# Appendix — Kilgore v. Black Stone Oil Co.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1769%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 930

## Text

CONTENTS
Opinion of Court of Appeals; Case No.

OF-SE-1ESY . owe ccccncctssrveccnenceeseuans App.
Supreme Court denial of Petition for
MOVEGW «6s ckcccscnsasccensiustedebeameueee App.
Supreme Court denial of Motion for
POPORTUNG oo cc ccarsccscasvessetutsebeseaven App.
identity Of PORUGS . cc siiccasccasecsserscaas App.

Plaintiffs’ Preliminary and Partial Response
to Defendants’ Motion for Summary

ee a Perererrr rere ry rr er ree App.

Appellants’ Brief in Court of Appeals; Case

No. 09-98-143CV (excerpt) ............0008 App.

Petition for Review; Case No. 00-0582

(ONGOING) coc ccc ctensacdcetnanepansieesecdaa App.

Brief on the Merits; Case No. 00-0582

(GROOTDE) on iscc as cininage cies tiwtans tedaenns App.

Motion for Rehearing; Case No. 00-0582

(ONCOEIE) voce ccnnetascsacesdahas suber enenee App.

W.T. Carter & Bro. v. Collins, 192 S.W.316 (Tex.

Civ. App. - Beaumont 1916, writ ref’d)....App.

App. 1

: APPENDIX A
In The
Court of Appeals
Ninth District of Texas at Beaumont

NO. 09-98-143 CV

C. C. KILGORE ET AL, Appellant
V.
BLACK STONE OIL COMPANY ET AL, Appellee

On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. 16,791

OPINION
(Filed Apr. 27, 2000)

In this suit for conversion of oil and gas and title to
minerals, the appellants raise four issues. Issue one com-
plains of the trial court’s grant of summary judgment
applying stare decisis to a case this Court decided some
eighty-three years ago in W. T. Carter & Bro. v. Collins, 192
S.W. 316 (Tex. Civ. App. = Beaumont 1916, writ ref‘d).
Based upon the doctrine of stare decisis as it is applied to
cases involving the determination of boundary lines, we
conclude the trial court did not err in granting the sum-
mary judgment in question. Because of this holding, the
only other issue we need address is appellant’s complaint
regarding improper venue transfer. We find no need to

App. 2

address the issue regarding privileged documents,
because our holding on the stare decisis issue extinguishes
the need for consideration of any extraneous survey evi-
dence on the alleged boundary dispute. We overrule
appellants’ complaint challenging the venue ruling
because venue in Polk County was mandatory under Tex.
Civ. Prac. & Rem. Cope Ann. § 15.011 (Vernon Supp.
2000).

STARE DECISIS

The issue that impends upon the others is whether,
under the doctrine of stare decisis, this court’s opinion in
Carter v. Collins stands as a bar to appellants’ claims as a
matter of law. Central to this issue is an unresolved
question about how Texas courts apply stare decisis to
boundary line cases. See Swilley v. McCain, 374 S.W.2d
871, 875 (Tex. 1964); see also Gus M. Hodges, Stare Decisis
in Boundary Disputes: Let There Be Light, 21 Tex. L. Rev. 241
(1943). There are two divergent notions about how stare
decisis should be applied to Texas boundary line cases, the
orthodox doctrine and an unorthodox approach. The
orthodox doctrine of stare decisis determines only ques-
tions of law. Id. at 242. After a legal question has been
squarely decided by the Supreme Court, its decision is
precedent, binding it and courts of lower rank when the
identical question is raised in a later suit between differ-
ent parties. See Swilley, 374 S.W.2d at 875.

In contrast to the orthodox doctrine of stare decisis,
some courts of appeals have concluded that a fact issue
determination — i.e., the fixing of boundary lines, head-
right surveys, or other fixed real property markers — may

App. 3

be binding precedent under the doctrine of stare decisis.
See Rice v. Armstrong, 616 S.W.2d 415, 417 (Tex. Civ. App.
— Texarkana 1981, writ ref’d n.r.e.). Under this approach,
the location of a boundary line will control the location of
the same line in a later suit even though the first case
turned upon an issue of fact or the legal questions of the
later case are not those of the first case. See Swilley, 374
S.W.2d at 875.

This court has addressed this notion of stare decisis in
three opinions. See Atchley v. Superior Oil Co., 482 S.W.2d
883 (Tex. Civ. App. - Beaumont 1972, writ ref’d n.r.e.);
Patterson v. Peel, 149 S.W.2d 284 (Tex. Civ. App. - Beau-
mont 1941, writ ref’d); and McDonald v. Humble Oil &
Refining Co., 78 S.W.2d 1068 (Tex. Civ. App. - Beaumont
1935, writ dism’d). And we adhere to the unorthodox
view. See Atchley 428 S.W.2d at 897-98.

Asserting that they own the mineral ‘interests in the
Escobeda League in Polk county, appellants sued appel-
lees for converting oil and gas that they contend
belonged to them and was produced from the Escobeda
League. Essential to their recovery is appellants’ conten-
tion that the Escobeda League conflicts with three sur-
veys, the Colville, Thompson, and Wylle.! Appellees
pleaded a defense under the doctrine of stare decisis and
moved. for summary judgment. Appellees contended the
appellants were suing them for converging oil and gas
produced from lands located under the Colville,
Thompson, and Wylle Surveys, that those surveys did not

1 We have adopted the spelling of Wylle that is used on the
plat in Carter v. Collins, 192 S.W. at 318.

App. 4

conflict with Escobeda, and that the absence of any con-
flict was forever determined by this court in Carter v.
Collins. In this case, appellants do not claim under any of
the parties to Carter v. Collins. Their claims are based
upon earlier severances of the Escobeda mineral interests.
But their claims urge the same conflict between Escobeda
and Colville as that urged by the appellants in Carter v.
Collins.

Carter v. Collins was an action trespass to try title
brought by the appellees of that case to recover most of
the Thomas Colville League. See W. T. Carter & Bro. v. .
Collins, 192 S.W. at 317. Appellants in that earlier case
disclaimed any interest in Colville except to whatever
part of Colville was included within the boundaries of
Escobeda. Id. The jury found that Colville and Escobeda
do not conflict. Id. in 1916, this court identified the princi-
pal question as whether the Colville and Escobeda
leagues were in conflict. Id. In our earlier opinion, the
court concluded that the evidence sustained the jury find-
ing of no conflict. In reaching its conclusion, the court
discussed in detail the relevant evidence beginning with
the original survey of Escobeda in 1835. Id. at 317-21.

While the quality of the surveying efforts described
in Carter v. Collins was at times inept at best, nevertheless,
we conclude, after a rather painstaking and detailed
review of the various boundary descriptions, as well as
the illustrated plat reproduced in the opinion, that suffi-
cient evidence was contained in the record in the prior
case to support the jury’s finding that the two boundary
descriptions of the Escobeda League and the Colville
League do not conflict in that they were not superim-
posed, one survey on top of the other. Carter v. Collins

App. 5

was a trespass to try title case in which the appellants
“disclaimed any interest in or title to the Thomas Colville
League, save and except whatever part thereof might be
included within the . . . Bartolo Escobeda League of
land....” Id. at 317. Appellants, in essence, were claim-
ing ownership to property only to the extent it was
reflected in the Escobeda League boundary survey. The
issue was simply decided by having the jury compare the
two surveys, review an illustrated plat admitted into
evidence, and evaluate testimony from witnesses. Id. at
318.

With regard to the evidence reviewed by this Court
in the earlier case, we observed that “[t]he great prepon-
derance of the evidence in this case establishes the fact
that the Thomas Colville league was actually located on
the ground as shown in the above plat.” Id. at 319. Hav-
ing said that, we then went on to methodically set out the
inaccuracy in the purported location of the Escobeda
survey in relation to other correctly established surveys
and in relation to the existence of natural objects found
and identified on the ground. Id. at 319-321. This was
done by applying the following legal maxim which pro-
vides for a qualitative classification and grade of calls in
survey and field note interpretation:

It is the law of this state that where the
natural objects, as called for in the field notes,
can be actually found and identified on the
ground as showing the footsteps—of-the sur-
veyor, both course and distance, when inconsis-
tent therewith, must give way and be
disregarded.

Id. at 321.

App. 6

After conducting this very detailed analysis of the
Escobeda survey vis-a-vis well-established neighboring
surveys and natural, identifiable objects, we concluded:

It is to be seen that if the Escobeda league is
located as contended for by the appellees, it
places it out of conflict with the other leagues
and surveys, all of which were made by the
same surveyor, and within a very short period
of each other, and acquits the surveyor of doing
an irrational thing, that of surveying one league
upon another, when it was his official duty to
locate the survey upon vacant domain, and
without any intervening vacancies.

Id. Since the “other leagues and surveys” do indeed
include the Thompson and Wylle leagues, as represented
on the illustrated plat contained in the opinion, we find
that Carter v. Collins establishes the accuracy of those
surveys, as well as the fact that Escobeda is not in conflict
with the other surveys. Id. at 321.

Our reading of Carter v. Collins in its entirety leads us
to the conclusion that boundary lines were determined
for a number of leagues, including the three at issue in
the instant case. Therefore, stare decisis controls. The spirit
of the so-called unorthodox view of stare decisis is cer-
tainly defeated if a decision must turn on whether exact
metes and bound appear in detail in the prior opinion. As
noted above, over eighty-three years have passed since
this Court handed down Carter v. Collins. The parties to
that case, as well as any successors in interest, have had
to live with the boundaries established therein. To step in
at this point in time and essentially “wipe the slate clean”
would, we believe, cause irreparable harm. The Texas

App. 7

Supreme Court has historically recognized the need for
real property issues to remain settled once the appellate
courts have spoken, viz:

The distinction [legal distinction between
“mortgages” and “assignments” in conveyances
of real property] so recognized has become a
long-established rule, under which many trans-
actions have been entered into, which involve
property of great value. Such being the case, we
are not at liberty to overrule the former deci-
sions of the court upon the question. It is far
more important that a line of decisions under
which valuable rights have accrued should be
deemed settled than that the court should con-
form to what may be thought a more correct
technical rule.

Adams v. Bateman, 88 Tex. 130, 30 S.W. 855 (1895). See also
Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 442
(1946) (opinion on reh’g) (“Since the Century[?] and Gulf-
Atlantic[3] cases were decided so many years ago and
many property rights have no doubt been acquired under
them, we should not at this late day change them, even
though doubt as to their correctness may exist in the
minds of some lawyers and judges.”). We, therefore, find
no abuse of discretion by the trial court in granting
appellees’ motion for summary judgment based upon the
doctrine of stare decisis. Issue one is overruled.

2 Railroad Comm’n v. Magnolia Petroleum Co., 130 Tex. 484,
109 S.W.2d 967 (1937), was generally known as the “Century”
case. See Trapp, 198 S.W.2d at 439.

3 Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131
S.W.2d 73 (1939).

App. 8

VENUE

Appellants complain that the trial court erred in
transferring this case from Harris County to Polk County.
According to appellants, venue was proper in Harris
County under Tex. Civ. Prac. & Rem. Cope ANN.
§§ 15.002(a)(2) and (3) and 15.005, because some of the
appellees either resided in Harris County or had their
principal offices there. Appellants concede that § 15.011 is
mandatory, but contend this case is a suit for the recovery
of personality and its venue is not governed by § 15.011.
We overrule appellants’ complaint because their suit, as
discussed under the stare decisis issue, is essentially one
for the recovery of land. See Renwar Oil Corp. v. Lancaster,
154 Tex. 311, 276 S.W.2d 774, 776 (1955). Accordingly,
mandatory venue of this suit was in Polk County.

For the reasons stated above, we affirm the grant of
summary judgment by the trial court.

AFFIRMED.

‘DAVID FARRIS4

Submitted on October 28, 1999
Opinion Delivered April 27, 2000
Publish

Before Walker, C.J., Stover and Farris, JJ.

4 The Honorable David Farris, sitting by assignment
pursuant to Tex. Gov’t Cope Ann. § 74.003(b) (Vernon 1998).

App. 9

APPENDIX B

[SEAL]
THE SUPREME CourRT OF TEXAS
POST OFFICE BOX 12248 _ . AUSTIN TEXAS 78711

TEL: (512) 463-1312
FAX: (512) 463-1365

CHIEF JUSTICE
THOMAS R. PHILLIPS

JUSTICES CLERK
NATHAN L. HECHT JOHN T. ADAMS
CRAIG T. ENOCH EXECUTIVE ASS’T
PRISCILLA R. OWEN os eel
JAMES A. BAKER

GREG ABBOTT DEPUTY EXECUTIVE
DEBORAH G. ASS’T
HANKINSON JIM HUTCHESON
HARRIET O'NEILL “ADMINISTRATIVE ASS’T
ALBERTO R. NADINE SCHNEIDER
GONZALES

I, JOHN T. ADAMS, Clerk of the Supreme Court of
Texas, do hereby certify that the attached two (2) pages
contain a true and correct copy of the order denying the
petition for review on January 11, 2001 in the Supreme
Court of Texas, in case No. 00-0582 (C. C. KILGORE, ET
AL. v. BLACK STONE OIL CO., ET AL.), as the original
of said document appears of record on file in this office.

