Dreeben v. Whitehurst , 45 S.W.2d 705 ( 1931 )

VAUGHAN, J.

For convenience the parties to this suit will.be referred to as follows: Defendant in error, C. M. Whitehurst, as plaintiff, and plaintiff in error, Mrs. Octavine Dreeben, as defendant.

On January 21, 1929, plaintiff instituted this suit in the court below against defendant, alleging that he was a practicing attorney; that defendant had consulted him “with, reference to the recovery of a certain tract of land” which had been “qualifiedly sold” to the county of Dallas, on October 2,1920, by a conveyance of that date which was copied in haee verba in his petition, and further alleged 'that plaintiff retained him to “reinvest” in her the title to the real estate conveyed by said instrument; that he had several consultations with the commissioners’ court of said county of Dallas, through which he secured an order to be passed by said court directing the civil engineer of said county to inspect said land to ascertain whether it was underlaid with gravel; that after six weeks of effort he procured an order to be passed by said commissioners’ court by which, in substance: “ * * * The defendant should have a reconveyance of said 80 acres, for which the County had paid $30,000.00, and out of which land the County had only removed about $1,250.00 worth of gravel, and the County was to retain four acres of the ground upon which they had theretofore opened up a gravel pit, but which four acres did not contain gravel usable by the County, more than a very uneonsequential amount, if any, and the gravel on said four acres was, this plaintiff alleges, of no value; thereby he had enriched the defendant to the (extent of approximately $28,750.00, and jeaused to the defendant only the expense of r his fee and the loss of four acres of ground. That while said matter was being discussed, on or about the 22nd day of November, 1928, and after plaintiff had performed said service In defendant’s behalf, the question of a fee was mentioned, and because of the fact that no fee was agreed upon between the parties, this plaintiff stated to the defendant that he would only expect what the services were reasonably worth. * * * That his remuneration would be contingent upon the result of his efforts, that is, that no fee would be due or payable to this plaintiff in the event he was not successful in recovering said land from Dallas County. * * * ”

Plaintiff further alleged: “That the provisions of said order met with the approval of the defendant and she was well satisfied with the result of plaintiff’s efforts in her behalf * * * but before final approval of it the fee to be charged became the subject of discussion. When it was suggested by this plaintiff that one-fourth of the land recovered or one-fourth of its value, would be a reasonable fee the defendant * * * said she would have nothing further to do with the matter, and * * * discharged Ithe plaintiff.”

Plaintiff further alleged thát said commissioners’ court entered an order precisely as drawn by him with the sole addition that the 4-acre tract, after the gravel had been extracted therefrom, should revert to defendant; that said order was the result of his activities; that the value of the land was $40,000 and the reasonable value of his services was one-fourth of the value of the land so recovered. The prayer was for the recovery of $5,000.

Defendant’s answer consisted of a general demurrer, special exception reading as follows, “ * * ⅜ It is nowhere shown in said contract or in said petition whereby there was any recovery or attempted recovery for a tract of land consisting of 80 acres from Dallas County, Texas,” and a general denial.

Following are the special issues submitted and answers made thereto by the jury:

“No. 1: Do you find and believe from a preponderance of the evidence that the plaintiff, Whitehurst, was employed as an attorney by the defendant, Mrs. Dreeben, to represent • her before the Commissioners’ Court of Dal-' las County, Texas, to secure a release of the land in question? Answer: Yes.

“No. 2: Do you find and believe from a preponderance of the evidence that the plaintiff represented the defendant before the Commissioners’ Court, in her behalf, to secure the release of the land in question? Answer: Yes.

“No. 3: Do you find and believe from a preponderance of the evidence that the services, if any, of the plaintiff, before the Commissioners’ Court, were successful, if any, in securing an order of the Commissioners’ Court to release the land in question to the defendant? Answer: Yes.

“No. 4: From a preponderance of the.evidence before you, .what do you find and 'believe is a reasonable sum, if any, if presently paid in cash, the plaintiff Whitehurst is entitled to receive, for services rendered, if any, to the defendant, Mrs. Dreeben, before the Commissioners’ Court, in securing the release of the land in question, if you find and believe that the plaintiff has rendered any services? Answer: $2,500.00.”

