Welsh Southern Oil Co. v. Scurlock Oil Co.

• Decision Date: 19 July 1967
• Docket Number: No. 2056,2056
• Citation: 201 So.2d 376
• Parties: WELSH SOUTHERN OIL COMPANY, Inc. et al., Plaintiffs-Appellants, v. SCURLOCK OIL COMPANY, Inc. et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 376

201 So.2d 376

WELSH SOUTHERN OIL COMPANY, Inc. et al., Plaintiffs-Appellants, v. SCURLOCK OIL COMPANY, Inc. et al., Defendants-Appellees.

No. 2056.

Court of Appeal of Louisiana, Third Circuit.

July 19, 1967.

J. Barry Mouton and Bernard & Bernard, by Louis Bernard, Lafayette, for plaintiffs-appellants.

Liskow & Lewis, by Richard E. Gerard, Stockwell, St. Dizier, Sievert & Viccellio, by Oliver P. Stockwell, Scofield, Cox & Bergstedt, by John B. Scofield, R. Poinsett Johnson, Lake Charles, Bean & Rush, by James W. Bean, Lafayette, Knight & Knight, by Herschel N. Knight, Jennings, Carrol Van Geffen, New Orleans, Jones, Kimball, Harper, Tete & Wetherill, by J. Norwell Harper, Lake Charles, Adam G. Nunez, Lake Arthur, for defendants-appellees.

Before TATE, SAVOY and CULPEPPER, JJ.

TATE, Judge.

By this suit, the plaintiffs pray to be recognized in the right to possession of a six-acre tract, including their right to an accounting from the proceeds of mineral production therefrom. The defendants deny the plaintiffs' possession and allege possession in themselves.¹

The plaintiffs appeal from summary judgment dismissing their suit.

The plaintiffs are heirs of Merlin T. Smedley and the mineral lessee of these heirs. By this suit they contend they were never divested of ownership of a 6-acre strip across the north edge of property formerly owned by Smedley, being a railroad right of way 200 feet wide by 1320 feet long.

The central contention of the plaintiffs' suit is that, when Smedley's wife sold the 86-acre parent tract in 1901 to Davidson et al., this 1901 conveyance expressly did not include the railroad right of way. The defendants are the descendants in title of Davidson et al. and their mineral lessees. The plaintiff descendants thus contend that they, as Smedley's heirs, still own the unconveyed land (subject to the railroad right of way) and, most pertinently, the share of mineral production attributable to this surface acreage.

Essentially, the plaintiffs' central contention is founded upon the language of the 1901 conveyance by Mrs. Smedley to Davidson et al. This warranty deed described the property conveyed as an 86-acre tract² 'subject to and less a right of way 200 feet wide across said land for La. W.R.R. Co.' See Exhibit 8, Tr. 134. The plaintiffs contend that their ancestors in title, the Smedleys, reserved by this excepting clause their title to the land itself across which the servitude of right of way existed in favor of the railroad company.

However, the trial court held that the deed by which Mrs. Smedley sold to Davidson et al, the 86-acre tract 'subject to and less a right of way', conveyed the entire acreage described, subject only to a servitude of right of way across it--that the excepting clause reserved only the servitude from the conveyance, and not the land underlying it.

In so holding, the trial court correctly relied upon decisions which under similar circumstances held that the conveyance of land subject to and less a right of way did not except from the conveyance the land described, but only a servitude across it. Rock Island A. & L.R. Co. v. Guillory et al., 205 La. 141, 17 So.2d 13; Sohio Petroleum Co. v. Hebert, La.App. 3 Cir., 146 So.2d 530. These decisions are based upon the general principle applicable that, where the language making an exception or reservation in a deed is doubtful, it must be construed most favorably to the grantee, as well as upon the principle that in construing conveyances the term 'right of way', in the absence of other indication, generally denotes a servitude only rather than also the surface acreage across which the right of way passes. See also Esso Standard Oil Co. v. Texas & New Orleans Railroad Co., La.App. 3 Cir., 127 So.2d 551.

We affirm the trial court's holding and its disposition of this central issue of the litigation.

The plaintiffs-appellants also make a strong contention that summary judgment was improperly granted, in view of the strong burden upon the mover for such summary relief to negative any possible genuine issue as to material fact. LSA-C.C.P. Art. 966; Roy & Roy v. Riddle, La.App. 3 Cir., 187 So.2d 492.

The plaintiffs note that the defendants are relying solely upon the chain of title, and that extrinsic evidence might be admissible to weaken the efficacy of the instruments relied upon--for instance, to resolve in the plaintiffs' favor the possible ambiguity arising from the excepting of the right of way from the conveyance, in order to prove that the Smedleys reserved title to...