Tide Water Oil Co. v. Hale, 4923.

• Citation: 92 S.W.2d 1102
• Decision Date: 27 March 1936
• Docket Number: No. 4923.,4923.
• Parties: TIDE WATER OIL CO. v. HALE et al.
• Court: Court of Appeals of Texas

92 S.W.2d 1102

TIDE WATER OIL CO. v. HALE et al.

No. 4923.

Court of Civil Appeals of Texas. Texarkana.

March 27, 1936.

Rehearing Denied April 2, 1936.

Appeal from District Court, Rusk County; R. T. Brown, Judge.

Suit by H. M. Hale and another against the Tide Water Oil Company and others, wherein named defendant filed a cross-action. From a judgment, named defendant appeals.

Reversed and rendered.

W. H. Sanford, of Longview, Y. P. Broome, of Tulsa, Okl., and Conan Cantwell, of Longview, for appellant.

B. T. Fitzhugh, of Tyler, E. H. Lasseter, of Henderson, and A. A. Garrett, of Overton, for appellees.

JOHNSON, Chief Justice.

H. M. Hale and H. W. Hale sued the Tide Water Oil Company and others in the district court of Rusk county in trespass to try title to two tracts of land out of the John Darley survey in said county; the first tract being .12 of an acre, and the second tract being 2.7 acres. Tide Water Oil Company answered by general denial, a plea of not guilty, and by cross-action against the plaintiffs and three cross-defendants, namely, O. S. Wooley, Yandell Rogers, and Overton Refining Company, for title and possession of the seven-eighths oil and gas leasehold estate covering the two tracts of land and for damages against said plaintiffs and said cross-defendants for the extraction and conversion of oil therefrom.

The case was tried to the court without a jury. The court found against the plaintiffs and cross-defendants and in favor of the Tide Water Oil Company with respect to the .12 of an acre. The court found for the plaintiffs and cross-defendants and against the Tide Water Oil Company for the west portion of said 2.7-acre tract, comprising 1.86 acre, and as to said 1.86 acre judgment was rendered that plaintiffs and cross-defendants recover title and possession thereof from the defendant Tide Water Oil Company, and that said defendant take nothing by its cross-action.

The Tide Water Oil Company has appealed from the judgment awarding the 1.86 acre to the plaintiffs and cross-defendants, and denying appellant any interest therein; the issue involved in the appeal being whether or not the trial court erred in holding that appellant's oil and gas lease does not extend to and include said 1.86-acre strip within its west boundary line.

Appellant's lease covers the west side of what is known as the Hale tract of land. The controversy is as to the location of its west boundary line. The Hale tract and the Wilson tract of land are both in the Darley H. R. survey. The Wilson is the senior of the two tracts, and is located in the southwest corner of the Darley survey. The Hale tract is east of and adjoins the Wilson tract. The west line of the Hale tract calls to run with the east line of the Wilson tract. It is this division line the location of which is in dispute.

The 2.7 acres sued for by appellees is the south portion of a strip approximately 1,650 feet long north-south, and 124 feet wide at its south end, tapering to a point for its north end, which point was formerly witnessed by a post oak tree north 85, east. 7 4/5 varas, and is claimed to be the northeast corner of the Wilson and the northwest corner of the Hale tracts. The west line of the 2.7 acres coincides with an approximate north-south division fence line established in 1897 between the Wilson and the Hale tracts by the owners of said two tracts of land. The east line of the 2.7 acres is an approximate north-south line surveyed for H. M. Hale by Paul S. Wooley in the latter part of 1933 or first part of 1934, and will be referred to as the Paul Wooley line. The south end of the Paul Wooley line is 124 feet east of the south end of the division fence line. The south end of both of which lines terminate in the south boundary line of the Darley survey.

The 1.86 acre recovered by appellees from appellant is the west portion of the 2.7 acres, and is all of that part of said 2.7-acre strip lying west of a due north-south line running "through a hickory tree" 81 feet south of the point formerly witnessed by the post oak tree north 85, east 7 4/5 varas. This line was surveyed for H. M. Hale by A. L. Land in May, 1934, and will be referred to as the A. L. Land line. Its south end is 84.8 feet east of the south end of the division fence line, and is 39.2 feet west of the south end of the Paul Wooley line, and is located on the south bank of a small ravine crossing the south boundary line of the Darley survey at or near this point.

In 1927, appellee H. M. Hale, owner of the west portion of the Hale tract, executed an oil and gas lease conveying same to C. M. Joiner, trustee. Appellant acquired this lease by mesne conveyance from Joiner, trustee. The description of the west boundary line of the tract covered by the Joiner lease calls to run from the corner witnessed by the post oak tree north 85 east 7 4/5 varas, thence south with the east line of the Wilson tract to the southeast corner of the same.

It is the contention of appellees that this call refers to the "east line of the Wilson tract" as the same should be located by a survey in accordance with the field notes as described in the original deed conveying the Wilson tract; that such a survey locates the true east boundary line of the Wilson tract, hence the west boundary line of the land described in appellant's lease out of the west side of the Wilson tract, along the line surveyed by Paul Wooley in 1933-1934, or along the line surveyed by A. L. Land in 1934, therefore, it is contended, the land in controversy is not a part of the original Hale tract, and not included in appellant's lease; but that it is a part of the original Wilson tract which was encroached upon by the Hales in establishing the 1897 division fence and acquired by them by subsequent occupancy under the ten years' statute of limitation.

Appellant contends: (1) That the division fence, established in 1897 and continuously since maintained, is along the true division line called for in the original deeds to the Wilson and Hale tracts. (2) That the agreement in 1897 of the Hales, owners of the Hale tract, and A. M. Kent, owner of the Wilson tract, that the location on the ground of the boundary line between the two tracts of land was the line on which they then built the division fence, together with subsequent recognition and acquiescence by the respective owners of the two tracts, continuously since that time, has the legal effect of establishing it as the controlling boundary line between the two tracts of land, regardless of whether a survey in accordance with the original field notes might place the true line elsewhere. (3) That the field notes covering appellant's lease were constructed from an actual survey of the land and that the surveyor actually surveyed along the division fence in constructing the call for the west boundary line to run "south with the east boundary line to run "South with the East boundit is contended by appellant that the description of the west boundary line of its lease covers and includes the land in controversy.

Prior to 1858, Niel Brown owned the south portion of the Darley H. R. survey. In that year he conveyed to Thomas Wilson 81 acres, more or less (now known as the Wilson tract), in the southwest corner of the survey by field notes described as follows: "Beginning at the South West corner of said Darley 320 acre survey and running East with the South boundary line 400 varas to a corner on said boundary line; Thence North 880 varas to a post oak corner near the road leading from London to Bunker Hill; Thence Eastward with said road to Johnson's creek; Thence up said creek to the South boundary line of a survey of 60 acres of land sold and deeded by the executor of R. W. Smith to C. Cincents it being a part of said Darley survey; Thence West 600 varas with said boundary line to a post oak corner on the West boundary line of said Darley survey; Thence South with said line to the beginning corner containing by survey 81 acres more or less."

In 1870, he conveyed the land to the east of the above-described tract to H. P. Hale (now known as the Hale tract) by field notes described as follows: "Beginning at the S. E. corner of an 81 acre tract heretofore conveyed to Thos. Wilson at a stake south of the ravine; Thence East with the south line of...