Summary
holding that exception in deed "sufficiently indicates an intention on [grantor's] part to reserve and hold the graveyard in trust by him"
Summary of this case from Magee v. HambletonOpinion
No. 4361 1/2.
February 3, 1933. Rehearing Denied February 9, 1933.
Appeal from District Court, Gregg County; Will C. Hurst, Judge.
Suit by the Houston Oil Company of Texas and others against Herbert E. Williams and others. From order denying temporary injunction, plaintiffs appeal.
Affirmed.
On August 1, 1932, on application of the appellants, a preliminary restraining order was entered by the judge to be of duration until notice to appellees and hearing set on August 3, 1932. Upon the entering of answer by the appellees, and upon a hearing had in chambers on August 3, 1932, the judge dissolved the preliminary restraining order and refused to grant a temporary injunction pending the trial of the case as prayed for. The appeal is from that order denying a temporary injunction.
The appellants are in possession of a tract of land and hold a lease upon it for the production of oil and gas. There is located upon this tract of land a private family burial ground known as the McCutcheon Graveyard. The appellees are in possession and hold a lease for the production of oil and gas of a parcel of land described by metes and bounds as an one-half acre of land known as the McCutcheon Graveyard.
The appellants in virtue of the leasehold estate and the possession of the tract of land are seeking an injunction restraining the appellees from drilling a well for production of oil or gas upon any portion of the land not originally segregated as a burial ground from the general farm by a fence, or upon any portion of the land surrounding said fenced portion. The appellants are seeking relief in the respects, namely: "Wherefore, plaintiffs pray for a writ of injunction against the defendants; that they and each of them, and their agents and employees may be enjoined and restrained from drilling an oil and gas well upon the land above referred to, either in the portion of said graveyard which is now or was formerly fenced, or on any portion of said land surrounding said fenced portion; that said defendants be enjoined and restrained from doing any act and every act connected with the drilling of such oil and gas well and from using said land for any purpose save as a graveyard; that plaintiffs have judgment defining the limits of such graveyard, * * *" etc.
The appellees are claiming that the appellants have no lease or interest in the specifically described one-half acre of ground, and the same is not covered by nor included nor understood to be within their lease. The appellees further specially alleged: "These defendants deny that any of the parties have ever assumed that the reservation was indefinite; on the other hand, a portion of the McCutcheon Graveyard has been fenced for many, many years, and the one half acre was reserved around that portion fenced, and so understood and acknowledged by all of the owners of the 220-acre tract of land after W. E. Alexander reserved the title to said one half acre. Answering further, these defendants say and aver that they have moved a corner of the fence in order to facilitate their drilling and they intend to drill within the enclosed area of the old cemetery, but not where it will interfere with any part dedicated to graves. The fee simple title to this property was excepted by W. E. Alexander at the time he sold the land surrounding the tract, and his fee simple ownership in the one half acre of land, and especially that portion fenced has been recognized by all parties holding the surrounding land under the former deed from W. E. Alexander, and this includes the grantors in the lease to the Houston Oil Company."
The points in controversy and on appeal sufficiently appear in a general statement of the facts, all of which are without conflict.
James McCutcheon at some time prior to 1870 became the owner in fee-simple title of a tract of land consisting of 220 acres of land of the Dolores Sanches survey in Gregg county (formerly Upshur county), Tex. He and his family resided upon and used the land as their homestead. Whenever a death occurred of a member of the immediate family of James McCutcheon or of his relatives of lineal descent, the final burial of the dead was in a plot or area of ground located on the south end of the 220-acre tract of land mentioned, and near a public road. That plot was set apart by James McCutcheon for use as a private family burying ground. In his lifetime, his wife, several children, and several relatives of lineal descent were buried there. When James McCutcheon died, he too was buried there by his descendants. His daughter Mrs. W. E. Alexander, was buried there. His son, the father of Mrs. White, was buried there. As many as twenty graves of the family are there since the original setting apart of the ground. At a time after the death of James McCutcheon and on January 31, 1893, two of his surviving grandchildren by warranty deed conveyed in fee-simple title to W. E. Alexander, whose wife was a surviving daughter, the following land, namely: "All that certain tract or parcel of land lying and being situated in the county of Gregg about eight miles northwest from Longview, being a part of the Dolores Sanches survey of 320 acres and the same being our undivided interest in said survey and the said land is the estate of the late James McCutcheon, deceased. To have and to hold the above described premises," etc.
