Humble Oil & Refining Co. v. State

retain em es procure and of each case and on the nature way a such capabil- occupation employment interpretation the con ployment.” Such greater person injured. ities of the It does not insured no placed tract physical disability the hold mean in- liability, great, if absolute degree of per- sured following any Common to transact kind of business cases: ings in the Bryant, taining occupation, Casualty v. to his but exists if he Bonding Co. & wealth 893; Fi any portion Hefner v. 21, unable to do substantial 240 S.W. 113 Tex. 596, Co., 160 S. 110 Tex. work connected therewith. Id. 5539.” delity Casualty & 966; Southern 330, Great 222 S.W. W. light in the When reviewed (Tex.Com.App.) v. Co. Life Ins. Johnson particular the court circumstances before 1097; Kemper 1093, v. (2d) 25 S.W. presented inquiry which (Tex.Com. Ins. Ass’n Police & Firemen’s case, jury think in this we do not re 978; Mutual Winters App.) 44 S.W. versible error is shown in the issue and ac (Tex.Com.App.) Reddin Aid Ass’n v. disability, companying total definition of 1095; Mutual Benevolent Amarillo W.(2d) nor can it is in be said that the evidence 33 S.W. (Tex.Civ.App.) Ass’n v. Franklin support sufficient jury’s findings.' (2d) 859. The judgment trial court will be language simi policy containing A affirmed. considera have under lar to that we now South the court Great tion was before supra, quot Johnson, ern Life Co. Ins. ing: Fidelity & Casual in Hefner v. “As said 330, Co., ty 160 S.W. 110 Tex. [596] clause construed; reasonably policy be should HUMBLE OIL & REFINING CO. et al. v. require com ‘would construction literal STATE et al. power physical and mental plete all loss of No. 8249. hap fact, scarcely capacity it would —in pen bring live and himself that one could Appeals Court of Civil of Texas. Austin. language literal contract.’ within the Sept. 30, 1936. policy Bond in Commonwealth While Bryant Tex. ing& Casualty Rehearing April 14, Co. v. 21] [113 Denied 1937. dis limited the character of 240 S.W. any performance ability to duty pertaining to his occu every kind of compre policy is more here the pation, and may per that, be ‘if work hensive in profit, compensation formed for followed,’ may occupation recov gainful precluded, ery is rule announced here, applies in that case Judge Greenwood give court will not such a literal viz.: ‘The interpretation language this con * * * practically as to relieve tract obligations thereunder. Such insurer of discharg be the effect of a decision would plaintiff liability if ing error from all error, injury, his could after defendant required him as anything a railroad do conductor.’ policy requiring payment “A for total disability indemnity ordinarily is not one of against against but loss of income loss of capacity Cooley’s to work. 6 Briefs on (2d Ed.) disability’ Insurance 5536. ‘Total necessarily matter, must a relative depend peculiar chiefly circumstanc- Jr., Vinson, Elkins, Jackson, Jones, Ira P. Law- C. Jno.

ler, Wood, Childress, & Farish, Weems, Sweeton, D. & Jeff Houston, McGregor, T. H. of Aus- all of Sharrar, tin, Hig- Robert F. and Lee M. Houston, gins, Seagler, E. all of and R. Co., Bros. Texas Frost Oil Oil for Co., Gates, Inc., Smith & Standard Reid, Kansas, Reid,, Philip D. Co. of John Reid, Jarmin, Jarmin, Carrol Sarah John Reid, Reid, Elizabeth Howard Gerald Roberts, Harry, Harry, Margaret Robert Frost, Roberts, Frost, Rachael M. M. C. J. trustee, Frost, Frost, Jr., V. W. V. W. Kobs, Kobs, Kobs, Arthur Emma F. W. J. A. Hoffman, Cannon, P. C. F. N. Farish, Refin- trustee, Humble Oil & ing Co. Gen., Grady McCraw, Atty. and H. Wm. Rentfro, Attys. Asst. and Russell Chandler Gen., for the State. Robertson, Greenwood, Moody, & Cone, Austin, Jones, and appellees Biggio. Williams, ap- Austin, Williams & Doughtie. pellees Holderreith and BLAIR, Justice. trespass sued in to in The State Texas

