Humble Oil & Refining Co. v. Goldsmith

McCLENDON, Chief Justice. Rule 37 case. The appeal is from a final judgment refusing to cancel a permit *666 to drill a well upon a .0996 acre tract 7½ varas wide (north-south) by 208 feet long (east-west)- in the Hawkins townsite in the Hawkins field in Wood County, as an exception to Rule 37, in order to prevent confiscation of property. The suit was brought by Humble (Humble Oil & Refining Company, lessee of an adjoining tract to the south) against the Commission (Railroad Commission of Texas, its members and secretary) and Goldsmith (the permit-tee as owner of an oil and gas lease acquired from heirs of the Wells estate). The trial was to a jury, but at the close of plaintiff’s evidence the court withdrew the case from the jury and rendered judgment for defendants. The Humble has appealed. The controlling question the appeal presents is the propriety of withdrawing the case from the jury and rendering judgment for defqndants. The tract in question lies between what was originally known as the Stewart lot to the north (a one acre tract 75.4 varas square) and a tract of like dimensions to the south known as the Sullivan lot. Each of these three tracts was a part of the N. E. ¼ of the Brewer survey, which was acquired in 1863 by R. P. Mc-Corkle, who died in 1873 or 1874, after having conveyed the Sullivan and some other tracts to its east and west but none to its north. In April 1880, B. A. Wells (a brother of Mrs. McCorkle) as administrator of the McCorkle estate, for the recited consideration of $25 cash, conveyed the Stewart lot to T. B. Stewart, the field notes reading : “Beginning 7-½ varas North of the N. W. of a one acre lot deeded to M. F. Sullivan a stake “Thence North 9 deg E at 75⅛ varas a stake for corner “Thence E at 75½0 varas a stake for corner “Thence South at 75½0 varas a stake for corner “Thence W 75%o, the place of beginning containing one acre.” This tract passed by mesne conveyances to Caffey who executed a quitclaim deed to the Wells heirs in 1941, after the Hawkins oil field was discovered; the recited consideration being $10 cash. The Humble’s contention is that the fee to the .0996 a. strip passed to Stewart under the above conveyance, subject to a public or private passage, road or alleyway easement; that the Wells title rests exclusively upon the Caffey quitclaim deed, thus constituting the strip a voluntary segregation from the Stewart tract, which already had one producing well. Consequently there was no basis for a well on the .0996 a. strip. The allegations of the Humble petition in this regard read: “Said 7-½ varas strip between the tier of lots conveyed by Mc-Corkle and the tier of lots later conveyed by Wells, and particularly that portion of it along the south side of the Stewart lot and north of the Sullivan lot, was and-is a passageway, road or alley, left, intended and impliedly dedicated by Wells for such purpose, suitable only for such purpose, and expressly designated by Wells as an alley in one or more of said (subsequent) conveyances, and was accepted and used by the public generally and the adjacent lot owners for such purpose. By virtue thereof the deed from Wells to Stewart operated to convey to Stewart the fee title in and to that portion of the 7-%-varas strip adjoining the Stewart l-acre lot and by mesne conveyances to A. B. Caffey, present owner of the Stewart lot.” Appellees contend, on the other hand, that there was no evidence of any dedication of a public or private easement over the strip prior to the above deed to Stewart; that that deed did not expressly or by implication create such easement; and that the fee to the strip did not pass out of the McCorkle estate by virtue of the Stewart deed or otherwise. R. P. McCorkle died December 20, 1873, or 1874. His wife died the following May. The Wood County records were destroyed by fire in 1878, and there was no record of any proceeding in connection with the Mc-Corkle estafe, or of any conveyances by McCorkle. In 1881 B. A. Wells acquired the interests of some and later of all of the McCorkle heirs in what remained of the Brewer survey. February 21, 1888, B.A. Wells conveyed to Mrs. M. M. Giles a one acre tract described as: “Bounded on the East by the Hawkins and Big Sandy Road, and on the South by a 18 ft. alley and on *667 the West by one acre lot of aforesaid survey * ^ On February 28, 1888, P. M. and M. A. Morris conveyed to J. A. Brown a one acre lot described as: “Bounded on Fast by Mrs. M. M. Giles one acre lot and on the South by 18 ft. alley & on the West by Thomas Stewart one acre lot * * The following portion of a plat compiled by Humble engineers shows the segregated tracts situated in the S.W. corner of the N.E. ¼ of the Brewer survey in 1880 with the above Stewart, Brown and Giles lots and the Wells to Yates tract added: The Sullivan, Allen and Crow lots faced on a street to the south, the Crow-residence having both a south and west front. The only plat of the original Hawkins townsite shown of record is one filed in 1909. Its northern extremity is the S. line of N. E. ⅛ of the Brewer Survey. What is designated as the Winnsboro and Belzora Road in the above plat is an extension north of Beaulah Street in the original Hawkins townsite, and the Hawkins and Big Sandy road in the above plat was an extension north of Pine Street in the Hawkins townsite. These two roads were *668 well recognized before 1880. The tier of lots immediately adjoining the townsite, which had been conveyed by McCorkle, appear later in abstracts of title as covered by the Brown addition. There was no recorded plat of this addition. Immediately north of the Brown addition, and including the original Stewart, Brown, and Giles one acre lots, was the Reece addition, a plat of which was recorded in 1912. The Reece addition shows a 20-foot