IN TESTIMONY WHEREOF, wit-
ness my hand and the SEAL OF
THE SUPREME COURT OF
TEXAS at the City of Austin this
the 9th day of April, 2001.

App. 10,

JOHN T. ADAMS, CLERK

by /s/ Nancy J. Vega
Nancy J. Vega, Deputy

[SEAL]

THE SUPREME COURT OF TEXAS
Post Office Box 12248
Austin, Texas 78711

(512) 463-1312

January 11, 2001

Ms. Jeffee L. Mr. Joe G. Roady
Martinez-Vargas Sheinfeld Maley & Kay
Office of the 1001 Fannin, Suite
Attorney General of 3700
Texas Houston, TX 77002

P.O. Box 12548
Austin, TX 78711

Mr. Stacey Lee Mr. Joe Scott
Williams Evans

Locke Lidell & Sapp Evans and Kitchens

600 Travis, Suite P. O. Drawer 310
3500 Groveton, TX 75845

Houston, TX 77002

Mr. J. Robert Mr. Charles R.
Beatty Roberts

Locke Purnell Rain Jeffers & Bannack
& Harrell 745 East Mulberry,

2200 Ross Avenue, Suite 900
Suite 2200 San Antonio, TX 78212

Dallas, TX 75201-6776

*

App. 11

Mr. Jess H. Hall,
Jr.
Liddell Sapp Zivley
Hill & LaBoon
3300 Texas Commerce

Tower
Houston, TX 77002

Mr. Michael E.
Jones

Potter, Guinn, Minton,
Roberts & Davis

P. O. Box 359

Tyler, TX 75710

Mr. Kenneth R.
Breitbeil

McFall Glidden Sherwood
& Breitbeil

1111 Bagby Street,
Suite 4800

Houston, TX 77002

Mr. Allen D.
Cummings
Haynes & Boone
1000 Louisiana,
Suite 4300 4
Houston, TX 77002 1

Mr. E. Glenn Thames,
Jr.

Potter, Minton, Roberts,
Davis & Jones

Post Office Box 359

Tyler, TX 75710

Mr. James D. Thompson,
Ill

Vinson & Elkins

1001 Fannin,
Suite 2300

Houston, TX 77002-6760

RE: Case Number 00-0582
Court of Appeals Number: 09-98-00143-CV
Trial Court Number: 16,791

Style: C. C. KILGORE, ET AL.

v.
BLACK STONE OIL CO., ET AL.

App. 12

[SEAL]
THE SUPREME COURT OF TEXAS
Post Office Box 12248
Austin, Texas 78711
(512) 463-1312

Dear Counsel:

Today, the Supreme Court of Texas denied both peti-
tions for review in the above numbered and styled case.
Petition on behalf of C.C. Kilgore, et al. is denied, as
amended.

Sincerely,
John T. Adams, Clerk

by /s/ Blanca E. Morin
Blanca E. Morin, Deputy

cc: Ms. Carol Anne Flores, Clerk
Ms. Nell Lowe

App. 13

APPENDIX C
[LOGO]
Tue Supreme Court or TEXxAs
POST OFFICE BOX 12248 AUSTIN, TEXAS 78711 q
rev: (512) 463-1312 ‘
Fax: (512) 463-1365

CHIEF JUSTICE - CLERK
THOMAS R. PHILLIPS JOHN T. ADAMS
JUSTICES EXECUTIVE ASS’T
NATHAN L. HECHT WILLIAM L. WILLIS

CRAIG T. ENOCH
PRISCILLA R. OWEN
JAMES A. BAKER
GREG ABBOTT ADMINISTRATIVE ASS’T
DEBORAH G. HANKINSON NADINE SCHNEIDER
HARRIET O'NEILL

ALBERTO R. GONZALES

I, JOHN T. ADAMS, Clerk of the Supreme Court of
Texas, do hereby certify that the attached two (2) pages
contain a true and correct copy of the order denying both
motions for rehearing April 05, 2001 on the petition for
review in the Supreme Court of Texas, in case No. 00-0582
(C. C. KILGORE, ET AL. V. BLACK STONE OIL CO.,
ET AL.), as the original of said document appears of
record on file in this office.

IN TESTIMONY WHEREOF,
witness my hand and the
SEAL OF THE SUPREME COURT OF TEXAS
at the City of Austin
this the 9th day of April, 2001.
JOHN T. ADAMS, CLERK

by /s/ Nancy J. Vega
Nancy J. Vega, Deputy

DEPUTY EXECUTIVE ASS’T
JIM HUTCHESON

App. 14

(SEAL) THE SUPREME COURT OF TEXAS
Post Office Box 12248

Austin, Texas 78711 (512) 463-1312 '

April 05, 2001

Ms. Jeffee L. Martinez-Vargas

Office of the Attorney
General of Texas

P.O. Box 12548

Austin, TX 78711

Mr. Stacy Lee Williams
Locke Liddell & Sapp
600 Travis, Suite 3500
Houston, TX 77002

Mr. J. Robert Beatty

Locke Purnell Rain & Harrell
2200 Ross Avenue, Suite 2200
Dallas, TX 75201-6776

Mr. Jess H. Hall, Jr.
Liddell Sapp Zivley Hill
& LaBoon
3300 Texas Commerce Tower
Houston, TX 77002

Mr. Michael E. Jones

Potter, Guinn, Minton,
Roberts & Davis

P. O. Box 359

Tyler, TX 75710

Mr. Kenneth R. Breitbeil
McFall Glidden Sherwood

& Breitbeil
1111 Bagby Street, Suite 4800
Houston, TX 77002

Mr. Joe G. Roady
Sheinfeld Maley & Kay
1001 Fannin, Suite 3700
Houston, TX 77002

Mr. Joe Scott Evans
Evans and Kitchens
P. O. Drawer 310

Groveton, TX 75845

Mr. Charles R. Roberts

Jeffers & Bannack

745 East Mulberry,
Suite 900

San Antonio, TX 78212

Mr. Allen D. Cummings
Haynes & Boone
1000 Louisiana,
Suite 4300
Houston, TX 77002

Mr. E. Glenn Thames, Jr.

Potter, Minton, Roberts,
Davis & Jones

Post Office Box 359

Tyler, TX 75710

Mr. James D. Thompson,
Ill

Vinson & Elkins

1001 Fannin, Suite 2300

Houston, TX 77002-6760

App. 15

RE: Case Number 00-0582
Court of Appeals Number: 09-98-00143-CV
Trial Court Number: 16,791

Style: C. C. KILGORE, ET AL.

v.

BLACK STONE OIL CO., ET AL.
Dear Counsel:

Today, the Supreme Court of Texas denied both
motions for rehearing in the above styled petitions for
review.

Sincerely,
John T. Adams, Clerk
by /s/ Blanca E. Morin
Blanca E. Morin, Deputy

cc: Ms. Carol Anne Flores, Clerk
Ms. Nell Lowe

App. 16

APPENDIX D
IDENTITY OF PARTIES

PETITIONERS

Charles C. Kilgore

Ann Bullard Allen

Margaret Anderson

Carl Autry

Daniel Autry

Earl C. Autry

Grover P. Autry

Maggie Autry

Orville Autry

William Eugene Autry

Julia Ann Kilgore Baker

Seamon W. Bayles

Wanda Beal

Jean Bennette

Evelyn Blue

Josette Blue

Bobby Bullard

Getsy Cain

Lisa Camille

Donna Kay Deal Carter

David S. Carwile

E. Cary Carwile

Linda R. Carwile

William L. Carwile III

Ann Chambers

Cynthia Hall Chambers

Nancy Lee Kilgore Clark

Robert Clegg

Estelle Eakin Woolwine
Cole

Margaret B. Conley

Mary Conyers

Billie Cooper
Bonnie Blue Covell
Janet S. Coyle
Donald A. Currie
Edgar I. Currie
Grover C. Currie
Mary Currie
Robert A. Currie
Tucker R. Currie
Mary Cutler
Maxine A. Dale
Bertie Daniels
Faye Bullard Davis
Jenny Clare Drews
Harriette Frances
Woolwine Droke
Margaret M. Ellis
Fred Allen Faircloth
Honesta Faircloth
Leavy Faircloth
Oscar L. Faircloth
Worth H. Faircloth
Rachel Feist
Elsie J. Gallant
Ann T. Gemmel
Bill R. Gray
Allie B. Habel
Jesse H. Hall
Katherine Jenny Hall
Cecile Pattillo Harbaugh
Jerry Hawkins
Sharon Nunnery Helmey

PEAR teh PIMC Hiya Ts "

POP A BRT HTN ERIE Er

Gladys M. Hester
Thereze Hester
Monnie C. Hiester
Ann Turner Hoffman
M.B. Hoffman

Joseph H. Hoffman III
Phyllis Jo Hoge

Linda Faye Sessoms Hood

Carlessie Humphrey
Lula Jackson

Bertie N. Jessup
William O. Jolly

Allin Mitchell, Jr.
Charles C. Kilgore, Jr.
Georges F. Massot, Jr.
J.E. Puccini, Jr.

Joseph H. Hoffman, Jr.
Marion D. Faircloth, Jr.
Walton E. Hall, Jr.
Claudia Keys

Charles C. Kilgore
Edna Kilgore

James Joseph Kilgore
Joseph C. Kilgore
Theodore Kilgore
Thomas Patrick Kilgore
William A. Kilgore
Gladys M. Klug

Susan Parker Lane
Mary Logan

Mabel Matthews

Clare McClure

Charles McDonald

M. Worth McDonald
Mary McGaughey
Robert L. McManus

Doris McPhail

App. 17

Ruby McPhail
William McPhail
Methodist Children’s
Home
Donna Metzger
Allin Mitchell, Jr., Trustee
for Mary Jane Mitchell
Currie Monroe
Viola Monroe
Sheila Diane Moore
Tina Louise Moore
Laurie Moreland
Carolyn Naylor
Albert Allen Nunnery
Dewey Nunnery
Joey Nunnery
Katye Lois Nunnery
Lisa C. Nunnery
Peter J. Nunnery
Samuel Wesley Nunnery
Sylvia C. Nunnery
Tamara Nunnery
Walter D. Nunnery
Wayne Gray Nunnery
James Parker
John Edward Parker
William H. Parker
Robyn Parsons
Esther C. Patterson
David L. Pattillo
Edith H. Pattillo
John L. Pattillo
Robert C. Pattillo
William Pattillo
Hilda May Woolwine
Drummeller
Person

App. 18

Isolene Privette
Lois Bayles Ramos
Robert E. Reeves
Judy Porter Reid
Betty Ross

Rebecca S. Lowrey
Charles Schmid
Helen Arlene Schmid
Rosetta Schneider
Mary Sessoms

John H. Smith
Leslie S. Smith
Janie Sova

James P. Spell
William McPhail, Sr.
Romelia Stanley
Cecil Warren Stewart
Kenneth D. Stewart
Margarite Stewart
Mollie S. Stewart
Thomas C. Stewart
Margaret Tavenner
Donald L. Taylor
William H. Taylor
Margaret S. Tripp

The Moody National Bank,

as Trustee of the
Mary Cecile Chambers
Scholarship Trust
Cornelia S. Tyndall
Ruth Tyndall
Rebekah Villano

Christine Schmid Vlastelica

Hazel Wenrich
Beatrice Williams
Peggy Williams
Jane Williamson

John Hoge Woolwine III
Gary Yazell
Philip Yazell

RESPONDENTS

Black Stone Oil Company

A&S Operating

Arthur-Smith Corporation

Black Stone Holdings
Partnership

Henry C. Beck

Patricia D. Beck

Walter Bosecker

Clyda Bosecker

C&S Holdings Partnership

Caprock Pipe &
Supply, Inc.

Catesby W. Clay

Comstock Oil & Gas, Inc.

Comstock Resources, Inc.

Daniel L. Crutcher

Dr. Richard Crutcher

Alan Dalby

Wirt Davis I]

W.P. Dillard

C.T. Dolan

ETOCO, Inc.

Harris Trust & Savings
Bank, Trustee,

Stanton Armour Trust
dated 2/10/66

Harris Trust & Savings
Bank, Trustee,

Lester Armour Trust
dated 7/1/66

Harvard Energy Partners
LF.

Hennig Production
Company

&

F ee naa ceo Lara SSS aE abe 8 *
’

App. 19

Hugh J. Idstein
Jubilee Exploration Inc.