-try to recover 103 acres of land title- vacancy county, alleged Harris existing the north line of the between Northern International & Great line of lower and the south surveys. corrected ment was in favor State for the vacancy, subject & Great 103-acre of the International to certain to ad- could not be extended tion determination is whether the 103- held that it surveys, calls for acre tract because the lies within join or outside the bounds said lines of the of the International the east west distance of International fell survey survey; secondary questions & Great Northern and the relate varas, preferential purchase, said south line 30S.8 short preferential rights adjudicated. mineral definitely for distance satis- and the calls constituting- when fied all acts map The attached shows the location of light of the acts done considered vacancy 103-acre the court, as found the trial surveyor parties and the and shows location of Willow identifying describing grant adjacent creek and surrounding surveys to be land intended included in Inter- accepted as now and established survey. Judg- Great Northern ground: national & on the Yll Survey “Said situated on the waters sur- the senior Joseph House Willow Creek 25 miles N.W. made about having been vey, its field notes City Houston; the base line was south and its The four south. “Beginning at corner of the N.W. constituting a block surveys, George of 320 in the name of the same made at system surveys, were ; Trott, in 1838. by surveyor time “Thence North 1900 to a corner varas Hooper called for upper prairie sur- South line northern as their Joseph boundaries; House south vey of 640 acres in name M. J. Hooper and lower Hooper; surveys, ' upper tied to Goodrich were along “Thence East 1900 varas corners and southwest southeast Hooper and Goodrich lines to the south were, according to surveys of said lower Survey; the N.W. corner of Senechal by and notes, “a stake their marked field along “Thence South 1900 varas the surveys Each of these prairie.” mound in ' Survey West line of Senechal Lamb’s to square lines in with form of a corner; N.E. 640 length, in and contained 1900.8 varas “Thence West along 1900 varas Geo. acres, south distance from and place Lamb’s North line to begin- of survey to the House Joseph line of the ning.” Hooper the lower corner southeast survey of. corner of and the southwest rejected field notes were and These survey as accepted lower January Gillespie filed corrected surveying Subsequent to 3801.6 varas. notes of International & Great Hooper surveys, Trott survey, the Goodrich and Northern which read as follows: survey, surveyed fixed A. Senechal “Beginning at the N.W. corner of a 1900.8varas south its corner southwest survey George of 320 in acres the name of sur- the lower Goodrich the south line of vey. ; Lamb corner of the Sene- southwest This North “Thence 1595 varas to a corner recognized now the same survey chal as prairie line of a South sur- Trott, and platted by originally as the one vey Hooper; in name of M. J. is the as the northeast corner same along “Thence East 1900 varas survey, George the Interna- Lamb Hooper and Goodrich south lines to the survey built tional Northern & Great Survey; W. line of the Senechal George up from the north line of the said survey, beginning point with at its along “Thence South 1595 varas survey. The corner of said northwest Survey West Senechal- certificate to the International & issued corner; Lamb’s N.E. Company Great Northern Railroad called along George “Thence West varas in Harris and was located acres place begin- line to Lamb’s North county, surveyed by County Surveyor ning.” March, 1877, Gillespie, in J. J. be noted It will there was no field notes returned certificate and point change beginning in of the cor- 7, April filed Land Office 1877. The notes, rected field but the east and west survey & Great Northern International shortened from 1900.8varas to lines were survey was made an abandoned 1,595varas, and the for the south line call Perkins, in the name E. acres Hooper as well the call Bowers, assignee H. made in 1840 of John east with said south line and run Henderson, by surveyor and later forfeit- of the lower south line ed Land This aban- Commissioner. However, were retained. the northeast doned was in Perkins the form corner under the corrected notes was square, length with the of its entire in point the west line of the A. fixed 1,901 varas, had its east line and its 1,595 north of varas its Senechal northeast and southeast corners coincident corner, of in its north- southwest instead and the the west line northwest and original as called for in the corner west International southwest corners A. Senechal sur- & Northern field Great vey. original field In- acres, effect, and ling undisputed for 640 original certificate because evidence in surveyor Gillespie acres Webb a fraction showed that who made to the 103 and cer- county, the unlocated balance the International Northern sur- & Great vey in and who later in correct- 1877 1878 tificate. notes, ed the field know where did not undisputed the above In addition to Hooper and such south lines of the Good- facts, found as follows: trial court located, for said rich were ánd his call George of the Lamb line north “.The in the field notes was based lines corrected controversy, but is well Survey is not conjecture upon a and mistake and recog- now ground and is on the located yield the call distance and re- must for posi- original being in its true and nized acreage, duced and the intention of the Hooper of the Lower south lines tion. The parties grant. to the Surveys open, were unmark- and Appellants contend that the call for the lines, and both the southwest prairie ed Hooper south lines of and Goodrich sur- Hooper Sur- corners and southeast veys must control the call for course and southwest and vey, as both the as well distance of the corrected field notes of the Survey, the Goodrich corners of southeast International Northern & Great by except and marked stakes were never uncertainty because there is no as to the now prairie, which cannot in the mounds ground, lines location of these on the and identified, all of which were and be found because of the the call uncertain, rule for ad- on the both indefinite joinder surveys prevail Office, to senior will over Land and in the General ground distance, the call for will course survey field notes corrected when the Survey extend north of the International were made in N. of the I. & G. * ** survey to coincide time & Great with At the Gil- 1878. 1877 and surveys Survey the south lines of the senior surveyed the I. & G. N. lespie with: regard thereon in out to the fact that the actual dis- notes corrected field filed Janu- tance between the north line began at the northwest cor- Lamb ary, he survey Survey, Hooper and the south lines of the Geo.rge Lamb but did ner of the surveys ground or reach the south and Goodrich is in excess not locate Surveys. distance called for the corrected Hooper or Goodrich line of the * * * connection, appellants In this notes. com- plain finding fixing that the of the court that said further finds “The Court Hooper the I. south lines of the corner of & G. N. R. the northwest Survey point were unmarked and uncertain at Company 1595 varas the time R. Gillespie corner of made the International the northwest & Great north survey 1877-78, Survey, contrary and with its north- Northern is George evidence; undisputed Auguste west line to the east corner Survey finding varas south of the northeast corner of 305.8 Senechal Survey, said & Great Northern corner of Senechal International

