Verde Minerals, LLC v. Burlington Resources Oil and Gas Company, LP et al
Filing
94
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND MOTION FOR LEAVE TO AMEND granting in part and denying in part 57 Motion for Partial Summary Judgment; denying 58 Motion for Summary Judgment; granting 67 Motion for Leave to File.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
VERDE MINERALS, LLC,
Plaintiff,
VS.
BURLINGTON RESOURCES OIL AND
GAS COMPANY, LP, et al,
Defendants.
ENTERED
January 09, 2019
David J. Bradley, Clerk
§
§
§
§ CIVIL ACTION NO. 2:16-CV-463
§
§
§
§
§
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
AND MOTION FOR LEAVE TO AMEND
Plaintiff Verde Minerals, LLC (Verde) brings this putative class action on behalf
of an alleged class of holders of oil and gas interests in approximately 2,092 acres (the
Property) located in Live Oak County, Texas. Verde claims that Defendants 1893 Oil &
Gas, Ltd. (1893) and ELP2 Minerals, Ltd. (ELP2) have violated obligations that their
predecessor-in-interest assumed nearly a century ago when he agreed to pay a portion of
any oil and gas proceeds derived from the Property to the predecessors-in-interest of
Verde and other similarly situated parties.
The parties have filed cross-motions for summary judgment.1 For the reasons that
follow, Defendants’ motion for summary judgment (D.E. 58) is DENIED. Verde’s
motion for partial summary judgment (D.E. 57) is GRANTED IN PART AND
DENIED IN PART.
1
Under the governing scheduling order (D.E. 50), the pending motions are “initial motions for summary judgment
on issues regarding liability claims of named plaintiff” Verde. As such, the scope of this Order is restricted to the
viability of claims asserted by Verde and assumes Verde can establish chain of title, an issue the parties have not yet
addressed. The viability of claims that may be held by the other putative class members, as well as issues of class
certification and representation, will be decided at a later date.
1 / 42
Verde also seeks leave under Rule 15(a)(2) to amend its complaint. That motion
(D.E. 67) is GRANTED.
FACTS
A. Conveyance from the Green Owners to Plympton
Verde alleges that its interest stems from a series of grants by Edward Mattison
(the Mattison Deeds), executed between 1919 and 1921 and filed in the Live Oak County
records.2 To determine the interest therein conveyed, however, it is necessary to review
the series of transfers that preceded those from which Verde’s claims arise.
The story begins in 1906 with the sale of approximately 47,000 acres, including
the Property, from The Live Oak Company to four Texans, William Green, R.S.
Dilworth, S.V. Houston, and Philip Welhausen (together, the Green Owners). This land
was formerly known as the Fant Ranch.
Six years later, the Green Owners conveyed approximately 16,000 acres from their
purchase, including the Property, to Ethel L. Plympton of Minneapolis, Minnesota. The
sale was memorialized in a 1912 deed (the Plympton Deed), in which Ms. Plympton
agreed to pay for the property with a cash down payment and “thirty-five (35) promissory
Vendor’s Lien Notes,” of varying principal amounts and maturities. D.E. 58-3.
Rather than treating each note as an encumbrance on a particular portion of the
property, the Plympton Deed provided that “[s]aid notes are secured by a Vendor’s Lien
on all of the land herein conveyed,” with the noteholders free to accelerate the debt upon
2
Verde alleges that the putative class members’ interests arise from other contemporaneous transfers from Mattison
to the class members’ predecessors-in-interest pursuant to instruments that are substantially identical to the Mattison
Deeds.
2 / 42
default. D.E. 58-3, p. 1–2 (emphasis added). However, a provision of the Plympton
Deed (the Lien Release Clause) also gave Ms. Plympton and her successors an openended option to pay cash to the Green Owners in exchange for the release of Ms.
Plympton’s selected portions of the property from the vendors’ lien. As will be seen, Ms.
Plympton and/or her successors appear to have taken advantage of the Lien Release
Clause, as the record reflects that portions of the 16,000-acre estate were later released
from the vendors’ lien.
B. Conveyance from Plympton to USIR and from USIR to Mattison
In 1914, Ms. Plympton sold the entirety of her 16,000 acres to the United States
Installment Realty Company (USIR) of Minneapolis and its trustee, C.W. Reynolds. 3
D.E. 58-5. That deed expressly authorized USIR and Reynolds to subdivide the land,
construct roads, and sell or encumber the land however Reynolds saw fit.