Jubilee Petroleum Co., Inc.

KCS Resources, Inc.
KERRCO, Inc.
Beverly Kirill
Peter Kirill
KWB, Inc.
Lake Ronel Oil Company
C.D. Langhorne, Jr., Inc.
K.D. Manby
NationsBank of Texas,
N.A., Trustee
Under Agreement for
Eula May Johnson
NationsBank of Texas,
N.A., Trustee
Under Will of Henry R.
Clay
NationsBank of Texas,
N.A., Trustee
Under Agreement for
Iris E. Tollett
f/b/o Jason Blake
Tollett, Jr.
NationsBank of Texas,
N.A., Trustee
Under Agreement for
Judy Roberts McCollum
NationsBank of Texas,
N.A., Trustee
Under Agreement for
Vivienne H. Wilson
NationsBank of Texas,
N.A., Trustee
Under Agreement for
Cathy J. Williams

NationsBank of Texas,
N.A., Trustee
Under Agreement for
James D. Jackson

NationsBank of Texas,
N.A., Trustee
Under Agreement for
Iris E. Tollett
f/b/o Raymond L.
Tollett, Jr.

Ogletree Oil Production
Co.

Oryx Development Limited
Partnership by its
general partner Sun
Operating Limited
Partnership by its
managing limited partner
Oryx Energy Company

Robert Palmquist

Parsons Energy Company,
Inc.

POKO/P Limited
Partnership

RWI Partnership

Salzau III

Samson Resources
Company

Joseph Sassin

Charles D. Schott

Deborah J. Shammo c/o
NationsBank Trust Oil
& Gas

App. 20

Union Exploration
Partners (Delaware),
Limited Partnership by
its general partner
Union Oil Company of California

W.T. Carter & Bro.

Daniel Walker

Wiggins Brothers, Inc.

Peter N. Wiggins III

Peter N. Wiggins III,
Trustee

Willow Creek Resources,
Inc.

Woolly Bugger Partners,
Ltd.

J. Lee Youngblood Trust

App. 21

APPENDIX E
NO. 16,791

C.C. KILGORE, ET AL § _IN the DISTRICT COURT

won § OF POLK COUNTY,

Plaintiffs § TEXAS
VS. §
258TH JUDICIAL

BLACK STONE OIL § _ pjsTRICT
CO., ET AL -
Defendants .

PLAINTIFF’S PRELIMINARY AND PARTIAL
RESPONSE TO DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT

PRELIMINARY STATEMENT

Plaintiffs submit to the Court a preliminary, and par-
tial, response to Defendants’ stare decisis motion for sum-
mary judgment. The response is not complete because the
evidence on fact questions has not been fully developed.
The response is preliminary because it is being filed in
advance of the due date for the filing of responses to
summary judgment motions and does not contain all of
the matters (e.g., fact questions) that Plaintiffs say will
defeat Defendants’ motion. It is submitted in support of
Plaintiffs’ position that stare decisis cannot apply here,
both as a response to Defendants’ motion for summary
judgment and to demonstrate to the court that Plaintiffs
should not be limited in the scope of permitted discovery
merely to the stare decisis issue.

App. 22

STATEMENT OF THE CASE

Plaintiffs are the owners of undivided interests in the
mineral estate of the Bartolo Escobeda League, A-30, Polk
County, Texas, which were severed and reserved in three
deeds in 1902, 1903

8. Stare Decisis Deprives Plaintiffs Of Their
Property Without due Process Of Law
And Due Course Of Law

Because Plaintiffs’ predecessors (1) were not parties
in Carter v. Collins; (2) were not privies of parties in that
case; and (3) were not represented and did not control the
presentation of claims in that case, if Plaintiffs are barred
by stare decisis from presenting their claims here, they will
be denied a full and fair opportunity to litigate the issue.
Having that opportunity is an elementary requirement of
procedural due process of law. See Parklane Hosiery Co. v.
Shore, 439 U.S 322, 332 (1979).

The effect of enforcing the jury finding in Carter v.
Collins against Plaintiffs here is to preclude the relitiga-
tion of the fact issue. That is the function of collateral
estoppel. Since elementary principles of due process pre-
vent the preclusive effect of collateral estoppel when the
above-listed elements are absent, a procedural device
which has the same effect as collateral estoppel is equally
infirm when it, too, lacks the essential due process safe-
guards listed above. Hardy v. Johns-Manville Sales Corp.,
681 F.2d 334, 338 (5th Cir. 1982) (due process denied when
person against whom conclusive effect of judgment is
invoked was not a party or_privy to the prior judgment).

fi MOISE AER LAITY APR HH SAY OMY AE BURR DY hg ga O44

ILA HY LOOM OPE IL EALERTS sa ma MAM Er ee

App. 23

This precise issue, that application of stare decisis in a
boundary case would deprive a litigant of due process if
law, has not been addressed by Texas courts nor, so far as
Plaintiffs have been able to determine, by any court in the
United States. Nevertheless, the basic concepts and prin-
ciples, stated above, are clear. Thus, to the extent a prior
decision turns on a question of fact, as opposed to a
question of law, elementary principles of due process
deny preclusive effect against strangers to the prior case.
That is the situation here. To preclude Plaintiffs from
their day in court based on fa fact-finding in Carter v.
Collins is to deny Plaintiffs a full and fair opportunity to
litigate the issue, and thus violates Plaintiffs’ right to due
process of law. That conclusion is true under both
Amendment Fourteen to the United States Constitution
and Article I, § 19 of the Texas Constitution.

It is unquestioned that due process must be afforded
to litigants where property rights are in issue. Steddum v.
Kirby Lumber Co., 221 S.W. 920 (Tex. 1920). The protection
of a person’s right to own property is one of the most
important purposes of government. Eggemeyer v. Egg-
emeyer, 554 S.W.2d 137 (Tex. 1977). Plaintiffs are the
owners of interests in an undivided 3,967 acres of the
mineral estate in the Escobeda League. That estate was
not involved in Carter v. Collins. The application of stare
decisis to bar Plaintiffs’ claims will therefore deprive them
of their property without the opportunity to present evi-
dence of their claims. That deprivation is a denial of due
process of law and due course of law. See Derbigney v.
Bank One, 809 S.W.2d 292, 295 (Tex. App. - Houston [14th
Dist] 1991, no writ) (the right to be heard includes a full
hearing, the right to produce evidence at a meaningful

App. 24

time and in a meaningful manner, and to have judicial
findings based on that evidence).

* * *

App. 25

APPENDIX F
NO. 09-98-143CV

IN THE COURT OF APPEALS FOR THE t
NINTH SUPREME JUDICIAL DISTRICT OF
TEXAS AT BEAUMONT

C.C. KILGORE, et al.,
Appellants
v.

BLACK STONE OIL COMPANY, et al.,

Appellees

APPELLANTS’ BRIEF

OF COUNSEL: Joe G. Roady

Roger S. McCabe Texas Bar No. 16973000
Mehaffy & Weber, P.C. Mary-Ann A. Bellatti
Post Office Box 16 Texas Bar No. 02105550
Beaumont, Texas 77704 SHEINFELD, MALEY &
Bill Jones IRs Eto

306 North Washington 1001 Fannin, Suite 3700

Houston, Texas 77002
(713) 754-6257
(713) 658-9756 (Fax)

Street
Post Office Box 1108
Livingston, Texas 77351-1108

Terrell L. Pace
415 North Washington
Livingston, Texas 77351

App. 26

ORAL ARGUMENT REQUESTED

(Filed Jun 3, 1998)

* * *

H. Stare Decisis Based On A Fact Question
Deprives Appellants Of Their Property Without
Due Process Of Law And Due Course Of Law

Because Appellants’ predecessors (1) were not parties _
in Carter v. Collins; (2) were not privies of parties in that
case; and (3) were not represented and did not control the
presentation of claims in that case, if Appellants are
barred by stare decisis from presenting their claims here,
they will be denied a full and fair opportunity to litigate
the issue. Having that opportunity is an elementary
requirement of procedural due process of law. See Park-
lane Hosier Co. v. Shore, 439 U.S. 322, 332 (1979). See also
Hansberry v. Lee, 311 U.S. 32, 40-41 (1940).

The effect of enforcing the jury finding in Carter v. -
Collins against Appellants is to preclude the relitigation
of the fact issue. That is what collateral estoppel does. Since
elementary principles of due process prevent the preclu-
sive effect of collateral estoppel when the above-listed
elements are absent, a procedural device which has the
same effect as collateral estoppel is equally infirm when it,
too, lacks the essential due process safeguards listed
above. Hardy v. Johns-Manville Sales Corp., 681 F.2d 334,
338 (5th Cir. 1982) (due process denied when person
against whom conclusive effect of judgment is invoked

App. 27

was not a party or privy to the prior judgment); Benson &
Ford, Inc. v. Wanda Petroleum Co., 833 F.2d 1172, 1176 (5th
Cir. 1987) (party not joined in prior case has due process
right to be heard).

The basic concepts and principles, stated above, are
clear: to the extent a prior decision turns on a question of
fact, as opposed to a question of law, elementary princi-
ples of due process deny preclusive effect against
strangers to the prior case. That is the situation here. To
preclude Appellants from their day in court based on a
fact-finding in Carter v. Collins is to deny Appellants a full
and fair opportunity to litigate the issue, and thus vio-
lates Appellants’ right to due process of law. That conclu-
sion is true under both the Fourteenth Amendment to the
United States Constitution and article I, § 19 of the Texas
Constitution. [Appendix, tabs 4 and 6]. See Derbigney v.
Bank One, 809 S.W.2d 292, 295 (Tex. App. — Houston [14th
Dist] 1991, no writ) (the right to be heard includes a full
hearing, the right to produce evidence at a meaninful
time and in a meaningful manner, and to have judicial
findings based on that evidence).31

* * *

31 The constitutional issues raised by this and the previous
point are confirmed by Professor Hodges in his stare decisis
article. See Hodges, 21 Tex. L. Rev. at 275. [Appendix, tab 20].

App. 28

APPENDIX G

NO. 00-0582

IN THE SUPREME COURT OF TEXAS

C.C. KILGORE, ET AL
Petitioners
v.
BLACKSTONE OIL CO., ET AL

Respondents

On Petition For Review From The Ninth District
Court of Appeals at Beaumont, Texas

PETITION FOR REVIEW
(Filed Jun 12, 2000)

Respectfully submitted,

OF COUNSEL: SHEINFELD, MALEY & KAY
Donald M. Hunt Joe G. Roady
Carr, Hunt & Joy L.L.P. Texas Bar No. 16973000
1001 Texas Avenue Mary-Ann A. Bellatti
Lubbock, Texas 79401 Texas Bar No. 02105550
1001 Fannin, Suite 3700
Houston, Texas 77002
(713) 658-8881
(713) 658-9756 (fax)
ATTORNEYS FOR PETITIONERS
C.C. KILGORE, ET AL

App. 29

» * *

2. Barring The Relitigation Of A Fact Issue Without
Procedural Safeguards Violates Due Process.

Using “unorthodox” star decisis to give a fact ques-
tion the effect of a principle of law, where no privity
exists, violates due process. The holding by the Beaumont
court operates to bind Petitioners to the factual result in
Carter v. Collins when, because no privity exists, collateral
estoppel would not bind them to that result. Petitioners
have been deprived of the essential safeguards of due
process.

The procedural safeguards for the application of col-
lateral estoppel are that the parties to the cases in issue
are identical, or that the current parties are in privity
with parties in the earlier case, or that the current parties
were represented in the first case and controlled the
presentation of claims in that case. Benson v.-Wanda Pet.
Co., 468 S.W.2d 361, 363-64 (Tex. 1971); Tartar v. Metro-
politan Sav. & Loan Ass‘n., 744 S.W.2d 926, 927 (Tex. 1988).
Applying collateral estoppel in the absence of such pro-
cedural safeguards denies to a current party a full and
fair opportunity to litigate the fact issue. Denying Peti-
tioners that elementary opportunity deprives them of
procedural due process of law. Parklane Hosiery v. Shore,
439 U.S. 322, 332 (1979); Hansberry v. Lee, 311 U.S. 32,
40-41 (1940). U.S. Const. Amendm. XIV; Tex. Const. art. I,
Sec. 19.

A procedural device which has the same effect as
collateral estoppel, but lacks the essential safeguards,
such as the way stare decisis was applied here, denies due

App. 30

process. Hardy v. Johns-Manville Sales Corp., 681 F.2d 334,
338 (5th Cir. 1982); Benson & Ford Inc. v. Wanda Pet. Co.,
883 F.2d 1172, 1176 (5th Cir. 1987). Petitioners have been
denied the right to be heard. Despite that result, the court
of appeals failed to address these fundamental principles.

