Gulf Oil Corp. v. Outlaw (150 S.W.2d 777, 1941)

GERMAN, Commissioner.

This suit was instituted by Clarence Scharbauer, Gulf Oil Corporation and Federal Royalties Company as plaintiffs1, and they will bé so referred to herein. Rex C. Outlaw was named as defendant and will be so designated here. The Staté of Texas intervened and it will be referred to as the State. The' suit involves title to a strip of land about 31½ varás wide and 1900 varas in length, contain^ ing 10.6 acres. The district court instructed a verdict in favor of plaintiffs. The Court of Civil Appeals reversed and remanded the cause, holding that an issué of fact was raised by the evidencé which should have been submitted to the jury. 137 S.W.2d 787, 789.

Before discussing the merits of the case it' becomes necessary to notice briefly' a question pertaining to jurisdiction.

Final judgment was entered in this cause July 14, 1938. Notice of appeal was given, but appeal was not perfected. On January 4, 1939, petition for writ of error was filed. The appeal by writ of error was perfected in the Court of Civil Appeals March 17, 1939. The Court of Civil Apr peals decided the case January 18, 1940, after what is known, as Senate Bill No. 69, Vernon’s Ann.Civ.St. art. 2249a, became effective. Motion was made in the Court of Civil Appeals to dismiss the appeal and same was overruled. The question has been brought here in «the application for writ of. error. .. ■

The pertinent portions of the Act in question are as follows:

“Section 1. No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.

“Sec. 2. All laws and parts of laws, insofar as they conflict with this Act, are repealed. Writ of error shall continue to be available under the rules and regulations of the law to a party who does not participate in the trial of the case in the trial court.

“Sec. 3. It is hereby provided that this Act shall take effect from and after January 1, 1940.”

After mature consideration it is announced as the conclusion of the Court that the Act mentioned was not intended to apply to causes where appeal by writ of error was fully perfected prior to the effective date of same, to wit, January 2, 1940. In this instance, appeal had been perfected in the Court of Civil Appeals before the Act was ever passed by the legislature. While not approving the reasoning of the Court of Civil Appeals upon this question, its judgment in this respect is sustained.

Plaintiff Scharbauer is owner of Sections 21, 22, 27, 28 and other sections in Block 44, T I S (Township 1 South) T. & P. Ry. Co., Ector County, Texas. Defendant Gulf Oil Corporation holds an oil, gas and mineral lease on these sections under Scharbauer, while defendant Federal Royalties Company owns a royalty interest under said leases. Plaintiffs sued for the strip of land in controversy as a part of Sections 21, 22, 27 and 28. Defendant Outlaw claims a mineral permit upon the strip of land in controversy issued by the Commissioner of the General Land Office August 13, 1937. The State of Texas claims the land as a part of the public domain, subject to the mineral permit issued to Outlaw.

Prior to March 7, 1876, Texas & Pacific Ry. Co. owned 24 land certificates issued under the Act of May 2, 1873, Gammel’s Laws, vol. 7, c. CVIII, p. 1018, which entitled it to survey 48 sections of land, of which 24 sections would be ' its property, and the remaining 24 sections would belong to the public school fund. On or about March 7, 1876, B. L. Cunningham surveyed Block 44, T 1 S, by virtue of said certificates. In doing this work he surveyed upon the ground only the outside lines of the block. He returned to the General Land Office the field notes of his work and also a plat. The field notes and plat showed that he divided said block into 48 sections, calling for each to be approximately 1900 varas square. It is admitted by all parties that he did not make any actual survey of any of the sections, but that the field notes, other than the outside lines of the block, were entirely office work.