alley to the south. There is no fact or circumstance in the record which would indicate when the Brown and Reece additions were laid out further than the necessary inference that they post-dated the conveyances of the Stewart, Brown and Giles lots, the last in 1888. We do not regard these additions as throwing any light upon the instant controversy. The record does not show any assertion of ownership or payment of taxes by B. A. Wells or his heirs as to the strip south of the above Stewart, Brown and Giles one acre lots subsequently to the conveyance to Stewart in 1880. The above, we think, is all the record evidence bearing upon the issue of whether there was a dedication of a public or private passageway over the strip in question prior to or at the time of the Wells-Stewart deed in 1880, other than what, if any, inferences may be drawn from recitals in subsequent deeds noted below. Two witnesses, Mrs. Zella Glaze and A. C. Wells, testified on behalf of Humble, in support of its claim that the fee to the strip in question passed to Stewart by the 1880 deed. Mrs. Glaze, born in 1866, was the daughter of “Jim” Sullivan, a merchant in Hawkins, who built a residence on the “Sullivan Place” one acre lot. He died in 1874. Mrs. Glaze first moved to Hawkins in 1873 or 1874, and lived with her family on the “Sullivan Place” lot from that time until 1880 or 1881, when she and her mother and sisters moved to Mineóla. Her testimony covers the period of her residence in Hawkins. She was never there after moving to Mineóla, until about 4 or 5 years before the trial (February 1946). A. C. Wells, born in 1867, was a son of B. A. Wells. He first moved to Hawkins in 1880 or 1883, and lived with his father’s family in the “Old Wells Home,” which was on the Hawkins and Big Sandy Road about ¾ mile N. E. of the “John Crow Place.” There was some confusion in his testimony as to the exact year he moved to Hawkins (whether 1880 or 1883), but we attach little importance to the exact year. The testimony of both of these witnesses shows that the area immediately north of the Sullivan-Allen-Crow tier of lots was unfenced woodland during the period testified to; that the school (which each attended) and the two roads were located as shown on the above plat; that school children belonging to the Wells and other families, as well as others, used the area just north of the Sullivan-Allen-Crow lots as a short cut passage in traveling between the two roads. Mrs. Glaze described the situation thus: “ * * * there was a lane back there that was traveled quite a bit, and school children, you know, we used to meet the Giles children — we cut across our patch and met them on the corner there, and then this alley or whatever you want to call it back behind there north of our place. * * * The alley did (run north of their place), yes. It run on up to the other road. “Q. In other words, this alley ran between the road on the west side of your mother’s house going up to the school and the road on the east side of the Crow place that went on out to the Wells home. A. Yes.” A. C. Wells’ testimony was to the effect that you could go either way to the school, either in front of or behind the Crow and Sullivan places.' When the Sullivans moved to Mineóla the Sullivan place was sold to Mrs. Giles. A deed in 1904 from the latter to J. A. Giles described the property as having been bought by John Sullivan from R. B. Mc-Corkle, and by Mrs. Giles from Mrs. John Sullivan in 1882, and as bounded “on the North by lots sold by B. A. Wells to Tom Stewart and others and on the West by the Winnsboro and Belzora Public Road and on the South by the town of Hawkins.” We do not regard the testimony of Mrs. Glaze or A. C. Wells as sufficient to establish an easement over the McCorkle lands, prior to the Stewart deed in 1880 *669 See Worthington v. Wade, 82 Tex. 26, 17 S.W. 520. The rule contended for by Humble, and which we think is determinative of the instant controversy, is thus expressed in Cantley v. Gulf Production Co., 135 Tex. 339, 143 S.W.2d 912, 915 (Associate Justice Sharp writing) : “It is well known that separate ownership of long narrow strips of land, distinct from the land adjoining on each side, is a fruitful source of litigation and dispute. To avoid this source of contention, it is presumed that a grantor has no intention of reserving a fee in a narrow strip of land adjoining the land conveyed when it ceases to be of use to him, unless such fee is clearly reserved. The reason for the rule is obvious. Where it appears that a grantor has conveyed all land owned by him adjoining a narrow strip of land that has ceased to be of any benefit or importance to him, the presumption is that the grantor intended to include such strip in such conveyance; unless it clearly appears in the deed, by plain and specific language, that the grantor intended to reserve the strip. See Cox v. Campbell, Tex.Sup., 143 S.W.2d 361; Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391; Texas Bitulithic Co. v. Warwick, Tex.Com.App., 293 S.W. 160. For an annotation of the decisions bearing on this question, see also 123 A.L.R. 543, 47 A.L.R. 1277, and 2 A.L.R. 7.” The facts in that case were not on all fours with those here; but the above statement of the rule there applied does, We think, clearly fit and control the case at bar. We have here sales by McCorkle of a tier of one acre lots abutting and fronting on the townsite of Hawkins. These lots were evidently intended and were improved as urban residence property. They fronted south on a public street in the town of Hawkins and extended from a road on the west to a road on the east. This was the situation when in 1880 Wells, as administrator of McCorkle, conveyed to S.tewart the one acre lot north and to the rear of the Sullivan lot, leaving a space of only 7½ varas (approximately 20 