Peal v. Luling Oil & Gas Co.

MURRAY, Justice. This suit was instituted by J. B. Peal, as plaintiff, against Luling Oil and Gas Company and others, as defendants, to remove cloud from the title to a one-half royalty interest in a certain 70.236-acre tract in Duval County, and, in the alternative, to reform (because of mutual mistake) the description incorporated in a royalty conveyance executed by appellant, Peal, to appellee, Luling Oil and Gas Company, so as to exclude such 70.236-acre tract from such royalty conveyance. Magnolia Petroleum Company is the owner of an oil and gas lease executed by appellant, Peal, prior to the time of the execution of the royalty conveyance in question to the Luling Company. The Magnolia lease covers the 70.236-acre tract in dispute, as well as other lands. The validity of the Magnolia lease is not questioned. The dispute is between Peal and the Luling Company, and it involves the question of who is entitled to one-half of the royalties produced under the Magnolia lease upon the 70.236-acre tract, or, in other words, whether or not the 70.236-acre tract was included in the royalty conveyance. *849 The trial was to a jury but at the con-elusion of the evidence the court granted Luling Company’s motion for an instructed verdict. Judgment was entered decreeing, among other things, that Peal take nothing by reason of his suit. J. B. Peal has prosecuted this appeal from that judgment. The real question to be here decided is whether or not the 70.236-acre tract herein involved is included within the description of the land set forth in the royalty deed from Peal to Luling Company, dated April 11, 1936. The description contained in that conveyance is as follows: “The East half of the Southeast quarter of Survey 72, Certificate 436, Block 1, Original Grantee C. C. S. D. & R. G. N. G. Railway Company, which East half of the Southeast quarter of such Survey contains eighty (80) acres of land, more or less, which land is situated partly in Webb County and partly in Duval County. “Also the following described portion of Survey 383, Certificate 36/99, Abstract No. 1914, Original Grantee Mary H. Chatham, situated in Duval County, Texas, which portion of said Survey 383 covered by this lease is described as follows: “Beginning at the Northeast corner of above described Survey 72 for the Northwest corner hereof; “thence East along the South boundary line of adjoining Survey 115 and an extension thereof to the East to a point in the West boundary line of Survey 796 for the Northeast corner hereof; “thence South along the West boundary line of said Survey 796 to its Southwest corner for the Southeast corner hereof; ' “thence West along the North boundary line of Survey 794 and an extension thereof to the West to a point in the East boundary line of said Survey 72 for the Southwest corner hereof; “thence North along the East boundary ime of said Survey 72 to the place of be-gmnmg, and containing one hundred and forty three (143) acres of land, more or *ess- ’ ■ The above description was prepared by G. C. Mann, Esq., an .attorney of Laredo, after the land had been indicated to him on what is called in the record the Luling map, by the drawing of a red line around the land, a royalty interest in which was to be conveyed by Peal to the Luling Company. The trouble here arose as a result of Surveys 796 and 794 not being located on the ground as they were supposed to be located, and as they were shown to be located by the official map in the General Land Office. The land covered by the royalty deed is in Survey 72, and Survey 383. There is no dispute about the location of part of the land which lies in Sur-vey 72. The entire dispute is with reference to the land located in Survey 383. Below is a sketch showing the relative position of the various surveys, which sheds light upon the land involved: dicates the land ciaimed by Luling Company> while the rectangle A. E. F. and G. is the land whidl peal contends was described by the royalty deed. Thus the question arises in the tract E. B. C. D. G. F. in-eluded in the royalty deed. The dotted lines show the supposed location of Surveys 796 and 794 at the time the royalty deed was executed. The land included in the rectangle A. B. C. and D. in- It will be noted that there are no calls for course and distance, nor for specific number of acres. All calls are either to follow certain boundary lines, or the extension thereof, or for adjoinder. If the description of the land is applied to *850 the calls for adjoinder as Surveys 796 and 794, as they were supposed to be located at the time the deed was executed, then Peal’s contention would be correct, but if the description is applied as those surveys were found to be actually located upon the ground, then the contention of the Luling Company must be upheld. We have concluded that the description must be applied as Surveys 796 and 794 are actually located upon the ground, and that it cannot be applied as