Thomas Jordan, Inc. v. Skelly Oil Co.

• Decision Date: 08 November 1956
• Docket Number: No. 6886,6886
• Citation: 296 S.W.2d 279
• Parties: THOMAS JORDAN, Inc., et al., Appellants, v. SKELLY OIL COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 279

296 S.W.2d 279

THOMAS JORDAN, Inc., et al., Appellants, v. SKELLY OIL COMPANY et al., Appellees.

No. 6886.

Court of Civil Appeals of Texas, Texarkana.

Nov. 8, 1956.

Rehearing Denied Dec. 6, 1956.

John Ben Shepperd, Atty. Gen., J. Arthur Sandlin, Asst. Atty. Gen., Dillard Baker, James N. Erwin, Jr., Houston, W. H. Sanford, Conan Cantwell, Dallas, for appellants.

Turner, Rodgers, Winn, Scurlock & Terry, Carlton R. Winn, Lon Sailers, George S. Terry, Dallas, L. A. Thompson, Tulsa, Okl., J. K. Smith, Ft. Worth, James E. Hara, Tulsa, Okl., for appellees.

FANNING, Justice.

This is a boundary suit cast in the form of a trespass to try title suit, for the recovery of 129 acres of land, more or less, alleged to be a part of the Clark Simmons Survey in Marion County, Texas, and for an accounting for oil produced by defendants from oil wells on said tract. Plaintiffs in the case were landowners, holding and claiming under the said Clark Simmons survey, which survey was patented on February 8, 1954. The list of plaintiffs includes D. C. Rowell, W. Torrans Rowell; their two sisters, Mrs. Fannie Myers and her husband, W. F. Myers, and Mrs. Katherine Birmingham and her husband, A. L. Birmingham; Isidore Segal; George Earl Haggard; and various heirs of Felix Lewis, together with their respective mineral assignees, and lessees, Stanolind Oil & Gas Company and Skelly Oil Company. Defendants in the case were Thomas Jordan, Inc., and Humble Oil & Refining Company, who were claimants under an oil and gas lease from the State of Texas, dated June 15, 1950, covering a part of Mineral File 24,205, also known as the O. P. Deaner File. The State of Texas intervened as a defendant in the cause. The accounting features of the case were severed out; the boundary case was tried to the court without a jury and judgment was rendered for the plaintiffs for the title and possession of the tract sued for. The tiral court filed findings of fact, an amendment thereto, and conclusioins of law. Defendants' objections and exceptions to the trial court's findings were overruled. Defendants, including the State of Texas, have appealed.

On February 4, 1854, the State of Texas issued its Patent No. 743 to 'John Woodley, Assignee of Clark Simmons,' in which are found the following recitations and field notes:

'do by these presents grant to John Woodley, Assignee of Clark Simmons, his heirs and assigns forever, nine hundred and eighty and a half acres of land, situated and described as follows:

'In Cass County, near Black and Big Cypress, on Ferry Lake, being the tract on which the town of Smithland is located, * * *

'Beginning at the S. E. corner of a survey in the name of Isaac Jones, on the N. W. line of B. F. Lynn's Survey a stake from which a pine bears S. 45 W. 8 varas, another bears S. 70 W. 6 varas both marked J. W.

'Thence West, 1746 varas to a stake on the south line of M. R. Jones' Survey, from which a black oak bears S. 20 E. 14 varas, another beard S. 29 E. 24 varas, both marked J. W.

'Thence South 45 W. 3300 varas to a forked water oak, on the north side of Ferry Lake, near the junction of Big and Black Cypress, from which an elm bears S. 92 W. 8 1/2 varas, a pine bears S. 70 E. all marked J. W.

'Thence South 45 E. 1389 varas to B. F. Lynn's N. W. line. Thence North 45 E. with the N. W. line of said Lynn's Survey to the place of beginning.'

Appellees' theory of the case is illustrated by its Exhibit No. 186, which shows the Clark Simmons Survey to be a riparian survey including the old town of Smithland and showing no vacancy between the Clark Simmons Survey and the river (or Ferry Lake). A copy of Plaintiffs' Exhibit No. 186 was attached and made a part of the trial court's findings. Appellants contend that the Clark Simmons Survey should be constructed largely on calls for course and distance and that in particular the southwest boundary of the Clark Simmons Survey was a straight line as called for in its field notes, and was not the river or lake. Appellants' various theories are illustrated by Defendants' Exhibit No. 9 which shows the Clark Simmons Survey as not extending to the river and leaving a vacancy of 129 acres of land, more or less, between the Clark Simmons Survey and the river (or Ferry Lake). We here attach copies of Plaintiffs' Exhibit No. 186 and Defendants' Exhibit No. 9. We also attach herewith a copy of Plaintiffs' Exhibit No. 1, which is plaintiffs' basic map of the Clark Simmons and surrounding area as constructed by plaintiffs.