* * *

Lie ae ih kt ee he ee ne

Re re

3
|
e
\s

App. 31

APPENDIX H

LY
3

NO. 00-0582 -

IN THE SUPREME COURT OF TEXAS

C.C. KILGORE, ET AL
Petitioners
v.
BLACK STONE OIL CO., ET AL

Respondents

On Petition For Review From The Ninth
District Court of Appeals at Beaumont, Texas

PETITIONERS’ BRIEF ON THE MERITS
(Filed Oct. 16, 2000)

SHEINFELD, MALEY & KAY
Joe G. Roady

Texas Bar No. 16973000
Mary-Ann A. Bellatti

Texas Bar No. 02105550

1001 Fannin, Suite 3700

OF COUNSEL: Houston, Texas 77002
Donald M. Hunt (713) 658-8881
Carr, Hunt & (713) 658-9756 (fax)
Joy L.L.P. ATTORNEYS FOR PETITIONERS

1001 Texas Avenue C.C. KILGORE, ET AL
Lubbock, Texas 79401

App. 32

3. STARE DECISIS BASED ON A FACT-FINDING
DEPRIVES PLAINTIFFS OF DUE PROCESS OF LAW
AND DUE COURSE OF LAW.

Despite the importance of the constitutional issues
stressed by Plaintiffs, the Beaumont court did not con-
sider any of the basic rights their “unorthodox” stare
decisis ruling would affect. Plaintiffs’ predecessors (1)
were not parties in Carter v. Collins; (2) were not privies of
parties in that case; and (3) were not represented and did
not control the presentation of claims in that case. The
court’s ruling denies to Plaintiffs a full and fair oppor-
tunity to litigate the location issue. Having that oppor-
tunity is an elementary requirement of procedural due
process of law.

| A. Piaintirrs ARE ENTITLED To THe1R Day IN Court.

Both this Court and the United States Supreme Court
have written on this issue. In Benson v. Wanda Pet. Co., 468
S.W.2d 361 (Tex. 1971), Mrs. Benson, who was injured in a
car accident, was not a party and did not participate in a
trial against the oil company brought by another party
injured in the accident. The trial resulted in a verdict for
the oil company. When Mrs. Benson sued, the oil com-
pany pleaded collateral estoppel. This Court rejected the
oil company’s plea on due process grounds, as follows:

Due process requires that the rule of collateral
estoppel operate only against persons who have
had their day in court either as a party to the
prior suit or as a privy, and, where not so, that,

Sie. Biss CHA Se de ESS ee

2 Sah ER NR Se CY ARLE Ae

&.
s
t
Fi
a
e.
‘

See ed

ANA LEE.

ST TT RTC RCT ee cuklenne deakdasasccash sin chcnanihit lbh ih ces Namabe a eat I Rana eR I

App. 33

at the least, the presently asserted interest was
actually and adequately represented in the prior
trial.

468 S.W.2d at 363.

Not having been a party in the first trial, and not in
privity with the first plaintiff, Mrs. Benson was entitled to
her day in court, to prosecute her claim in her own right.

The touchstone of procedural due process is the exis-
tence of a full and fair opportunity to litigate the issue.
Not coincidentally, that is also the touchstone for the
application of collateral estoppel, addressed by this Court
numerous times since Benson. See Bonniwell v. Beech Air-
craft Corp., 663 S.W.2d 816, 818 (Tex. 1984); Tarter v. Metro-
politan Sav. & Loan Ass‘n., 744 S.W.2d 926, 927 (Tex. 1988);
Eagle Properties Ltd. v. Scharbauer, 807 S.W.2d 714, 721
(Tex. 1990); Sysco Food Services Inc. v. Trapwell, 890 S.W.2d
796, 801 (Tex. 1994). It is not possible to argue that Plain-

tiffs have had the opportunity to litigate the location

issue. They have not had their day in court.

The United States Supreme Court confirms this ele-
mental requirement of due process. In Hansberry v. Lee,
311 U.S. 32, 40-41 (1940), a case involving a restrictive
covenant which had been upheld in previous litigation in
which the current claimants were not parties, the Court
specifically held that the fact that some of the parties in
the earlier case occupied the same position as the current
claimants did not insulate the result from a due process
attack: a person who is not bound by a prior judgment
because he was not a party or was not served with
process is not bound by that judgment [citing Pennoyer v.
Neff, 95 U.S. 714 (1877)]; “and judicial action enforcing it

pre RMAs Pt

App. 34

against the person or property of the absent party is not
that due process which the Fifth and Fourteenth Amend-
ments require.” 311 U.S. at 40-41.

Further, in Blonder-Tongue Lab. Inc. v. University of
Illinois Foundation, 402 U.S. 313, 329 (1970) a case involv-
ing the question of the mutuality of estoppel by judg-
ment, the Court noted one class of persons against whom
such an estoppel could not apply:

Some litigants - those who never appeared in a
prior action — may not be collaterally estopped
without litigating the issue. They have never
had a chance to present their evidence and argu-
ments on the claim. Due process prohibits estop-
ping them despite one or more existing
adjudications of the identical issue which stand
squarely against their position.

402 U.S. at 329.

Thus, even if Carter v. Collins had involved some but
not all Escobeda mineral owners, a fact-finding still could
not bind absent owners. Kirby Lumber Corp._v. Southern
Lumber Co., 196 S.W.2d 387, 389 (Tex. 1946) (co-tenants are
not in privity; a judgment binding one co-tenant will not
bind others who were not parties).

Further, in Parklane Hosiery Co. Inc. v. Shore, 439 U.S.
323, 332 (1979), a case which authorized the use of offen-
sive collateral estoppel, with limitations, the Court con-
firmed that the basis for the application of the doctrine
was that the party seeking to use it had had a full and fair
opportunity to litigate his claims in the earlier action.
Although our case involves the defensive use of collateral
estoppel (by its illegitimate equivalent, stare decisis based

;
3
be
e
=
2
‘
>
\

App. 35

on a fact-finding), the principle is the same: if a party has
not had a full and fair opportunity to litigate the issue, he
has been denied due process of law.

B. THe RESTATEMENT Supports PETITIONERS’
Due Process Position.

The concept of non-parties not being bound by a
prior judgment, and not being affected by issue preclu-
sion, as a matter of due process, is well-recognized by the
Restatement (Second) of Judgments. Section 34(3) recog-
nizes that “a person who is not a party to an action is not
bound by or entitled to the benefits of the rules of res
judicata, ... 47 Further, the Restatement recognizes that
the rule of “full and fair opportunity to litigate the issue”
is the essence of due process. See § 29, comment b: “A
party who has had a full and fair opportunity to litigate
an issue has been accorded the elements of due process.”

The Restatement general rule of issue preclusion is
set forth in § 27:

When an issue of fact or law is actually litigated
and determined by a valid and final judgment,
and the determination is essential to the judg-
ment, the determination is conclusive in a sub-
sequent action between the parties, whether on
the same or a different claim.

47 Res judicata includes collateral estoppel for the purposes
of the Restatement. See Introduction, Par. a, page 2. Section 34(3)
states that §§ 30-32 may be exceptions to the rule set forth in that
section. Those sections deal with situations which are not
present here, so do not apply.

App. 36

That rule does not encompass non-parties. Further, § 28
states several exceptions to the general rule, evincing
circumstances in which parties could avoid the preclusion
rule. If some circumstances allow parties to avoid the rule,
the same circumstances applied to non-parties would
show even stronger reasons not to apply issue preclusion
against non-parties. Thus, § 28(1) prevents issue preclu-
sion when the party “could not, as a matter of law, have
obtained review of the judgment in the initial action.”
Not being parties in Carter v. Collins, Plaintiffs’ prede-
cessors, as a matter of law, could not have obtained
review of the judgment. Further, § 28(5)(c) recognizes that
a party ought not to be precluded from litigating an issue
if because of some “special circumstance,” he did not
have “an adequate opportunity or incentive to obtain a
full and fair adjudication in the initial action.” Plaintiffs’
predecessors were precluded from participating in Carter
v. Collins and thus had no opportunity to obtain a full and
fair adjudication of the location issue.

C. Proressor Hopces Suprorts PETITIONERS’
Due Process Position.

Finally, the due process effect of applying “unor-
thodox” stare decisis in a boundary case was noted by
Professor Hodges in his 1943 article.4® After strongly
noting the obvious contention that the right to trial by
jury would be denied by that application,49 Professor
Hodges said, “[o]r it might be contended that he would

48 21 Tex. L. Rev. 241 (1943).

49 See that issue, page 37 herein.

sy buh haji Made ta AAW sea Valk car AON as AE atti

$
Pg
=
x
#

App. 37

be deprived of his property without procedural due pro-
cess of law under the Federal Constitution and without
the due course of law required by the Texas Constitu-
tion.”°° Professor Hodges then referred to the due process
holding of Hansberry v. Lee.*1 His prescience recognized
the constitutional problems as such in the very context
established by this case.

The effect of enforcing the jury finding in Carter v.
Collins against Plaintiffs is to preclude the litigation of a
fact issue. The Beaumont court is therefore using “unor-
thodox” stare decisis to accomplish what collateral estop-
pel does, but could not do here because privity is not
present. Since elementary principles of due process pre-
vent the preclusive effect of collateral estoppel when the
safeguards are absent, a device which is the equivalent of
collateral estoppel is equally infirm when it, too, lacks the
safeguards.°2

The basic concepts and principles, stated above,
could not be clearer: to the extent a prior decision turns
on a question of fact, as opposed to a question of law,
elementary principles of due process deny preclusive
effect against strangers to the prior case. That is the
situation here. To preclude Plaintiffs from their day in

50 21 Tex. L. Rev. at 275.
51 311 U.S. at 40-41.

52 See also Hardy v. Johns-Manville Sales Corp., 681 F.2d 334,
338 (Sth Cir. 1982) (due process denied when person against
whom conclusive effect of judgment is invoked was not a party
or privy to the prior judgment); Benson and Ford, Inc. v. Wanda
Petroleum Co., 833 F.2d 1172, 1176 (5th Cir. 1987) (party not
joined in prior case has due process right to be heard).

App. 38

court based on a fact-finding in Carter v. Collins is to deny
Plaintiffs a full and fair opportunity to litigate the issue,
and thus violates Plaintiffs’ right to due process of law
under both the Fourteenth Amendment to the United
States Constitution and Article 1, § 19 of the Texas Consti-
tution. (Petition Appendix, tabs 5 and 7). The right to be
heard includes a full hearing, the right to produce evi-
dence at a meaningful time and in a meaningful manner,
and to have judicial findings based on that evidence. See
Derbigny v. Bank One, 809 S.W.2d 292, 295 (Tex. App.-
Houston [14th Dist] 1991, no writ). Plaintiffs have not had
that opportunity.

cert LW Aaa kial debated aubuiiet beac ee ree OT

:
5.
:
‘
£
%

App. 39

APPENDIX I

eel
a

NO. 00-0582

IN THE SUPREME COURT OF TEXAS

C.C. KILGORE, ET AL
Petitioners
v.
BLACK STONE OIL CO., ET AL

Respondents

On Petition For Review From The Ninth
District Court of Appeals at Beaumont, Texas

PETITIONERS’ MOTION FOR REHEARING
; (Filed Jan. 26, 2001)

; SHEINFELD, MALEY & KAY
: Joe G. Roady

‘ Texas Bar No. 16973000
Mary-Ann A. Bellatti

Texas Bar No. 02105550

t 1001 Fannin, Suite 3700

OF COUNSEL: Houston, Texas 77002
Donald M. Hunt (713) 658-8881
‘ Carr, Hunt & (713) 658-9756 (fax)
; Joy L.L-P. ATTORNEYS FOR PETITIONERS

Lubbock, Texas 79401

; 1001 Texas Avenue C.C. KILGORE, ET AL
:
:

2. Plaintiffs Are Being Deprived Of

Basic Constitutional Rights.

“The protection of one’s right to own property is said
to be one of the most important purposes of govern-
ment.” That’s what this Court said about property owner-
ship and due process of law in Eggemeyer v. Eggemeyer,
554 S.W.2d 137, 140 (Tex. 1977). The Court went on to say,
“That right has been described as fundamental, natural,
inherent, inalienable, not derived from the legislature and
as preexisting even constitutions.” Id. Notwithstanding
the clear denial of due process in this case, resulting in
both a deprivation of Plaintiffs’ property and a denial of
an opportunity to be heard, the “important purpose[ ] of
government,” recognized and adopted by this Court in
Eggemeyer, has not served its purpose here.