On this verdict January 9, 1930, the court rendered judgment in favor of plaintiff against defendant for the sum of $2,500, with-interest thereon at 6 per cent, per annum from date, and for all costs of suit. Said findings being amply supported by the evidence are adopted by this court as findings of fact.

Appellant’s third proposition, viz., “If Ithe efforts of plaintiff were of any value to defendant,, such value was only nominal, and the amount allowed was grossly excessive,” based upon the following assignment of error, “The court erred because the verdict is excessive, and because the verdict is grossly excessive, in that the uncontroverted evidence shows that the plaintiff’s services for the defendant were not worth more than $10, or in any event only a nominal sum,” presents in most general terms the exeessiveness of the verdict of the jury and the judgment rendered thereon.

From the above it is clear that it is not pointed out in what respect the amount of the verdict, under the facts, is claimed to be excessive. Rules for Courts of Civil Appeals, par. 26, 94 Tex. 659; City of Galveston v. Devlin, 84 Tex. 319, 19 S. W. 395; Missouri, K. & T. Ry. Co. v. Patterson (Tex. Com. App.) 228 S. W. 119; International & G. N. R. Co. v. McVey (Tex. Civ. App.) 81 S. W. 991, 1001; San Antonio, U. & G. Ry. Co. v. Storey (Tex. Civ. App.) 172 S. W. 188; Houston & T. C. R. Co. v. Shults (Tex. Civ. App.) 78 S. W. 45. We therefore hold that said assignment is too general for the proposition based thereon to be considered, same being too indefinite and uncertain.

Appellant’s remaining propositions, viz.:

“(1) The instrument executed by the defendant and her husband, now deceased, had the legal effect to convey to Dallas County an interest in minerals in place, and constituted, therefore, a conveyance of an interest in land;

“(2) By statute, article 1577, the Commissioners’ Court could not divest the title of Dallas County by an order, and could not dispose of the real estate of the County except by the appointment of a commissioner to sell the same at public auction,”

—are so related that same will he reviewed and discussed as presenting but one question. This discussion will require a careful consideration of the following material provisions of the instrument of date October 2, 1920, viz.:

“Intent. Party of the first part being desirous of obtaining and securing gravel for the construction of roads in Dallas County, Texas, and panties of the second part being desirous of selling and disposing of certain gravel which is owned by them, the parties of the second part agrees and contracts to sell to the party of the first part certain gravel at the following location and upon the following conditions and terms.

“Location. Situated in the County of Dallas * * * and being a part of one certain 40 acre tract of land * * * deeded to Octavine Dreeben by K. P. B. Schau, and more fully described as follows: (Here follows field notes of four acres of land),”

“Quantity and Conditions of Removal.- The party of the first part agrees to remove from the above described property, seventy thousand (70,000) cubic yards of gravel, installing and operating, free from expense to the parties of the second part, such equipment, machinery, tools, and organization as are necessary for such, removal, provided the land above described will furnish such seventy thousand (70,000) cubic yards of gravel; but in the event the land above described fails to furnish the seventy thousand (70,000) cubic yards of gravel; then and in that event the party of the first part is granted the privilege and right to enlarge the workings or pit on adjacent land belonging to the parties of the second part at this time, to such an extent that the seventy thousand (70,000) cubic yards of gravel may be obtained, but such enlargement or increase shall not involve additional payment or compensation of any nature whatsoever by the party of the first part to the parties of the second part, and party of the first part is hereby granted the rights in and to such additional land, if any, as may be necessary to furnish the full amount of seventy' thousand (70,000) cubic yards of gravel. Parties of the second part hereby grant and give to the party of the first part easements and rights-of-way, not less than twenty feet (20') in width, such as may be necessary for removing and transporting the gravel from the pits, said rights-of-way being the most convenient routes and to be selected by the party of the first part; and said rights-of-way leading over the land of parties of the second part to the public highways. * * * The property is at all times to be open to inspection of the parties of the second part.

