Magnolia Petroleum Co. v. Caswell , 295 S.W. 653 ( 1927 )

I find myself unable to agree with my brethren in their disposition of this case. I shall state briefly my reasons of dissent:

(1) The judgment in the consolidated cases of Cartwright v. Craig and Caswell, to my mind, is not only without ambiguity, but, to the contrary, is perfectly clear. After long and strenuous litigation, in which these cases had gone from the trial court to the Supreme Court and back, when again called for trial, the parties, being entirely familiar with all the claims, defenses, and contentions of all parties, by agreement consolidated the causes, and had an agreed judgment entered, in which all of the land claimed by Mrs. Cartwright was awarded to her, the judgment then reciting:

"And it is hereby declared that all of the land hereinbefore set forthand described is recovered by the said plaintiff of and from the saiddefendants hereinbefore named, except and less the two followingdescribed tracts of land, part of said Brown league, to wit: Ninety-sixacres of land of the David Brown league on the bank of the Neches river, beginning at the N.E. corner of a tract of land sold by Matthew Cartwright to John J. Herring; thence down the river bank thus: S. 83 deg. E. 268 varas; N. 83 deg. E. 149 varas to corner 60 feet west of a fence and corner made for C. C. Caswell; thence south 1,300 varas for corner; thence west 417 varas to Herring's east line; thence north to the river following Herring's line to the beginning; also 224 acres (makingin all 320 acres) of the same league, beginning 60 feet east of second corner of the tract last above described at a corner made for C. C. Caswell at a post from which a pine bears N. 6° W. and a pine brs. N. 22° W. marked X thus; thence south 1,322 vrs. to a line of the Tevis survey (now owned by Jeff Chaison); thence with said line north 81 deg. east at 700 vrs. to its N. E corner; thence S. 4 deg. W. 301 vrs. with Tevis' east line; thence east 209 vrs. to a corner; thence north 1,629 varas to bank of river; thence up the river bank E. 83 deg. W. 930 varas to the place of beginning; both of last two mentioned tracts ofland containing together and in the aggregate 320 acres of land, which isconsidered, ordered, and adjudged that the said defendants John a. Craigand Anna C. Caswell, surviving widow and executrix as aforesaid of Christopher Caswell, and the minors Emma, Wm. R., Sadie, George W., Lizzie, and Seawillow Caswell, by their guardians aforesaid, do have andrecover of and from the said plaintiff Amanda Cartwright the 60 feet leftbetween the two surveys or tracts last above described is left as a rightof way for the convenience of the plaintiff or her assigns, and the said320 acres of land adjudged to the said defendants is to be dividedbetween the said John C. Craig and the other defendants as they may agreeand determine."

My brethren say that this judgment gave to Craig and Caswell this60-foot strip lying between the two tracts, aggregating 820 acres, which were awarded to Craig and Caswell. The judgment says that all of the land in dispute was awarded and adjudged to Mrs. Cartwright "except and lessthe following described tracts." The two tracts, one of 96 acres and one of 224 acres, "making in all 320 acres," as called for in the judgment, were then set out by metes and bounds. The judgment plainly says that Craig and Caswell were to recover two, not three, tracts, cut out and described by metes and bounds, aggregating 320 acres of land, which they did, and not three tracts aggregating 325.5 acres — the 60-foot strip contains 5.5 acres. Those able and experienced lawyers that are mentioned in the record and in the opinion of my brethern surely would not have said "two tracks." if they meant "three," and they would not have repeated and emphasized the total recovery to aggregate 320 acres, if they had meant 325.5 acres. If the judgment was intended to have awarded to the defendants the 60-foot strip, why divide the recovery into two tracts, with the 60-foot strip intervening? Why not have included it in the land set out by metes and bounds, and then, if it was intended that Mrs. Cartwright should have only an easement to the river, to have written into the agreed judgment that she was to have simply a right of access to the river through and over the land awarded to the defendants? It is perfectly clear to my mind that the judgment awarded a recovery to Craig and Caswell of 320 acres — no more — and that as the river front was the most valuable and then needed portions of Mrs. Cartwright's land, and was much used then for various purposes, Mrs Cartwright was insisting upon having an outlet of her own over her own land to the river, and that the agreed judgment but voiced the agreement of all parties to the dispute that she should have same. The statement in the judgment that "the 60 feet left between the two surveys or tracts last above mentioned is left as a right of way for the convenience of the plaintiff or her assigns" is a plain statement only of the reason why the 60-foot strip was not included in the 320-acre recovery given Craig and Caswell — merely an explanation of its being "left" there in a narrow strip between the tracts given to the defendants, Just as the statement "that said 320 acres adjudged to the said defendants is to be divided between the said John C. Craig and the other defendants as they may agree and determine." The statement in the judgment relative to the 60-foot strip being left between the 96-acre tract and the 224-acre tract is no part of the decreeing portion of the judgment — are not words of limitation — is merely an explanation in no wise obscuring or rendering ambiguous the decreeing portion of the judgment. Laidacker v. Palmer (Tex.Civ.App.) 210 S.W. 739, affirmed (Tex.Com.App.) 231 S.W. 362. Moreover, express adjudication controls mere recitals. The express order and decree awarding two tarots, describing them by metes and bounds, aggregating 320 acres, set forth in the judgment, controls the recital that the 60-foot strip was left between the two described and awarded tracts as a right of way for Mrs. Cartwright and her assigns. To hold otherwise would be to make the recital of the dignity of an awarding decree, giving to Craig and Caswell the 5.5 acres contained in the 60-foot strip, in addition to the two tracts, and aggregating more than 320 acres, which would be plainly in conflict with and contrary to the expressed adjudication of the decreeing portion of the judgment. Such an interpretation is without support in the rules for the construction of judgments. 34 C.J. § 795, p. 503.

