants by them, and was estopped to deny the validity of whatever rights or title defendants had so received. Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 583 (1941); Waco Bridge Co. v. City of Waco, 85 Tex. 320, 20 S.W. 137 (1893); United States of America v. 1,078.27 Acres of Land, More or Less Situated in Galveston County, Texas (Civil Action No. 2662) (S.D.Tex., January 23, 1970) (per Noel, J.), aff'd. 446 F.2d 1030 (5th Cir., 1971). This estoppel, however, does not aid defendants here. As pointed out above, the inconsistent grants of the two different groups of cotenants failed to give defendants any vested right or title by which they could have placed a second pipeline upon the jointly owned land of the Turner and Korge cotenants. Therefore, the plaintiffs, standing in the shoes of the Korges, are entitled to assert the Korge group's right to oppose the construction of the second pipeline. Clapp v. Atwood, supra; Benjamin v. American Telephone & Telegraph Co., supra; 2 Thompson, Real Property § 469, pp. 24-25 (Perm.ed 1939)⁴ As W. M. Lee and the mortgage company have asserted their objections, the defendants' unauthorized entry upon the land of another was a trespassory tort. Pilcher v. Kirk, 55 Tex. 208, 216 (1881).

In sum, as defendants failed to receive a multiple-line grant from the Korge cotenants, the multiple-line grant which Phillips Pet did receive from the Turner group was ineffective to bind the joint estates of the two sets of grantors. For all practical purposes, the Turner grant was of no benefit to Phillips Pet at the time it installed the second line upon plaintiffs' land.

To avoid this result, defendants place reliance upon the doctrine of equitable partition, whereby cotenancies have been judicially dissolved in order to effectuate a grant by one cotenant to a third party. In this regard, it is apparently the contention of defendants that the theoretical availability of such a remedy in 1957 should improve their position today. However, "as a prerequisite to the right of equitable partition, the parties against whom the remedy is sought must be joint owners of the estate sought to be partitioned." Thompson v. Whitfield, 203 S.W.2d 268, 270 (Tex. Civ.App. — Texarkana 1...