657 Radcliffe v. Tidal Petroleum Inc., 521 S.W.3d 375 (Tex. App.—San Antonio 2017, pet. denied)

Tuesday, July 17th, 2018

Richard F. Brown

The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.

Radcliffe v. Tidal Petroleum Inc., 521 S.W.3d 375 (Tex. App.—San Antonio 2017, pet. denied) (Evidence in trespass to try title and bad faith trespass) held that evidence of intestacy was sufficient to defeat a motion for summary judgment in trespass to try title, but no tort claims could be sustained against a producing cotentant. Emma Radcliffe owned 120 acres in La Salle County. In 1945, she conveyed the surface and at least 1/2 of the minerals to assignees who were predecessors in title to Tidal, lessee of assignees’ interest. There was some dispute about the mineral interest reserved by Emma, which was never reached in this opinion. Emma died, husband R. T. died, and only son R. D. died. Tidal drilled producing wells and made no payments to Emma’s successors (“Successors”). Successors sued Tidal in trespass to try title and on multiple tort claims for entry and production. Summary judgment for Tidal was granted.

Title from the sovereign to Emma as her separate property was undisputed. Tidal contended that the deed records do not show what happened to Emma’s reserved mineral interest on her death, and that the Successors failed to present any evidence of title to any mineral or royalty interest in Successors. Successors’ response included Emma’s, R. T.’s, and R. D.’s death certificates; birth certificates for the Successors, and other evidence. The principal issue was an alleged gap in title from Emma to her husband, R. T.

Because Emma predeceased R. T., the presumption of intestacy under Section 38(b) of the Texas Probate Code applied. “On her death, under intestate succession, R. T. received a life estate in one-third of Emma’s mineral interest and R. D. received the other two-thirds and the remainder.” Summary judgment for Tidal in trespass to try title was reversed and remanded to the trial court.

The “lessee of a co-tenant becomes a co‑tenant with the co‑tenants of his lessor.” “It has long been the rule in Texas that a cotenant has the right to extract minerals from common property without first obtaining consent of his cotenants. . . .” The producing cotenant’s only duty to the non-producing cotenant is to account to the non-producing cotenant for his proportionate part of the value of the oil and gas produced, less the non-producing cotenant’s proportionate part of the drilling and operating expenses. Summary judgment for Tidal on all of the tort claims was affirmed.

The case is primarily about summary judgment evidence, distinctions between traditional and no-evidence motions, and the evidence in this particular case. However, it is a clear example of the power of the presumption of intestacy, including, in this case, disregarding a late-filed copy of Emma’s will.