Face Challenges Confidently

198 Glover v. Union Pac. R.R.

Tuesday, September 1st, 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.
Glover v. Union Pac. R.R. Co., 187 S.W.3d 201 (Tex. App.—Texarkana 2005, pet. denied), applied the doctrine of strips and gores and adverse possession to determine title to the minerals in a railroad right-of-way. Campbell owned a tract that straddled a railroad right-of- way, including the minerals beneath that right-of-way. Campbell executed separate deeds in 1904 conveying to others the acreage “north” and “south” of the railroad, but which were silent as to the railroad right-of-way itself. At issue in this case was ownership of the six acres lying within the railroad right-of-way, south of the centerline (“Campbell Tract”). The 1904 conveyance out of Campbell as to the tract south of the railroad (“Nettleton Tract”) described the lands conveyed by metes and bounds and as “bounded on the N. by the Right of way of the Texas & Pacific R.R. Co. . . .” Some of the successor owners of undivided interests in the Nettleton Tract (“Claimants”) claimed the minerals in the Campbell Tract. Those minerals had been produced since 1931 by successor owners (“Defendants”) who claimed under a separate chain of title that originated in a 1931 oil and gas lease from Campbell’s widow on the Campbell Tract. In 1932, the railroad made an adverse possession claim, and the original oil company lessee conveyed a 1/2 interest to the railroad. As a final additional complication, there was also a 1932 quitclaim deed from the owner of a 1/8th interest in the Nettleton Tract to Defendants. Based on the quitclaim of the 1/8 interest, Claimants positioned themselves as co-tenants with Defendants in the Nettleton Tract, which according to Claimants, included the Campbell Tract. Therefore, the general nature of the suit as brought by Claimants was not in trespass to try title, but for an accounting among co-tenants. It is unclear why, but at one point, the court characterized the case as concerning “royalty interests,” but Claimants were seeking a share of production as an unleased co-tenant, not a share of royalty.
Claimants held record title to the centerline of the railroad. Because Campbell’s deed of the Nettleton Tract did not expressly reserve rights to the minerals under the Campbell Tract (railroad right-of-way), those minerals passed to his grantee under the presumption that a deed conveys land to the center of the right-of-way even when the deed describes the abutting land as extending only to the edge of the right-of-way. In fact, this principle was reaffirmed in 1940 in the Texas Supreme Court by litigation on Campbell’s lands north of the railroad. The doctrine of strips and gores “requires the strip (1) to be small in comparison to the land conveyed, (2) to be adjacent to or surrounded by the land conveyed, (3) to belong to the grantor at the time of the conveyance, and (4) to be of insignificant or little practical value.” Defendants challenged on the fourth element, but the court said the right-of-way had little value in 1904, before oil was discovered.  Thus, Claimants held record title to the Campbell Tract.
The court then held that the Claimants lost their title to Defendants by adverse possession. Because the widow Campbell as lessor owned no minerals in the Campbell Tract, she and the original lessee were naked trespassers. Thus, the widow Campbell, the original oil company lessee, and the railroad were all naked trespassers. The oil company and the railroad then acquired the 1/8th quitclaim deed as to the Campbell Tract from Nettleton, which made them co-tenants with Claimants. Each co-tenant has the right to develop the minerals in the tract, subject to a duty to account to the other co-tenants. Therefore it is usually harder to perfect title by adverse possession against co-tenants, because it is difficult to show that the production was “adverse”.
Claimants first contended that Defendants could not meet their burden of proving they actually possessed the entire mineral estate, because none of the Defendants were claiming the entire interest in the Campbell Tract. It is not clear, but apparently the court concluded that the claim of the Defendants under the widow Campbell’s lease was as to the entire mineral estate, regardless of the quitclaim of the 1/8 from Nettleton.
Claimants next contended that the possession was not adverse. Before a co-tenant can begin to adversely posses the land, the co-tenant must repudiate the tenancy. However, actual notice is not required.  The court said:

Such notice may be constructive and will be presumed to have been brought home to the co-tenant or owner when the adverse occupancy and claim of title to the property is so long-continued, open, notorious, exclusive and inconsistent with the existence of title in others, except the occupant, that the law will raise the inference of notice to the co-tenant or owner out of possession, or from which a jury might rightfully presume such notice. It is held that repudiation of the claim of a co-tenant and notice thereof may be shown by circumstances and that a jury may infer such facts from long continued possession of the land under claim of ownership and non-assertion of claim by the owner.

The court had no trouble in finding sufficient constructive notice based on the Defendants’ production and operations on the property for almost seventy years. Therefore, under the ten year statute of limitations, Defendants perfected title by adverse possession.
Because the 1904 Campbell deed of the Nettleton Tract did not clearly cover the land to the center of the right-of-way, and because the widow Campbell and her lessees “re-entered” by virtue of the oil and gas lease, the court also held that Defendants were not barred by estoppel by deed (grantor cannot claim adversely against grantor’s own deed) from taking adversely. Because either the two or four-year statute of limitations applies to suits for an accounting by a co-tenant, any claim for an accounting of production prior to the time Defendants acquired title by adverse possession would be barred by limitations.