Further, in Benson v. Wanda Pet. Co., 468 S.W.2d 361
(Tex. 1971) this Court found unconstitutional an effort by
the oil company to deny Mrs. Benson an opportunity to
prove her damages resulting from a car wreck, after the
oil company had won a verdict in a previous case brought
by another person injured in the same wreck. Specifically,
this Court upheld Mrs. Benson’s right to be heard on due
process grounds:

The suit at bar is a separate and distinct
action for redress for personal injuries. Mrs.
Benson was not a party to the former action
instituted by the Porters following her non-suit
and they did not represent her in her claims
against Wanda, respondent here. It was not

App. 41

shown that Mrs. Benson participated in, or exer-
cised any control over, the trial in the Porter
suit, or that she had any right to do so. She was
not shown to have any beneficial interest in the
recovery of damages for personal injuries on
behalf of the Porters. In our view, the require-
ments of due process compel the conclusion that
a privity relationship which will support appli-
cation of the rules of res judicata does not exist
under those circumstances. Accordingly, we
hold that the fact findings and judgment in the
Porter suit do not bar Mrs. Benson, and that she
is entitled to her day in court in prosecuting this
action in her own right.

Plaintiffs’ position here is stronger than Mrs. Ben-
son’s. Plaintiffs were not in the same car wreck, figu-
ratively speaking. Mrs. Benson was once a party in the

first case. Plaintiffs and their predecessors have not been
a party in any case, and there is no evidence that anyone
in the mineral chain of title ever knew of Carter v. Collins
before this case.

Benson involved pleas of res judicata and collateral
estoppel. Consistent with collateral estoppel, Carter v.
Collins involved only a factual determination. By limiting
their stare decisis argument solely to a fact-finding, Defen-
dants conceded that Carter v. Collins involved only a fact-
finding and that it did not involve a question of law.
Without question, the court in Carter v. Collins specifically
held only that it was approving a factual determination.®

6 “The ultimate effect of these assignments is to raise the
question that the verdict of the jury on the issues of boundary is
not supported by the evidence and that the charge of the

App. 42

There can thus be no doubt that the effect of the Beau-
mont court’s reliance on Carter v. Collins is to apply a fact-
finding as a bar to the Plaintiffs’ opportunity to be heard.
Since there was no privity and no representation (which
are in any event matters to be proved by Defendants),
under the holding of this Court in Benson, Plaintiffs are
being denied due process of law.”

If anyone is denied the opportunity to present their
evidence at a meaningful time and in a meaningful man-
ner and to have judicial findings based on that evidence,
that person has been denied one of the basic rights of
freedom and citizenship. Armstrong v. Manzo, 380 U.S.
545, 552 (1965). Due process of law is so elemental in our
legal system that no detailed exposition of the basis for
and application of so basic a principle is necessary. Id. at
550. Neither stare decisis nor res judicata nor collateral
estoppel can be a bar to the opportunity to be heard when
due process is absent. See Hardy v. Johns-Manville Sales

court... is not sustained by the facts of the case...” 192 S.W. at
317. “These were all issues for the jury to determine from the
evidence submitted to them, and, having determined them
adversely to appellants, and their findings being amply
supported by the evidence, it is not the province of this court to
disturb them.” 192 S.W. at 321.

7 The application of a fact-finding by the Beaumont Court
as a bar to Plaintiffs’ opportunity to be heard, and the approval
of that bar by this Court, constitute “state action” within the
Fourteenth Amendment to the United States Constitution.
Shelley v. Kraemer, 334 U.S. 1, 14 (1947). Both the Beaumont
Court and this Court are therefore denying to Plaintiffs the due
process of law to which the Fourteenth Amendment entitles
them.

App. 43

Corp., 681 F.2d 334, 338 (5th Cir. 1982); Benson & Ford Inc.
v. Wanda Pet. Co., 883 F.2d 1172, 1176 (5th Cir. 1987).

Is there a question about whether Plaintiffs have a
property right entitled to protection? Defendants admitted
that Plaintiffs own the Escobeda mineral title.® It is a fee
simple title. There is no question about whether such
property rights are protected by due process. The United
States Supreme Court said this about that protection:

Whether acting through its judiciary or
through its legislature, a State may not deprive a
person of all existing remedies for the enforce-
ment of a right, which the State has no power to
destroy, unless there is, or was, afforded to him
some real opportunity to protect it.

Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673,
681-82 (1930).

This Court, in Spann v. City of Dallas, 235 S.W. 513,
515 (Tex. 1921) eloquently expressed the importance of
protecting property rights:

To secure their property was one of the
great ends for which men entered into society.
The right to acquire and own property, and to
deal with it and use it as the owner chooses, so
long as the use harms nobody, is a natural right.
It does not owe its origin to constitutions. It
existed before them. It is a part of the citizen’s
natural liberty - an expression of his freedom,

8 Defendants admitted this fact in papers in this case as
well as by taking leases from Plaintiffs in 1984 which described
the Escobeda League as being in conflict with the junior
Colville, Thompson and Wyllie Surveys.

App. 44

guaranteed as inviolate by every American Bill
of Rights.

* * *

The ancient and established maxims of
Anglo-Saxon law which protect these funda-
mental rights in the use, enjoyment and disposal
of private property, are but the outgrowth of the
long and arduous experience of mankind. They
embody a painful, tragic history — the record of
the struggle against tyranny, the overseership of
prefects and the overlordship of kings and
nobles, when nothing so well bespoke the serf-
dom of the subject as his incapability to own
property. They proclaim the freedom of men
from those odious despotisms, their liberty to
earn and possess their own, to, deal with it, to
use it and dispose of it, not at the behest of a
master, but in the manner that befits free men.

And in Steddum v. Kirby Lumber Co., 221 S.W. 920, 921
(Tex. 1920), the Court said this:

In order to constitute due process, it is nec-
essary that notice shall be given and an oppor-
tunity to be heard before the punishment of
forfeiture of property rights can be inflicted. We
also think that the proceeding to be sufficient
must have been brought for the purpose of
ascertaining the guilt of the wife and obtaining a
judgment declaring such forfeiture, and that she
must have had notice both of the proceeding
and its purpose. The effect of the due process of
law provision in the constitution of the several
states, and of the United States, has been dis-
cussed more frequently perhaps than that of any
other constitutional guaranty.

App. 45

The Steddum court then quoted the following from In
re Rosser, 101 Fed. 562, 567 (8th Cir. 1900):

The basic principle of English jurisprudence
is that no man shall be deprived of life, liberty,
or property without due process of law, without
a course of legal proceedings according to those
rules and forms which have been established for
the protection of private rights. Such a course
must be appropriate to the case and just to the
party affected. It must give him notice of the
charge or claim against him, and an opportunity
to be heard respecting the justice of the order or
judgment sought. The notice must be such that
he may be advised from it of the nature of the
claim against him, and of the relief sought from
the court if the claim is sustained. And the
opportunity to be heard must be such that he
may, if he chooses, cross-examine the witnesses
produced to sustain the claim, and produce wit-
nesses to refute it, if a question of fact is in
issue, and, if a question of law is presented, the
opportunity to be heard must be such that his
counsel may, if they desire, argue the justice and
propriety of the judgment or order proposed.
Judicial orders or judgments affecting the lives
or property of citizens in the absence of such a
notice and opportunity to the party affected are
violative of the fundamental principle of our
laws, and cannot be sustained.

It is unquestioned that the location of the Escobeda
mineral estate was not placed in issue in Carter v. Collins.
That could only have been accomplished by joining Plain-
tiffs’ predecessors as parties. Notwithstanding the
absence of the mineral owners, and notwithstanding the
absence of “a course of legal proceedings according to

App. 46

those rules and forms which have been established for
the protection of private rights,” Id., Carter v. Collins has
caused the loss of the mineral title. Spann and Steddum do
not permit a property right to be lost or destroyed in such
a manner.

There can be no doubt about the deprivations suf-
fered by Plaintiffs or about the responsibility of govern-
ment, including its courts, to protect those precious
rights. The current Beaumont court has held that Carter v.
Collins took away Plaintiffs’ property rights without
notice, without the opportunity to be heard and without
privity or representation. The absence of privity and the
absence of representation in Carter v. Collins condemn the
denials by the lower courts of Plaintiffs’ opportunity to
be heard as a clear violation of due process. The denial
and destruction of Plaintiffs’ property rights without an
opportunity to protect them condemns that destruction as
a clear violation of due process of law.

Because the constitutional rights at issue here are so
basic and have so clearly been denied in this case, and
because the protection of such rights is one of the most
important purposes of the exercise of the judicial power,
Plaintiffs are frankly at a loss to understand why the
Court has chosen not to address Plaintiffs’ rights here.
There is no more important consideration in the adminis-
tration of justice than the assurance to the citizens of this
State by their Supreme Court that their constitutional
rights are secure. If not from the Supreme Court, then
from whom may Texans obtain that assurance and secu-
rity?

App. 47

CONCLUSION AND PRAYER

Speaking not only on behalf of Plaintiffs but also as a
practitioner in land and boundary cases and oil and gas
cases for nearly forty years, including cases before this
Court, counsel for Plaintiffs expresses assiduously to the
Court that the pending Beaumont opinion cannot possi-
bly be squared with Texas law dealing with severed min-
eral titles. The harm is immediate, extreme and
incalculable. For that reason alone the decision must be
reversed and removed from the body of law of this State.
Further, the failure of the Court to protect valuable prop-
erty rights from wrongful destruction and to protect pre-
cious due process rights from wrongful denial sends an
alarming message to the citizens of Texas. It cannot be
that the court of last resort in this State is unwilling to
assure the security of the most basic rights of its citizens.
What good is having a constitutional right if it is not
protected?

App. 48

APPENDIX J
W. T. CARTER & BRO. et al. v. COLLINS et al. (No. 68.)

(Court of Civil Appeals of Texas. Beaumont. Oct. 26, 1916.
Rehearing Denied Nov. 23, 1916.)

Appeal from District Court, Polk County; L. B. High-
tower, Sr., Judge.

Trespass to try title by V. A. Collins, Robert Dunham,
and Mrs. Mary Colville against W. T. Carter, E. A. Carter,
and Jack Thomas, a copartnership doing business under
the name of W. T. Carter & Bro. and Thompson-Tucker
Lumber Company. Judgment for plaintiffs, and defen-
dants appeal. Affirmed.

S. H. German, of Livingston, and Townes & Vinson
and Baker, Botts, Parker & Garwood, all of Houston, for
Appellants.

W. D. Gordon, V. A. Collins, and Thos. J. Baten, all of
Beaumont, and J. L. Maury, of Livingston, for appeliees.

CONLEY, C. J. This was an action of trespass to try
title brought by appellees, V. A. Collins, Robert Dunham,
and Mrs. Mary Colville, against W. T. Carter & Bro., a
partnership composed of W. T. Carter and E. A. Carter
and Jack Thomas, and also against the Thompson-Tucker
Lumber Company, a private corporation, to recover all of
the Thomas Colville league of land in Polk county, save
and except a strip 1,000 varas wide by 5,000 varas long
off of the southwest portion of the league, known as the
“1000-vara strip.” The title to a tract of 320 acres known
-as the “Handley tract” in the east corner of the Colville
league, claimed by appellants in their answer, was con-
ceded to be in appellants, and judgment was accordingly

App. 49

rendered in their favor, and that tract is therefore not
involved in this appeal. Appellants, in addition to their
pleas of general denial and not guilty, disclaimed any
interest in or title to the Thomas Colville league, save and
except whatever part thereof might be included within
the following boundaries, the same being referred to as
the Bartolo Escobeda league of land, title to the said
Bartolo Escobeda being issued on the 22d day of June,
1835, and which they described as follows:

“Beginning at the most northern corner of the Lowry
T. Hampton league survey, from which a white oak 20
inches in diameter bears south 47 east 8 varas distant and
another white oak 18 inches in diameter bears south 1'/2
west 7 varas distant; thence north 45 east 5,000 varas to a
corner from which a pine 15 inches in diameter bears
south 80 east 4 varas, and a black oak 15 inches in
diameter bears north 2!/2 west 11.1 varas distant; thence
north 45 west 5,000 varas to a corner, from which a cotton
wood 14 inches in diameter bears north 14 east 13.2 varas
distant, and a black oak 20 inches in diameter bears south
80!/2 west 9.1 varas distant; thence south 45 west 5,000
varas to corner; thence south 45 east 5,000 varas to the
beginning, containing one league of 4,428 acres of land.”

As to the land included within the above boundary,
the appellants pleaded title by legal conveyances from
the sovereignty of the soil, and also pleaded 3, 5 and 10
years’ statutes of limitation. The case was tried with a
jury, and was submitted on special issues, upon the
answers to which the court entered judgment in favor of
appellees for all of the Colville, except the Handley 320-
acre tract, and the 1,000-vara strip above referred to. In
due time appellants filed their motion for a new trial,

App. 50

which was overruled, and an appeal was perfected to this
court.

