*1 al., COCKRELL et Dula Dashiell Petitioners, COMPANY, SULPHUR
TEXAS GULF Respondent.
No. A-5554.
Supreme of Texas. Court 12, 1956.
Dec. Opinion
Concurring 1957. March
Rehearing March Denied
Liberty County, she, Texas. On that date joined by husband, gas an executed and mineral on the whole of land. this Erwin W. Smith in said lessee lease. Later the south one-half of 729.7 acres was min- released Smith’s eral lease. April Afterwards and on husband, joined Ruth Sergent, by her executed gas an oil A. mineral lease to R. covering Miller of south one-half the tract of land. These two leases were things of wording, the same and for purposes case, proceed of we can if only there were one lease on entire tract vary- of 729.7acres. Where are ing interests in will each tract we set them appropriate out at places opinion. in our provided royalty payments for sulphur of 50 Sul- long cents ton. phur only is the which we Subsequent concerned. of to the execution leases, September 28, prior Mrs. Sergent conveyed por- had sold and tions of her' until minerals and owned, on the subject above date outstanding of the mineral fee Y&th interest under the west 400 acres of 729.7 acres and fee one-half of the mineral east 329.7 tract. acres of the following Each of the leases contained provisions: agreed “It is further that all the con ditions and terms herein shall extend heirs, executors, legal representa Crooker, Freeman, Fulbright, Bates & tives, assigns interest and successors Jaworski, Jamison, Houston, M. for John hereto; change but no of petitioners. land, thereof, ownership or Strickland, Montgomery, H. F. H. W. impose shall any obligations additional Williams, Houston, Kennerly, &Lee Lessee, or burden on the and to that end respondent. hereby Lessors covenant for them selves, heirs, assigns their and succes interest, that in case sors in of GRIFFIN, Justice. change ownership land, said by petitioner This is a suit thereof, an by conveyance, ac- whether recovery counting royalties payable will, inheritance, partition otherwise, produced respondent. out of royalties accruing all rentals and here petitioners plaintiffs were trial under shall he new owners court, respondent proportion was the defend- to their July 27, hereby ant. On Ruth whole the land leased so that simple segregated part owned 729.7 acres of land owner expressly roy understood and “It whole to the
land shall be entitled excep- agreed that developments on the reservations accruing from alties *3 shall be tions hereinabove enumerated tract, only to such but segregated said ,as perpetual apply shall whether such acreage and royalty of such oil, gaso- gas, cas/ringhead acreage gas em tract the whole his is to and/or line, sulphur or shall mineral lease; covenant other this braced this and/or produced covenant exist- as a minerals is under the and construed be taken by the binding ing on future or lease leases running with the land and by gran- Lessors lessee or lessees therein or to successors in interests all herein, assigns, tee its successors and herein.1’ or otherwise.” leases both September and On by clause, effect, Following and the habendum at and owned in full force and being clause, warranty Company, beginning we of Production others than Gulf “ * * * subject following: to find the and Ruth and husband oil, to gas acres the aforesaid leases Company 729.7 and mineral Gulf Production royalty conveyances, mineral pertinent and warranty by of land and/or grantor heirs, hereby herself, does portions as follows: bind deed are husband, gran- etc.” called and W. Ruth Dollars and tor, Ten for a consideration Plaintiffs all rights hold of Mrs. Ser- paid valuable considerations good and gent by proper conveyance under this deed subject Company by “and Gulf Production from her. Company Gulf sold Production royalty reservations to the mineral and/or rights and transferred all of its in this land has exceptions set out” hereinafter and Sulphur to Company Texas Gulf in De- conveyed, to etc. granted, and sold cember, Sulphur produced has been 729.7 acres acres, from the west 400 east 329.7 Texas, describing County, Liberty land nonproductive. acres has been Defendant Immediately by and bounds. same metes plaintiffs royalty has a cents 61/2 description and before following the per long sulphur production ton on the un- following, find we clause habendum der 5 their construction reservation set however, terms and con- “Subject, entirety above. Plaintiffs claim that the existing of each and all ditions clause contained the lease entitles them gas mineral leases and/or royalty per 14.72180347cents a ton on hereby grantor conveyances, and sulphur produced 400 on acres. the west excepts her- unto expressly reserves by plaintiffs against suit was the de- executors, heirs, self, administrators fendant collect the difference between reservations assigns” numbered seven paid, plus cents cents 61/2 royalties. sulphur oil, gas and covering claimed as due them virtue of the en- sulphur numbers dealing with
Those tirety clause in the leases. are as follows: entirety is recognized clause pounds per cents ton “5. 61/2 binding, provision enforceable and valid produced and marketed sulphur all lease, court held in the case above acres West of Thomas Gilcrease Foundation v. Stano premises.” described & lind Oil Gas 266 S.W. pounds 2d 850. ton of 2240 “6. cents produced sulphur and marketed Gypsy The case of Oil Co. v. Schonwald, 329.7 of said above the East acres 107 Okl. 231 P. was cited permises.”