Thereafter the odd numbered sections were patented to the railway company by section, block and certificate numbers, and each of the sections was described as being 1900 varas square. Later, the State sold the 24 even numbered sections. J. C. Beaty purchased four of these sections, including Section 22. These even numbered sections appeared on the map by Cunningham which had been returned to the General Land Office as being 1900 varas square. Section 22 was sold to Beaty as “Section 22, Block 44, Cert. 4352, T. & P. Ry., 640 acres.” It appears to have been valued at $1.50 per acre. The four sections purchased by Beaty, as well as a number of others, were conveyed to J. W. Buchanan, and became a part of what was known as the “J. W. Buchanan Ranch.” In 1912 Buchanan obtained a loan, and in connection with this loan it became necessary to obtain patents covering the evert numbered surveys. Buchanan, through his agent, advised the Commissioner of the General Land Office that he desired to pay out and obtain patents to twelve of the even numbered sections, including Section 22. Under date of October 1, 1912, the Commissioner advised Buchanan that there appeared to be an excess in Block 44, and that corrected field notes would be required before patents could issue. He further advised that when corrected field notes were filed, the sections fully paid out, including excess, and patent fees deposited, the land would be subject to patent. It appears to be undisputed that the resurvey and return of corrected field notes was to determine the excess, and to properly allocate it to the even numbered surveys, so that the State could collect for the excess acreage in each section.

. Pursuant to said instructions Buchanan obtained the services of J. R. Wadsworth, County Surveyor of Ector County, to resurvey ten of the even numbered sections in said Block 44, including Sections 22, 26 and 28. In doing this work it appears undisputed that Wadsworth undertook, first, to establish certain lines and corners of odd numbered sections which adjoined the even numbered sections which he was to survey. His purpose in doing this was co reduce the acreage in said odd numbered sections to exactly 640 acres, with their boundaries fixed at approximately 1900 varas square. After thus fixing the lines and corners of odd numbered sections, he began at the corners of such sections so established by him and established the adjoining even numbered sections, giving each sufficient distances to include its own excess and the excess in the adjoining odd sections. A number of the sections which he thus resurveyed had as parts of their boundaries the outside lines of the block, which were marked upon the ground and easily identified. All such outside lines are now admittedly established. It appears undisputed that in doing this work Wads-worth fixed (for the first time) the west line of Section 25, putting its excess in Section 26, the west line of Section 27, putting its excess in Section 28, and the east line of Section 21 putting its excess in Section 22. He likewise fixed certain lines of other odd numbered sections, putting the excess in an adjoining even numbered section. He made corrected field notes of ten of the even numbered sections and returned same to the Land Office, together with a map showing, apparently, the new locations, dimensions and acreage ■of all sections in Block No. 44. A copy of said map is shown in the opinion of the Court of Civil Appeals.

Under date of November 21, 1912, fee resurveyed Section 26. He began at the N.W. corner of Section 25, which comer appears to have been established 1900 varas west from the known east line of Block 44. His next call is as follows: “Thence S. 74° 40' W at 35 vrs. pass gal. iron pipe 3" dia., same being S.E. cor. Sur.No.23 and S.W. cor. Sur.No.24, 1934 vrs. to gal. iron pipe 3" dia. for N.W. cor. of this sur. and N.E. cor of Sur.No.27.”

Under a date which appears as November 2, 1912, he surveyed Section 28. We are convinced that this is a mistake in date, and the same should be November 28, 1912, or a date just prior thereto. One of the chain carriers testified that Wadsworth began his work at the N.E. comer of the block and that he surveyed Section 2 at that time. The field notes of this section are dated November. 20, 1912.. The chain carrier further testified that the work-was done within a week or one or two days longer than a week. The field notes of Section 26 are dated November 21. The field notes of Section 34 are dated November 26. The field notes of Sections 8, 18 and 20 are dated November 27. The field notes of Section 22 are dated November 28. As the field notes of Section 22 and of Section 28 mutually call for each other, we think it appears with reasonable certainty that they were made the same day.

The field notes of Section 28 contain the following call: “Beginning at N.W. cor. of Sur.No. 27 gal. iron pipe set in S. Bdy. line of Sur. No. 22 this blk. Thence S. 74° 40' W. at 37 vrs. pass gal. iron pipe 3" dia. same being S.E. cor. of Sur. No. 21 and S.W. cor. of Sur. No. 22.”