northwest notes, the corrected field there fixed in the west line of the according to Senechal rejected, its the call -1,595 adjoinder for will point varas at a by mistake, controlling effect inserted given northwest of its southwest corner instead corner from known undisputed and distance course contrary is also corners, undisputed when under contend Appellants evidence. further con particular facts of the case such findings that this connection that the patent ‘most consistent struction of the North- International from the delivered, derived issued, the intention to be and ac- ern cepted method of con description.’ entire This calling undisputed evidence showed prairie, identified; the and which cannot now be found and north the line and northeast that north and that were indefinite survey Lamb were well uncertain, west of the corners ground and the both the and in are now where ground the and located on records the Land Office when the the began its Gillespie north were survey when no neces- have been true, there would then vacancy existed, it south of the Inter- was notes, which field sity the corrected survey and national & Great Northern lines and re- west the east and shortened survey. just' George north of the Lamb Meusback, Keyser acreage. duced map The of 1847 shows Land Office So, all when 13 S.W. 967. Tex. 77 the above-mentioned of the Pillot sur- location of the south line vey matters are facts and Hoop- the lower and the south lines of together, or considered construed er to be at the same and Goodrich calls the east and and distance course they point now shown on the above as are coincide, field notes of the corrected west lines the International map, the north line and to survey, survey Lamb was also at the same quantity configura- with coincide which point map. the above There as shown on survey patented, more clear- tion map of appeared on Land Office certainly the intention ly reflect time, uncertainty as to the ex- for 'the first grant than does the call parties a conflict between the abandoned istence of Perkins open prairie lines of the the south survey Plooper the 'lower surveys. Under the Hooper and Goodrich surveys, and this same conflict notes, only way one there is corrected maps shown on Land was Office North- International & Great by which the 1896. 1876 and 1893 and The 1896 line can now or survey’s west could ern map to be the official Land continued ground, found on which have been ever shortly map until before this Office suit find the northwest filed, to first corner corrected was stantially comply when was to sub- beginning point map, with the above its Gillespie;' approximately if either of calls is used which is admitted show point, the return nec- beginning they must the true situation and locations as made to the northwest corner essarily ground. following now exist on creek, of tlbe several the Pillot crosses creek conflict and map Willow shows c; maps: times and its field notes ill for cross- erroneous several as found on the ing, location of said creek becomes map of 1847 shows Land Office only important, the location of the the south line of because Willow creek crosses times; map object map given natural on the should be survey the 1861 Pillot four map; greáter dignity than there- twice, all artificial lines same in on; and the the south line of the line of the Pillot fact of which the south show placed point at approximately Pillot the same being' located maps reference point the meanders or line of these medium up creek to and in- in the Pillot meanders of Willow the calls Willow creek and crossings question cluding time the notes are for such issued, strongly was made of that line definitely fix the location indicates the south line of the location ground. The north changed; not Pillot Pillot nor Senechal and south line when the conflict between of Sene- it in doubt coincide. northwest corner Hooper surveys Good- the of lower lower Goodrich chal in the south line the is rich, and abandoned Perkins placed in this situation the Senechal and when surveys was first shown on Land Hooper of Good- the Office the south lines the Crawford, map line Huff 89 Tex. projected the of 1861. v. rich east follow north clearly 222, 34 606. This more of the and the south of the Senechal line the Office Pillot, and found on the indicates that Land draftsman Willow creek is showing ground of in the conflict moved the south south of the southeast corner Goodrich; Hooper lines of the lower of some 400 or 500 Goodrich the instead surveys moving of the north corner as was on south instead varas of that shown south north, maps Pillot because the latter when both line of the the erroneous Land Office necessarily original require of the the moving and corrected field notes the would Great Northern were creek north three four hundred International & Willow maps where these erroneous- Neither even the Land Office 1877-78. varas of sent to be. It is also ly it manifest Hooper field called showed nor Goodrich notes the creek, only line the Pillot that the south it is the for Willow but since been moved north without ground in could not have object on the the vicin- natural positions relative some of ity changing line question, and since south surveys. adjacent surrounding conflict northwest corner So, positions relative Senechal survey. from the And it is since the Senechal evident creek, survey definitely line Willow can be of the Pillot located from the south of the south line Pillot, creek the south lines from of Willow the Perkins Goodrich, Hooper Senechal, rel- lower and the Lamb adjacent positions and sur- southeast Perkins, ative of all the corner north of the line surveys, change depend- mis- of the rounding Lamb is therefore more ent resulting supposed in the conflict as take location of the south line of maps was not than shown on said Land Office Pillot on the location of the south line moving Hooper caused the Pillot south line It, lower Goodrich. north, erroneously moving therefore, south clearly but appears that Hooper vacancy lines of the lower where trial court found reasonably appears Thus it to be. south. the only was that of the Land mistake Nor do we sustain the contention thought draftsman who the south Office that since 640 were ac lines of the and Goodrich tually patented county, in Harris and there Wil- some 400 or varas south of upon unlocated no balance which a creek, low fact such line was when in certificate for an could unlocated balance Cler.rly actually north of Willow creek. issue, properly go the State should to Webb mistake not in the location county and recover the land located under south because its line the Pillot the unlocated balance certificate. The line crossed Willow creek several south International & Great Northern Railroad times and its field notes called for Company and claiming those it are crossing, maps and all the showed the south estopped They question. assert this line line of the Pillot to of the the median be protested never manner the action Willow creek. There meanders of surveyor making corrected was no evidence that Willow creek ever They accepted notes. and acted changed where its channel or course from original and unlocated balance certifi actually located, it is now on as shown cates. The presumes law Land map. only first above It is the natural Commissioner was authorized to act on the vicinity object maps in shown on the notes; corrected field his decision is not question. land in If extended into subject attack, to collateral and the records survey, as shown the abandoned Perkins by relating to these as appearing, matters maps in the used trial some the Land Office things are notice of all case, it approxi- this would located at pertaining to certificates. Ward mately 1,595 north varas north (Tex.Civ.App.) 751; Forrester 87 S.W. survey. Gillespie’s original of the Lamb field Kirby Lumber Co. v. Adams (Tex.Civ. cancy patent from the State a there- finding surveyor that the did not know for was issued to them. This is not fully support- where such south line was is by any pleadings, evidence, attacked or b)' as- very probable ed the evidence. It is signment error, except appellants of con- position the mistaken or that location of vacancy tend that if no existed as claimed early creek on the Willow maps Land Office them, by the'patent then is void. We have maps caused the Land Office to be vacancy exist, held that the did erroneously this changed, and to show that question against concludes the as appel- International the was & Great Northern lants. square, in form of a not but was rectangle, in form a show judgment to recited that might there that the lower in question some between the as State and

