Face Challenges Confidently

127 McCall v. McCall

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.
McCall v. McCall, 24 S.W.3d 508 (Tex. App.–Houston [1st Dist.] 2000, n.p.h.), considers whether the words “and appurtenances thereto” contained in the granting clause of a mineral deed conveying a specifically described tract also conveys royalty interests in separate tracts not specifically described in the deed.
Prior to 1975, a 3,300 acre tract (both surface and minerals) was owned jointly by three families: the Taubs, the Dwyers, and Mildred McCall (“Mildred”). The land was subject to three oil and gas leases and was included in a large producing unit, known as the Bammel Field Unit. In 1975, the 3,300 acre tract was partitioned into sixteen separate tracts (the “1975 Partition”). Under the 1975 Partition, Mildred received five tracts (“McCall Tracts”) which were burdened by a 20% royalty interest in favor of the Taubs and Dwyers. Likewise, the 1975 Partition awarded Mildred a 10% royalty interest in the tracts awarded to the Taubs and Dwyers (“Taub/Dwyer Tracts”). Each party thus continued to own their royalties and other benefits in each of the tracts granted to the other parties.
Soon after the 1975 Partition, Mildred conveyed the McCall Tracts by several deeds, which each stated:

[Mildred] does GRANT, BARGAIN, SELL AND CONVEY that certain tract of land containing [acreage] in Harris County, Texas, as more particularly described in Exhibit A . . . together with all improvements thereon . . . and appurtenances thereto . . . unto Grantees . . .  [emphasis added]

None of the deeds referenced Mildred McCall’s 10% royalty interests in the Taub/Dwyer Tracts. Based on the McCall deeds, Lila McCall, as one of the grantees, argued that she was entitled to an interest in the royalty on the Taub/Dwyer Tracts. Lila argued that “appurtenances thereto” included Mildred’s royalty interests in the Taub/Dwyer Tracts. The trial court granted partial summary judgment, declaring that the McCall deeds did not vest Lila McCall with an interest in the Taub/Dwyer royalty interests.
On appeal, Lila McCall contended Day & Co. v. Texland Petroleum, Inc. was controlling. Day & Co. is a leading Texas case on executive rights, which held that previously severed executive rights passed to the grantee under a general warranty deed, even though the executive rights were not mentioned in the deed. The court held that the executive right, although severed from the mineral estate, remained “an interest in property, an incident and part of the mineral estate like the other attributes such as bonus, royalty and delay rentals.”  Because the executive rights were not reserved or excepted, the executive rights were conveyed by the deed. Lila McCall argued that Day & Co. was controlling because the McCall deeds did not reserve or except the royalties on the Taub/Dwyer tracts.
The court of appeals held that Day & Co. was distinguishable because the royalty interests Lila McCall claimed were not “appurtenant” to the mineral interests conveyed in the McCall deeds. The court cited with approval the following definition of appurtenance from Balcar v. Lee County Cotton Oil Co.:

A thing belonging to another thing as principal, and which passes as incident to the principal thing. A thing used with, and related to, or dependent upon another thing more worthy, and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant. It is therefore limited to that which is necessary to the enjoyment of the principal thing granted. An appurtenance is that only which is incidental or indispensable to the proper use of the premises demised. A mere conveyance does not create an appurtenance.  (Citations omitted).

The court held that nothing in the 1975 Partition or the McCall deeds supported Lila McCall’s position that the royalty interests under the existing leases on the Taub/Dwyer Tracts were appurtenant to the conveyed McCall Tracts.
The case is significant for sharply limiting the meaning of “appurtenance” to that which is “incidental or indispensable to the premises demised” (although incidental seems to leave an open door), and for the court’s refusal to extend the rational of Day & Co. to include royalty interests within the same unitized tract, but not expressly described as part of the premises conveyed.