Luse v. Penn

HIGGINS, J. Appellee, Penn, brought this suit against J. E. Luse and wife alleging that the' defendants, appellants here, were setting up some adverse claim and title to certain land described in the petition which constituted a cloud upon plaintiff’s title, and asked that it be removed. The defendants answered by plea of not guilty, general denial, and a special answer, setting up a reservation of all the coal- and minerals in the land contained in (a deed dated November 26, 1889, executed by the defendants and through which plaintiff de-raigned his title, and that by reason of such reservation the plaintiff acquired no title to such coal and minerals. The case was tried without a jury, and judgment rendered in favor of Penn for the title to and possession of -all oil, petroleum, and gas in, on, and under the surface of the land. Prom this judgment Luse and wife appeal. [304] The record contains no findings of fact or conclusions of law by the trial court. The record title to the land as disclosed by the statement of fact is as follows: First. Patent from the state to Mrs. Euse. Second. Deed from Mrs. Luse and husband to G. L. Heustis, dated November 26, XSS9, which conveys the land with the following reservation: “But reserving, nevertheless, to the said J. E. Luse and M. L. Luse and the survivors of thorn and their heirs and assigns forever, all the coal and minerals on the above-described land, and with the right at all times to enter upon the said described premises and prospect thereon and to remove the coal and mineral.” Third. De.ed from Mrs. Luse and husband to G. L. Heustis ' dated February. 15, 1892, conveying the land in controversy, “excepting certain rights in the deed reserved.” Fourth. Deed from Heustis to appellee dated February 19, 1898, conveying the land in controversy. The only question in this case relates to the ownership of the oil, petroleum, and gas in the land. The burden rests upon the appellants to show that the judgment of the lower court was erroneous in vesting title thereto in the appellee. The deed dated November 26, 1889, contains a reservation of all the coal and minerals, and if this were the only conveyance executed by the appellants the question would be presented as to whether or not this reservation reserved in the appellants title to the oil, petroleum, and gas. But it is shown that there is a subsequent deed dated February 15,1892, to Penn’s immediate vendor, executed by the appellants, conveying the land, and, while it appears that certain rights were excepted from the operation of this latter deed, yet there is nothing in the statement of facts to show what these excepted rights and reservations were. The statement of facts is wholly insufficient to advise this court of the nature and scope of the reservations contained in the deed of February 15, 1892. That deed conveyed the land, and this court is unable to say that the oil, petroleum, and gas did not pass thereby. So far as this record is concerned there is nothing to show that the deed of February 15, 1892, did not pass to Heustis title to the oil, petroleum, and gas, and therefore it cannot be said that the court erred in decreeing to the appellee title thereto. Affirmed.