183 purchase reasons; patentees Doughtie ap- as (2) arid to for that Holderreith several pellant corporations prohibited them the extent of the minerals owned from were statute; acres, judgment (3) in purchasing the 31.6 dismiss- land but prejudice right ed unsurveyed without to land involved the issue school question sale, litigate subject of the later. because situated State to was not to evidence well pleadings producing nor the within oil Neither five miles of a any preference in the at to the minerals for applications raised issue as time such filed, 1/16 at the patent, right purchase reserved a 31.6 acres. The were State. royalty time of free in the minerals the trial of this case. have the Doughtie seek to Holderreith and conclusion We have reached as judgment reviewed recitation correctly construed the trial court casting to the miner- cloud their title 452, p. chapter Leg., Acts 42nd pleadings nor als. Since neither withdrawing right sale the surface issue, calling the mere evidence raised the of all land within five miles school situated judg- issue in the possible attention to the any producing gas well oil or in com issue, ex- but ment did not determine pressly quantities. mercial 4 Sections determination in left the issue for 5421c, the act (Vernon’s art. AnnfCiv.St. by proper raised some future action where surveyed 2-4) authorize sale §§ any In event the pleadings and evidence. portion school land with a reservation of question court before this not proviso, of the minerals with “that all judgment de- pleadings, final evidence or pro such land within five miles of a well as minerals. termining issue to ducing gas quantities oil or in commercial only, subject shall to lease and the sur J, be. rights F. W. Kobs judgment awarded face shall not be sold.” Section 5 purchase 10.6 acres right to preference a (Vernon’s of said act art. Ann.Civ.St. occupant vacancy as an the 103-acre 5421c, 5) provides patenting for of cer § faith, good under section thereof occupied in good tain lands faith for a p. (Vernon’s chapter 271, Leg. 42d Acts period years; provides of ten and further portion 5421c, 5). This art. Ann.Civ.St. of the § a “that in cases where tract of school attacked in judgment is not occupied land has been mistake a manner. part tract, occupant of another such shall the 103-acre va- As remainder to preference right period have six months after the for a further decreed cancy, judgment discovery of the mis Murray Jones, Biggio, B. appellees, Wm. take, Act, passage or after the of this to Cone, discovered same M. had and Gordon purchase price paid the land at the same land, duly unsurveyed and had school paid or contracted to be for the land ac obtain mineral applications filed their tually conveyed to him.” Section 6 of the respective described tracts their leases on 5421c, (Vernon’s 6) act Ann.Civ.St. art. § areas, compliance provisions with provides “any desiring buy any one chapter 42d seq., Acts of section et unsurveyed included this (Vernon’s Leg. p. 452 art. 5421c Ann.Civ.St. Act not within five situated miles of a ; appellees seq.) and that said 8 et § producing gas oil surveyor well file shall with proceed obtain further and entitled to each county county in which the State accord- mineral lease from his situated, may be application the land an Appellants attack statutes. with said .ance survey describing the land in such judgment upon portion of this as will surveyor manner identify enable the they as lessees ground that either pay surveyor it and fee in or -minerals, predecessors war- or their ($1.00) filing One Dollar and record title, applied for and were had rantors entitled to application deposit ing said and also right purchase preference money pay sum of as will him such ing for cit occupants unsurveyed land as school land, claimant or claimants of the provisions faith under sec- good any, adjoining if tax ulls owners as the Leg., chapter 42d said Acts may -tion disclose the names of such 5421c, art. p. (Vernon’s Ann.Civ.St. adjoining owners." This claimants tion further sec found court and concluded 5). provides, The trial that if the area be § sale,” appellants pred- subject “unsurveyed may neither nor their and to that (1) prescribed by of purchased in or warrantors terms ecessors title be act; provides preferential -complied with the a minerals had statutes the person preference purchase having respect right of right