“Conveyance and Acknowledgment: Parties of the second part hereby bargain, sell and convey to the party of the first part and the County Judge thereof, and his successors in office, all the right, title and interest in and to the land hereinbefore described and the land adjacent and adjoining thereto in any or all directions, for the purposes here-inbefore set out, and when party of the first part shall have fully received the seventy thousand (70,000) cubic yards of gravel, as provided for herein, all the right, title, interest, and possession in said land shall revert to the parties of the second part, their heirs and assigns forever,”

—and the following order passed by the commissioners’ court of Dallas county on November 22, 1928, viz.:

“That on heretofore, to-wit, the 2nd day of October, 1920, the County of Dallas, Texas, acting through its duly authorized officers, leased from Israel Dreeben and wife, Octavine Dreeben, a certain tract or parcel of land lying and being situated in the County of Dallas, State of Texas, about eight miles N. W. from Dallas, and being a part of the Benj. Merrell 320 acres timbered tract of land, Survey No. 909, Vol. 10, for the purpose of procuring gravel therefrom said contract being of record in the Deeds Records of Dallas County, Texas, Volume-, page-; and

“Whereas, Israel Dreeben, one of the lessors is dead, and his surviving wife and independent executrix, Mrs. Octavine Dreeben, has filed with the Commissioners Court of Dallas County, Texas, her petition and application for the release of said property described in said contract by the County of Dallas, Texas, and that same should be released to her with the exception of (here follows same description of property as that contained in preceding instrument).

“It is therefore, ordered, adjudged and decreed by the Court, that the land and premises belonging to estate of Israel Dreeben, deceased, and Mrs. Octavine Dreeben, his surviving wife, be and the same are hereby released, relinquished and forever quitclaimed from and by virtue of the contract above mentioned and the same is declared of no further force and effect, save and except, however, the four acres hereinabove mentioned and described in said original contract, and as to which four acres the original lease contract is hereby declared to be in full force and effect.” (Dallas County is referred to as party of the first part, and Israel Dreeben and wife, Octavine Dreeben, as parties of the second part, in both of said instruments.)