described Court in the Gilcrease case. The Oklahoma provided: discussing validity further court in It was binding entirety in an oil and What effect of an clause right has a did
gas
says
the lessor
September
own on
he
any provision which
place in his lease
when she
to Gulf
executed her deed
purchaser’s
subsequent
to his
deems
Production Company? She
bound
660; 671 et
advantage.
32 Tex.Law Rev.
ap
portionment
seq.
of her
those
whom she had theretofore sold and con
validity of
not attack the
Defendants do
veyed mineral interests in
acres.
the 729.7
They
provision.
contend
*4
Out of
conveyed
the west 400 acres she had
exceptions in Mrs.
and
the reservations
interest,
only
mineral
leaving
the
her
%ths
to Gulf Production
deed
owner of an
[/¿th
undivided
therein.
certain,
unambiguous,
are
clear and
royalty
of 50
per
pro
long
cents
ton
that as to
west 400 acres such reserva-
the
duction had been reduced as to her l^th
provides
royalty
a
specifically
tion
for
of
ownership
proportionate
to that
part of her
6j4
ton,
royalty
per long
cents
and that
ownership in
west
it
the
400 acres as
V&th
paid,
has been
deed
and that the
does not
bore to the total acreage of
729.7 acres.
any entirety
providing
a
contain
clause
for
words, by
ownership
other
of her
of
virtue
apportionment
payment
royalty
of
on an
royalty
acres,
under the
west 400
vir
Therefore,
it
basis.
the en-
contended
tue of
leases,
the
clauses in
she
the
tirety
govern
the
clause in
lease does not
royalty
production
owned a
from the
on the
rights
the
of the
to the deed and
west 400 acres of
X X cents.
50
[4
400/729.7
hand, plaintiffs
On the
suit.
claim
This figures
royalty
out to
per
be a
ton
wording
wherein
deed
production
from
sulphur anywhere
of
provided
however,
“subject,
to the terms
the 729.7 acres of 3.42606551
Under
cents.
oil,
existing
and conditions of each and all
entirety clause,
the
virtue of her
gas and mineral leases and mineral and/or
ownership
royalty
acres,
of
under the 329.7
royalty conveyances” expressly recognizes
she was
royalty
entitled to additional
deed,
brings
forward into the
the en-
any production on
729.7
acre tract. She
tirety
apportionment
providing
had
of her
one-half
minerals on
royalty
with the
of
in accordance
frac-
tract,
the 329.7 acre
leaving
thus
own
her
mineral
in the whole 729.7
tional
ing only one-half of the
minerals.
acre tract.
leased,
being
minerals
she was entitled to
royalty proportionate
receive a
her own
authority
take it that no
We
need
ership in the
east 329.7 acres
aas
of
proposition
be cited for the
that a deed can
is,
729.7
total
acre tract. That
her
pass
greater
estate than that owned
royalty interest at
time
was 329.7/729.-
grantor. Likewise it
is fundamental
7 X X[4
figures
roy
50‡. This
to be
warranty
pass
deed will
of
alty
production
of 11.29573796cents from
by the grantor at the
estate owned
time of
anywhere on the 729.7 acre tract. Add
conveyance unless
reserva
figures together (3.42606551plus
these two
exceptions
which reduce the
tions
estate
11.29573796)
you
at 14.72180347
arrive
Currie,
conveyed.
Harris v.
Tex.
royalty per
sulphur pro
total
ton
302; Alfrey
Ellington,
Tex.
any part
duced from
of the 729.7 acre
Civ.App.,
S.W.2d
n.r.e. Also
Therefore,
own,
did
tract.
not
after
she
property excepted,
the estate
applying
apportioning provision,
25a
grant.
is never included
reserved
royalty
ton
cents
interest in
Scharbauer,
the east
Benge Tex.
166; King
329.7 acres which
could
v. First National Bank
she
out of
S.W.2d
carve
Falls,
ownership.
