Opinion
No. 12524.
January 24, 1931. Rehearing Denied March 14, 1931.
Appeal from District Court, Young County; Allan D. Montgomery, Judge.
Suit between E. R. Riggs and others and E. D. Willis and others. From the judgment, E. R. Riggs and others appeal.
Affirmed.
The findings of fact and conclusions of law of the trial judge:
Findings of Fact.Subject only to the two leasehold estates hereinafter mentioned, I find that at all times material to this controversy the fee-simple title by deed and under limitation to that land situate in Young county, Tex., and being described by metes and bounds as follows:
Beginning at the northwest corner of T. E. L. Company survey 2249; thence east with fence 1,522.8 feet to corner in fence; thence south with fence 2,768.1 feet to fence; thence west with fence 1,393.8 feet to west line of said survey; thence north 3,735 feet to place of beginning, vested in,
J. M. Kirkland to the extent of one-half.
Mamie Kirkland Foreman, Lizzie Kirkland Windham, Homer Kirkland, Haskell Kirkland, and Archie Kirkland, to the extent of five-twelfths.
Jack Kirkland, a minor, to the extent of one-twelfth.
That on April 4, 1930, the fee owners as lessor, executed an oil and gas lease to E. D. Willis as lessee covering the north 100 acres of the west 120 acres of T. E. L. Company survey 2249. Young county, Tex. That in the negotiations antedating the execution and delivery of this oil and gas lease no conversations and/or communications of any kind or character were had between the lessee and any of the lessors other than J. M. Kirkland; that J. M. Kirkland was not an agent for the other lessors, but recommended the lease to the other fee owners.
In the negotiations between J. M. Kirkland and E. D. Willis antedating the execution and delivery of the oil and gas lease as written, it was verbally agreed that Willis would buy and Kirkland would sell a three-year lease upon the north 100 acres of the west 120 acres of T. E. L. Company survey 2249, Young county, Tex. Willis owned a block of leases to the west of the Kirkland land and wanted this lease to join his other block. The parties did not contract with respect to fence lines nor location on the ground, but with respect only to survey lines of T. E. L. Company survey 2249 and this lease to adjoin the other Willis leases. The parties intended to lease the property described in the lease and none other; and the lease expressed their intentions.
J. M. Kirkland, during antecedent negotiations and at the time of execution and delivery of said lease, knew that his fence inclosed more than 120 acres, which fact he communicated to Willis before the execution and delivery of the lease. Both J. M. Kirkland and E. D. Willis read the lease before signing, and at the time of its execution and delivery both understood and intended that lessor was leasing and lessee was obtaining an oil and gas lease on the north 100 acres of the west 120 acres of T. E. L. Company survey 2249.
At and before the execution of the lease, both J. M. Kirkland and E. D. Willis were ignorant of the fact that the Graham fence did not coincide with the east line of the west 120 acres of T. E L. Company survey 2249, both being ignorant as to the width east and west of the Kirkland land, and both thought that the lease extended the width of the Kirkland land to the Graham line.
In negotiating with E. R. Riggs for the sale of a portion of the leasehold estate, Willis represented that he owned a 100-acre oil and gas lease on the Kirkland land, which lease joined the Graham land, and that Riggs relied on such representations; Riggs then did some calculations with a view to obtaining an assignment to a portion of the Willis leasehold estate that would be so shaped as to require a double offset. He then agreed to buy, and Willis agreed to sell, that portion of the original oil and gas lease described by metes and bounds as follows:
Beginning at the northwest corner of T. E. L. Company survey 2249; thence south 600 feet; thence east 600 feet; thence south 900 feet; thence east 800 feet to the east boundary line of the west 120 acres of said survey; thence north 1,500 feet to the north boundary line of said survey; thence west 1,400 feet with north boundary line to place of beginning.
Thereafter when returning to town, and before the execution and delivery of the assignment, Willis told Riggs, in response to inquiry, that the fence (pointed out) was the dividing line between the Kirkland and Graham lands. The assignment thereafter executed, which, as understood by both parties, conveyed the leasehold estate in so far as it covered the property described by metes and bounds originally agreed upon.
