Wier v. Texas Co.

• Decision Date: 05 May 1950
• Docket Number: No. 12806-12808.,12806-12808.
• Citation: 180 F.2d 465
• Parties: WIER et al. v. TEXAS CO. LUDEAU v. TEXAS CO. VIDRINE et al. v. TEXAS CO.
• Court: U.S. Court of Appeals — Fifth Circuit

180 F.2d 465 (1950)

WIER et al. v. TEXAS CO.

LUDEAU v. TEXAS CO.

VIDRINE et al. v. TEXAS CO.

Nos. 12806-12808.

United States Court of Appeals Fifth Circuit.

March 2, 1950.

Rehearing Denied May 5, 1950.

George M. Wallace, Baton Rouge, La., Malcolm E. Lafargue, Shreveport, La., Atlee P. Steckler, Ville Platte, La., Joseph A. Loret, Baton Rouge, La., E. Herman Guillory, Ville Platte, La., Kalford K. Miazza, New Orleans, La., for appellants.

W. C. Perrault, Opelousas, La., L. K. Benson, New Orleans, La., Wiley G. Lastrapes, New Orleans, La., Marion U. Epley, Jr., New Orleans, La., R. C. Milling, New Orleans, La., for appellees.

Before HUTCHESON, Chief Judge and McCORD and RUSSELL, Circuit Judges.

McCORD, Circuit Judge.

The three suits we have here for consideration were removed from the state court of Evangeline Parish, Louisiana, because of diversity of citizenship and the requisite amounts in controversy. The plaintiffs in each case seek to recover from The Texas Company, a Delaware corporation, the mineral rights in certain lands to which they have acquired title through E. B. Norman & Company, predecessor in title to the Texas Company. The suits, being alike, were consolidated in the briefs, argument and disposition, without objection by the parties.

The complaints charge that the Texas Company is in possession of the lands, claiming ownership of the mineral rights under certain mineral reservations, and that such reservations are null and void for the reason (1) that at the time of execution of a certain deed of May 13, 1924, and a certain renewal agreement of February 11, 1929, purporting to reserve the minerals under said land to the Texas Company, the mineral rights in said land were owned by Lewis C. Black, a prior ancestor in title, and were not subject to reservation by the Texas Company; (2) that the reservation in the deed and extension agreement were void as an illegal reservation of the subsoil and an attempt to create two corporeal estates in the land, which is invalid under Louisiana law; and (3) that the extension agreement was void for want of a valid legal consideration. Plaintiffs further sought to recover for the value of the oil and gas produced from the lands, rental for the use of the lands, and for damages resulting from drilling operations thereon.

The trial court, on motion of the defendant, required plaintiffs to produce their deeds to the land in controversy, and after issue was joined defendant moved for summary judgments of dismissal as a matter of law, under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. In support of this motion the Texas Company filed five affidavits, supported by exhibits, which disclosed a complete history of all material facts. The plaintiffs filed one affidavit in opposition to the motion. Defendant interposed objections to this affidavit.

The court withheld ruling on the motion to dismiss until it had permitted a full hearing and argument of the cases. Thereupon summary judgments of dismissal were entered, and the court rendered an opinion in which it separately found the undisputed facts and stated its conclusions of law thereon. Motions for rehearing were thereafter overruled.

A clear and exhaustive opinion by the trial court makes it unnecessary for us to set out the facts of the cases at length. See Wier, et al., v. Texas Company, D.C., 79 F.Supp. 299 et seq. However, the material facts are without dispute, and may be briefly summarized:

The Texas Company owned 14,599.04 acres of land located in Evangeline Parish, Louisiana, and on March 29, 1924, entered into a written contract whereby the lands were to be sold to E. B. Norman & Company, Inc., a lumber concern. Under this contract, the Texas Company was to reserve the minerals, and it stipulated: "It is expressly agreed and understood that the conveyance of the land and timber herein referred to shall be only the surface of the land with the timber, said surface to extend to a depth of five hundred feet to a line drawn horizontally with the surface, and The Texas Company hereby reserves and excepts all of the subsoil below said depth and the gas, oil and other minerals therein contained, and with the right of ingress and egress on the surface to carry on operations for the development of said minerals."

The contract sale price for the lands was $438,000, $100,000 of which was to be paid in cash and the balance in four annual installments secured by a vendor's lien and mortgage. Under the agreement the purchaser, E. B. Norman & Co., was to cut the timber on the lands and sell the lumber to the Texas Company for $22 per thousand feet, and the price of the lumber delivered would be withheld and applied against the purchase price of the land and timber.

On May 13, 1924, the Texas Company executed and delivered to E. B. Norman & Company, Inc., in accordance with the contract, a recorded deed conveying the lands here in controversy "as one unit and one entity". Just following the descriptive part of this deed, this mineral reservation in favor of the Texas Company appears:

"It is expressly understood and agreed that all of the subsoil, or subjacent lands of said tracts of land, together with all of the oil, gas and other minerals therein, underlying and below a line or plane drawn horizontally at a depth of five hundred (500) feet from the surface of said tracts of land, is hereby excepted and reserved by said The Texas Company from and apart from the lands conveyed; that said The Texas Company also reserves and retains, and the said E. B. Norman & Company grants to the said The Texas Company, the right of ingress and egress on, across and through the surface of the said tracts of land conveyed, being in depth five hundred (500) feet from the surface of said tracts of land to a horizontal line or plane drawn through said tracts of land; and also the right of reasonable occupation and possession of the same for the drilling of wells, erection of structures, laying of pipe line, or lines, storage tanks, reservoirs and other works thereon necessary and incidental for carrying on operations for the development and production of said minerals, or of any of them in and from said subsoil, or subjacent lands reserved and excepted from the tracts of land hereinabove sold.

"It is further expressly and mutually understood and agreed by the parties hereto that were it not for this reservation and exception of the subsoil from the lands herein granted and sold, and of all of the minerals aforesaid therein contained this sale and conveyance would not have been made."

E. B. Norman & Company entered upon the lands and undertook to carry out its contract with the Texas Company. It cut timber and manufactured lumber which it delivered to the Texas Company as part payment on its indebtedness under the mortgage. However, sometime in January, 1929, while it was still indebted to the Texas Company, it found itself in financial difficulties, and its president found it necessary to call upon the Texas Company for help in the discharge of its obligations under the contract and deed. A conference between the parties resulted in the execution of two further agreements in which the Texas Company made certain revisions of its original agreement so as to allow cash advances for the lumber delivered by E. B. Norman & Co., and made other concessions not here material. In return for these concessions, E. B. Norman & Co. extended and acknowledged for the second time the mineral reservations by the Texas Company in the lands in controversy in this wise.¹

"* * * the said E. B. Norman and Company hereby takes notice of the fact that in said deed of...