240 Silver Oil & Gas, Inc. v. EOG Res., Inc.

Monday, September 7th, 2015

Richard F. Brown

 
The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.
 
Silver Oil & Gas, Inc. v. EOG Resources, Inc., 246 S.W.3d 197 (Tex. App.–San Antonio 2007, no pet), is a boundary dispute case resolved by the assumption that the surveyor did not intend to overlap a senior survey. Silver brought suit based on its contention that EOG’s wells were located too close to the boundary line between Surveys 9 and 10, Block Q5. A simplified sketch illustrates the dispute between the parties:
 
Section 116, Block 1 to the west and Sections 9 and 12, Block Q6 to the east were the senior surveys. In between were the filler surveys which filled the gap between the senior surveys. Therefore, Sections 117 1/2, Block 1 and Sections 9 and 10, Block Q5 were junior surveys. All three surveyors who testified at the trial agreed that the original surveyor made an error of 222.45 varas when he re-surveyed Survey 116, Block 1. The error affected the total east-west distance of the junior surveys, so that the called distances along the southern line of the junior surveys exceeded the distance actually available between the senior surveys. Silver contended the correct boundary between Sections 9 and 10, Block Q5 was 222.45 varas east because the sections should start at the known corner and be laid out in order. EOG contended that the boundary was correctly located by a distance call back from Block Q6.
 
The trial court ruled for EOG. Silver claimed the following errors were made by the trial court: (1) adopting a construction that impermissibly shortens a senior survey; (2) failing to locate the surveys in question from the nearest established corner; (3) locating the surveys from an unmarked prairie line; and (4) granting to the owners of Section 10 lands that were first patented to the owners of Section 9.
 
The court determined that the standard of review was sufficiency of the evidence, because  there were  fact issues behind each surveyor’s opinion.   What  are  boundaries  is  a question of law, but determining where the boundaries are upon the ground is a question of fact. When determining the location of boundary lines in a survey, the applicable cardinal rule is that the footsteps of the original surveyor should be followed, if they can be ascertained, even if they are inconsistent with the calls and references in the surveyor’s field notes. However, if the location of the surveyor’s actual footsteps cannot be established with reasonable certainty, all of the surrounding facts and circumstances should be considered in order to arrive at the purpose and intent of the surveyor who made the original survey. All of the court’s analysis appears to be driven by its primary assumption that the original surveyor did not intend to overlap the Q6 senior survey.
 
Because the trial court’s judgment did not resolve any issue pertaining to the location of the survey lines in Section 116, the court found that a junior survey was not used to shorten or change the boundary lines of the senior survey of Section 116.
 
Silver argued that the court should have used the nearest known corner to locate the surveys. Although the location of the southwest corner of Survey 117-1/2 was undisputed by the parties, the acreage used by the original surveyor to make the distance calls for the filler surveys was affected by the mistake in Survey 116. As a result, the certainty of the corner’s location would not be useful in determining the location of the filler surveys. Therefore, the trial court’s decision to work back from the senior survey to the east was justified.
 
Unmarked prairie lines (like the Q6 line) are not ordinarily used to locate other surveys. However, calls for adjoinder will prevail even if adjoinder is with an unmarked but ascertainable line. Exceptions exist in the event the call for adjoinder was made “upon misapprehension, mistake, or conjecture.” The adjoinder call in this case was not a mistake because the surveyor intended for the surveys to adjoin line Q6 and account for the full amount of available acreage, he was just mistaken as to the amount of acreage available because of the error in Survey 116. Because the Q6 line was an ascertainable line, the trial court’s decision to rely upon it was not erroneous.
 
Silver argued that Section 9 was patented to its predecessors forty years before Section 10 was patented to the predecessors of EOG. The survey and location of the land determines the rights of the parties, not the issuance of patents.
 
Determining the original surveyor’s intent is the cardinal rule used in locating boundary lines. EOG successfully argued that the intent to adjoin with the Q6 line was paramount, and therefore fixing the boundary by the call west from the Q6 line was proper. The significance of the case appears to be the great weight given to the presumption that the surveyor did not intend to overlap a senior survey. Because an illegal location (e.g. too close to a lease line) generally means that there is no right to produce the well at the illegal location, boundary locations can be critical in oil and gas operations.