Throughout the negotiations between Willis and Riggs, and at the time of the execution and the delivery of the assignment, both parties were ignorant of the fact that the east line of the Willis lease did not coincide with the west line of the Graham land as fenced, and both believed the east line of the lease and the west line of the Graham land, coincided. The means of knowledge of the fact concerning which both parties were ignorant were open and at hand alike to both. Each knew the same facts and neither understood that there had been a survey on the ground. Willis did not intend to mislead Riggs to his injury.
The only representations made by Willis to Riggs at or before the execution of the assignment was that Willis' lease joined the Graham land and that the fence pointed out was the boundary between the Kirkland and Graham lands. He did not represent that the distance from the northwest corner of T. E. L. Company survey 2249 to the Graham fence was but 1,400 feet and no inquiry concerning that matter was made by Riggs.
In negotiating with those representing Straus-Allen Oil Company, Inc., for the sale of a portion of the leasehold estate created by the April 4th oil and gas lease, Willis represented that he owned a 100-acre oil and gas lease on the Kirkland land, which lease joined the Graham land, which representations were relied on by Straus-Allen Oil Company, Inc. This fact was illustrated by Willis by his drawing on a map his lease and indicating that his lease joined the Graham land on the east. Thereupon, without further statements between the parties, Straus-Allen Oil Company, Inc., agreed to buy, and Willis agreed to sell, that portion of the original oil and gas lease described by metes and bounds as follows:
Beginning at the northwest corner of T. E L. Company survey 2249; thence 1,400 feet east; thence 1,500 feet south paralleling the west line of said survey to a point of beginning for the particular tract of land to be assigned; thence south 1,610 feet; thence west 800 feet; thence north 1,610 feet; thence east 800 feet to the place of beginning.
The trade as thus agreed upon was subsequently reduced to writing, and at the time of the execution and delivery of the assignment, as well as throughout the negotiations theretofore had between the parties, both assignor and assignee were ignorant of the fact that the east line of the Willis lease did not coincide with the west line of the Graham land as fenced, and both believed the east line of the lease and the west line of the Graham land coincided. The means of knowledge of the fact concerning which both parties were ignorant were open and at hand alike to both. Each knew the same facts and neither understood that there had been a survey on the ground. Willis did not intend to mislead those representing Straus-Allen Oil Company, Inc., to its injury.
The only representation made by Willis to those acting on behalf of Straus-Allen Oil Company, Inc., at or before the execution of the assignment, was that Willis' lease joined the Graham land.
To those holding under Straus-Allen Oil Company, Inc., by assignment only the same matters and things passed between them and Willis as shown to have passed between the representatives of Straus-Allen Company, Inc., and Willis as above shown.
The record shows that 34.57 acres of the original 100-acre lease to Willis is now owned by W. J. Pettit and the Irion Oil Company, who are not parties to this suit.
The plats graphically showing the result of surveys introduced in evidence by Willis correctly reflect the facts to the full extent to which they purport to show conditions on the ground and are in all things accurate and correct.
At the time subsequent to all of the above transactions some one made a survey of the Kirkland land as fenced, whereupon it was made known that there was an unleased portion of the Kirkland land of 9.9 acres not covered by the lease of April 4th to Willis. Thereupon Willis obtained from the fee owners (other than the minor) an oil and gas lease dated September 1, 1930, covering that land situate in Young county, Tex., and being 9.9 acres of land out of T. E. L. Company survey 2249, described as follows:
Beginning at a stake in the north line of said survey 1,400 feet east of a stake in the center of the Old Newcastle-Olney public road, which is also the northeast corner of T. E. L. Company survey 21 and the northwest corner of T. E. L. Company survey 2249; thence south parallel with the west line of survey 2249, 3765.8 feet; thence east 106 feet; thence north parallel with the east line of survey 2249, 3765.8 feet; thence east with the north boundary line of said survey 112.8 feet to place of beginning.
Thereafter, upon application duly made and authority properly granted, J. M. Kirkland, as guardian for the minor, Jack Kirkland, executed an oil and gas lease covering the above-described 9.9 acres of land on behalf of the minor. E. D. Willis is the owner of the leasehold estates created by said oil and gas leases. There is no conflict between the descriptions contained in the oil and gas lease of April 4, 1930, and those executed in September, 1930.