My brethren argue that in 1886, the time the judgment was entered, the value of the David Brown league of land was small; that, while describing the 96 and 224 acre tracts awarded Craig and Caswell as containing 320 acres, there was in fact an excess of more than 20 acres, and therefore they say:

"It cannot be argued that the fee to this little strip of 5 1/2 acres 60 feet wide and 4,000 feet long was in the minds of the parties as a distinct consideration for the agreement."

They further say:

"The fee, as a distinct interest in this narrow strip of land, was of no value to the Cartwrights, and could not have been profitably used by them. To fence it separately and subject it to her dominion would have cost Mrs. Cartwright far more than any value that could have been assigned to it. So it does not reasonably appear that it was in the mind of Mrs. Cartwright to take dominion of this narrow strip of land."

I think the reasoning Is without weight. It is admitted that Mrs. Cartwright was the record owner of all the land described in her petition. Craig and Caswell were basing their claims on limitation, and were insisting upon holding 640 acres each. The Supreme Court (Craig v. Cartwright, 65 Tex. 413) left it questionable what amount, if any, they would be entitled to recover. That the land was of small value was no factor in determining what amount or where located the land that Craig and Caswell should recover. It was a question of whether at all they were entitled to recover under their limitation claims, and, this being doubtful, the compromise was effected. That the strip was only 60 feet wide and some 4,000 feet long was of no moment in determining the rights of the parties. The desire of Mrs. Cartwright for an outlet to the river, serviceable and opportune for the benefit of her more than 2,000 acres, was of much moment to her and to the value of her property. So we can easily understand, under the facts and the contentions of the parties to the suits, the reasons that moved the parties to the agreed settlement, and it does not appear doubtful as to the disposition of the fee to the 60-foot strip. The expression, "Left between the two surveys or tracts," aptly states that it was Mrs. Cartwright's land.

As to the correctness of the rules for construing a judgment announced by my brethren, I have no cavil. They announce that the judgment is ambiguous, and then proceed to apply the rules of interpretation or construction. I hold that the judgment is not in any degree ambiguous, and, that being true, there is neither room nor necessity for construction. If they are correct, then the judgment should be construed in the light of its recitals and the circumstances under which it was rendered, and in that event I think it would be difficult to support the conclusion that the judgment awarded the title to the 60-foot strip to Craig and Caswell. But if I am correct that there is no ambiguity in the judgment, then the argument of my brethren falls of its own weight.