to to 184 land hibit unsurveyed area inclosed with other sale of the rights” “surface so as faith, by occupying to good person question pos- avoid ownership, or of (Ver- session, use or damages such area as a home. Section to surface 5421c, development the gas. 8), provides non’s Ann.Civ.St. art. of such land for or § oil surveyed unsur- It is also knowledge the lease of “both common that “any land veyed” land, provides that situated within school five miles of oil' an unsurveyed gas or person area discovers an is who more valuable for mineral * * * may apply development of purpose, school land than for surface so- * * * purchase Legislature, mineral writing lease any prudent to a as would own- er, con- sale, the terms and pro- thereon” under such land from withdrew by and 11 vided provided ditions sections for its develop- lease for mineral 5421c, of ment for than (Vernon’s Ann.Civ.St. art. a act much consideration greater 8, is, by price provided 9-11). paying the beyond That for the sale of land §§ bid, the five-mile is, fixed and “in addition to the cash limit. That in cases where therefor, less one- land was amount bid of not than within five-mile limit the oil, eighth gross production pay of lessee (Ys) was to price in addition to the n fixed gas or the or bid for n value of same” and the lease of oil or gas, value, or their minerals. of other of the other ¾6 ¼6 hand, minerals. On the other where the language It is manifest from the of the n beyond land was situated lim- five-mile Legislature entire act intended to “subject sale,” it was to purchaser to land, provide surveyed that all both school pay price fixed, only unsurveyed, ¾& within five miles of of the minerals was reserved to the State. oil or gas producing gas well oil or we So must legislative conclude quantities, subject be commercial lease thereon “shall to intent “lease only” to land situated within only,” rights surface five miles a producing or gas oil well be sold. shall not Section re- and, plain is unambiguous. surveyed lating specifically school land to provides. gives pref- so Section which a appellants But contend that right purchase erence having to those general language pro section which enclosed, occupant, spe- the land or the vides “that in all cases where tract a cifically 'provisions limits its to land not school land has by been occupied mistake producing situated within five miles oil part aas tract, another occupant gas well. This section further di- * * * shall preference have a right rects and field notes must purchase,” (cid:127)to is not limited or controlled days be filed in Land Officewithin 120 by the only five-mile provision. lease Man application pur- the date to ifestly, this sound, contention is not be chase, provides and further that “if the cause there point could have been no area is found the Commissioner to be Legislature providing in section 5 that an subject sale,” unsurveyed and to then he occupant had preference right pur to proceed application shall with the as di- chase lands either within or without the 1, 2, and 6 (Vernon’s rected. Sections limit, five-mile and at the same time 5421c, 2, 6) provide art. Ann'.Civ.St. §§ sections 2 and 6 of the expressly act de subject that all school land shall be to lands, clare that surveyed both and unsur- sale, except that situated within five miles veyed, subject were not to sale if located producing gas oil well. within five miles of an gas oil or well. Manifestly Legislature would not have language, “shall subject to declared section that “all school land” only, rights lease and the surface shall subject was occupant to preference right of the sold,” not be if the land is situated within purchase, to and at the same time of a producing gas well, five miles oil only unsurveyed declared section 6 that plain unambiguous. The same is school land not situated within five miles “any language, desiring true of the buy any one * * * a producing gas oil or well was sub unsurveyed land ject the preference to sale and to the right of pro within five miles not situated of a occupant purchase. ducing gas oil or well.” language Such clearly the Legis shows intention But contend that Senate Con- provide only” for the lature all school “lease adopted by current Resolution No. within five miles Legislature situated 42nd its Called Ses- First gas legislative pur of an oil or well.. (Vernon’s sion art. Ann.Civ.St. 5421c