There was no mention, exception, or reservation in the deed of the graveyard. After the death of Mrs. Alexander and on October 11, 1917, W., E. Alexander, joined by his two sons, who were adults, executed a warranty deed conveying in fee-simple title unto W. E. Jones and J. W. Fuller the following land, omitting as unnecessary to set out part of the calls of description, viz.: "All that certain tract or parcel of land described as follows: Situated on the old Longview and Gilmer road which passes Pine Tree Church and about eight miles from the town of Longview, Texas, a part of the Dolores Sanches H.R. Survey; beginning at a stake 442 vrs. N. of the original S.W. corner of the Dolores Sanches survey. * * * Thence W. 950 vrs. to the place of beginning, containing 220 acres of land more or less, save and except about 1/2 acre of land, known as the McCutcheon Graveyard. To have and to hold the above described premises together with all the rights and appurtenances thereto in any wise belonging unto the said W. E. Jones and J. W. Fuller, their heirs and assigns forever."
The same tract of land, describing it by same metes and bounds, was subsequently conveyed by warranty deed in fee-simple title by Jones and Fuller to Margaret Cobb, and then by Margaret Cobb to H. C. McGrede, and then by H. C. McGrede to J. G. McGrede, the last call for description in each deed respectively reading as follows: "Thence west 950 vrs. to the place of beginning, and containing 220 acres of land, more or less, save and except about 1/2 acre of land in the south end of this tract, known as the McCutcheon Graveyard."
On May 9, 1930, J. G. McGrede executed a lease upon the tract of land to B. A. Skipper for the production of oil, and conferring exclusive right of possession of the land for specified purposes. The lease describes the tract of land by metes and bounds, the last call for description reading as follows: "Thence west 950 vrs. to place of beginning, save and except about 1/2 acre of land in the south end of this tract, known as the McCutcheon Graveyard, and containing 220 acres of land, more or less."
The Houston Oil Company of Texas and the Barnsdall Oil Company, by assignments, then acquired and owned the lease upon the land, and in each of the assignments, respectively, the last call for description reads identically in the language of the original lease to B. A. Skipper, including the exception, "save and except about 1/2 acre in the south end of this tract known as the McCutcheon Graveyard." The graveyard is located upon the 25-acre tract upon which the Houston Oil Company of Texas has the leasehold rights. The two oil companies have pooled their interests and have an operating agreement.
It appears that on February 8, 1932, W. E. Alexander joined by his two sons executed a lease to John C. Robbins, Jr., upon the following land for the production of oil, omitting as unnecessary to set out, part of the calls of description, namely:
"All that certain tract of land situated in the county of Gregg, state of Texas, described as follows:
"A part of the Dolores Sanches H.R. survey in Gregg county, located about eight miles northwest of Longview, Gregg county, Texas, and more particularly described as follows: Beginning at an iron stake at the N. B. corner of the cemetery fence a twin oak for a witness tree; * * * thence north 78 degrees east 107 feet to the place of beginning, containing 1/2 acre of land and being the same land reserved in the deed from W. E. Alexander to Fuller and Jones, dated October 11, 1917, recorded in Book 33, page 534, known as the McCutcheon Graveyard."
This lease was assigned by John C. Robbins, Jr., to Herbert E. Williams, one of the defendants in this suit.
It appears that in the first instance in the lifetime of James McCutcheon a rail fence surrounded the burial ground. This fence rotted down and the plot remained open for some time. At a period of time after the fence had completely rotted down the two grandsons erected a rail fence to segregate the graveyard from the farm and to protect it against cattle. No one seems to have known the location of the old rail fence. In erecting this rail fence, the two grandsons "just fenced a square" in the view of including all the graves and to have an open space or passageway of "five or six feet or more from any of the graves." This fence being later injured by a storm, the two grandsons replaced it with a substantial six-barbed wire fence. The wire fence was put up in substantially the same place as the rail fence stood. The northwest corner of the wire fence was somewhat extended on account of the topography of the ground to a point where the corner post could have "better braces there." The northwest corner of the wire fence was situated "thirty-five or forty feet from the nearest grave" then there in the burial ground. It is shown that this fence was erected while W. E. Alexander owned and occupied the farm and before the same was acquired by Jones and Fuller and J. G. McGrede. All the heirs and subsequent purchasers appear to have recognized the fenced plot of ground as segregating and constituting the McCutcheon graveyard. All the surrounding ground has been used for pasturing and for cultivation. Within the wire fence, there is space enough for as many more graves as are now there. There are twenty graves there now. The dimensions of the fenced part are nearly fifty-nine feet by nearly seventy-five feet.