Wichita
Neither did
own
&-/¡i per
260(1), 163
ton
A.L.R.
west 400
eral
and/or
reservations and ex-
Sergent and
acres.
is clear that Mrs.
ceptions hereinafter
set out. The second
grantee
could not make a
description
like
clause comes between the
affect
royalty payments which would
found in the
clause and
ha-
granting
purchasers
rights
previous
bendum
This clause
clause.
makes
Sergent,
contract.
to such
“subject
to” the terms and conditions
provision
effect of
What
of each
existing
gas
and all
subject
made
in the deed that it was
leases and mineral and/or
and all
“of
terms and conditions
each
conveyances, and grantor
expressly re-
As
conveyances”?
existing
excepts
herself,
heirs,
serves and
unto
Caldwell,
Kokernot
the case
etc. the seven reservations
in the
set out
528, 531,
ref.:
wr.
Tex.Civ.App., 231 S.W.2d
wording
“subject
to”
clause shows that it deals with
differ-
two
‘subject
to’
used
term
“The
subjects,
ent
oil, gas
(1) existing
and min-
recognized
has a well
mineral deed
eral
grantor’s
etc.
(2)
reserva-
*5
to,”
“subject
words
meaning.
‘The
tions
that deed which
presently
she was
ordinary sense,
“sub
used in their
mean
executing.
“subject
This shows that these
to,”
“lim
“subservient to”
ordinate
to”
only
clauses
protec-
were made not
by.”
is
the use
nothing
There
ited
against
tion
warranty,
but also to in-
to,”
“subject
their ordi
the words
corporate
existing oil,
the
gas and mineral
use,
nary
hint at the
which
even
leases, etc.
into her deed to defendant.
Engle
rights.’
creation
affirmative
Giving the deed the construction
give
we
Mintz,
345
N.E.
stein
Ill.
to it
parts
harmonizes all of its
and does
Manley
Oil
Oil
752. Shell
Co. v.
not set aside
any
the effect of
language
Cir.,
Corporation, 7
714.”
F.2d
used in the
entirety
deed. The
clauses in
the
applied
leases are
“subject
to the
clause in
reservations
inclusion of the
to”
made
deed,
in her
but do not
incorporated
set aside
in the deed the leases
deed
stipulated
It
reservations.
by all
the 729.7 acres and defined the estate
parties that
the leases
nature,
were in full force
conveyed,-
char-
extent and
and effect
September 28, 1931,
White, 137
the date
estate. Greene v.
acter of such
of Mrs. Sergent’s
deed 'to
Gulf
peals rights lease, under that it would reassign to September 28, determined as of 1931 when rights Humble all it had received from the deed was executed and delivered. Humble, and, addition, it would main tain the lease in full force and effect for Defendant claims that the leases in ex ninety days at least subsequent to such re 28, September istence lapsed 1931 have assignment. therefore the clause likewise inoperative. became Defendant Defendant 'further that, claims after the position maintain view September 28, deed, 1931 it having become many instruments introduced in the record the owner of the- leasehold as to which show recognized defendant has production under the 729.7 'acres deeded validity of the and has bound itself Mrs. Sergent, has there been merger permit not to lapse. the leases to Defend defendant, title in and the leases are no ant has also asserted litigation in other longer effective. On the contrary, that the leases were rights valid. Adams Dun owning those mineral interests in can, supra, Anderson, Grissom v. sulphur except Tex. those plaintiffs— — 26, 619; Reserve Petroleum have been at all recognized times and pay Hodge, 115, Co. v. 213 S.W.2d ments made to such owners nr accordance 456, 288; 7 A.L.R.2d Loeffler King, with the terms of the lease. We hold 626, Tex. S.W.2d 772. All there has been no merger of title so as to prior have at all times litigation set aside clauses in the leases. proceeded premise on the Humphreys-Mexia the two Gammon, Co. v. leases were in full 247, force and Roy 296, effect. S.W. 29 A.L.R. alties owners, to all other except Seigler, Mrs. West v. Tex.Civ.App., 265 S.W.2d pro- expired Sec. of these leases n.r.e.; wr.ref., 19 Am.Jur. Tex.Civ.App., kept production until duction them alive Ragland,
36; Ferguson v. June, 1933. From that date Defendant ceased in 721, wr.ref. 1922, 243 S.W. January, years, 13Y¡ are until title as entire own does not gas, West v. mineral was sulphur or other in others. outstanding interests upon defendant duced. supra, relied Seigler, been has that there position sustain 28, 1931, September “Prior to specif case That in it. of titles merger conveyed all of her miner- had obligation to ically recognized fee except undivided in- al interest Y$ agree purchase carry the terms 400 acres and terest the west in that defendant upon the rested ment in the east undivided fee interest merger titles. if there were case even acres. entirety clauses holdWe September “On Mrs. Ser- require so effective are conveyed Gulf gent Production Com- ap- the deed to royalty reservations pany title to the entire her fee 729 acre apportionment basis. When plied on ‘subject to’ (1) tract the reservations plaintiffs entitled to were applied, the so exceptions in the deed set out sulphur produced royalty on the receive ‘subject existing (2) to’ mineral leases acre tract the any part of the 729.7 December, conveyances. per long ton. cents of 14.72180347 sum Company assigned Gulf Production respondent properties all of the courts below re- of both Judgments Sergent. to it Mrs. There- rendered judgment is here versed (and January 1934) after before defendant the recover from plaintiffs shall owning interest in amount in amount difference minerals, respondent the land ac- hold- entitled our they are under to-which quired from Mrs. lessees all ing herein. *7 sulphur covering