The oil and gas leasehold estates created upon the 9.9 acres of land above described were essentially different from the April 4, 1930, leasehold estate created by an oil and gas lease of that date, in that different land was covered, different drilling requirement and/or rental payment required, and the oil and gas leases covering the 9.9 acres of land had, as a part of the oil and gas contract, an obligation upon the lessee's part to drill a well for oil and gas thereon, which is a valid and subsisting part of said oil and gas lease contract, and said leasehold estates so created are subject to said requirements.
Additional to the above findings of fact, but not in conflict therewith, I find that there are no facts warranting the reformation of the oil and gas lease of April 4, 1930, nor warranting a reformation of either of the assignments from and under E. D. Willis nor warranting a finding of estoppel against E. D. Willis to assert title under the oil and gas leases dated in September, 1930.
Conclusions of Law.From the above and foregoing facts and under the pleadings and evidence, I conclude:
(a) The necessary parties are not before the court so that should facts otherwise exist the court could reform the lease of April 4, 1930.
(b) Aside from the want of necessary parties before the court, said oil and gas lease of April 4, 1930, cannot be reformed to extend its east boundary line to the west boundary line of the Graham land. The instruments correctly reflecting the agreement and intention of the parties to it, it cannot be reformed.
(c) The assignment from E. D. Willis to E. R. Riggs, reflecting as it does the agreement and intention of parties to it, cannot be reformed. E. D. Willis is not estopped from asserting ownership to an afterwards leasehold estate differing essentially from the one formerly owned.
(d) The assignment from Willis to Straus-Allen Oil Company and the assignments thereunder to other parties hereto cannot be reformed, reflecting as they do the exact agreement and intention of the respective parties; and Willis is not estopped from asserting afterwards acquired title to leasehold estates differing essentially from the one of April 4, 1930.
(e) That E. D. Willis, as against all other parties to the unit, has good title to those leasehold estates covering said 9.9 acres of land created by oil and gas leases dated in September, 1930, subject to their terms and provisions and to the drilling contract made a part thereof.
(f) That J. M. Kirkland and his children against all parties to this suit other than E. D. Willis are the owners in fee of the 9.9 acre of land in converse, but which title is subject to the leasehold estate of E. D. Willis.
Marshall King, of Graham, and Bullington, Boone, Humphrey King, of Wichita Falls, for appellants.
Kilgore Rogers, of Wichita Falls, and Fred T. Arnold, of Graham, for appellees.
We have carefully considered the evidence in the record and feel unable to say that the trial court's findings of fact are not sufficiently supported; and those findings and the court's conclusions of law are so full and clear that it becomes unnecessary to under take to add thereto. Accordingly, the trial court's findings of fact and conclusions of law are adopted, and the judgment is affirmed.
On Motion for Rehearing.
The point that seems to be especially stressed in the motion for rehearing is embodied in the contention that the evidence shows that the appellee E. D. Willis is estopped from acquiring title to the 9.9-acre strip of land in controversy. We have read the case of Mars v. Morris, 48 Tex. Civ. App. 216, 106 S.W. 430, and feel no inclination to criticize the rules relating to estoppel as set forth in the opinion in that case. But in our reading of the evidence in the case before us we felt unable to say that the trial court erred in concluding that the deeds under which appellee claims define the extent of the boundary of the lands described. It is true that the evidence does show that Willis pointed out the fence on the west line of the Graham lands as the east boundary line of the original lease, but there was evidence at least tending to show, as we thought, that the conversation in which this occurred was incidental and not asserted as a fact upon which the original agreement was founded. It is to be remembered that in the conveyances of the lease under which the appellee claims there is no call for the fence or the west line of the Graham lands. There was at the time a known excess in the Kirkland lands, and we felt unable, and still feel unable, to say that the trial court erred in concluding under all of the circumstances that the estoppel claimed was not sufficiently definite and certain to preclude appellees' recovery.
The motion for rehearing is accordingly overruled.