pose pro- It was intended manifest. note), should be considered in the con- pur- to preference right struction SOUTHERN ALKALI CORPORATION v. 5, supra. This provisions section chase DISMUKES. it was follows: “That reads as resolution is now Legislature, the intention of No. 9984. public Legislature the intention Appeals Court of Civil of Texas. San provid- occupied land mistake school Antonio. to the occu- 5 be sold ed in said Section occupant March which such price at the same 1937. pant tq pay adjoining his for paid or contracted Rehearing April 21, Denied 1937. thought good faith which he tract and of part, public school such and is not it was not further declared purchasing privilege of intended said limited, subject abridged, shall such land be provision other or burdened with to law, except pre-existing Act of said 4.” of said the reservations Section attempts Clearly this resolution Chap a resolution. amend a statute clearly expressed the intention of ter 271 for the lease provide Legislature the only within five lands situated of school well. The producing gas oil or miles of declare that section 5 seeks to resolution abridged, limit to be so was not intended ed, subject to, such or burdened A cannot be must be act. statute provision of the resolution. It amended amended publication re-enactment which by an act or bill length, and Governor. subject power of the to the veto 35 and sections Article Texas. Constitution held that the land con- we have Since only, troversy subject to lease right questions preference as to the

other pred- warrantors or their immaterial. Nor title became ecessors do any right to attack the appellants have appellees. Such is a matter for leases State, in no manner attacked and it has applications therefor. leases or the will judgment of the court be trial