of the leases said So, 1, 1934, January before interest. CULVER, JJ., dissenting. SMITH and respondent severalty owned in all of Sergent’s remaining Mrs. fee title in GARWOOD, J., sitting. not and mineral land interest and all of the sulphur covering leasehold estates such SMITH, Justice. interest.” respectfully dissent. I in this case The record large portion parties briefs of the of all devote well to be state here might certain space question of to the great deal of helpful arriving in will facts which at and Miller the Smith whether leases (men- understanding of the contention clearer of majority opinion) lapsed tioned the had parties: the sulphur prior production to the here in controversy. agree Mrs. I «In 1925 Ruth Ser- with the contention respondent special two ‘unless' mineral the executed gent limita- leases, Smith, upon Mr. Erwin which the one to W. determinable tions fee es- n A. pro- granted Mr. R. Miller. Each created such leases were tates occurred, assignments, in whole .or in heretofore pro- vided has sulphur subject apportion- identical not part, any and contained duction provisions leases, such royalty provisions that each sub- including, ment course, apportionment sequent provision. land new owner would be majority holding, proportion to his bases royalty in The I under- opinion, entirely primary The almost whole tract. terms stand of the provision pointed apportionment above, As theory respondent before and deter- January 1, controls severalty contained the leases 1934 owned in all of the deed parties rights Mrs. Sergent’s remaining mines fee title in land and, Gulf, therefore Sergent all of the interest and suit. parties rights of the covering leasehold estate such interest. to the opinion gives effect majority that, nevertheless, Petitioners contend re- effect, and in spondent contained the leases agreed parties, clauses third D. J. the leases Harrison, clauses holds that Humble and others to continue enforceable, effective, respondent’s alive and in force still leases covering the destroy between thereby severalty by interest owned in these third parties parties, as reflected in third-party and that agree- Company. Sergent effectively to Gulf Production ments continued the leases full Sergent force as to the owned interest plaintiffs trial petitioners as by respondent. demand their written be- introduced court position Respond- sound. demand, setting after filing suit. This fore ent severalty owned both the fee in entirety clause contained out the covering this fee. Under following statement: contains record, it was free to contract with sulphur they third as to the owned quoted pro- view of the above “In severalty any way without in affecting in view of of the leases and vision its own fee interest. I do sub- conveyances out of Mrs. theory by petitioners scribe advanced Houston, Bank of National Second that in primary instances after the term Cockrell, E. Trustee under Will expired, of a lease has one owner in sever- deceased, Mrs. Dula Dashiell Cock- alty an undivided interest in the land entitled to receive rell are $.147218125 can be bound an extension executed long sulphur produced, ton another who owns a different undivided from the marketed 729.7 saved severalty. interest in A contract with third above mentioned under said acre tract upon based different considerations Demand herewith leases. made two only as to their cannot in man- of the Trustee and on behalf subject entirely ner different property to for an accounting Cockrell the terms of the contract. duction from tract to date and for *8 royalties payment of on the due basis We must look to the contractual consid- aforesaid.” parties erations between (contained the Sergent-Gulf the and deed) set out in the urge here this Petitioners Court that seven enumerated reservations. That which reservations, contrary Mrs. to clearly was reserved is identified in the wording, bring own forward their and seven enumerated reservations. It is from effectively every pro- insert into the deed specific the language each .of of the reser- expunge the leases so as to vision of gain vations that we knowledge as to what themselves as well as reservations the res- parties intended Mrs. Sergent should provision granting in the ervation clause. have and own after her deed was delivered. Subsequent deeds and written demands Sergent from Mrs. The deed to Gulf afford no basis for determining the con- plainly written unambiguous contains res- rights tractual parties between the as fixed destroyed which cannot be by ervations im- in the deed from to Gulf they neither plication, can be destroyed Company. Production incorporate previous in lieu thereof and deeds the terms of which Furthermore, apparent it is to me at least harmony with the royalties paid out of could not be under the they make different if intend provisions