I am unable to follow my brethren in their argument that, because of the little value of the land in 1886, the date of the judgment, and the amount it would have cost Mrs. Cartwright to have fenced in the 60-foot strip for the little or no use or accommodation it would have afforded her and the little profit it would have brought to her, the fee to same was not in her mind when the agreed judgment was had. In answer to this, it can be said that at that date the Neches river was much in use as a public highway, in that it was much used as an ingress and egress to bring commodities to the vicinity of the town of Beaumont, and the land of Mrs. Cartwright lay along the river's bank. The defendants Craig and Caswell were claiming by limitation all the land that was worth while as a river front in the Cartwright tract, and, unless an outlet was reserved for the Cartwright land, she would have had no way of getting to the river for any purpose, and it is hardly to be thought that she would have been satisfied with a mere easement over land of her antagonists to preserve and accommodate her and her assigns' need for a river frontage. I think the very language of the deed that "the 60 feet left between the two surveys or tracts last above described is left as a right of way for the convenience of the plaintiff or her assigns" shows that it was affirmatively and purposely reserved in fee-simple title to Mrs. Cartwright, as it says, for her convenience in getting to the river as an outlet in shipping commodities away from her other lands or in bringing in such things as might then or later be desired for the benefit of her estate. The very word "left" proves that it was not taken as a part of the land adjudged to Craig and Caswell, but that it remained, as it had been adjudged, to Mrs. Cartwright, and the words in the deed but explain the reason for its being left in the form it was. She did not have to fence it off from the 96 and 224 acre tracts awarded to Craig and Caswell. If they desired, they could inclose their lands, and that would have left hers a lane for her egress and ingress.

My brethren argue that —

"It is to be presumed that by the agreed judgment the parties were settling their controversy on a reasonable basis; that is, Mrs. Cartwright was conceding to Craig and Caswell that particular portion of their claim which they would probably recover on the trial, and Craig and Caswell were conceding to Mrs. Cartwright all the land which they probably could not recover under their limitation claim. Then to give this judgment a `reasonable' construction, as we gather from the light of the record, requires us to conclude that the parties intended for Craig and Caswell to have the fee with an easement in favor of Mrs. Cartwright. To give to Craig and Caswell the fee to this strip of land 60 feet wide and 4,000 feet long gives the judgment `a reasonable intendment,' a `reasonable construction,' and makes it `harmonize with the facts and the law of the case and be such as ought to have been rendered.' "

I fail to comprehend the logic or consistency, under the facts, of this argument. It is conceded that Mrs. Cartwright was the record owner of all the land in controversy. Craig and Caswell were each claiming 640 acres by limitation. They had lost in a former trial, but the case was reversed on appeal to the Supreme Court. Craig v. Cartwright, 65 Tex. 413. A careful reading of that opinion shows that it would have been difficult, indeed, for Craig or Caswell to have made out title by limitation by either the old (640-acre) statute, or the law in effect (160-acre statute) at the time the case was decided. So, when the cases were again called in the trial court, the agreed judgment here involved was entered. It is plain that, under the facts and the holding of Judge Stayton on the former appeal, Craig and Caswell agreed to and received all they could have hoped to recover — 160 acres each — under their limitation claim. The Judgment Just as plain as words can make it says that Craig and Caswell were to receive two tracts, one of 96 acres and the other of 224 acres, making in all 320 acres, 160 each — every foot under the law that they could have recovered — and the Judgment more than once specifically awarded all the rest to Mrs. Cartwright. In the face of these facts and the plain recitals of the Judgment, I cannot understand how it can be contended or "construed" that the judgment gave the 5.5-acre strip also to Craig and Caswell. This construction is, in my opinion, against the facts, against the law, and plainly against the agreement of the parties as reflected by the judgment. The statement of my brethren that Craig and Caswell "were awarded land on their limitation plea that in fact necessarily included the 60-foot strip," is without force, for the land awarded did not "necessarily" include any but that definitely decreed, as it was, by metes and bounds. The Judgment "necessarily" awarded all the rest of the land in controversy to Mrs. Cartwright.