It appears that after the lease by W. E. Alexander to John C. Robbins, Jr., a portion of the wire fence was removed and a new iron fence with iron posts was built around the burial ground, leaving a triangular strip across the northwest corner outside of and not included in the new iron fence. This triangular strip had been included in the original fenced portion of the graveyard. Resting partly on this triangular strip and partly on ground outside the original fence, the appellees have erected a derrick preparatory to the drilling of an oil and gas well. About one-fourth of the derrick lies outside of the original fenced portion. If the well were drilled, it would be drilled within the original fenced portion of the graveyard. The appellees have secured surface rights from Mr. McGrede to use the land for tanks, slush pits, and other things necessary to the drilling of the well. The slush pits which have been dug and the tanks are located about fifty feet from the south line of the graveyard as originally fenced.
Williams, Lee, Hill, Sears Kennerly, of Houston, and Bramlette Meredith, of Longview, for appellants.
Wynne Wynne, of Longview, for appellees.
This court is called upon, in order to determine the leasehold estate and rights of the parties to this appeal in the respective particular tracts of land involved in the suit, firstly, to define the limits of the portion of land designated in the excepting clause; and, secondly, to declare the character of the estate and right, if any, which has passed to each party in such particular excepted portion of land. Stated in other words, it becomes necessary in this appeal to determine the area of the graveyard excepted and to define its boundaries, and to declare the character of the estate and right, if any, that each party to the appeal has in such graveyard. In the lease to appellant, and in the prior deeds in evidence, appears following the description designating the 220-acre tract of land the clause reading: "Save and except about 1/2 acre of land in the south end of this tract, known as the McCutcheon Graveyard." The clause refers to property excepted in terms sufficiently explicit to enable it to be identified, and the exception may not be considered void for uncertainty. The description is such that not only reasonably defines the excepted land, but is such that, aided by extrinsic evidence, the premises referred to can be ascertained with certainty. The words of description, though, of "about 1/2 acre in the south end of this tract" are not words of themselves of certainty as to quantity and form, and may not be so regarded in the light of the other words immediately following of "known as the McCutcheon Graveyard." The words "known as the McCutcheon Graveyard" were evidently used as a method for ascertaining and identifying the "about 1/2 acre" referred to as located in the south end of the tract. Ordinarily a description of a definite quantity in the particularly described larger tract may be held to mean such quantity lying in square form in the corner named. But, under a conceded rule, although quantity may be an aid in locating granted or excepted premises, yet it does not control where there are other features in the description which go plainly to show an intention to describe a particular tract or lot rather than a particular quantity of land. 14 Tex.Jur. § 228, p. 1022; 18 C.J. p. 293; 2 Devlin on Deeds (3d Ed.) § 1013b, pp. 1029-1033. Where this is true, mere quantity will not prevail. In this condition the excepting clause intended to describe a lot or parcel, in quantity and form, particularly "known as the McCutcheon Graveyard." Looking to the facts relating to the plot "known as the McCutcheon Graveyard," it visibly appeared on the ground, as conclusively established, at the time of the execution of deeds, and of the leases in evidence, that the burial ground had been fenced in by a wire fence in the purpose of segregating the graveyard from the 220-acre farm, and to protect it against depredation of cattle running upon the surrounding land. All the heirs and the owner of the fee of the farm tract recognized the particular fenced plot of ground as segregating and constituting the McCutcheon Graveyard and assented to its being actually used as a repository of the dead. It had established and well-known boundaries on the ground marked out by the fence which inclosed it and contained room enough for double the number of the graves then in it, and for avenues and walks between the graves. It is believed the excepting clause should be deemed as covering the part fenced with the barbed wire fence, and not be deemed to cover the full square one-half acre. The area excepted would be the ground actually fenced and segregated by the barbed wire fence and no more than that, as constituting the McCutcheon Graveyard, although that plot of ground so fenced was short of half an acre.
