Summary
In Cities Service Company v. Dunlap, 5 Cir., 117 F.2d 31, this court decided that the language of the Cantley case was limited to its facts, and that the doctrine announced therein did not apply where no abutting road or right of way was mentioned in the title papers or existed in fact.
Summary of this case from Simon v. Rudco Oil Gas Co.Opinion
No. 8863.
January 4, 1941.
Appeal from the District Court of the United States for the Eastern District of Texas; Randolph Bryant, Judge.
On motion for rehearing.
Motion denied.
For prior opinion, see 115 F.2d 720.
David B. Trammell and Clayton L. Orn, both of Fort Worth, Tex., for appellant.
Angus G. Wynne and William A. Wade, both of Longview, Tex., and Cecil N. Cook, of Houston, Tex., for appellees.
Before FOSTER, SIBLEY, and McCORD, Circuit Judges.
It is urged on motion for rehearing that the description we have construed and applied refers to another fixed object, towit "W.H. Rogers' line." We did not and do not so regard it for his line was originated in and is a part of this very partition survey. It did not exist before, and cannot be considered a controlling monument.
Touching the presumed inclusion in a conveyance of a strip of land devoted to a road, we are referred to the case of Cantley v. Gulf Production Co., Tex.Sup., 143 S.W.2d 912. The deed there construed expressly referred to the road, and to the partition decree and map which clearly showed it, though it was never opened. The court held that the servient fee in the strip was annexed to the abutting lots, and a conveyance of them carried the strip. We rest the present decision on the point that there is in this case no mention of a road in any of the title papers, and there was no abutting road in fact.
Motion denied.