lease the deed to do and under plainly way in the in a formal ex- visions the differences because .of press that intention. inten- or Here provisions two. The either expressed by language tion is clear the deed must control. by the deed that leases executed to Gulf The deed from grantee power given under shall written. given should he it is effect provide payment %ths pro parties contractual are bound bonuses, royalties rentals and to The Ser visions in the deed. contained grantors. provision an is not conflicting con gent-Gulf deed contains no agreement deed to the Sims, v. provisions. tractual See Woods bonuses, participate in rentals shall 617; 59, Benge v. 1S4 Tex. S.W.2d royalties proportion their 453, Scharbauer, 447, 259 S.W.2d 152 Tex. is ownership of mineral interests. It 166; v. Stan Gilcrease Foundation Thomas provision a contractual rather & olind Oil Gas specified part grantors shall a receive 850; Duncan, 147 v. Tex. S.W.2d Adams bonuses, royalties; rentals and Peavy- Duhig S.W.2d namely, %ths.” Co., 135Tex. Moore Lumber S.W. 2d case, In the Gilcrease the contention Sergent-
A reasonable construction according royalties paid be to the natural conclusion Gulf deed leads rejected ownership. Court Scharbauer, Benge that the rule stated contention it said Tex. when [153 supra, Thomas Gilcrease Foundation v. contention must “This 854]: Co., supra, both & Gas Stanolind Oil Benge overruled. the recent case of Court, applied in this case. should Scharbauer, 152 Tex. S.W.2d simply Court, in those cases is The rule announced while it is held decided this, Benge propor- case normally royalty as stated in exact [152 ownership, basis to the tion 168]: contract for saying that the “ * ** bonuses, One-eighth of the a result.” different royalties normally go
rentals and would in- grantors as owners of l^th that the owners of land is well settled ¡Hjths minerals of bo- terest themselves minerals or min- may reserve to nuses, nor- rentals including right rights, eral mally grantee the owner go therein. But minerals. interest -Hiths em- not the owners such interests in arc plain unambiguous braces agree, they minerals desire if free Sergenfs pass that Mrs. should so, interests do that their fractional *9 Company, but that she Gulf bonuses, royalties under rentals and specific royalties, that the vuouldreserve be shall be executed leases to differ- is, paid normally, royalties not be that would they normally what amounts ent from ownership“ proportion (which exact “in n would [Emphasis be? added.] given have royalties), would all Gulf paid in bonuses, would amounts fractional “The “different be”, is, they normally would what in- royalties that one to re- is rentals taking roy- all stead the 14-cent usually a mineral lease or under ceive of Gulf allocable to the undivided alty normally his is the same as fractional fee Sergent, byit Mrs. conveyed to say would interest, but we cents less the reserved par- have amount always be the same. The Sergent. Mrs. may mineral interests owning the ties why a logical reason contract have been breached at instant I see no here, she Duhig where- her agreement such as we have delivered deed Gulf. Peavy-Moore Sergent Benge v. agreed pay in Gulf to Mrs. 25 cents Lumber Co. and Scharbauer, per sulphur pro- supra. pounds ton of 2240 duced and from the west 400 marketed clauses, “subject I think the two to” premises, is acres of said above described clause, granting one fol- the one enforceable, admitting even emphasize lowing description, har- two .of 25 cents which reserved require monious intentions —-the first having was more than after she owned reservations, of her observance a her great portion of protect warranty. second to her may reservation others. be true that special why any weight I a con- see no reason exception or strict sense is not Gulf, desired, the deed: given should be to the words in veyance, if it but I think “subject, however, and condi- to the terms Ser- pay to could have contracted to conveyances. existing leases and gent tions” regardless 25 cents ton ownership, quoted au- and under the above and con “subject the terms The to” term thorities permissible such conveyances did prior leases and ditions of binding. af- agreement Such an does not quali rights, a term but was not create fect is, the title parties, it will third Kokernot See fication not of contract. not diminish Ser- any the title of of Mrs. Tex.Civ.App., Caldwell, gent’s grantees acquired’interest prior who ref.; Ellington, Tex.Civ. Alfrey er. Sergent-Gulf September deed r.n. App., 285 er. ref. e. to Gulf con-- deed When Mrs. Sergent conveyed her following clause: tains lessee, Company, Gulf Production effectively agreed to and did expressly waive the en- understood and “It tirety clause and