Kardell v. Acker, 2016 Tex. App. LEXIS 4648

J.E. Murphy’s five children partitioned four ranches in 1948; partition deeds reserved minerals in common and gave surface grantees exclusive right to execute leases but required reservation of a base 1/8 royalty for benefit of all children in proportions they then owned.
On October 27, 1948, Mabel Snowden conveyed to her four siblings an undivided 4/5ths (each 1/5th) of the oil, gas, and minerals she acquired, stating grantees would receive 4/5ths of royalties (1/5th each) from existing and future leases but would have no bonus above the 1/8 royalty.
A 1953 declaration sought to clarify the partition deeds, reaffirming intention that lessors reserve a basic 1/8 royalty (or proportion thereof) for the lessor and other children.
Johnie conveyed mineral interests to Mabel in 1953 to give her 3/5ths for a loan; after repayment Mabel reconveyed a 1/5th interest to Johnie in 1965.
In 1980 Mabel and Johnie executed a correction deed stating the 1965 instrument mistakenly conveyed a mineral interest and instead conveyed an "undivided non‑participating one‑fifth of the whole and entire royalty interest," effective retroactively to 1965.
A dispute arose in 2009 after a Swift Energy lease; trial court granted summary judgment to the Acker heirs, holding they own an undivided non‑participating 1/5 of the whole royalty interest. Snowden heirs appealed.

Issue	Snowden's Argument	Acker's Argument	Held
Whether this court’s prior Winslow opinion operates as res judicata/collateral estoppel on construction of Mabel’s deeds	Winslow precludes relitigation; court already construed partition deeds	Winslow did not address Mabel’s 1948 Snowden deed, so it has no preclusive effect	Winslow has no res judicata/collateral estoppel effect — not dispositive here
Proper construction of the 1980 correction deed: does it convey 1/5 of the whole royalty or 1/5 of a 1/8 royalty?	The correction should be read in light of 1948 deed; Acker interest is 1/5 of a 1/8 royalty (i.e., 1/40)	The 1980 deed’s four corners unambiguously convey an undivided non‑participating 1/5 of the whole and entire royalty	Deed unambiguously conveys an undivided non‑participating 1/5 of the whole royalty interest
Whether courts may consider chain‑of‑title deeds (1948, 1953, 1965) to alter the 1980 deed’s clear meaning	Consideration of earlier deeds would show intent to convey 1/5 of 1/8 royalty	Even if considered, earlier deeds (and Garza analysis) support 1/5 of whole royalty; 1980 deed controls	Even reviewing the chain of title, result is the same: 1/5 of whole royalty interest
Whether Snowden heirs are entitled to attorney’s fees if judgment reversed	If successful, Snowden seeks fees	Acker opposes; contingent on outcome	Court affirmed trial judgment; issue of fees not reached

Winslow v. Acker, 781 S.W.2d 322 (Tex. App.—San Antonio 1989) (discussing partition deeds but not construing Mabel’s 1948 Snowden deed)
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (summary judgment standard)
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary judgment and inference standards)
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (when both sides move, appellate court reviews both records and renders correct judgment)
Luckel v. White, 819 S.W.2d 459 (Tex. 1991) (intent of parties in deed construed from four corners)
Altman v. Blake, 712 S.W.2d 117 (Tex. 1986) (defining essential attributes of a severed mineral estate)
Garza v. Prolithic Energy Co., L.P., 195 S.W.3d 137 (Tex. App.—San Antonio 2006) (construing multi‑clause conveyance and holding that instrument conveyed a mineral interest and that fractional royalty shares should be harmonized to yield consistent fractional shares under future leases)