Wallace v. Hoyt

• Court: Texas Court of Appeals
• Writing for the Court: Key
• Citation: Wallace v. Hoyt, 225 S.W. 425 (Tex. App. 1920)
• Decision Date: 20 October 1920
• Docket Number: (No. 6234.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: WALLACE et al. v. HOYT et al.

225 S.W. 425

WALLACE et al. v. HOYT et al.

(No. 6234.)^*

Court of Civil Appeals of Texas. Austin.

October 20, 1920.

Appeal from District Court, Coleman County; J. O. Woodward, Judge.

Suit by W. E. Wallace and others against Edward C. Hoyt and others to determine the right to oil, gas, and other minerals under certain tracts of land. Judgment for defendants after trial without a jury, and plaintiffs appeal. Affirmed.

Critz & Woodward, of Coleman, for appellants.

A. B. Flanary, of Dallas, and Snodgrass, Dibrell & Snodgrass, of Coleman, for appellees.

KEY, C. J.

This suit involves the rights of the respective parties to the oil, gas, and other mineral rights in and under certain tracts of land described in the pleadings. There was a nonjury trial, which resulted in a judgment for the defendants, and plaintiffs have appealed.

It seems that the plaintiffs were entitled to recover, unless their right to do so was defeated by a certain reservation contained in a deed to one of their remote grantors. The facts pertinent to that question are as follows:

On March 16, 1877, a tract of land, of which the lands in controversy are a part, was patented by the state to W. J. Hutchins, which patent was duly recorded in Coleman county, where the land is situated. On June 13, 1904, Maria Hoyt, Edward C. Hoyt, Theodor R. Hoyt, George S. Hoyt, and Walter S. Hoyt were the owners in fee simple of the land in controversy, under a regularly duly recorded chain of transfers from and under W. J. Hutchins, the patentee. By deed dated June 13, 1904, the Hoyts conveyed the tracts of land here involved to W. E. Wallace, which deed contained the following stipulations and reservations:

"Excepting therefrom, and the same is not intended to be conveyed hereby, so much thereof as may have been heretofore taken from or granted for public road purposes, and subject to a lease for grazing purposes to D. E. Graston, which lease expires August 1, 1904.

"Excepting and reserving to said parties of the first part, their heirs and assigns forever, all minerals and mineral rights, oil, and gas being in, on, or under any of the lands hereinbefore described and hereby conveyed with the right to mine, bore for, and remove the same, and the right of ingress, egress, and regress, and the right to do such acts and to use and maintain on said premises such pipes, machinery, tools, implements, and structures or structure, as may be necessary or convenient or usual for the purpose of producing, making available, removing, or marketing such minerals, oil, and gas.

"To have and to hold the above granted and bargained premises unto the said party of the second part and his heirs and assigns forever, except as to said rights excepted and reserved as aforesaid, and said lease and land taken for road purposes as aforesaid.

"But it is further expressly agreed and stipulated that the vendor's lien is retained as aforesaid against the above-described premises, property, and improvements, and all the appurtenances thereto, until the hereinbefore described notes and all interest thereon are fully paid according to their tenor and face, effect, and reading, when this deed shall become absolute in and to the property hereby granted and conveyed, excepting the minerals, mineral rights, gas, and oil hereinbefore expressly excepted and reserved, together with all other rights hereinbefore reserved and excepted.

"And we do bind ourselves and our heirs, executors, and administrators to warrant and forever defend the title to said premises against the legal claims of all persons claiming or to claim the same, or any part thereof, by, through, or under us, and no further."

That deed was duly recorded in Coleman county July 1, 1904.

The Hoyts were the defendants in the court below, and are the appellees in this court, and are entitled to have the judgment awarding to them the mineral rights involved in the land affirmed, unless the facts show that their right thereto is barred by the five-year statute of limitation.

The plaintiffs in the court below, who are appellants in this court, claim under a chain of title from W. E. Wallace, who in December, 1904, conveyed the lands by metes and bounds to certain vendees, and they conveyed the same to others, and it thereby passed by regular chain of conveyances to the appellants, so that they are claiming under deeds conveying the lands by metes and bounds, without specifically mentioning mineral rights, and without any reservations concerning such rights, which deeds have been duly recorded in Coleman county for more than five years before the suit was instituted; and the plaintiffs and their vendors have paid all taxes due on the lands. Also it was shown that the plaintiffs and those under whom they claim by conveyances from and under W. E. Wallace had no actual knowledge of the reservation of mineral rights contained in the deed to Wallace, which deed, however, was duly recorded in Coleman county. It was also shown that, while appellants and those under whom they claim had held adverse possession of the lands, using them for residence, agricultural, and grazing purposes, they had made no effort, by mining or otherwise, to take actual physical possession of the minerals under the surface. It was further shown that the defendants, in like manner, had made no effort, by mining or otherwise, to take actual possession of the minerals referred to.