feet) between the two lots. The record affords no reasonable hypothesis upon which to base the intention of the grantor in leaving this narrow strip between the two lots, than that it was intended for passageway purposes only.' It was not wide enough to serve any other useful purpose to the grantor. It was-not even wide enough for ordinary street purposes, but only for use as an alleyway. The subsequent acts and conduct of Wells and his heirs corroborate the view that the strip was left for passageway purposes only. In 1888 Wells, the then owner of the unsold balance of the McCorkle holdings in the Brewer survey, conveyed the Giles one' acre lot expressly calling for- an alley as-its south boundary, and referring to a “one acre lot” as its west boundary. There was-no deed shown’ conveying this latter lot out of Wells or the McCorkle estate, but there must have been such conveyance antedating the deed to Mrs. Giles, as this reference clearly indicates. Just one month after the Mrs. Giles deed the deed from the Morrises to Brown conveyed this inside lot, referring to the Stewart and Giles lots as its western .and eastern boundaries and an alley as its south boundary. When the subdivision was at some later date platted,, it showed this strip and the eastward extension of it as’ a 20-foot alley. The conveyance in 1904 of the Sullivan lot gave as its northern boundary the lots sold by Wells-to Stewart and others. These facts, coupled with the non-assertion of ownership by the Wellses for over sixty years, evidence an unbroken recognition in the community,, for over half a century, participated in by the Wellses, of an alleyway covering the strip in question and its extension east to-the Hawkins and Big Sandy Road. Appellees’ contention that there was no' evidence of a presumptive dedication and consequent passage of fee title to the sirip-is predicated upon the propositions: 1) that the situation must be viewed as of the date of the Wells-Stewart conveyance;. 2) that subsequent conveyances and conduct by Wells cannot be considered, as-evidence of his prior intention in 1880; 3) that leaving the strip, with the fee title reserved in himself, was perfectly consistent with an intention to reserve a passageway for school children, includ-. ing his own. It is of course true that the situation must be viewed as of the *670 date of the Stewart deed. It is also true that at that date there had been no dedication of the strip to passageway uses. Consequently, the case as concerns this strip does not fall within the precise holding of those where the property actually borders on an existing street or alley although no mention of that fact is made in the conveyance. The reasoning, however, which would presume the dedication of an alleyway and consequent conveyance of the fee, is just as cogent in the instant case as in those cases. Why would one in 1880 leave a 20-foot strip adjoining an acre town lot — a strip of only ½0 acre and of only nominal value based upon the sales price of the lot, and of no practical value to the grantor after the conveyance, except for alleyway purposes, the only conceivable use to which it could reasonably be devoted. Concede that the grantor may have wished the strip to be used as a passageway for school children, including his own, such use was in no way inconsistent with a dedication for alleyway uses. The grantor had other property to the east which when sold off in one acre lots would be served by an extension of such alleyway. Conceding that the situation must be viewed as of the date of the Stewart deed, it does not fellow that subsequent events have no evidentiary bearing upon the prior intention of the grantor; especially is that true when such subsequent events are corroborative of and consistent only with ascribing to the grantor the only reasonable intention which the grant, read as a whole and in the light of then surrounding circumstances, will import. Only the discovery of oil served as an incentive to exhume the lifeless corpse of an asserted reserved fee title to this narrow strip buried for over sixty years from the now asserting owners, their predecessors in title and the world at large. We have not thought it necessary to analyze the cases cited by appellees in support of their contention in this regard. Factually, they are, we think, clearly distinguishable from the case at bar. Appellees plead as res judicata a judgment, rendered in 1942, in a suit in trespass to try title brought by the Wells heirs against Humble and others, including one Smith, the owner of the fee to the Sullivan lot, to recover the strip in question. The Humble and Smith disclaimed any interest in the property sued for. Exceptions to this pleading were overruled and this ruling is assigned as error by the Humble. The point is not briefed by appellees. The ruling is immaterial in our above view of the controlling issue in the case. We might add, however, that we regard the plea of res judicata as without merit in the instant suit. There is no theory upon which Humble or Smith might assert any title in the strip, which was the only issue in the trespass to try title suit that concerned the Humble or Smith. There was no adversary suit as between the plaintiffs in that suit and the owners of the fee to the Stewart lot, since those owners had previously conveyed all their title in the strip to those plaintiffs. The above conclusion renders unimportant the ruling of the trial court excluding certain portions of the testimony of A. C. Wells given in the hearing of the application for the permit before the Commission. The trial court’s judgment is reversed; the permit in issue is cancelled; and the cause remanded to the trial court with instructions to grant to appellant appropriate ancillary relief. Reversed; permit cancelled; and cause remanded with instructions.