affirmed.

Affirmed. Rehearing.

On Motion rehearing been held on This case has Supreme a decision Court

pending Caples Coles, case April rehearing denied 1937. decision sustained view this This that lands situated with issue court in five oil well producing miles of a subject and were from sale withdrawn lease only. rehearing will motion over-

ruled.

Overruled. preferential purchase, preferential line or called for the south surveys, rights but mineral of said some of the defendants parts primary court ques- contended trial the State land.

Notes

ap- The corrected field notes were notes. proved by February 5, Great Land ternational & Northern read Office patent issued, delivered and a follows: therewith, will be the full acreage in accordance amount of called accepted for, .acres, tract of land and the calls rectangular calling for 536-4780/5645 course, distance, con- 1,595 varas, configuration 536 and and for 1900.8 land; tained in the will be original corrected field notes acres of 4780/5645 fully respected.” endorsed satisfied certificate was certificate balance An unlocated extent. facts, From the trial court foregoing acres 865/5645 103 and residue of for the concluded that the call for the “unmarked International & to the was issued prairie lines” lower Company on Railroad Northern Great Goodrich 78, same existed 1877— same was located November given should effect not control or be county issued in Webb over the call and distance as for course certifi- original fully satisfying thus contained in the corrected field notes of land; and neither 640 acres cate for the International & Great Northern sur- Rail- vey; the International and that even if the south lines of claiming or one Company had, nor road the said and Goodrich protested 1877-78, it ever holding under been the “stake and marked the field against the correction original manner mound” called for sur- 536 and notes, accepted patents veyor thereof, marked but still the call for such county, given Harris south should control- a fraction lines not be

on the corrected field for rejection of a call struction adjoinder containing 536 and rectangular tract most con mistake is inserted acres, a fraction that a certificate if its effect sistent with the true intention and a frac- an unlocated balance of 103 other terms of issued, is to harmonize the accepted tion and location few of the disregard county, notes and to are later made thereunder Webb See, also, v. possible.” calls as Giraud, Wilson immaterial cannot serve break 253, 264, 111 Tex. 231 S.W. adjoinder lines call for the with the south 1078; (Tex.Civ.App.) Porter v. State surveys. and Goodrich We 193; Gilbert, Finberg v. S.W. do these not sustain contentions. 82; v. 104 Tex. 141 S.W. Gerald It is true that there now no un 256; Freeman, 204, 4. S.W. 68 Tex. certainty as to the the south location of (Tex.Civ.App.) Talkington State v. surveys, lines but the and Goodrich 314; (Tex.Civ.App.) Finks W. Cox v. fully supports finding evidence 95, 99; (Tex.Civ. Finberg Gilbert of the court that the south lines of these 507; Lafferty v. Steven App.) 156 S.W. surveys lines, open prairie were unmarked 216, 220; (Tex.Civ.App.) 135 S.W. son and that the ners of and southeast cor southwest (Tex.Civ.App.) 3 S.W. v. Rowe Lomax of said both never (2d) 498. marked, except stake and mounds in