(2) I do not agree with my brethren that the judgment should receive the construction given it by them, because, as they say, such construction of the judgment had been adopted or acquiesced in by the parties to it. I am unable to find any evidence in the record to support such a conclusion as to the Cartwrights. They always claimed the 60-foot strip, included it in the division of the estate after the death of Mrs. Cartwright, and later on one of the heirs sold it to appellant. It is in the record that George Caswell, son of Mrs. Caswell and one of the interested parties here, approached Leonidas Cartwright, the heir who had received the strip in the division of the Cartwright estate, for the purpose of acquiring the 60-foot strip by an exchange of property, and that considerable negotiations were had, but the deal fell through mainly because the land offered by Caswell in exchange for the 60-foot strip constituted what was known as "Carroll avenue" in the city of Beaumont. Caswell admits the negotiations with Cartwright for the 60-foot strip, but says that he asked the opinion of his lawyer as to the title of the Cartwrights to the 60-foot strip, and was told "Cartwright had nothing to sell." So it indisputably appears that the Cartwrights were claiming the land all the time and were not "acquiescing" in the claim of Caswell nor "construing" the judgment as giving the strip to Caswell, and, further, that Caswell so far acknowledged and recognized the title as being in Cartwright as to make an effort to purchase it from Cartwright. I do not think the statement of my brethren that "the Caswells and Cartwrights have construed this judgment as vesting the fee in the Caswells, and have mutually acquiesced in, such construction for more than 25 years," is warranted by the record.

(3) Neither can I agree to the holding of the majority that, because the two tracts of land (the 96 and 224 acre tracts) border on the 60-foot strip, this fact vests the fee in the soil to the center of the 60-foot strip in Craig and Caswell. They say:

"Construing the judgment as a mutual conveyance between the parties, there is another proposition that gives the fee-simple title in this 60-foot strip to Craig and Caswell. As we have seen, Mrs. Cartwright conveyed the two tracts to Craig and Caswell, bounding the same by the east and west boundary lines of the GO-foot strip, which she expressly dedicated as a `right of way' for the convenience of herself or her assigns. Under the well-settled rules for the construction of boundaries, the effect of such a deed is to vest the fee in the soil to the center of the road or right of way in the grantees, subject only to the right of the grantors to use the same as a right of way."

The rule of construction announced as an abstract proposition is correct, but, under the peculiar facts, has no application. Unquestionably the two tracts decreed to Craig and Caswell were established on the ground before the 60-foot strip was; in fact the 60-foot strip was defined, located, and established by first locating the two tracts; it had no existence until the two tracts, each of them, were completely designated and located. It did not exist before, and no reference to it or about it is to be found in the field notes of either of said tracts — nothing to show that they were established with reference to the GO-foot strip. The doctrine alluded to, and the authorities cited in its support, always refer to sales of lots in towns by maps showing streets, or to tracts of land callIng to border on highways, rivers, roads, or some kind of boundary already in existence. Further, if it should be said that under the circumstances Mrs. Cartwright conveyed the two tracts to Craig and Caswell, it cannot be said that she bounded them on the east and west boundaries of the 60-foot strip, for, as before stated, this strip was not in existence until after the complete location by metes and bounds of the two tracts, their field notes calling for natural and artificial objects actually on the ground at the time, and in no wise calling for the east and west sides of the 60-foot strip, and, indeed, could not have done so, for the making of the east side of the 96-acre tract and the west side of the 224-acre tract formed the lines of the 60-foot strip, which, until that was done, had no existence. At the time of the entry of the judgment and ever afterwards, so far as is disclosed by the record, it did not exist in actual use, but only in contemplation, and that as a private way, not public. As I view it, there was no sort of dedication by Mrs. Cartwright of the right of way to any use other than her private necessities might require, but, to the contrary, the language of the judgment under discussion, whether necessary or not, was an exception in fee, and not a mere reservation of an easement. All the evidence goes to show that Mrs. Cartwright had the 60-foot strip left for a contemplated use as a private way only for herself and her assigns. However, if the field notes of the 96 and 224 acre tracts described in the judgment had bounded same by the east and west boundary lines of the 60-foot strip, as is argued by my brethren, which, as I conceive, is without support in the record, still that would not have vested the fee in the soil to the center of the road or right of way in Craig and Caswell, for where a deed or conveyance does not make a road or right of way itself, as such, but only the lines thereof, a boundary of the land conveyed does not carry title to the soil to the center. Clayton v. Gilmer County Court, 58 W. Va. 253, 52 S.E. 103,2 L.R.A. (N.S.) 602; Brown v. Railway Co., 36 Utah, 257, 102 P. 740, 24 L. RI. A. (N.S.) 86, 89; 2 Devlin on Real Estate Deeds, pp. 1978, 1979.