ex- agreed she in fact the reservations conveyed everything except she owned ceptions enumerated shall hereinabove particular specified benefits perpetual apply set out shall whether reservations in the casinghead gas, gas and/or gasoline, miner- and/or a “subject contains to” produced existing als is or under clause in the granting reads, which lessee future or “and subject to the mineral and/or grantee or lessees therein exceptions reservations and hereinafter set herein, assigns, successors out.” otherwise.” second, deed contains a “subject to” conveying to Gulf her entire mineral provides clause which that Mrs. Sergent’s fee, royalties knew subject deed was to the terms and condi- normally would be to Gulf and the tions of existing leases conveyances. according respec- other fee to their owners provision, Without anyway her deed ownerships. tive mineral As a would have legally “subject been to” the for her mineral ap- consideration fee and conveyances same leases and they because portioned royalties, she reserved therefrom already were in Liberty County. record money specified fractional and *10 “subject provision to” was not written upon agreed. she and Gulf had which to “subject conflict with provision the to” in granting prevent the clause but to Gulf pro- could have that, deed from conveying upon long for so as the vided leases were in properties face effect, royalties that she had such reserved theretofore were to be conveyed. Without this her in warranty apportioned accordance the with terms In they permitted instead, provided the case at bar the leases
of the but assignments part. Mrs. per- in or in royalties be whole that her reserved should land, the convey was free to the petual, the mineral as With set out above. minerals, inor royalty royalty, in whole apportioned acquired fee the Gulf part. gran- agree her quantum She was to with normally free followed the royalties reserve tee to with what she ownership, in accordance mineral conveyance. from the After she had sold agreed the and Gulf contract Mrs. interest, larger the she was royalties and of her apportioned that out of the to, did, free to specific sell Gulf minerals, would receive she remaining, deed, more, Company all she had royalties title that nothing in her set out and in specifically her deed reserved written nothing less. If the reservations royalties enumerated different from those function, legally they not res- are previously owned. of the Some ervations. appor- to (whether reserved in the deed be not) tioned created or were not under “without some Petitioners admit example, cas- terms For of the leases. exception roy- form of reservation or payable inghead gas royalty under alty Sergent owned would interest as Mrs. per 1,000 leases cents cubic based on four passed grantee, Produc- have to the reserved, casing- feet was not but a new respondent Company.” tion For to re- gas royalty head actual value based necessary cover it not does not royalty gas of the was reserved. The sold validity apportionment challenge casinghead is mentioned gasoline provisions It is in the leases. well estab- deed, well leases. $100 royalties, apportioned, or other lished that per year payable dry royalty under the gas kind, conveyed, reserved, may freely be or deed, leases reserved in the was not part. Thomas whole or See Gilcrease dry on the value instead a based Co., Oil & Gas Foundation v. Stanolind gas sold was contracted for. Scharbauer, supra. supra, Benge v. the rule case stated The Gilcrease to we examine the deed determine When paid in exact normally royalty is “while acquired, necessary it is what Gulf look ownership, proportion to the the contractual considerations between parties cannot basis saying parties and set out in the enumerated and further result” contract for a different indicated, As heretofore reservations. res- “it is well settled the rule that stated by implication. cannot be made ervations may to them- of land reserve the owners no reservation her deed that There is including rights, minerals mineral selves or she reserved all that she ownership therein.” any right or oil she executed deed. As owned before Sharp this Court the case of lead me to answer the Fowler, These authorities presented the affirmative. 154: “A reservation minerals be ef- question here language. must clear fective Courts here is: “Could owner question by implication.” not favor reservations do royalty, allocable the minerals perpetual royalty regard fee, retain a conveying the owned, or contract previously vision, provision only apply can part of the as a consider- grantee, provisions stricken, if the deed are roy- conveyance for different ation only apply the deed if and can the lease previously owned?” See those than provisions stricken. Either alties the lease Corp., Gas Utilities provisions provisions deed Consolidated Iskian fall. Harley Magnolia Sergent certainly intended P.2d Old., 251 respect her final act with to the property. 