The principal questions to be determined upon this
appeal are as follows: First. Do the Escobeda and Colville
leagues conflict? Second. If they do not conflict, have the
appellants perfected title to the Colville land by virtue of
the statutes of limitation, under deeds and muniments of
title describing the identical land? Third. If the Escobeda
and Colville leagues do not conflict, and appellants are
not entitled to recover under their pleas of limitation, are
not appellants entitled to recover the Tom Kinard 140-
acre tract by virtue of the statute of limitation?

It is conceded that the appellants have title to the
Escobeda league, and the appeliees have the record title
to the Colville league, except the Handley 320 acres and
the 1,000-vara strip, and that the Escobeda is an older
grant than the Colville.

In the solution of the issues involved, the first ques-
tion presented for consideration is, Do the Escobeda and
the Colville leagues conflict? The jury found that they do
not conflict. But the appellant contends: First, that the
undisputed evidence showed that the two leagues were
located in conflict, except as to the 1,000-vara strip off of
the southwest portion of the Colville league; and second,
that it was therefore error to submit the issue of conflict
to the jury, as was done by the trial court; and, third, that
the findings of the jury that the two leagues were not in
conflict is contrary to the undisputed evidence, or, at
least, contrary to the great preponderance of the evi-
dence, and should therefore be set aside.

App. 51

These contentions are embraced in appellants’ first
five assignments of error. The ultimate effect of these
assignments is to raise the question that the verdict of the
jury on the issues of boundary is not supported by the
evidence, and that the charge of the court submitting
such issues is not sustained by the facts of the case, and
we will discuss the subject from such viewpoint, without
treating seriatim each assignment of error as found in the
brief.

The Bartolo Escobeda league was originally surveyed
by S. C. Hirams, the field notes bearing date March 31,
1835, same being as follows:

“XBD Title June 30, 1835, Vol. 20, p. 583,
Polk Co. XBD V 83.

“Field notes of a league of land surveyed by Bartolo
Escobeda on the east side of Trinity on the branch of the
Neches called the Big Sandy. Beginning at the northwest
corner of league No. 2 surveyed for Lowry T. Hampton
mound and stake, from which a black oak 20 inches in
diameter bears south 47 deg. east 8 varas dist. also a
white oak 18 inches in diameter bears south 11/2 deg. west
7 varas distant, thence north 45 deg. east 2430.3 varas Big
Sandy running south 15 varas wide, 5000 varas, made a
mound and planted a stake, from which a pine 15 inches
in diameter bears south 80 deg. east, 4 varas distant; also
a black oak 15 inches in diameter bears north 2!/2 deg.
west 11.1 varas distant. Timber, Pine, oak, elm, hackberry
and hickory, undergrowth cane, sassafras and myrtle,
some overflow and the land on the west side rich and
fertile, but on the east mostly poor sandy land; thence
north 45 deg. west 580.5 varas, pine 20 inches in diameter,
line tree, 5000 varas, mound and stake, third corner, from
which an elm 14 inches in diameter bears north 14 deg.
east 15.2 varas distant, also a black oak 20 inches in

App. 52

diameter bears south 80'/2 deg. west 9.1 varas distant.
Timber principally pine, undergrowth myrtle, cypress
and paw paw; thence south 45 deg. west 385 varas, pine
18 inches in diameter, line tree 543.5 varas, black oak 18
inches in diameter, line tree, 4250 varas Big Sandy, 5000
varas mound and stake, fourth corner, timber pine, oak,
hickory, and hackberry, undergrowth, myrtle, peach and
cane, land generally rich and fertile. Thence south 45 deg.
east 5003.5 varas, fell 41/2 varas south of the place of
beginning, timber of a good quality, pine, oak, magnolia,
beech and land rich, north 45 deg. west on true line,
5003.5 varas to the fourth corner, containing one league,
about 7 labors of good farming land.

“S. C. Hirams, Surveyor,

“March 31, 1835.”

This surveyor surveyed the Juan Falcon on the same
day. The Thomas Colville was surveyed on June 24, 1835.
The Lowry T. Hampton on March 14, 1835, the A. Wiley
on June 24, 1835, the Henry Cone on the __ day of ___,
1835, the A. Emanuel on June 24, 1835, and the F. Cas-
tanado on June 1, 1835. These are all adjoining surveys
and their location, as well as other matters hereinafter
referred to are shown on the following map:

App. 53

voaniLtsvo’s

. >
& . Y
N
wnovsz"1
NOLAWYH LJ kK
x
bIoN “AU 'NDRI
7 “o° ©
| wD ™ f
‘oe ce RP =NSV37
NOS"INY NYAp

‘N O
of
™s . *
~ ? oh
CTDNNNY WNIGN TNIAdAY 1G,,4 sv
beers | 371109 ont \
Pow 7 .
— inl “3 NNYW’
: \ aaivool sv 09S3'9
\
3TUM PS
Me o snsvay
3N00°H'H
\ 6h
OSANONTNY SNYRD S

F

97997

i
ge ang
al
ra
meet
a

youssq ZaudS ,,o6I HA Sc S .
AOL § Beeq WuLR_ OVE A Sb N - 2002} 30)

ns entea & 30 sOUI02 M S AN)
w aeuod *epusS Sg uo apaloy SeuoyyL

otr A aax ;
“OD Ald STS 4 IZ 1A ct/o¢ “20V 2ALL GaxX»
:SA\0[

-[oJ sv aw FTAIOD 23 JO sojou PpPPg 2U.L

:
;

"xoy,)

a :dvar
ZapAOTIOJ 9G} WO WMOYS OTB OF POLIVJoI J9j}J BUT
19 S19}VVU JaT}O SB []9AA BB ‘UOT}BOO] IJOq}
pus sfeains Zayajofpe Ts ors eseqy, “SesTt
‘tT oung uo opsawsey “f{@ 94} PUB ‘CEST ‘FZ
eung uo jenusug “Vy 24} ‘CesT * zo Lup
aq} 00 eu0D fAIUexH oq} ‘CEST ‘ys GuNL
mo £2TAA “V 9} ‘SEST ‘FT WoUBy_ BO uoj}darEy,
“y, £1m0T ONT, “SEST ‘FZ GuNL UO ped2ains
SUM 9IIJAlOO suMOoNY, eu, “ABP Culvs aq} UO
uoo[8q uBNe 24} peseains IOf49AINS spy,

y « SE8T “TE Psuy,,

‘z0f0a1ng ‘swuip ‘DO ‘S,,

‘pus, Za}wAivzy Pood jo s10qu] 2
qnoge ‘ondeay 9UO ZusuiBJUOS *290I209 YIINO}J VY}
0} SUIBA CENNG ‘PUT PN1} DO jsam “Zap Gp yQ20U
‘qata pus], pus yous ‘Byjousum ‘xBO ‘aard °43}
-|unb poos v jo 109UI13 “JayUuIZeq Jo ad¥u]d 17) JO
q3nos SB1vA be 112} ‘SB8IBA Q’EOOG 3Be “Zap cP

qjnos sousgy, “8/9493 paw qo. Ayjus9ues pu;
‘guco pus youed ‘81401 *qyAoIJepanNn *£2.19qyoBY

UILUOAIU NUALSAMHLNOS Z6T RTF

~ BEST AVAILABLE COPY ™

App. 54

The field notes of the Colville are as follows:
“XBD Title Aug. 30/35 Vol 21 p 815 Polk Co. XBD V 115

“Field notes of a League of Land surveyed for
Thomas Colville on Big Sandy. Beginning at The S W
corner of a league surveyed for Doctor Cone.

“Thence: N 45 E 340" Branch bears S 10E 580” branch
bears S 25 E, 1195" Spring branch bears S 80 E 3280"
Creek 8 varas wide bears S 10 E 5000" 2nd corner from
which a pine 30 in di bears N-30 W 9 varas dist also a
White Oak 8 in di bears N 33 E 13.1 varas dist. Oak, ash,
hickory, sugartree, magnolia and some pine timber.
Undergrowth Cane, dogwood & Myrtle, Land fertile.

“Thence S 45 E 830" Big Sandy, 900" Big Sandy again,
999" Big Sandy again 8 varas wide Bears South 2180"
beautiful spring, 2980" trace leading from the lower vil-
lage on Trinity to the prairie or Alabama Village on the
Naches, 4096" creek 3 varas wide bears S 40 E, 4910
spring branch, 5000" 3rd corner from which a beach 18 in
di bears S 11 E 13.1 varas dist. Also a red oak 10 in di
bears S 62 deg. 30' E 5 varas dist. Oak, ash, beach,
magnolia and pine undergrowth cane dogwood & myrtle,
land rich.

“Thence S 45 W 4250” Big Sandy 10 varas wide bears
S 8 E 5000.5 4th corner, oak, ash, sugartree and pine
timber, Undergrowth cane, dogwood & myrtle, land rich.

“Thence on random line, or along the Eastern bound-
ary line of league 5000" to the place of beginning, contain-
ing one league of about 6 labors of farming land.

“June 24th, 1835 Notes Sent S. C. Hiroms.”

The great preponderance of the evidence in this case
establishes the fact that the Thomas Colville league was
actually located on the ground as shown in the above
plat. Several of the corners were identified by original

App. 55

witness trees still standing, and the lines running out
from these corners fit calls for most of the natural objects
called for in the field notes, although some of the streams
crossing its lines are misnamed. The field notes of the
Andrew Wiley, dated June 24, 1835, and made by the
same surveyor who located the Thomas Colville, call for
the southeast corner of the Thomas Colville, and ties said
survey to its southeast corner. The Colville field notes
have their beginning corner at and called for the Cone
league. The beginning corner of the Colville is as follows:

“Beginning at the southwest corner of a league sur-
veyed for Doctor Cone.”

There is no question about the location of the Cone
league. The A. Emanuel calls to begin at this corner of the
Cone.

The undisputed evidence shows that the L. T. Hamp-
ton league is located just as it is found on the ground, and
as it is placed in the above map, and yet, the surveyor
who did the work, in surveying the Hampton league,
made an error in his very first call; beginning on the east
bank of Big Sandy creek, the field notes call is “Thence
south 45 deg. east 2,500 varas,” when, in fact, it should be
“south 45 deg. west, 2,500 varas.” In this same survey the
third corner is tied to Big Sandy creek “south 45 deg. east
2,430 varas,” when the distance, as found on the ground
from this corner of the league, is 2,660 varas. These
discrepancies are not the only evidence of loose and
inaccurate work on the part of this surveyor. Aside from
the uncertainties affecting the location of the land
involved in this suit, a number of the other adjacent
surveys, made approximately at the same time, contained

App. 56

more or less inaccurate calls. The western corner of the
Hampton is designated as the “northwest corner.” The
southern corner of the Cone as the “southwest” corner,
and the eastern corner as its western corner. As a matter
of fact, his calls for adjoining and contiguous corners are
nearly all misnamed, and called northwest for north,
southeast for south, northeast for east and northwest for
west.

Although the Escobeda and Falcon surveys were
made on the same day, by the same surveyor, Hirams, yet
a literal construction of the field note calls of these two
surveys, and constructing the Escobeda by course and
distance from the beginning corner called for, places said
surveys in conflict, and rests one upon the other. The
General Land Office maps for 1841 and 1856, in evidence,
so place these surveys.

If the Escobeda is located on the Falcon, it would not
touch Big Sandy creek. In the field notes of the Escobeda,
Big Sandy creek is a prominem feature in the various
calls. It is clearly shown by the evidence that Big Sandy
creek has not changed its course since these surveys were
made. The Escobeda cannot be located so as to touch Big
Sandy creek at any point, if it is placed in conflict with
the Falcon. Therefore, it is illogical to assume that it was
the purpose or intention of the surveyor to locate said
league where the Falcon is located. To arrive at the inten-

tion of the original surveyor in the matter of locating the
Escobeda, it is evident that some change has to be made
and substituted in the field notes of that league. To locate

App. 57

the league on the ground, it would be necessary, there-
fore, to look to the field note calls for natural and artifi-
cial objects, and, if possible, to find and identify them on
the ground.

The north corner of the Hampton and the south
corner of the Escobeda are coincident points, and call for
the same witness trees. These trees have been found and
identified on the ground. The evidence shows that both
the appellants and the appellees are practically agreed
that the beginning corner of the Escobeda, as fixed in its
field notes, should be ignored. The northwest corner of
the Hampton, and such beginning corner made to start at
the north corner of the Hampton. The charge of the court
so instructed the jury, and there is no complaint on either
side to the charge, in this respect.

Although the appellants are willing to concede this
change, and substitution in the field note calls of the
Escobeda, they are not willing that any further change or
substitution be made. From that beginning point, it is
their contention that the Escobeda league must be con-
structed by course and distance, literally, in accordance
with the field notes. While, on the other hand, it is the
contention of appellees that if the league is so constructed
it may be in accordance with the field notes calls for
course and distance, it is inconsistent with the field note
calls for the natural objects found and identified on the
ground, and therefore the calls for course and distance
must give way to the calls for such natural objects, and
the league constructed accordingly.