(4) The court erred in permitting Mrs. Anna E. Caswell, over the objection of appellant, to testify, in effect, as to the intent of the parties to the agreed judgment in question as to why and how and for what purpose the 60-foot strip was left as it was. She was a party to the old suit in 186 — that in which the agreed judgment was entered. She was permitted to testify to a private conversation between her brother and herself, wherein she says she told him that she would agree to give the Cartwrights a right of way or roadway over her land to the river — the 60-foot strip here in dispute. This evidence was of a conversation and agreement on the part of Mrs. Caswell concerning the disposition of the rights of Mrs. Cartwright in the suit in 1886, not made within the hearing of Mrs. Cartwright or any one representing her, nor in so far as the record discloses, ever made known to her. I think it was hearsay and inadmissible as a circumstance by which to construe the judgment as against Mrs. Cartwright, nor was it admissible as parol evidence against one holding under her to change the quality of the estate granted Mrs. Cartwright by the judgment, for the record in the case was before the court and was better evidence of what was done than the testimony complained of. Where the record of an action is before the court, evidence to explain what was done or understood to be done therein should be excluded. Allen v. Read, 66 Tex. 13, 19, 17 S.W. 115. The decisive issue here involved a proper construction of the agreed judgment. It must be construed by its own recitals, read in the light of the record in the case in which it was rendered. Parol evidence was not admissible to contradict, vary, or limit it. Southwestern Settlement Development Co. v. May (Tex.Com.App.) 235 S.W. 529, 530; 22 C.J. p. 1077, § 1388; 34 C.J. p. 506, § 803; Hightower v. Bennight, 53 Tex. Civ. App. 120, 115 S.W. 875; Smith v. Lee, 82 Tex. 124,130, 17 S.W. 598. The cause being tried before the court without a jury, it might be said under a well-established rule that the error was harmless, on the theory that the court considered only legal evidence; but there is nothing in the record to indicate that the court did not consider the evidence of Mrs. Caswell. He did not so certify in approving the bill or exception taken to its admission. She testifying that the land — the 60-foot strip — was awarded to her, and that she consented that the Cartwrights might have "a right of way" or "roadway" over her land to the river, and the court rendering judgment upholding that contention, I think, goes far to show that the court did not only consider her testimony, but that he adopted same as his conclusion of the question. This was reversible error.

(5) I think the court was in error in adjudging to the intervener, Brewer, an easement or right of way over the 60-foot strip as appurtenant to the city lots he owns, which were once a part of the lands awarded Mrs. Cartwright by the judgment in 1886. It appears that his lots are in what is known as the Oakwood addition to the city of Beaumont, a part of a 37 1/2-acre tract conveyed in 1902 to the Cartwright Oil Development Company and later made into an addition.

The 60-foot strip is some one-half mile northeast of the lots. The map by which he bought did not show the 60-foot strip as a street, roadway, or otherwise. It seems that his claim is based on the assumption that Mrs. Cartwright obtained only an easement in the 60-foot strip by the judgment in 1886, and that such easement right passed as an appurtenant to each and every parcel of the part of the David Brown league awarded to Mrs. Cartwright under each and every subdivision and partition thereof. As I view it, there was no easement in favor of the land awarded to Mrs. Cartwright by the judgment of 1886. She was awarded the fee-simple title to all of the land claimed by her, save and except only the two tracts described in the judgment, amounting to 320 acres of land. Having the fee-simple title, of necessity there was no easement thereon, for no one can have an easement on his own property. Howell v. Estes, 71 Tex. 693,12 S.W. 62; Callan v. Walters (Tex.Civ.App.) 190 S.W. 829. But aside from all this, Brewer bought lots by a map, and It did not show or in any manner indicate that the 60-foot strip was an appurtenant to the lots he bought or to the addition in which they were situated, and so no such appurtenant was acquired by him. Williams v. Eitel, 209 Ky. 284,272 S.W. 752; Poole v. Dulaney, 19 Tex. Civ. App. 117, 46 S.W. 276.

Believing that the judgment in Craig v. Cartwright in 1886 awarded unconditionally the title to the 60-foot strip of land here in question to Mrs. Cartwright, and that said judgment is unambiguous and not subject to the construction given to it by the trial court and by my brethren, and that this is the decisive question in the case at bar, it is not necessary to discuss the question of estoppel as announced by my brethren, and I therefore express no opinion on same.

I concur in that part of the majority opinion that reverses and renders the judgment of the trial court relative to the use by appellant of certain portions of the railroad and spur.

For the reasons given above, I enter my dissent