As stated above, Section 22 was surveyed November 28, 1912, which was seven days after the survey of Section 26. It began at the N.E. corner of Section 21, ⅛ the south line of Section 16. It then called to pass the S.E. corner of Section 16 and S.W. corner of Section 15 and at 1938 varas called for its N.E. corner to be at the N.W. corner of Section 23. The next two calls are as follows: “Thence S. 15° 20' E 1900 vrs. along with W. bdy. line of said Sur. No. 23 to gal. iron pipe for S.E-cor. of this Sur. and N.E. cor. of Sur. No. 27 this Blk. Thence S. 74° 40' W. along with N. bdy. line of said Sur. No. 27 at 1901 vrs. pass gal. iron pipe 3" dia., same being N.W. cor. of Sur. No. 27 and N& cor. of Sur. No. 28 this blk., 1938 vrs. to gal. iron pipe 3" dia. for S.W. cor. of this Sur. and S.E. cor. of Sur. No. 21 this blk,”

As thus resurveyed said Section 22 purported to contain 652(4 acres. The field notes having been returned to the Land Office, Buchanan paid for the land upon the basis of the acreage indicated, and thereupon patent was issued to him as assignee. The general description in the patent was as follows: “Six Hundred Fifty two and ¾ (652-(4) acres of land situated and described as follows: In Ector County, known as Sec. No. 22, Blk. 44, Tsp.1S, T.’ & P. Ry. Co. Cert. No. 4352, about 13 miles N.W. from Odessa. Said land having been purchased and fully paid for iny accordance with an Act approved April 19, 1901.” i

. This was followed by a specific description containing the two calls above set out.

We produce at this point part of a plat attached to brief of defendants, except that we - have- taken- the privilege of putting thereon the letters ABC and D. We hope in this way to give a clearer understanding of the real situation and the contention upon which this suit is based.

It seems to be conceded by all parties that if Section 27, as patented, be considered as being 1900 varas square, and be located by course and distance from outside lines of the block, its N. E. corner will be at the point indicated by the letter B. There appears to be a corner at that point -marked with a small pipe set in concrete, -but it is not clear as to when such corner -was established. Under the same assumption the N. W. corner of Section 27 will be located at the point marked C. It is -undisputed that a galvanized iron pipe .about 3½ inches in diameter is found in -the ground at the point marked A. This -pipe is about 100 feet northwest from the corner marked at the point B. There is no proof as to who put the pipe at point C but one of the surveyors “took it to be” a pipe set in the ground by the surveyor Wadsworth. It is located near what was .at one time a cattle guard.

Briefly, the contention of the State and •of defendant Outlaw may be thus stated: That Wadsworth in surveying Section 22, -when running from its N. E. corner along -the west line of section 23, stopped at the -point A and set the 3½ inches galvanized pipe there for the S. E. corner of said Section 22. That he mistakenly called this to be the N. E. corner of Section 27. That 'he then ran a line from the point A to •point D, which is a short distance from ■the N. W. corner of Section 27 indicated by the point C, that in running this line 'he mistakenly called it to be the north line -of Section 27, and mistakenly called for •the N. W. corner of Section 27 and the N. T5. corner of Section 28.

The land in controversy is the long narrow strip indicated by letters ABC and D. It is the contention of the State and •defendant Outlaw that it was, prior to the resurvey, a part of Section 22; that as the -surveyor in making the resurvey actually -stopped at the point A, then ran to the -point D, this became the south boundary ’line of the survey, leaving the narrow strip vacant land; that as Buchanan accepted a -patent based upon this resurvey, under the rule announced in Holmes v. Yates, 122 Tex. 428, 61 S.W.2d 771, and Miller v. Yates, 122 Tex. 435, 61 S.W.2d 767, he could not claim title to said strip.

The Court of Civil Appeals reversed and remanded the case, holding that the evi-dence was sufficient to raise an issue of fact that the iron pipe found at point A ■