37 N.E.2d 378 Ill. Petroleum expected no Obviously she reversion to her- A.L.R. *11 509, All she ler Oil 19 S.W.2d 27. deed. self under the terms and, empha- have payments heretofore mentioned for expect was the possibly could sis, I repeat respond here the deed. the fact perpetuity as set her in ent entered into new contracts with third determinable were leases knew that her She parties large to them sums entirety clauses fees, and that money keep respondent’s sulphur rights' knew that She lapse the leases. properties wholly by alive as owned perpetuity. conveyance fee deed was a not, parties petitioners’ third bene-' does when she for think it is conclusive I fit, keep land' intended alive its own leases its own perpetual vided purchased Sergent. perpet- from Mrs. The third' under perpetual mean to and did parties not owned no interest in Mrs. deed, did by conveyed ual fee interest, by fee and her interest is now owned the determinable perpetual under mean respondent. me that It seems lease. vested under the from in the contained
the recitations disagree majority I with the wherein it was which petitioners, Mrs. merge is held that did leases into deed, Sergent-Gulf long after executed Respondent separable the fee. owned the the ef- have afterthoughts and fee, acquired sulphur and when it lease interests determining the fixing and fect of fee, holds theretofore carved out of the former and reserved merged. Sigler, two estates See West v. 618, .App., Tex.Civ 265 S.W.2d er. n. ref. r. “unless” involved were leases The two e.; Moak, 322, State v. 146 Tex. 207 S.W.2d upon failure of terminated leases that Fowler, 894; Sharp Tex.Civ.App., stipulated there production. The 490, affirmed 151 Tex. S.W.2d S. min gas or other production was no W.2d 153. land between any of the erals from June 1, 1947, nonproduc January Sergent, Under its deed re- “unless” years. The period tion of 13i/£ spondent duty develop under no was in 1931 termination after the produce. imposed obligations The leases terms, very lives depended for their primary upon Respondent acquired the fee owner. July ceased before upon production which leases, therefore, obligations the lessee ceased, the “un production When 1933. ceased. terminated, without notice to leases less” argue or les intervening either lessor Petitioners without action estates Matthews, prevented Tex.Civ. from merging Tennant v. the leases into the See see. 1115; position supported by Humble & Re This is not App., Oil fee. Davis, Tex.Com.App., by authority. 296 S.W. record or All the fining land Co. v. Baker, Sergent conveyed 285; acquired by 147 Tex. to Gulf was Hamilton v. respondent, sulphur of the leases involved leases covering Each 460. acquired respondent, the end of six months were at before to terminate 1934. was true, respondent drilling during being the fact was actual “unless” there specified expended acquire large rental sums to period, “unless” the interests of parties in at end of the third lands paid. Production owned kept prevented the third in no wise the leases alive until primary term sulphur merger sepa- that minerals could of its leases into The fact June purchased although Sergent. none was rable fee from Mrs. produced, have been keep Suppose still owned years, did not produced 13i/£ interest, acquired and before 1934 had did the mere discov Neither leases alive. production rights, leasehold could it be sulphur without continue success- ery of respondent’s fully argued that Texas forever. See contracts leases party prevented third interests Davis, 255 with S.W. Respon- merging into her fee ? Sig Estate v. T. Waggoner W. S.W. *12 lawfully petitioners. my lawfully acquired judgment, In the basis for the fee dent majority opinion pro original must fall. The acquired the leases. Sergent’s entirety assignment. Mrs. visions of clauses became permitted inoperative acquire the to if for no reason because permitted vendee Gulf lease- Mrs. fee and the was free to contract and did Sergent’s leases. as estates, respondent, royalty with contract Gulf for different vested hold they normally would reservation separate respondent as than would follow her estates in Re- minerals owned them. to Production if Mrs. still Com pany. to the full title spondent having acquired leases, the acquired the having fee and that, It my opinion, the judg- follows de- completely merged to
two estates ments of the trial court and Court Civil struction of the leases. Appeals should be affirmed. petitioners in this order for to recover holding CULVER, they J., joins opinion. this Court’s case avoid in this cases, supra, Benge Gilcrease and in the normally royalty follows the mineral CALVERT, (concurring). Justice ownership may parties but that I agree- not wish to be as do understood been unable to I have
a different result.
entirety
ing
in-
clause
the leases
petitioners
single
sustains
find a
case that
permit
operates
case
volved
con
contention that Mrs.
in their
requires
owning only
one
an interest
royalties
after
tinued to own the same
royalty
from a
of the leased
derived
owned before the
deed Gulf
she
others,
premises
proportion-
share
Thomas Gilcrease Foundation
v.
