*1 236 him or request longing on to was declined controlled him within
lands. The
the trap,
inconsistent with
and that such
grounds they would be
has never
consent
yet
already
been
made on
control
withdrawn. For
findings
this additional
in
and there was
reason Mr.
ling
legally wrong
in the case
was
issues
Jackson
findings.
support
exposed
when he removed the fence and
sufficient evidence
livestock,
Kyle
of
the enclosure Mrs.
points, the
has briefed three
Plaintiff
and
impracticable
rendered it
her
for
court erred in
first of which
use her lands.
this case
The facts of
fusing
findings mat-
to make additional
on
bring it
the rule announced
within
is an abun-
concerning
ters
which there
Land,
in
Agency
Clarendon
Investment
evidence; secondly, the
dance
error
Co., McClelland,
179,
v.
23 S.W.
damages for
refusing
the court
the re-
in
105,
v.
and
(T),
L.R.A.
Jameson
moval
the fence which caused defend-
Board, Tex.Civ.App.,
(no
Co. Chapman, (e. Long v. r.) history, 879, no writ Civ.App., 151 S.W.2d not be removed could For the land. consent the owner right had no Mr. reason same Jackson only evidence fence. to remove the et al. v. SCHARBAUER et al. BENGE permis Mr. had in the record Jackson No. 4895. Lindley that Mr. the fence is remove sion to Appeals Court of Civil of Texas. El Paso. right all right was was Oct. 1952. of the fence lands south use the Jackson have his control. We were Rehearing Denied Nov. tire out this came after already pointed fence and was based on removal Kyle acquired all the had
belief Jackson sections, 12, and Neither Ranch. court found the trial upon which Lindley. to Mr. be, belonged fence evidence Under leased. were They removal fence court before wrongful. authority without already noted the en have We been maintained had trap within closure Kyle Mrs. many years many, Lindley Mr. express consent be- use lands it and maintain
Ñaman, Boswell, Waco," Wil- Howell son, Logan, Angelo, Douglas Wilson & San Dallas, Ford, appellants.
Whitaker, Kerr, Turpin, Smith & Brooks Sealy, Midland, Stubbeman, McRae & A, Wilkinson, Jr., Earl Brown and R. T. Dallas, appellees. both SUTTON, Justice. appeal
This is an from the District Court County. of Midland jury, trial to a but at The the conclu- Court.,instructed sion the evidence the a verdict in Clarence favor of Scharbauer Scharbauer, and Ruth known in the record as the judg- “Scharbauer defendants” and accordingly. ment followed principal defendants complainants are the appeal. on this Magnolia Petroleum Company brought suit as a stakeholder er to deed construe a and to have it de- termined pay to whom it should certain royalties producing due under a gas oil and lease the lands involved and the lands conveyed in the deed to be construed. 17, 1941, Schar-
On December
Clarence
surveys
bauer and
six
wife owned
land
County,
situated in Midland
were
conveyed
of that date
H.
deed
A.
County
Benge of Tom Green
for a refcited
paid
paid.
and secured
consideration
by Block,
described
The lands were
Sec
Certificate,
tion,
acres,
Grantee and
reciting
“Grant,
grantors
that
n *
*
Convey”
grantee,
unto the
Sell and
lot,
parcel
that
“All
certain
or
of land
tract
(here
and described
known
as follows”
description
indicated)
follows
(con
tract
following
last listed
the deed
punctuation, “All
tinues without mark
Texas;
except
County,
saving,
in Midland
herein,
grantors
ing
reserving
( n )
however,
three-eighths
an undivided
minerals, in,
oil, gas
and other
of all
lands, but
above described
to and
assigns shall have the
oil,
gas
execute all
sole
future
join-
other
without
mineral
herein,
but said leases
der of
provide for the
three-
shall
( )
bonuses,
all the
eighths
grantor.”
(cid:127)royalties to the
general
Then follows the habendum and
save and
saved,
warranty
excepted
provisions.
the gran-
and reserved to
tors,
warrants the title
undisputed
agreed
that
*3
except
the
the
surface and all
minerals
that
atthe time
deed was executed there
this
interest,
say,
that
it
is to
warrants the title
outstanding
in
was an
one-fourth mineral
five-eighths
minerals, just
of the
as
parties
terest
the grantors
in other
and that
the
deed warrant
Duhig
the title to all the
three-fourths,
only
in the deed
or
owned
minerals, except that reserved. Plere it is
six-eighths
the
of
minerals.
outstanding
conceded there was an
one-
controversy
The
concerns the construc
fourth interest
in the minerals as was an
quoted
provision
tion
the
of the deed outstanding one-half of the minerals
in
grantors saved, excepted
wherein the
purpose
the Duhig case.