Did the sale of the 70,000 cubic yards of gravel vest in Dallas county an interest in the real estate from which said gravel was to be removed? The instrument of date October 2, 1920, embodies a contract for the sale of a fixed amount of gravel, viz., 70,000-cubic-yards, with the power i and authority conferred upon Dallas county to remove said amount of gravel, with due continued diligence or within a reasonable length of time, no fixed time being stated therein. It was 70,000 cubic yards of gravel that was sold for a specified purpose and to be removed by the county for the construction of roads in Dallas county. The right to use the land, that is, the 4 acres specifically described, and the other lands owned by the defendant and deceased Dreeben, contiguous to said 4 acres, was limited to and for the purpose of removing 70,000 cubic yards of gravel therefrom, primarily from the 4 acres specifically described, and in the event that amount could not be obtained therefrom, then to have access to and use said additional land until the county should receive the quantity of gravel contracted for; and the use of a right of way over said real estate for the purpose of removing said gravel therefrom. Therefore, we are of opinion that said conveyance only evidenced a sale of a chattel in the form of 70,000 cubic yards of gravel. Terry v. Cutts (Tex. Civ. App.) 26 S.W.(2d) 739. More than eight years intervened between the making of the contract of date October 2, 1920, and the execution of the release by Dallas county to defendant on November 22, 1928; that during said period of time Dallas county only had removed from the entire 80 acres of land, about 3,000 cubic yards of gravel; that prior to the execution of said release, Dallas county caused its engineer to make a thorough test for gravel underlying the entire surface of said SO acres of land, with the result, as shown by the report of said engineer, that he had not been able to find gravel in sufficient quantity to enable Dallas county to obtain therefrom any appreciable amount of gravel; that acting upon this report, the commissioners’ court of said county passed the order of date December 22, 1928, releasing said leasehold interest or conveyance of gravel. Under this state of facts, we do not think that the válidity of the release so executed would be impaired, although it should be held that said instrument of date October 2,1920, was a conveyance of all gravel under the surface of said SO acres of land to be used by Dallas county in the construction of roads, so long as gravel should be found thereon in sufficient quantity to justify the comity to remove gravel therefrom for such purpose, and that too without the present intent of removing or requiring that such gravel should be removed, other than as same might be needed by the county for the construction of its roads, from time to time; which of course would be a conveyance of an interest in real estate. This because, on the county having ascertained that said land did not contain gravel in such quantity as would justify it to further undertake the removal of gravel therefrom, that such ascertainment had the same effect upon the provisions of said contract that would have been produced had the county remoyed therefrom said 70,000 cubic yards of gravel, viz., the termination of said conveyance. The principles here applied, we think, are clearly stated and recognized in the case of Texas Co. v. Daugherty et al., 107 Tex. 226, 176 S. W. 717, 719, L. R. A. 1917F, 989, viz.: “A fee may pass by deed upon a condition subsequent to the same extent as though the condition did not exist, subject to the contingency of being defeated according to the condition. * * * A purchaser of them within the ground assumes the hazard of their absence through the possibility of their escape from beneath the particular tract of land, and, of course, if they are not discovered, the conveyance is of no effect, just as the purchaser of solid mineral within the ground incurs the risk of its absence, and therefore a futile venture. * * * In other words, the question, it seems to us, reduces itself to this: If the oil and gas, the subject of the conveyance, are in fact not beneath or within the land, and are therefore not capable of being reduced to possession, the conveyance is of no effect. But, if they have, not departed and are beneath it, they are there as a part of the realty; and their conveyance while in place, if the instrument be given any effect, is consequently the conveyance of an interest in the realty. * * * If these minerals are a part of the realty while in place, as undoubtedly they are, upon what principle can the ownership of the property interest, which they constitute while they are beneath or within the land, be other than the ownership of an interest in the realty? We are not dealing with conveyances of simply the right to take the oil and gas from the ground. These instruments purported to be a grant of the oil and gas themselves in the ground.” W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.(2d) 27, 30, from which the following quotation is made: “In an opinion delivered the same day the Davis Case [113 Tex. 321, 254 S. W. 304, 255 S. W. 601] was decided, the court again said: ‘It was intended by all parties that the lands should be used for no other purpose than the specified mineral exploration and production, and that the grants were, to be enjoyed only while such use continued and were to immediately terminate on cessation of the use.’ Continuing, the court quoted from both Kent and Tiffany in support of the proposition that it was cessation of the use for the purposes for which, the grant was made, which would terminate a grant, under a clause like the second now under consideration. Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 173, 254 S. W. 290, 29 A. L. R. 566. * * * Regardless of the lessee’s intention, his estate terminates, under its limitation, when there is complete cessation of actual use of the land for the purposes of the lease. There can be ho fraudulent evasion with respect to the use which keeps the estate alive. But it is not a partial use, * * * but cessation of use, which terminates the lessee’s estate.” Also see Woods v. Bost (Tex. Civ. App.) 26 S.W.(2d) 299.

The rule is thus stated in 40 C. J. § 577, p. 987, under “Exhaustion of minerals,” viz.: “The right or title obtained by the owner of minerals terminates when all the minerals have been removed and the mine exhausted, in which case the space the mineral occupied reverts to the grantor, the owner of the surface, by operation of law; and this rule applies, although the minerals were granted in fee.”

In the foregoing cases, which involved oil and gas.leases, they are different from the case at bar, for the reason that the leases there under consideration granted the entire minerals to the exclusive use of the lessee, whereas the sale of the gravel, as in the instant case, was not, by the terms of the conveyance, a sale of the entire gravel contained on said SO acres of land, nor was it restricted to the use of the county during the time the county was removing therefrom the 70,000 cubic yards of gravel purchased by it.

The instrument executed as a release by the commissioners’ court, acting for Dallas county, was not for the purpose of conveying title to real estate then vested in Dallas county, but to release the record effect of the conveyance of the 70,000 cubic yards of gravel made by defendant and deceased Dreeben to Dallas county, and under all of the facts surrounding this transaction, said release was properly executed and accomplished the one distinct purpose, viz., freeing defendant’s real estate from any apparent leasehold estate, or title to real estate that might have been in fact acquired, or only apparently acquired by said conveyance of date, October 2, 1920, as said act on the part of the commissioners’ court in executing said release did not in any respect involve a conveyance of title to real estate then owned by Dallas county. The judgment of the trial court is therefore in all things affirmed.

Affirmed.