In 1860 Gee, a county surveyor of Polk county, made
a resurvey of the Escobeda, and returned his field notes

App. 58

t

to the General Land Office, for the first time placing the
land in conflict in General Land Office with the Thomas
Colville, by making its beginning point the north corner
of the Hampton, and constructing it solely by course and
distance therefrom. It appears from these field notes and
the certificate attached by him thereto that in making the
resurvey, he found not a single bearing tree or line tree
called for in the original field notes, except the ones
cailed for at the north corner of the Hampton, and the
south corner of the Escobeda. This is rather significant,
since the survey at that time was only 25 years old, and
the witness trees, as called for in the field notes, if they
were on the land, in all probability should have been
standing. He does state, however, that in running north
45 degrees east, he found a marked line, and at a point
5,000 varas he made a corner “on an old marked line that
does not continue beyond the corner.” The importance of
these facts are materially reduced when we remember
that the line he is referring to is a coincident line with the
Colville and the Wiley surveys, both of which were made
in 1835, and that this line is the only one of the Escobeda
which both parties practically agree was actually sur-
veyed when the league was located; the appellants con-
tending that it constitutes the east line of the Escobeda,
and the appellees that it is the west line of the Escobeda.
The surveyor Gee also states that in running the line
north 45 degrees west 5,000 varas from the north corner
of the Escobeda, as located by him, he made “a corner on
an old line.” This point is located on the coincident line of
the C. W. Thompson survey made in 1850, and for this
reason the circumstance is not of great weight.

App. 59

In constructing the Escobeda league from the begin-
ning point at the north corner of the Hampton by course
and distance, not a natural object called for in the field
notes can be made to fit, as they are found and located on
the ground. From the beginning corner, the first course is
“north 45 degrees east 2430.3 varas, Big Sandy creek
running south, 15 varas wide.” On such course Big Sandy
creek is found at 756 varas, and its course is almost east
and west. On this same course what is known as Bear
creek is reached at a point, according to appellees’ evi-
dence, at 2,476 varas, and is 9 varas wide, and crosses this
line in an almost easterly and westerly direction. It is the
contention of appellants that the surveyor Hirams, in the
Colville field notes, called Bear creek “Big Sandy,” and
that, allowing for this error in name, and designating
Bear creek “Big Sandy,” as Hirams evidently thought it
was, this natural object is found within 45.5 varas of the
distance called for in the field notes. In response to this
proposition, however, appellees urge: That the field notes
call for a creek 15 varas wide, and that Bear creek at this
point is only 9 varas wide, and that at the concluding
corner of the first course of the Escobeda, the field notes
describe the land adjacent to the corner on that line as
follows:

“The land on the west side rich and fertile, and on
the east mostly poor sandy land.”

That if the line be extended north 45 degrees east
5,000 varas from the north corner of the Hampton, the
soil is rich and fertile all the way through, and that there
is found no such contrast in the nature of the soil at the
south corner on this course as the field notes call for.

App. 60

Much evidence is found in the record that if this call
be reversed so as to run from the north corner of the
Hampton south 45 degrees east, 5,000 varas, a corner will
be established so as to fit the nature of the soil called for,
and that the field note call for the natural object “Big
Sandy, running south 15 varas wide,” will be complied
with, as the same is actually found on the ground. And,
in this connection, they urge that the fact that Big Sandy
on this course is located on the ground 2,660 varas from
the north corner of the Hampton, instead of 2,430.3 varas,
does not mitigate against the force of their contention,
since the appellants concede that the Hampton league is
properly located on the ground, and that the same error
in calling for the distance of Big Sandy creek from the
north corner of that league is made; such field notes
designating this creek to be located at 2,430.5 varas.

It is to be noted that the third course of the Escobeda
calls to cross Big Sandy again at 4,250 varas south 45
degrees west from the third corner, which corner, accord-
ing to the contention of appellants, as they located
Escobeda, is the north corner. This creek is actually found
on the ground 2,780 varas from said corner, a variance in
the field note calls of 1,170 varas. The appellees assert,
and the evidence shows that if the Escobeda be con-
structed as the appellees contend it should be, and the
third course call be substituted for the fourth course, that
is to say, if the distance south 45 degrees west 4,250 varas
be run from the north corner of the Escobeda, as they
locate it, Big Sandy creek is found on the ground to be an
exact fit to the call for course and distance.

Running north 45 degrees east from the eastern cor-
ner of the Hampton, there is no marked line. The eastern

4
i

—

4
me
ah &
ae
th
hie

App. 61

corner of the Hampton is in a cleared field. At a distance
of 5,000 varas from that corner in that course, the bearing
trees given for the third corner of the Escobeda are not
found. But, it is the contention of appellees that the
surveyor Hirams surveyed only two lines of the
Escobeda, as they locate it, and that he made random
calls for the other lines. That these two lines are as

follows: |

“One of them is the line called for in the Escobeda
field notes to run south 45 degrees west 4,250 varas, Big
Sandy, 5,000 varas, mound and stake * * * timber pine,
oak, elm, hackberry and hickory, undergrowth cane, sas-
safras and myrtle, some overflow and the land on the
west side rich and fertile, but on the east mostly poor
sandy land.”

This is the west line of the Escobeda, as appellees
contend it should be located. In transposing the field note
calls for the third course and substituting it for the fourth
course, the original calls in the Escobeda field notes fit
the ground with exactness on this line. The other line,
which they contend was surveyed, is the one running
south 45 degrees east from the north corner of the Ham-
pton, and crossing Big Sandy 15 varas wide, at exactly the
same distance (less a half vara) that the Hampton crosses
it. The evidence shows that this line of the Hampton is
vouched for by all the witnesses who testified in the case.

It is further earnestly contended by the appellees that
since the league is a rectangle, and two of its converging
base lines have been found and identified on the ground,
they have in fact located the league; the construction of
the other lines being a mere mechanical process in mak-
ing the application of the calls for course and distance in

App. 62

the field notes. It is to be seen that if the Escobeda league
is located as contended for by the appellees, it places it
out of conflict with the other leagues and surveys, all of
which were made by the same surveyor, and within a
very short period of each other, and acquits the surveyor
of doing an irrational thing, that of surveying one league
upon another, when it was his official duty to locate the
survey upon vacant domain, and without any intervening
vacancies.

These were all issues for the jury to determine from
the evidence submitted to them, and, having determined
them adversely to appellants, and their findings being
amply supported by the evidence, it is not the province of
this court to disturb them.

It is the law of this state that where natural objects, as
called for in the field notes, can be actually found and
identified on the ground as showing the footsteps of the
surveyor, both course and distance, when inconsistent
therewith, must give way and be disregarded. Urquhart
v. Burleson, 6 Tex. 502; Browning v. Atkinson, 37 Tex. 660.
The courts of this state have undertaken to grant the
dignity of calls in field notes, and to attach to them
different degrees of importance. The first in importance
are natural objects, such as streams, hills, mounds, nature
of soil, etc. Next in importance are artificial objects, such
as stakes, mounds, marked trees, etc., and the least of all,
course and distance. This classification and grade of calls,
however, is only a rule of evidence. The primary purpose
in all cases of the kind is to locate the survey as it was
intended to be located on the ground by the original
surveyor, and if this can be accomplished with more
certainty under the circumstances of the case by the calls

App. 63

for course and distance, they will control. It has been
determined, however, that only when the natural or arti-
ficial objects called for in the field notes can be found and
identified on the ground with reasonable certainty will
they control calls for course and distance. Browning v.
Atkinson, 37 Tex. 660; Railway Co. v. Anderson, 36 Tex.
Civ. App. 121, 81 S. W. 781; Sloan v. King, 33 Tex. Civ.
App. 537, 77 S. W. 48; Goodrich v. West Lbr. Co., 182 S. W.
341, where a general review of many of the decisions on
that point will be found.

The charge of the court in submitting these issues
contained a correct statement of the law for the guidance
of the jury.

Appellants contend that they are entitled to a rever-
sal of this cause under the principles announced in the
Goodrich Case, supra, but there is a pronounced differ-
ence between the facts of that case and the present one. In
the Goodrich Case, the court said:

“To our minds, nothing has been found of sufficient
gravity to arrest the distance. No tree has been found, or
bearing tree, called for in the original field notes. The
surveyor does not say that any line was marked, but the
contention is made that the old line, found running south
47 degrees east, is the east boundary line of the grant. The
objection to this - and we think that same is conclusive —
is that to accept this old line does not satisfy the quantity
of land; that the length of the line is not satisfied; that no
landmark referred to by the original surveyor can be
found; and that in addition this old line, claimed to be the
eastern boundary line of the grant, is found to extend
only about two-thirds of the way across the four-league
grant, or to about the Beasley corner, and cannot be
found running any further south, although its course, as

App. 64

testified to, runs through virgin timber. * * * Therefore we
are persuaded to believe” that nothing has been found
“to arrest or stop the north or northwest line of this
a, ****

In the present case, the field notes of the Escobeda
contain calls for natural objects, and the evidence in the
record contains facts upon which the jury were justified
in determining that such natural objects were found and
identified on the ground, so as to fix and locate the
Escobeda league contrary to some of the calls for course
and distance. Appellants’ assignments of error 1 to 5 are
therefore overruled.

Under assignments of error 6, 7, and 8, appellants
contend that the court erred in not rendering judgment
for them for the land sued for, under the five and ten
years’ statutes of limitation, the jury having answered
that they, appellants, had held peaceable and adverse
possession of the land in question for a period of more
than 5 years, and more than 10 years before the filing of
this suit, cultivating, using, and enjoying the same under
deeds and memoranda of title, by and through their
respective tenants, John Johnson and George Baptiste.
The appellees in this case are, of course, claiming the land
in controversy under the Colville title. The evidence
shows that on the 15th of October, 1857, William T. Col-
ville, a son and only heir of Thomas Colville, the original
grantee of the Colville league, entered into a legal con-
tract of lease with Thomas P. L. Kinard, as follows:

“Know all men by these presents: That I, Thomas P.
L. Kinard, of the county of Polk, have this day rented of
Wm. T. Colville of the county of Refugio and Orlando
Dorsey the said Wm. T. Colville being the son and heir of

App. 65

the late Thomas Colville, the league of land known as the
Colville league lying on the Big Sandy it being the same
league that I have heretofore rented from the said W. T.
Colville for the last four years and on which I now reside,
and I undertake and promise the said Colville and Dorsey
to keep the said league of land in good order and condi-
tion and to keep trespassers off of the same and to let
such persons occupy the land as will hold under me as
the tenant of said Colville and Dorsey and no others, and
I also undertake to improve the aforesaid league to the
best of mv ability aiid to pay to the said Colville and
Dorsey the sum of one dollars per year so long as this
lease shall last and it is further understood that this lease
shall be renewed yearly in the absence of which renewal
through the oversight or other cause the same shall con-
tinue for longer period.

“In testimony whereof I have this day hereunto
affixed my hand and seal this 15th day of Oct. 1857.
Thomas P. L. Kinard.
his
“Witness: D D X Kinard.
mark

“Oct 15th 1859. The above lease is this day renewed
on the same terms and conditions for two years and it not
then renewed for one year longer.

Thomas P. L. Kinard.
his

“Witness: D D X Kinard.”

mark

App. 66

This instrument was acknowledged by Thomas P. L.
Kinard before the county clerk of Polk county on Decem-
ber 25, 1860, was filed for record December 26, 1860, and
is recorded in Book I, page 105.

The evidence is undisputed that Thomas P. L. Kinard
and his first and second wives, and some of his children
have been in possession of this land ever since the execu-
tion of said lease, and up to the time of the filing of this
suit. As to whether or not they were claiming adversely
to the Colville title or in recognition of it was a sharply
disputed question, and much evidence was introduced on
the subject by both sides. Several of the sons of Thomas P.
L. Kinard testified in the trial of the case to the effect that
their father, and after his death their stepmother, as well
as themselves, always recognized the Colville title to the
land, and were holding under the claim which their
father had. The appellants, on the other hand, introduced
evidence to the contrary, and produced, among other
things, a lease contract dated the __ day of November,
1882, between Mary Kinard and the heirs of G. S.
Thomas, appellants’ predecessor in title, and also pro-
duced a certified copy of the pleadings in a suit of tres-
pass to try title filed in the federal court at Galveston in
1885, by appellees’ predecessors in title, against the said
Mary Kinard, the widow of Thomas P. L. Kinard, and
others, in which they allege that on January 1, 1883, the
plaintiffs in that suit were lawfully seized and possessed
of the Colville league; “that on the day and year aforesaid
the said defendants and each of them entered upon said
tract of land without any right or title, and ejected the
plaintiffs therefrom, and ever since then and until now
unlawfully withhold from plaintiffs * * * the possession

App. 67

thereof.” In this suit Mary Kinard filed an answer,
consisting of demurrers and plea of not guilty. She did
not set up any adverse title by limitation.

