142 S.W.2d 603 | Tex. App. | 1940
This is a suit in trespass to try title brought by A. B. Foshee and others claiming under an oil and gas lease and A. H. Tubbs and wife claiming to own the fee against the Texas Company and numerous other persons for title and possession of a small tract of land, a part of the Carleton Survey in Gregg County, lying between the Longview and " Tyler highway as located in 1911 and the same highway as relocated in 1930.
Appellants, answered by plea in abatement, general denial, plea of not guilty, and also claimed title to said minerals under the various statutes of limitation. In addition appellants sought compensation for the value of the oil run from the well located on said land. Judgment was for appellees upon the verdict of the jury.
Appellants’ eleventh proposition is: “Since the description in the 'Katherine Ryan lease places the south line of the land therein described in the center of the Longview-Tyler road and accurately and precisely describes the present road by calling for a straight line which fits the course of the present road, but entirely fails to describe the former road which was crooked and which did not follow even approximately the course called for, it can not be said that the description is ambiguous and subject to be explained by parol testimony, and the verdict and judgment locating the line in the center of the former road, based as they are on parol testimony varying and contradicting the field note description, are without support in the competent evidence and contrary to the undisputed, competent evidence.”
The record reflects that A. H. Tubbs and Selmer J. Boles are the sole heirs at law of John S. Tubbs, deceased. On April 20, 1911, A. H. Tubbs conveyed, to Selmer J. Boles his “undivided interest in the J. S. Tubbs, deceased, estate lying and situated North of the Longview and Tyler public road and East of ' Moody creek * ' * * ”, a part of the Carleton Survey. It is the location of the western portion of the south line of this tract uf land which is in dispute here. The following
On October 9, 1930, S. J. Boles and wife executed an oil and gas lease to Katherine Ryan covering the tract of land lying north of the Longview and Tyler road and east of Moody Creek, said to contain 25 acres, more or. less, and being the same land conveyed to S. J. Boles in 1911 by A. H. Tubbs, and described by metes and bounds as follows: “Part of the Wm. Carleton H. R. Survey, Beginning at the bridge on Moody Creek in the center of the Longview and Tyler road in the center of the creek; Thence S 78 E with the center of the road 468 vrs. to a corner in the road, same being the S. W. corner of the J. H. Boles tract; Thence N with the j. H. Boles West line 442.8 varas to Plenry York’s corner; Thence S 72 W with the York pasture line 252 vrs. to a corner in the old creek bed'; Thence down the creek with its meanderings the following distances: S 63 W 198 vrs. S 20 W 190.8 vrs to- the place of beginning and containing in all 25 acres of land, more or less.”
This oil and gas lease was on October 13, 1930, assigned to The Texas Company, one of the appellants here. The mineral deeds from S. J. Boles to the other appellants also contain this identical description. Appellees contend that line BXC on the map represents the Longview and Tyler road as it existed in 1911, the date of the conveyance of the 25-acre tract to Selmer Boles by Tubbs, and that the south line of said tract of land as described in the oil lease and mineral deeds held by appellants, lies along said 1911 designation of said road. It is appellants’ contention that the description set out above contained in all the mineral conveyances and lease under which they hold, has its beginning at point A, the concrete bridge over Moody Creek on the 1930 highway and runs in a straight line to point C, fixing the south boundary line of said 25-acre tract along the 1930 highway from A to C. ABX, the shaded portion of the map, constitutes the small tract of land in controversy upon which is located an oil well, marked No. 1. No claim is made by either party to any land or leasehold west of Moody Creek or south of the 1930 highway.
The court below permitted W. E. Tones, the surveyor who ran out the lines to
“Q. When you got down to that point you called your beginning point in your survey, there was a new concrete bridge just down the creek below you? A. Yes, sir.
“Q. The bridge that had formerly been where you called your corner was dismantled? A. Yes.
