Burnham v. Hardy Oil Co.

On Motion for Rehearing.

The second ground of appellee’s motion is-that we erred “in holding that the statute of limitations did not continue to run from 1879' until 1886, whereby the statute of five years' began to run against the mother of said parties (Herbert Farjeon and Mrs. Emma Irene Legge), and that therefore they were barred by limitation prior to 1890.” This statement is somewhat obscure, but appellees doubtless mean by it that as the mother (Mrs. Burn-ham) died a married woman in 1883, if the adverse possession began prior thereto, it would operate against her children, though minors, because successive disabilities could not be tacked.

What we held was simply that it was error to instruct a verdict against said Herbert Farjeon and Mrs. Legge, upon the ground that it was conclusively shown they were barred. The testimony does not clearly show that when their mother died, in 1883, there was being, maintained the necessary adverse possession, nor that such possession uninterruptedly continued up to the time the Texas Land & Cattle Company constructed its inclosure in 1885 or 1886. If, on another trial, it should be found, upon sufficient testimony, that limitations had commenced to: run before their mother’s death, but for her disability of coverture, and the necessary adverse possession continued for the requisite time after her death, the right of said Herbert Farjeon and Mrs. Legge would be barred. As the testimony is in the record before us, an instructed verdict against them on that ground would have been error. With this qualification of the original opinion we overrule appellee’s motion.

. The motion of appellants, the coplaintiffs of Herbert Farjeon and Mrs. Legge, is, after due consideration, overruled.

The motion of the Rio Bravo Oil Company is also overruled. It is strenuously contended by the last-named party • that it indisputably appears from the record that it is not liable to the Hardy Oil Company’s co-tenants, being merely a purchaser of oil under a contract with the Hardy.Oil Company, without knowledge of any cotenancy, and that therefore the judgment as to it should be affirmed.

[14] It is not perceived how it can claim to occupy .the attitude, of .an innocent pur *336 chaser. We have already held, and so has the Galveston Court of Civil Appeals on the previous appeal in this ease, and the contention of innocent purchaser on the part of defendants has been in effect abandoned, that the record title to this league charged all persons dealing with it with notice of plaintiff’s title. The Rio Bravo Oil Company is in no better position in this respect than the Hardy Oil Company, or any other defendant. Therefore its claim of immunity must depend on the principle, announced in the main opinion, that the Hardy Oil Company, as a cotenant, had the right to explore for and market the oil produced on this land. Purchasers of oil from it would not, we think, ordinarily be liable to the Hardy Oil Company’s cotenants. But the transactions may be such as to subject them to liability, and this would clearly be so if the transaction constituted a wasteful disposition of the co-tenants’ interest in the oil. Eor example, suppose the sale of the oil was on such terms as to amount to a sacrifice of it, the purchaser would, without doubt, be liable to the cotenants, to the extent that such transaction constituted waste.

The circumstances attending the connection of the Rio Bravo Oil Company with the product in this case are meagerly developed. Its contract with the Hardy Oil Company is substantially all we find. By it the Hardy Oil Company contracted to pay it for a pumping station and pipe line the actual cost thereof in oil at the rate of 30 cents a barrel, and that as soon as it was thus paid for the Hardy Oil Company was to sell to it all the fuel oil up to a certain amount for the period of three years from the date of the contract, June 10, 1908. It appears from the testimony that when this contract was made, or rather when the pipe line was completed, the average value of oil was from 45 to 50 cents per barrel.

[15] It would appear from the above: (1) That the pumping station and pipe line were paid for in oil at about half its value, and whether or not this transaction constituted an act of waste, under the circumstances and to what extent, was a question of fact. (2) That the Hardy Oil Company entered into a contract with the Rio Bravo Oil Company for the sale to it of oil, to continue for a number of years, which period extended beyond the time the Rio Bravo Oil Company was made a party defendant. While we think the Hardy Oil Company, as a cotenant of the property, could produce and market the oil in the usual way, and the purchasers ordinarily would not be liable to other co-tenants, we think it could not bind its non-consenting cotenants by a contract of this kind. The Rio Bravo Oil Company’s liability to plaintiffs in respect to oil received or purchased by it from the Hardy Oil Company depends on the question whether or not its transactions with the latter company involved waste of the product, and it would be liable to plaintiffs equally with the Hardy Oil Company to the extent of what was improvident or wasteful.

Eor these reasons it would be improper for us to hold as a matter of law, upon this record, that the judgment in favor of the Rio Bravo Oil Company should be affirmed.

The motions are all overruled.