Appellants contend that they proved title in themselves under the five-year statute of limitation; their possession being held under deeds which contained no reservation of mineral rights. On the other hand, appellees present the contention that, the minerals in the lands in controversy having been severed from the surface by the reservation in the conveyance from the Hoyts to W. E. Wallace, of date June 13, 1904, no hostile title thereto under the statutes of limitation could be subsequently acquired by mere adverse possession of the surface of the lands; and, as the appellants never acquired nor held adverse possession of the minerals, they were properly denied recovery on their pleas of limitation.

We sustain appellees' contention, and in support of that ruling cite the following authorities: Scott v. Laws, 185 Ky. 440, 215 S. W. 81; Northcut v. Church, 135 Tenn. 541, 188 S. W. 220, Ann. Cas. 1918B, 545; Gordon v. Park, 202 Mo. 236, 100 S. W. 621, 119 Am. St. Rep. 802; Murray v. Allard, 100 Tenn. 100, 43 S. W. 355, 39 L. R. A. 249, 66 Am. St. Rep. 740; Kentucky Block Cannel Coal Co. et al. v. Sewell et al., 1 A. L. R. 566; Manning v. Kansas T. Coal Co., 181 Mo. 359, 81 S. W. 140; Gordon v. Park, 219 Mo. 600, 117 S. W. 1163; Plant v. Humphreys, 66 W. Va. 88, 66 S. E. 94, 26 L. R. A. (N. S.) 558; Kiser v. McLean, 67 W. Va. 294, 67 S. E. 725, 140 Am. St. Rep. 948; Morison v. American Ass'n, 110 Va. 91, 65 S. E. 469; Brady v. Smith, 181 N. Y. 178, 73 N. E. 963, 106 Am. St. Rep. 531, 2 Ann. Cas. 636; 2 Corpus Juris, 147, § 258; 1 Cyc. 994; Thornton Oil & Gas (3d Ed.) § 336, p. 490; 18 R. C. L. §§ 84 and 85; Luse v. Boatman, 217 S. W. 1096.

The authorities cited teach the doctrine that the sale or reservation of mineral rights constitutes a severance as between the surface of the land and the minerals embedded underneath that surface, and therefore mere adverse possession and use of the surface does not constitute adverse possession and use of the minerals existing under the surface. Upon that question we quote as follows from Manning v. Kansas & T. Coal Co., 181 Mo. 359, 81 S. W. 140:

"But, conceding that plaintiff had an interest in the land immediately before the execution and delivery of the deed by Stephen Gipson to Wardell on the 20th of May, 1887, for the coal and mineral products contained and lying under the land in question, and that before that time, and continuously down to the commencement of this suit, on August 24, 1899, he was in open, notorious, adverse, and undisputed possession of the surface of the land, yet the coal under the land was the subject of a grant, and, having been severed from the surface by that deed (Wardell v. Watson, 93 Mo. 111, 5 S. W. 605; Snoddy v. Bolen, 122 Mo. 487, 24 S. W. 142, 25 S. W. 932, 24 L. R. A. 507; Armstrong v. Caldwell, 53 Pa. 284), such possession and occupancy did not constitute any possession or occupancy of the underlying coal; hence defendant's right to claim the coal had not become barred or extinguished by the statute of limitations at the time of the institution of this suit. Caldwell v. Copeland, 37 Pa. 427, 78 Am. Dec. 436, was a controversy between the claimant of underlying coal and the owner of the surface, who claimed to own the coal by adverse possession. The trial court charged the jury that the actual possession of the surface carried with it the actual possession downward perpendicularly through all the various strata. The Supreme Court said: `This proposition would be unquestionable, if there had not been a severance of the title to the mine right from that of the surface by the deed of the 27th of May, 1831, Caldwell to Greer. But it is not true that after such a severance, whether by reservation or grant, the possession of the surface is possession of the underlying minerals. It is a common occurrence in mining districts not only that the ownership of the soil is vested in one person, and that of the mines in another, but there are frequently distinct ownerships of the minerals in the same land. Thus one person may be entitled to the iron ore, another to the limestone, a third to one seam or stratum of coal, and a fourth to a distinct stratum. Title to any of these minerals quite distinct from the title to the surface may be shown by documentary evidence, or, in the absence of such evidence, or in opposition to it, title to them may be made out by proof of possession and acts of ownership under the statute of limitations. The acts of ownership, however, which constitute possession and confer title, must...