the
For
reserved the mineral
interest. The Sdiar-
Duhig
decision in the
case it was assumed
hand,
bauers contend on the one
which con
and the deed'
construed
mean the
by
was sustained
judgment
tention
the
of grantor reserved to himself one-half of the
court,
saved,
they
excepted
the trial
and minerals,
acquired
and the grantee
through
reserved to themselves
the
one-half of
only
surface,
interpret-
it
the
but when so
six-eighths
by
the
minerals
them
owned
ed,
said,
warranty
it is
the
was breached' at
conveyance
on the date of the
and are en
very
the
time the deed was executed and de-
'bonuses,
three-eighths
titled to
rentals
livered,
that
very
but
he held' the
interest
royalties
plainly
by
pro
as
reflected
the
required
remedy
the breach and he was
Benge
vision of the deed. The
defendants prohibited from the assertion of the title
say
conveys
plainly
the deed
and warrants
warranty,
contradiction
breach of
or
the
the title
the whole
the
surface and
estopped
and that he
setting
was
up
from
minerals,
rely upon
five-eighths of the
against
such title
grantee
the
and those
Peavy-Moore
Co.,
Duhig v.
Lumber
135
claiming under it.
503,
cases
Tex.
239 626; Bradford, Nye 144 ob- A.L.R. v. provision is contractual saying 1; 169 A.L.R. S.W.2d ligation upon grantee. binding Duncan, Adams S.W. illogical and appellants say Benge this 599; num- might 2d and which added prevail against the cannot n erous undisputed and authorities. five-eighths. agreed virtue e the Scharbauers own power Th to execute the leases in- one-eighth mineral reservation a upon such terms' and such considera terest, provision of the deed but for the tions as saw fit was a valuable one which confers power coupled and an irrevocable with an joinder their to make all future Superior interest. Oil Co. Oil v. Stanolind *4 one-eighth essential as to such would be Co., Tex.Civ.App., Gas 230 S.W.2d interest, provision mineral but the and for Id., Tex.Sup., 240 S.W.2d provides payment three- the which for analysis, a this lat- Boiled down final to bonuses, royal- eighths rentals and of the represents provision the just ter considered they one-eighth limited to would be ties n in the sum total of all the benefits reserved And, by Benge, thereof. is asserted by grantors, and when effect is the power the make all future mineral had to grantors the given language its conferred, unconditionally such been parties and the con- served'exactly nothing power les- probably would have entitled the merely payment the to grantors tracted for the sor benefits arising the under bonuses, three-eighths of rentals and the situation the Schar- lease. In the instant royalties. could have been for all. It We conceded own undivided bauers are an give think it not admissable to effect full one-eighth and but the the power the otherwise unconditional power conferred to make leases with- future lease and at the same and limit time alter joinder join- grantors, the the out their rights in exchange the conferred therefor. any essential in affecting der would be lease issue, Our determination of this and By provision that interest. a contractual n of the deed this effect thereof is to render immaterial the power is conferred or points by Benge appellants other raised granted, coupled plain a but is con- overruled, they accordingly are provision tractual that leases executed so based the conclusions reached and provide shall for the lessors (court is stated the of the trial bonuses, of the rentals affirmed. royalties. proceeds These are mere .arising from the use of the land. Under power PRICE, Chief (concurring). conferred determines Justice leases; the terms and conditions of the agree I disposition with the of this case collected; to be of bonuses (cid:127)amount opinion and with what is paid; to be and the rentals
.amount my opinion Judge In SUTTON. we have n might royalty. never There of the amount presented' estoppel against here an an es- any occasion to exercise arisen have toppel. The Scharbauer’s deed with the pay- provision for the make the general warranty operates covenant of bonuses, royalties, ment against them. The contract part on the act and make the deter- right but Benge contained estops in the deed him depend upon pro- made to minations his in title successors from questioning the payments due the vision right Scharbauers to three-eighths opinion It is our such provision. bonuses, royalty, etc. provision has noth- unmistakable plain and recognized As in the case of Duhig v. wholly warranty but is do ing to Peavey-Moore Company, Lumber 135 it. independent a general S.W.2d covenant operates by elementary grantee title way a is bound of an estoppel. operates This provisions of deed. covenant as an contractual hy es- toppel against White, By S.W.2d Scharbauers. Greene opinion Benge contract contained in the In writer same token estoppel against estopped operates as an his have themselves successors reservation estoppel setting up warran Benge successors. n ty interest as to the involved herein. offer, this Benge himself of availed Benge estopped by are rea defendants of all knowledge with full availed himself agreement estopped son of them their n minerals was — facts. title priv selves availing themselves of clause. reservation reserved ilege contained in the reservation clause of right is availing himself of this es- conveyance them. good No reason n roy- topped in the interest deny appears they why should not be bound in provided be reserved alty should they attempted the manner to bind them Corpus Secun- for the Scharbauers. Juris appears, grantees selves. No fraud as follows: the rule dum states had in the deed from the Scharbauers no against estoppel estoppel an sets “An actual, tice, of the out i'f not constructive up large; so, at the setting the matter standing mineral interest. one-fourth may prevent- estoppel by deed of an typical a very There exhibited case is here estoppel, or offset ed estoppel rely estoppel. on an See *5 estoppel, against different form or a Russell, Jennings Ark. 189 S.W. up.” party seeking set it C. 2d 656. Estoppel, 196. J.S., page § Estoppel, Bigelow 6th Ed. p. also See McGILL, J., concurs.