(Note: The Clark Simmons Survey when patented in 1854 was in Cass County, Texas. It is now in Marion County, Texas.)

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

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

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

The trial court filed detailed and complete findings of fact, an amendment thereto, and conclusions of law. We quote (in part) from such findings, amendment, and conclusions as follows:

Findings of Fact

'1. I find the following facts with reference to the body of water variously referred to as Caddo Lake, Black Cypress Bayou, Big Cypress Bayou and Ferry Lake during the period 1839-1874, both inclusive:

'(a) That Caddo Lake, or Ferry Lake, located partly in the Eastern portion of Marion County and partly across the State line of Louisiana, was during the period in question, generally known as Ferry Lake.

'(b) That the waters of Black Cypress and of Big Cypress Bayou emptied into Ferry Lake, and in fact that the level of water in Ferry Lake extended back up the Big Cypress as far as the old river town of Smithland, and that Big Cypress and Black Cypress were both during the period in question interchangeably referred to by surveyors and others, as Ferry Lake.

'(c) That the mean high water elevation of Ferry Lake and of Cypress Bayou opposite the old river town of Smithland during such period of time was 173.09 feet above mean sea level as reflected by the findings and testimony of Arthur Kidder, Surveyor General of the United States, of Lionel L. Janes, United States Government Ecologist, and of Frank Lereritt, United States Government Geologist, in the 'Ferry Lake Cases,' and as reflected by the findings, of the Special Master in the Trial Court, in the subsequent judgments of the Trail Court, the Circuit Court of Appeals and the United States Supreme Court in United States v. Lane, No. 1153, United States v. Greene, No. 1155, and United States v. Jeemes, Bayou Hunting and Fishing Club, No. 1157, and others.

'(d) That the mean or average elevation of Ferry Lake or of Big and Black Cypress Bayou in the immediate vicinity of the Clark Simmons Survey in Marion County during the period in question was 170 feet above mean sea level.

'2. I find further that the river town of Smithland in Marion County was established sometime prior to 1839, and that it was located on the North or Northeast bank of Big Cypress Bayou, at the point where Thompson's Fishing Camp now stands. I find further that Smithland was a river town and was so sued by the people living in that section of the country, as well as in other distant parts of the state, by people receiving their goods and merchandise by ships coming up the Red River from New Orleans and unloading their goods at Smithland, to be loaded again in wagons and ox-carts to be carried to various parts of North and East Texas.

'3. (a) (As amended) I find as a fact that the general course of Black Cypress and Big Cypress near the site of old Smithland is as shown on Plaintiffs' Exhibit No. 186.

'(b) I find further that as early as March 20, 1840, the course of the river at this point was considered to be South 45 East, by W. J. Hamilton, District Surveyor of Red River County, who located a now cancelled survey of 640 acres for William F. Johnson 'on the Big Cypress immediately below the mouth of the Black Cypress, including what is now known as the town of Smithland' and 'beginning at a stake on the bank of Black Cypress * * *' thence with the meanders of Big Cypress South 45 East 950 varas to a white oak tree on the bank of the Cypress, thence North 45 East, etc.'

'(c) I find further that on June 6, 1844, R. C. Graham, District Surveyor of Bowie County, in making the original location of the Clark Simmons Survey, put its two most Southerly corners, one 'at a forked water oak at or near the junction of Big Cypress and Black Cypress,' and the other at 'a water oak standing on the bank of Ferry Lake.' The course between these two points he described as North 45 West, and I find that from his official plat this call was meant to be the meander line or along the course of the river.

'(d) I find further as a fact that when M. L. Mullens wrote corrected field notes for the Clark Simmons Survey it was his intention that the call of 'South 45 East' from its Northwest corner at the forked water oak, be a meander call for the river along its general course of South 45 East. '4. (a) The original field notes of the Clark Simmons Survey, as surveyed on June 6, 1844, by R. C. Graham, describes its most Westerly corner as 'beginning at a forked water oak standing on the North side of Ferry Lake at or near the junction of Big Cypress and Black Cypress.'

'(b) The field notes of the Henry S. Lightfoot Survey, written on April 5, 1850, by Benjamin D. Kimbell, County Surveyor of Cass County, describe the starting point as 'beginning at a double water oak marked JW on the bank of Black Cypress near its mouth.'

'(c) The corrected field notes of the Clark Simmons Survey, written on November 2, 1850, by M. L. Mullens, County Surveyor, Cass County, described the most Westerly corner as being marked by 'a forked water oak standing on the North side of Ferry Lake and near the junction of Big Cypress and Black Cypress.'

'(d) The field notes of the Samuel F. Moseley Survey, written by Hugh Hensey, Deputy Surveyor of Cass District, on October 15, 1860, describe its...