DocketNumber: No. 3267.
Citation Numbers: 114 S.W.2d 299
Judges: WALKER, Chief Justice.
Filed Date: 2/22/1938
Status: Precedential
Modified Date: 1/12/2023
By his warranty deed, dated August 23, 1880, John Barber conveyed to Odis Eaton by specific metes and bounds a tract of land, a part of the S. P. Hollingsworth survey in Rusk county; the last call in the deed read as follows: "Thence eastward with said R. R. 709 vrs. to place of beginning, containing 87 acres after deducting the right of way of said H. O. RR." By his deed in writing, dated May 15, 1877, John Barber conveyed to the H. O. R. R. Co. a right of way — a mere easement — across this tract of land. The land as conveyed by Barber to Eaton was surveyed in 1934 and contained 93.1 acres of land; the right of way — the easement — conveyed by Barber to the H. O. R. R. Co., contained 5.88 acres of land. The calls for distance in the resurvey in 1934 were different from those in the Barber-Eaton deed. By the very field notes of the Barber-Eaton deed, Eaton conveyed the land to D. H. Lindsey, Lindsey to Allen, Allen to Mayfield, and Mayfield to John Bell by deed dated December 31, 1891; these conveyances were general warranty deeds, duly acknowledged and recorded in the deed records of Rusk county. By the same description used in all the deeds through which he claimed, on March 2, 1929, Bell, by general warranty, executed an oil and gas lease to C. M. Joiner. Dyck Oil Company, et al., appellees, through mesne conveyance under Joiner, acquired 17 acres of the Joiner oil and gas lease out of the northwest corner of the original tract as conveyed by Barber to Eaton; this 17 acres included 2.48 acres of the right of way — the easement — conveyed by Barber to the H. O. R. R. Co. Appellant, Frank C. Bolton, holding an oil and gas lease from and under the heirs of John Barber, deceased, on the 2.48 acres out of the seventeen acres, being the easement of the H. O. R. R. Co., filed this suit in the district court of Rusk county in trespass to try title against appellees to recover the title and possession of the railroad right of way. On trial to the court without a jury judgment was rendered against appellant and in favor of appellees for the title and possession of the land in controversy, supported by conclusions of fact and law. Appellant perfected his appeal to the Texarkana Court of Civil Appeals; the case is on the docket of this court by order of transfer by the Supreme Court.
The record contains no statement of facts. The court found that no issue of limitation was in the case. The land has not been developed for oil. On the issue of "intention" of the parties to the Barber-Eaton deed, the court made the following finding: "I find that no evidence of any character whatsoever was offered to show the intention of the parties, John *Page 301 Barber and Odis Eaton, in making the deed of August 23, 1880, except the deeds offered in evidence."
The parties agree, and the court so found in his conclusions of law, that the only issue in the case is the construction of the last clause in the description of the Barber-Eaton deed: "Thence eastward with said R. R. 709 vrs. to place of beginning, containing 87 acres after deducting the right of way of said H. O. RR."
Barber did not deduct the "land" occupied by the railroad, but only the "right of way." Many decisions are found in the books defining "reservation," "exception," "deduction," and "right of way." In Devlin on Deeds, p. 1851, it is said: "A deed which reserves a road of a certain width to be shut at each end by a bar or gate, reserves only a right of way, and not the fee of the land reserved for a road." The following proposition is announced by 18 C.J. 338: "A grant of land by metes and bounds with full covenants of warranty, excepting or reserving a roadway for the use of the public, or a right of way for a railroad, passes the fee to the land subject to the easements reserved." In Wellman v. Churchill,
Umscheid v. Scholz,
But if it be conceded that the language under construction is ambiguous, which it is not, yet it must be construed as conveying the fee, subject to the easement of the railroad company, because: First, the deed must be construed as conveying the largest estate possible to Eaton consistent with its language. In 14 Tex.Jur. 926, it is said: "As a corollary to the rule that a deed is to be read against the Grantor, the courts hold that if the language employed in a deed leaves in doubt the Grantor's intention, it shall be construed so as to confer to the Grantee the greatest estate that the terms of the instrument will permit." Second, the fee reserved in Barber would have but little value, while the grant of the fee to Eaton would be of great value to him. Rio Bravo Oil Co. v. Weed,
The judgment of the lower court should be affirmed, and it is accordingly so ordered.
The motion for rehearing is in all things overruled.
Shell Petroleum Corporation v. Corn , 54 F.2d 766 ( 1932 )
Rio Bravo Oil Co. v. Weed , 121 Tex. 427 ( 1932 )
Shell Petroleum Corporation v. Ward , 100 F.2d 778 ( 1939 )
The Texas Co. v. Newton Naval S. Co. , 223 Miss. 468 ( 1955 )
Lewis v. E. Texas Finance Co. , 136 Tex. 149 ( 1941 )
Pewitt v. Renwar Oil Corp. , 261 S.W.2d 904 ( 1953 )
S. H. Oil & Royalty Co. v. Texas & New Orleans Railroad , 295 S.W.2d 227 ( 1956 )
Spell v. Hanes , 139 S.W.2d 229 ( 1940 )
Lewis v. E. Texas Finance Co. , 123 S.W.2d 803 ( 1938 )