“Q. And yet, with a dismantled bridge out there you called to begin in the middle of the bridge, in the center of Moody Creek and ran on 78 degrees east with the center of the road, and you knew there was a road below you, the present used road, that pretty nearly fit your course and distance? A. In a way, I had my courses wrong.
“Q. You called it south 78 east, and isn’t that line 77 degrees and 15 minutes east? A. That is what they say.
“Q. Don’t you know ? A. I expect that is right.
“Q. In fact, you know it is right? A. I think so. Mighty good surveyors say it is.
“Q. That is 45 minutes off the course you made? A. Yes, sir.”
S. J. Boles testified that at the time Jones made the survey there were two bridges over Moody Creek, the 1919 wooden bridge and the 1930 concrete bridge. Thus it appears that when Jones placed his beginning corner at the bridge there was at least a question as to whether there was one or two bridges over Moody Creek in the vicinity of his beginning point. Both witnesses agree that the 1930 concrete bridge was in place, but they differ as to whether the 1919 wooden bridge was in place or whether it had been dismantled at the time the survey was made. This fact alone adds strength to the recitation by Jones in the field notes, “beginning at the bridge over Moody Creek.” But granting that there were two bridges, one at A and one at B, over Moody Creek, is there an ambiguity created in the field note description of the lease and mineral deeds when said description is applied to the ground? We think not. When the field notes made out by Jones in September, 1930, are applied to the ground they will substantially fit tract AYDC, and the south line thereof, described by Jones to be a straight line, will lack only a few feet of coinciding with line AC along the 1930 Longview and Tyler road and will have its western terminus resting at the concrete bridge and not at the old wooden bridge on said abandoned highway. Moreover, that portion of the south line BX testified to by Jones as the line he
This rule is also stated by Judge Gaines in Johnson v. Archibald, 78 Tex. 96, 14 S.W. 266, 267, 22 Am.St.Rep. 27, as follows: “If the calls in a grcrnt when applied to the land correspond with each other, parol evidence is not admissible to vary them, by showing that in point of fact they are not the calls of the survey as actually made. But if when so applied they disclose a latent ambiguity, — that is to say, if they conflict with eadh other, — then extrinsic evidence may be resorted to in order to determine the conflict and to show the land actually intended to be embraced by the calls of the survey.”
And again in Thomson v. Langdon, 87 Tex. 254, 28 S.W. 931, 935, Judge Gaines said; “ * * * A writing unambiguous upon its face may become doubtful when applied to the subject-matter of the description. On the other hand, if there be no conflict in the calls found in the field notes of a survey, there is no room for construction, and the calls must speak for the\ms<elves. To permit the introduction of parol evidence to vary the calls would be to violate the familiar nde that extraneous evidence is not permissible to vary a written instrument. * * * But we apprehend that it is not proper to resort to the calls in the field notes of another survey, although made at the same time and by the same surveyor, to create a conflict in case none arises from the calls of the survey in question when applied to the objects called for as actually found on the ground.”
Perhaps the latest and clearest statement of this rule is found in Blake v. Pure Oil Co., supra [128 Tex. 536, 100 S.W.2d 1013], as expressed in the following quotation: “When the description in field notes or in a deed is both on its face and in its application to the ground clear and unambiguous, extrinsic or parol evidence may not be resorted to for the purpose of showing that the surveyor actually ran a line of the survey at a different place from that described in the field notes or deed. Davis v. George, 104 Tex. 106, 134 S.W. 326.” (All italics ours.)
This proposition is therefore sustained. Our holding herein is not in conflict with the rule announced by the Supreme Court in State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228; Blake v. Pure Oil Co., supra, and Gill v. Peterson, 126 Tex. 216, 86 S.W.2d 629, but is wholly in accord therewith.
The conclusion reached above renders unnecessary a discussion of the other propositions brought forward.
The. judgment of the lower court is reversed and here rendered for appellant Th?
Reversed and rendered.