On the question of repudiation of the Kinard tenancy,
the court submitted the following question to the jury:

“Issue No. 10. After the death of Thomas P. L. Kinard
in 1870, and up to January 1, 1883, did or did not Mary
Kinard occupy the Colville land under the tenancy con-
tract between Thomas P. L. Kinard and Dorsey and Col-
ville? Let your answer be, ‘She did,’ or, ‘She did not,’
according as you find the facts to be.”

The jury answered, “She did.” This being a question
of fact which has been settled adversely by the verdict of
the jury, there is no basis for appellants’ claim that the
court should have entered judgment for them under the
Kinard tenancy.

Upon this finding of the jury and the other prac-
tically undisputed evidence it follows that when Thomas
P. L. Kinard became the tenant of Colville and Dorsey on
the Colville league, that relationship continued between
the parties and their privies up to the filing of this suit,
there being ample evidence to support the theory that
Mary Kinard and some of the children of Thomas P. L.
Kinard, while always residing upon the land, gave full
recognition to the tenancy of Thomas P. L. Kinard, and
never held or claimed the land adversely to the Colville
title. Hence the Kinard family were the tenants of the
appellees and their predecessors in title from the date of
the establishment of the Thomas P. L. Kinard tenancy up
to the filing of this suit. Mattfeld v. Huntington, 17 Tex.
Civ. App. 716, 43 S. W. 53; Oury v. Saunders, 77 Tex. 278,
13 S. W. 1030; Fowler v. Simpson, 79 Tex. 611, 15 S. W. 682,

App. 68

23 Am. St. Rep. 370; Flanagan v. Parson, 61 Tex. 302; Cobb
v. Robertson, 99 Tex. 138, 86 S. W. 746, 87 S. W. 1148, 122
Am. St. Rep. 609.

On the 17th day of March, 1884, John B. Johnson
executed a lease contract to the heirs of G. S. Thomas,
appellants’ predecessor in title. This contract contained
the following description of the land leased:

“4,428 acres of land, being the B. Escobeda league
situated in Polk county, state of Texas, and for description
reference is here made to the title to said league in the
said B. Escobeda.”

John B. Johnson testified that he lived on the land
from the fall of 1877 up until the fall of 1887, and that he
was on the land about 3 or 3!/2 years after he signed this
lease. The contract also contained a provision that his
tenancy commenced on October 25, 1882.

The court submitted to the jury the question of
whether or not Johnson had peaceable and adverse pos-
session of the land described in appellants’ answer, culti-
vating, using and enjoying the same continuously for a
period of five years as a tenant of Thomas’ heirs, while
they claimed under a deed, or deeds, duly registered,
describing the land and paying taxes thereon during said
period, and the jury answered in the affirmative. An
examination of the record discloses the fact that not until
February 21, 1907, in a deed made by Seth Grosvenor to
W. S. Carlisle, one of appellants’ predecessors in title, was
there any deed or lease in appellants’ chain of title
attempting to describe the land claimed by appellants in
any other way than by the description given in the origi-
nal grant, which description, as heretofore stated, placed

App. 69

said league in conflict with the Falcon, and in no manner
in conflict with the Colville. The Gee field notes of the
Escobeda, which place it in conflict with the Colville,
although made in 1860, were not used in any of the leases
or deeds in appellants’ chain of title until the execution of
the Carlisle deed above mentioned.

The object desired in requiring the registration of
deeds under the plea of 5 years’ limitation is to give
notice to the owner of the land that persons in possession
of it are claiming adversely to them, and, of course, this
object will not be obtained unless the description of the
land is such that it would indicate the land being claimed.
Mistake in the name or number of the survey upon which
the land may be situated, however, would not necessarily
render the deed ineffective under the plea of 5 years’
limitation, if there be cause for external objections, which
definitely fix and designate the land, or if it be otherwise
described so as to identify it with the land owned and
claimed by the real and true owner. Randolph v. Lewis,
163 S. W. 647; Udell v. Peak, 70 Tex. 547, 7 S. W. 786;
McCurty v. Locker, 2 Tex. Civ. App. 220, 20 S. W. 1109;
Basham v. Stude, 128 S. W. 662; Stout v. Taul, 71 Tex. 438,
9S. W. 329; Cleveland v. Smith, 156 S. W. 247; Griffin v.
Houston Oil Co., 149 S. W. 567; Clifton v. Creason, 145 S.
W. 323; Eastham v. Gibbs, 58 Tex. Civ. App. 627, 125 S. W.
372.

The field notes contained in the Johnson lease nor in
any of appellants’ recorded deeds during the continua-
tion of the tenancy created by said lease do not embrace
the land included in the Colville league, nor are they to
be identified with the field notes made by the surveyor
Gee, which field notes appeliants adopt for the land

App. 70

claimed by them in their pleadings, under the 5 and 10
years’ statutes of limitation.

Johnson further testified to having made another
lease contract on September 1, 1909, with W. T. Carter &
Bro. and Thompson-Tucker Lumber Company. This con-
tract is not copied into the record. It appears from the
_ transcript of the pleadings in this case that the present
suit was filed on June 3, 1914, and therefore appellants
could not perfect title by limitation under the 5 years’
statute based on the latter lease. For the reasons herein
stated, the Johnson tenancy did not perfect title by limita-
tion to the land under the 5 years’ statute.

On the 14th day of June, 1885, George Baptiste and
others entered into a lease contract with the heirs of G. S.
Thomas and others, in which the land leased is described
as follows:

“The league above mentioned is thus described:
Beginning at the northwest corner of the Lowry T. Hamp-
ton league; thence north 45 deg. east (most eastern corner
of league) 5,000 varas, thence north 45 deg. west (most
northern corner) 5,000 varas; thence south 45 deg. west
(most western corner) 5,000 varas, thence south 45 deg.
east (most southern corner) 5,000 varas, and for more
particular description reference is made to the grant to
Bartolo Escobeda on the 22d of June, 1835, and the field
notes of said survey now shown by certified copy on file
in the county clerk’s office, Polk county. The survey was
made by S. C. Hirams, March 31, 1835.”

There is testimony in the record showing that Bap-
tiste lived on a small tract of the Colville for a great many
years, and that he cultivated 8 or 9 acres thereof continu-
ously for 34 years. There is also evidence in the record

App. 71

that George Baptiste was also a tenant of appellees’ pre-
decessors in title under an agreement made with Judge
Crosson, who, it is claimed, was acting for appellees’
predecessors in title in making said lease contract. Issues
8 and 9, submitted to the jury by the court, cover the
question of perfection of title by limitation by the appel-
lants under the 5 and 10 years’ statutes, based upon the
Baptiste tenancy, and these two issues were answered in
favor of the appellants. In issue No. 11 the court submit-
ted to the jury the question of whether or not George
Baptiste held possession of any part of the Colville league
under any contract of tenancy with appellees’ prede-
cessor in title. and, if they found such a contract of
tenancy, whether it had ever been repudiated. In answer-
ing this question, the jury found that such a contract of
tenancy existed, and that it had never been repudiated.

The answers of the jury to these three questions are
inconsistent and contradictory, and this is made the sub-
ject of attack under appellants’ fourteenth assignment of
error. However, under the view we take of appellants’
limitation issues generally, such error is immaterial, and
will not affect the disposition of this case; the jury having
found that the Kinard lease executed to William Colville
et al. in 1853 had not been repudiated by his widow,
Mary Kinard, and the evidence being undisputed that
some member of the Kinard family has lived on the
Colville league continuously up to the time of filing of
this suit, as the tenant of the true owners. Such posses-
sion of the tenants drew to the real owners the construc-
tive possession of the entire survey, and therefore
Johnson and Baptiste, conceding that the latter was the
tenant of the appellants, and that all the leases and deeds

App. 72

in appellants’ chain of title had used such description of
the land affected as to actually place it in conflict with the
Colville, were still trespassers upon the land, and their
possession must be restricted to that portion of the Col-
ville survey actually reduced to possession. A trespasser
entering under such circumstances can only disseize the
true owner to the extent of the actual ouster. Whitehead v.
Foley, 28 Tex. 284; Evitts v. Wroth, 61 Tex. 84; Bowles v.
Brice, 66 Tex. 730, 2 S. W. 729; Houston Oil Co. v. Frazier,
161 S. W. 20; Village Mills Co. v. Houston Oil Co., 186 S.
W. 785. Assignments of error 6, 7, 8, and 14, therefore, are
overruled.

We do not find any merit in appellants’ contention
that there was a partition of the league of land between
Wm. T. Colville and Orlando Dorsey in 1858 under the
conveyance of Colville to Dorsey of that date, and that
the possession of Kinard was on that portion of the
league owned by Dorsey, and that therefore the tenancy
of Kinard could not affect the possession of Colville.
Under all the conveyances between these two parties,
including the conveyance of 1858 and the ones of 1862
and 1868, the interests conveyed are undivided interests,
and do not describe any specific portions of the league.
The recital in the power of attorney executed by Wm. T.
Colville to Orlando Dorsey in 1860 that his (Colville’s)
interest was in the north half of the league is an ex parte
statement on his part, and there is no evidence of acquies-
cence in this statement by Dorsey. The record does not
show that Dorsey ever accepted the power granted in
said power of attorney, or that he ever sold any interest in
said league thereunder.

App. 73

We have deemed it unnecessary to go into appellees’
proposition that they have also, in addition to the record
title, acquired title by limitation under the 3 years’ stat-
ute, by virtue of the Kinard tenancy, even conceding that
there is a conflict in the Escobeda and Colville leagues,
since we have found the record title to be in them.

The ninth assignment of error attacks the charge of
the court in submitting special issue No. 11, that is the
issue of tenancy of Baptiste with appellees’ predecessor
in title, because the proof is wholly insufficient to sustain
it. The tenth assignment of error attacks the finding of the
jury on this issue as contrary to the undisputed evidence.
The eleventh assignment attacks the finding of the jury
under said special issue No. 11 as being contrary to the
great preponderance of the evidence, and on the ground
that the jury was misled and actuated by passion and
other improper motives. The twelfth assignment of error
attacks the finding of the jury under said special issue
No. 11, to the effect that the contract of tenancy had never
been repudiated, as contrary to the undisputed evidence,
and assignment of error No. 13 is that it was contrary to
the great preponderance of the evidence. It follows from
what we have said in passing upon the Kinard tenancy
with the Colvilles, and upon appellants’ limitation pleas
generally, that these assignments are nugatory, and they -
are therefore overruled.

Appellants’ fifteenth assignment is based upon the
alleged error of the court in overruling its motion for
judgment in their favor for the 141 acres of land
described in the deed from T. P. Kinard to Matthews, and
from Matthews to appellants, W. T. Carter & Bro., for the
reason, as they claim, that the undisputed evidence

App. 74

shows that the appellants and those whose estate they
have, have had possession thereof more than 5 years,
under circumstances giving them title under the 5 years’
statute of limitation.

The sixteenth assignment of error is based on the
same proposition affecting their claim under the 10 years’
statute of limitation.

There appears in the record a deed from T. P. Kinard
and wife to W. T. Carter & Bro., dated February 23, 1907,
for the merchantable timber on 141 acres out of the Col-
ville league, specifically described by metes and bounds.
On the same day the same grantors executed a deed to J.
H. Matthews for the same land as described in the forego-
ing deed, and Matthews on September 25, 1911, conveyed
the same land to W. T. Carter & Bro. The evidence is
undisputed that T. P. Kinard lived on this land for a great
many years, and the evidence is probably sufficient to
establish a limitation title thereto if the pleadings of
appellants were in shape to support it. An examination of
appellants’ answer, in which the different statutes of lim-
itation are pleaded, shows that there is no separate plea
upon the part of appellants setting forth their claim to
this particular tract of land. Appellants’ plea of limitation
covers the entire Escobeda league of land and a specific
320 acre tract included in what they claim to be the true
boundary lines of the Escobeda. There is no attempt in
the pleadings to set forth any claim to this specific tract of
land under any of the statutes of limitation. Under such
circumstances, the court did not err in refusing to enter
‘judgment for said 141 acres. Houston Oil Co. v. Kimball
(Sup.) 122 S. W. 533; Giddings v. Fischer, 97 Tex. 188, 77 S.
W. 209.

App. 75

Finding no error in the trial of this cause, the same is
affirmed.

" Ee ee ee oe coe re Oe ee a ee

Ee

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1769%3A2. Public record. Not legal advice.