See
ately,
royalties
in the
from the entire leased
Harley
Co., supra;
Oil & Gas
Stanolind
premises.
have assumed that it
Co., supra; Gypsy
Magnolia Petroleum
v.
and,
does;
accordingly, so has the court.
Schonwald,
253, 231 P.
107 Okl.
Oil Co.
Rosamond,
864;
P.
Eason v.
Okl.
clause,
entirety
An
like all other
Co.,
Gypsy
38 N.M.
Schrader v.
Oil
2d
contract,
lease
visions of a
should be in-
I understand these
685
tract,
ments
Metscher,
segregated
only
on said
to
Okl.
but
103
v.
669 and Galt
S.W.
part
ownership
royalty
such
acreage
of such
in
522,
is
when the
even
229 P.
his
is
acreage
tract
to the whole
embraced
Thomas Gilcrease
interests.
of undivided
* *
lease;
Co.,
very
in this
The
word-
& Gas
Oil
Foundation v. Stanolind
mind,
ing
my
of
latter
the clause indicates to
operation for this
supra. But its
clearly,
rather
oper-
to re-
that it was
to
purpose is
intended
purpose,
recited
when its
lessee,
only
apportion royalty
ate
to
purely
where
of the
lieve the burdens
change
ownership
was
only
part
a
in
of
effect
a
of
may
given
It
be
that
incidental.
reasonably
mineral fee.
It does not answer
permits.
this
language
ob-
when
say
operates
vious fact to
that
it
where
entirety
similar to
an
clause
Whether
change
there is
ownership
a
in
part
of a
involved in the Gilcrease
Schon
those
of the land and that under our decisions
operates
ownership
royal
of
cases
on
wald
royalty is an
in land.
writing
interest
ty
in
only
has not been decided
state.
clause
used
“royal-
the words
question
important
im
The
is an
one—too
ty” and
wholly
“land” to refer to
different
portant
incidentally
when it
decided
interests,
thereby disclaiming any intent
presented,
has been
briefed nor
neither
“royalty”
that the word
should mean the
jurisdictions
argued.
from other
Decisions
thing
same
as the word “land”. A casual
entirely
are not
As indicating
harmonious.
analysis
supply proof.
will
clause
operate,
Gypsy
that it
so
see
Oil Co. v.
does
any
vides
in
change
that
case of
of owner-
864;
Schonwald,
253, 231
107 Okl.
P.
ship of said land (referring to the leased
Gypsy
N.M.
28
Schrader
Oil
v.
premises)
royalties”
“all rentals and
accru-
Rosamond,
P.2d
Eason
Okl.
paid
under the lease shall be
ing
“to the new
Ley,
Thomas
177 Okl.
P.2d
proportion
owners
to their ownership of
given that effect *14 to fractionalization incident
of burdens only. much There is reason- could saying for that it
less reason in- to relieve given that effect
ably be only.
equities among owners say some answer to
It is no word- are so
clauses, pooling agreements, apportionment require an
ed as to royalty de- royalty among owners of
whole parts separate of the leased
rived from simply that such
premises. means That one, from this different
other clauses are torturing reason no sound
and would be meaning one into language of this did not intend to the lease
which the (cid:127)
it to have. question here discussed as the
Inasmuch argued, nor presented, briefed
was neither thereof seems determination
our incidental Chubb, decisis. Griffin be stare 609-610; Courts, Am.Jur., I, therefore, p. 291. p. 290 and § § yet open question an
regard one clause re-
join assuming that royalty by
quired apportionment an who own no
among owners of fee estate.
of the mineral Johnson, T. G. Jr., Davis and M. Jesse Moody, Austin, Tulsa, Old., Dan for relator. COMPANY, OIL a Delaware SHELL Corporation, Relator, Shepperd, Atty. Gen., Ben Arthur J. John Gen., Sandlin, Atty. respondent. Asst. RUDDER, Commissioner of the Gen- J. Earl Land Office of State eral GARWOOD, Justice. Texas, Respondent. " Company, Relator, brings Oil Shell No. A-5955. require proceeding mandamus original Supreme Court of Texas. Rudder, respondent, Earl Commis J. Office, of the General Land sioner file March his office certain oil and gas for record to relator as running lessee on lands Texas, County, Hartley being lands recovered the State private parties “Capitol Syndi