and corrected they the International & west corner build survey International & Great Northern survey. survey The Lamb by Gillespie Great Northern were made 1877-78. But south line and from the constructed even if the location of the south lines the abandoned Perkins corners of south and the southwest and southeast corners definitely the east survey, tied to which Hooper and Goodrich were mark and southwest cor line and the southeast ground, ed on the or could have been lo survey; and as to ners of Senechal applicable cated some rule at under survey the location of the Senechal there time the International & Great Northern any dispute So, doubt. has never been made, adjoinder survey still the rule Gillespie if apparent it that made his boundary in application to the has no survey International & Great North adjoinder case, stant because the rule has notes, survey the corrected field ern conclusively the facts application no where could not have reached he did not and surveyor through mistake show that Hooper' of the lower and the south lines adjoinder, conjecture called for the and 1,595 varas, surveys in because Goodrich adjoinder the call in such cases for does undisputed proof showed that distance the call course and dis not control tance, 1,900 approximately varas. to be This though the line or corner call even Gillespie did ap marked. The rule or demonstrates not know ed for was rules Hooper lines of said where the south stated in the recent case of plicable are were when he made his (Tex.Com.App.) 92 v. Sullivan State “* * * the International & Great Northern sur as follows: conclusively vey show and returned his corrected field notes facts that the where the 1878; manifestly by conjecture a call for a surveyor through mistake or sur line, unmarked, vey whether marked or adjoinder, the call for for the ad- called will not control a call course and does not control over course and joinder distance, clearly appears though where that the distance, even the line or corner surveyor did not know where the line was. for was marked. such situation called In survey, in order to find the corrected undisputed also It field delivered, issued, & Great west line Northern the International approved, a notes were survey. manifest It is also there- accepted in accordance stated, uncer- that if the of land the facts above with, tract calling' rectangular for a tainty the location of varas, containing 536 had been as to .by .and 1900.8 survey, north instead acres; cer- line of the Lamb original and a fraction tificate Hooper sur- line of the satis- of as to the south marked acres was for 640 vey, surveyor made the would not have extent, bal- unlocated and the fied point at the northwest corner floated, beginning location was lifted and ance survey. Naturally he would residue of the Lamb fraction 103 and a point from the changed beginning a have county when was made in Webb re- issued, supposedly to the one de- uncertain-corner residue was patent for such definitely marked on garded fixed or fully satisfying accepted, thus livered and interpretation of ground. above Our for 640 acres. original certificate surveyor parties to and the parties the acts of the surveyor acts of These with their grant is more consistent identify describe clearly grant to the entire de- intention as derived from the In- be .included intended to the land ternational scription contained in the corrected & Great notes; ad- rejection the call for 1,595 by land tract of rectangular being a joinder the south line of only varas, containing 1900.8 conjecture surveyor being inserted mistake Manifestly, as will acres. a fraction and the in harmonizing other the effect of purpose have had a grant parties notes, and will the corrected field terms of the east and the distances when view disregarding fewer calls result than & Great the International lines of west appellants’ contention would be the case if were 305.8 va- were shortened Northern ras, 640 to sustained. reduced from acreage and the. purpose fraction, and that 536 and a supplemental But contend the International was to rebuild change briefs that in the Land Office supposedly not so as to Northern conflict uncertainty map brought of 1861 about the portion of lines or south lying between as to the of land amount surveys. Mani- Hooper and Goodrich not intend to cover festly exactly parties did survey, and that the uncer- George Lamb same, original tainty the south line was in the location of If field notes. corrected if of the N. Pillot and that C.

the International & Great App.) 366; 62 S.W. Crook v. Texas recited that “said 651; Co. (Tex.Civ.App.) 51 S.W.(2d) situated the waters of Creek Willow Blum, Fristoe v. 92 Tex. 998; 45 S.W. city about 25 miles N.W. from the of Thompson v. Houston Ry. & Co., T. C. Houston.” Thus it is evident if he Tex. 392, S.W. 629. was, where the knew creek he did not know Since the State is entitled to recover where the south line of the vacancy, pass 103-acre we secondary surveys was when he made his presented questions appeal. notes; original and since his calls for fi.eld Wm. Holderreith and T. Doughtie distance in his corrected notes fell purchased 31.6 acres of the 103-acre va- line, the said short of south the trial court’s

Case Details

Case Name: Humble Oil & Refining Co. v. State

Court Name: Court of Appeals of Texas

Date Published: Sep 30, 1936

Citation: 104 S.W.2d 174

Docket Number: No. 8249.

Court Abbreviation: Tex. App.