In determining the second point mentioned above, the established factual elements must be kept in view, that the McCutcheon Graveyard had long been dedicated or set aside and actually used exclusively as a private family burial ground, and had been segregated from the 220-acre farm by a fence surrounding it. The land of James McCutcheon, on which the burial ground was located and was being actually used as a repository of the dead, went by descent to his children and grandchildren. The grandchildren afterwards conveyed by deed their undivided interest in the land, without reservation of the graveyard, to W. E. Alexander, whose wife had inherited the remaining undivided portion of the land in virtue of being the daughter of James McCutcheon. At the time of his purchase, Mr. Alexander knew of the established graveyard and both he and his wife at all times recognized and assented to its use as a family burial ground. Mrs. Alexander was later buried there in the fenced plot. And when it happened in the years after purchase that Mr. Alexander, joined by his sons, conveyed the entire farm tract to Jones and Fuller, he entered in the deed, following the description of the 220-acre tract, the express provision, namely, "save and except about 1/2 acre of land, known as the McCutcheon Graveyard." The words "save" from and "except" out of have the force of meaning and plainly reflect the intention to exclude from the deed, and to be retained by the grantor, some part of the tract of land which has been specifically described as granted. The effect of this language used is to create, as we think, an exception, and the fee-simple title to the graveyard with the annexed right of use was held and reserved by W. E. Alexander. 14 Tex.Jur. p. 958, §§ 175-179; 19 C.J. p. 937, § 145; 18 C.J. §§ 339-344, p. 340; Johnson v. Elkhorn Gas Coal Mining Co., 176 Ky. 676, 197 S.W. 409. Mr. Alexander was not intending to be precluded from exercising his power of title and the right of the use in the burial ground. It follows as a consequence of the exception made in the deed that none of the subsequent grantors and lessors did or could legally pass fee-simple title or right of use to the appellants in the portion of the ground within the boundaries marked out by the barbed wire fence as constituting the McCutcheon Graveyard.
It is deemed fit to further conclude that Mr. Alexander intended by deed to Jones and Fuller to make the exception of the fee-simple title to the graveyard as a provision of the discharge of a duty due from James McCutcheon to the members of the family interred in the ground. In effect James McCutcheon who as owner dedicated and established the graveyard consented to abandon the use for any other purpose, unlimited as to time of duration. The fee-simple title of James McCutcheon passed to Mr. Alexander partly by purchase and partly by inheritance, subject to and burdened with the uses and purposes of a family burial ground, which was unlimited as to time of duration, to which it had been previously devoted by James McCutcheon. It appears to be the rule that, where property has been actually appropriated either as a private family burying ground or as a public cemetery, it cannot in either instance be inherited or conveyed as other property is done so as to interfere with the use and purposes to which it has been devoted. Peterson v. Stolz (Tex.Civ.App.) 269 S.W. 113; Stewart v. Garrett, 119 Ga. 386, 46 S.E. 427, 64 L.R.A. 99, 100 Am.St.Rep. 179; Hines v. State, 126 Tenn. 1, 149 S.W. 1058, 1059, 42 L.R.A. (N.S.) 1138, and other cases. Quoting, as very aptly stated, from the Hines Case, supra: "When once dedicated to burial purposes, and interments have there been made, the then owner holds the title to some extent in trust for the benefit of those entitled to burial in it, and the heir at law, devisee, or vendee takes the property subject to this trust."
The exception made in the deed by Alexander sufficiently indicates an intention on his part to reserve and hold the graveyard in trust by him for the purpose of beneficial interest and use therein of the descendants of those buried in the graveyard. The beneficial interest would not be alone in the surface of the ground, but below the surface of the ground where the graves are situated. He could not pass a leasehold estate or right in the graveyard lot inconsistent with, or intrusion upon, the right of use as a graveyard. As held in the companion case of Mary White v. Herbert Williams (Tex.Civ.App.) 57 S.W.2d 385, this day decided by this court by Associate Justice Sellers, the descendants of those buried in the graveyard have the equitable right to restrain inconsistent uses of the graveyard, as the drilling of an oil well on the burial ground.
It is concluded that the court did not err in refusing the injunction to appellants because the appellants have shown no estate or interest in the graveyard as bounded by the barbed wire fence and the appellees are threatening to drill an oil well "only within the original fenced portion of the graveyard."
The judgment is accordingly affirmed.