they were supposed to be located. In arriving at this conclusion we first consider that there are no calls for course and distance, nor is there any call for a specific number of acres. The parties first agreed that the land should be surveyed and the number of acres determined and the consideration paid accordingly, but later this was abandoned and settlement had on the original estimate of 143 acres; the parties agreeing, in effect, that if there were more acres Peal would be the loser, and if there were less acres Luling Company would be the loser. Therefore, the calls for adjoinder and to follow certain survey lines is all the description we have. We do not have here a conflict between course and distance and a call for ad-joinder, as was the case in State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228, and other similar cases. Here, if we disregard the call for adjoinder we have nothing. It is not a case of a conflict in calls, one of which must be disregarded, but a case where you must give weight to the call of adjoinder or render the description meaningless. There is, however, .some difficulty in applying the description on the ground, when Surveys 796 and 794 are given their true locations. There is no difficulty about the starting point. The northeast corner of Survey 72 is a definitely known point and easily located on the ground, as is also the south boundary line of Survey 115. The first call is as follows: “thence East along the South boundary line of adjoining Survey 115 and an extension thereof to the East to a point in the West boundary line of Survey 796 for the Northeast corner hereof.” It is apparent that when you go east along the south boundary line of Survey 115 and an extension thereof you will never reach the west boundary line of Survey 796, if Survey 796 is given its true location on the ground, but you would reach an extension of the west boundary line of 796 extended to the north. We conclude that in keeping with the testimony given by the surveyors this west boundary line should be extended to the north so as to complete this first call with an intersection of such extended line. The second call is as follows: “thence South along the West boundary line of said Survey 796 to its Southwest corner for the Southeast corner hereof.” The question here arises, are you going to the southwest corner of Survey 796 as it was supposed to be located, or as it is actually located? We have concluded that in the absence of any call for distance you must go to the true southwest corner of Survey 796. The third call is as follows: “thence West along the North boundary line of Survey 794 and an extension thereof to the West to a point in the East boundary line of said Survey 72 for the Southwest corner hereof.” It is true that when you leave the true southwest corner of Survey 796 and pass along the true north boundary line of Survey 794 and an extension thereof, you do not arrive at a point in the east boundary line of Survey 72, and in order to complete this call you would have to extend the east boundary line of Survey 72 to the south. We have concluded this should be done. There is no trouble with the fourth call when you follow along the east boundary of Survey 72, as thus extended, and the east boundary of 72 to the place of beginning. The only trouble in the field notes is caused by the fact that the map prior to 1936 showed the north boundary line of Survey 796 to be north of the south boundary line of Survey 115, while its true location on the ground is south of Survey 115, and the north boundary line of Survey 794 to be north of Survey 72, while its true location on the ground is south of Survey 72. We have arrived at the above conclusions because it is apparent from the description given in the royalty deed, when taken in connection with all the surrounding facts and circumstances, that it was the intention of the parties to describe all of the land located in Survey 282 lying generally between Surveys 796 and 72, which was south of the south boundary line of Survey 115 and an extension thereof to *851 the east, and north of the north boundary line of Survey 794 and an extension thereof to the west. This is true because there were no calls for course and distance, nor for objects on the ground, nor for specific number of acres, and the only calls were to follow certain survey lines and for ad-joinder of surveys which were senior to Survey 383. In placing the above interpretation on the description contained in the royalty deed we have followed the rules laid down in the following cases: Stafford v. King, 30 Tex. 257, 94 Am.Dec. 304; Lilley v. Blum, 70 Tex. 704, 6 S.W. 279; Miller v. Southland Life Ins. Co., 68 S.W.2d 558; Gulf Production Co. v. Spear, 125 Tex. 530, 84 S.W.2d 452. We can come to no other conclusion than that there being no call for distance, and no call for a specific number of acres, the call for adjoinder must be given effect. The judgment is affirmed.