Browning v. Grigsby , 1983 Tex. App. LEXIS 4381 ( 1983 )

BLEIL, Justice.

Hugh Browning and others appeal a summary judgment favoring the Flemings. Jack Grigsby, the operator of a producing gas unit,- brought an interpleader joining two groups claiming royalty ownership as defendants. After hearing the motions for summary judgment, the trial court entered judgment favoring the Flemings, awarded $700.00 attorney’s fees to Grigsby, and denied Browning’s motion for summary judgment. The issues concern the trial court’s construction of a reservation in a deed and the award of attorney’s fees. We reverse and render judgment in favor of Browning and the other appellants, but affirm the trial court’s award of attorney’s fees.

All parties agree that there are no disputed issues of fact. The controversy revolves around the construction of a mineral reservation in a warranty deed executed on June 9, 1944. Mollie and J.H. Phillips deeded certain property to G.C. Fleming. The deed provides that:

“It is agreed and understood, however, that one-half (½) of the oil, gas and other minerals are excepted from this conveyance and reserved unto grantors, their heirs and assigns, in fee simple title, together with the right of ingress and egress, at all times, for the purpose of mining, exploring, producing, saving and marketing such minerals or either of them; it is provided, however, that this mineral exception and reservation shall expire on October 25,1958, unless at that time the above named minerals or either of them, is being produced from said premises in paying quantities.”

Browning and the other appellants now own the reserved interest. Oil, gas and other minerals were being produced in paying quantities on October 25, 1958. Thereafter, however, production ceased. Grigsby obtained new mineral leases from both groups claiming royalty ownership, began production of minerals, and instituted this suit for determination of the proper allocation of royalty.

Absent an assertion that a deed is ambiguous, we construe it within its four corners, enforce it as written, and give the language in the reservation its plain meaning. Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669 (1959); Maxfield v. Northwood Homes, Inc., 582 S.W.2d 588 (Tex.Civ.App.—Dallas 1979, writ ref’d n.r.e.). By the plain words of the deed the reserved mineral interest was to vest or expire on October 25, 1958. Because minerals were being produced from the land on that date the reservation of the mineral interest vested. Williamson v. Federal Land Bank of Houston, 326 S.W.2d 560 (Tex.Civ.App.—Texarkana 1959, writ ref’d n.r.e.). Therefore, the trial court erred in holding that the mineral interest terminated after October 25, 1958, when production ceased.

Browning and Grigsby both contest the award of attorney’s fees. Browning contends that because Grigsby stimulated litigation by refusing to pay the royalty which was plainly due, he is not entitled to attorney’s fees. Conversely, Grigsby complains that he should receive the full $1,936.25 attorney’s fees established by the summary judgment proof. Absent evidence illustrating a clear abuse of discretion, we do not disturb an award of attorney’s fees. Cypress Creek Utility Services v. Muller, 624 S.W.2d 824 (Tex.App.—Houston [14th Dist.] 1981), affm’d on other grounds, 640 S.W.2d 860 (Tex.1982); Espinoza v. Victoria Bank & Trust Co., 572 S.W.2d 816 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n.r.e.). Evidence supports this award and we find no abuse of discretion by the trial court.

We reverse and render judgment construing the reservation as having vested, as sought by Browning. We affirm the trial court’s award of attorney’s fees.