As reflected in subsequent conveyances, USIR subdivided the property into
numbered tracts, most of which contained around twenty acres.
Thus, where the
Plympton Deed had described the property that Ms. Plympton bought by reference to the
land’s physical features (e.g., “a Mesquite, 8 inches in diameter, marked X”), the next
series of relevant conveyances would describe the conveyed estate by reference to
USIR’s tract-numbering system.
One such conveyance was the 1917 deed in which USIR “obligate[d] itself to
convey or have conveyed” the 2,092-acre Property to Mattison (the USIR-Mattison
Deed).
3
D.E. 58-9.
That instrument identified the subject property as 102 tracts,
Ms. Plympton’s original purchase appears to have been a joint venture with the USIR, as the Plympton Deed
refers to the notes as having been executed by Ms. Plympton and USIR.
3 / 42
numbered between Tract #48 and #248, non-inclusive, located within “Block Sixteen
(16) Live Bee Land Subdivision Number Four (4).” Id.
The USIR-Mattison Deed also marked the first time that the parties to the
conveyance expressly addressed oil and gas rights on the Property, with USIR reserving
to itself “one-fourth of any and all oil, gas, or minerals . . . that may be in or upon said
land.” Id. at 2. Mattison was otherwise granted the right to develop the Property for
purposes of oil and gas production.
By this time, the Green Owners had assigned seven of the 35 promissory notes
referenced in the Plympton Deed to the Aetna Life Insurance Company (Aetna). D.E.
58-4. Through a series of releases, executed between 1912 and 1920, the Green Owners
and Aetna jointly acknowledged the release from the vendors’ lien of portions of the
16,000-acre estate. The record contains fifteen such instruments, which released from the
vendors’ lien 86 tracts within Block 16 of Live Bee Land Subdivision Number 4.4 See
D.E. 64-1 through D.E. 64-15.
Some of the tracts so released were among those
purchased by Mattison. The tracts purchased by Mattison, then, were not all on equal
footing: some had been released from the vendors’ lien and some had not.
C. Conveyances to Messrs. Becken and West
Mattison subdivided the tracts covered by the USIR-Mattison Deed into acre-sized
plots for resale. Verde alleges that it is successor-in-interest to three Minnesotans, Ole P.
Becken, Hans P. Becken, and O.O. West, who purchased land from Mattison’s grant,
either directly from Mattison or through an intermediary who bought from Mattison, one
4
The releases also encompassed the release of three tracts within Block 15, a different block in the Live Bee Land
Subdivision. D.E. 64-11.
4 / 42
Richard Canning. Between them, Messrs. Becken and West purchased approximately 13
of Mattison’s 2,092 acres, scattered over seven of Mattison’s 102 tracts.5 These transfers
were memorialized in the Mattison Deeds, which are substantially identical except with
regard to the parties, date, and covered property.
The parties dispute whether the Mattison Deeds conveyed any legally recognized
interest. By their terms, however, the Mattison Deeds contemplated a grant of both (1) a
small surface estate, as identified by tract and acre number from the “Edward Mattison
Survey”; and (2) a proportionate share of half of any oil and gas proceeds derived from
anywhere within the 2,092 acres, with the proportion set by reference to the acreage
purchased out of the whole.
For instance, the first sentence of the June 3, 1920 deed from Mattison to Ole P.
Becken said that it conveyed:
5
The transfers to which Verde traces its interest may be summarized as follows:
Grantor
Grantee
Date
Tract
Acre(s)
Edward Mattison
O.O. West
July 9, 1919
133
12, 13
Edward Mattison
O.O. West
December 5, 1919
133
8, 9
Edward Mattison
O.P. Becken
June 3, 1920
48
One half acre east one half number 29
Richard Canning
O.P. Becken
and
H.P.
Becken
June 17, 1921
68
7
98
14, 15
208
13
214
Northwest quarter Acre 2
231
11, 12, 13, 14
5 / 42
[1] All that certain land and real estate situate[d] in the
County of Live Oak, State of Texas, described as follows, to
wit One Half Acre East One Half Number twenty nine Tract
48 being a part of the Edward Mattison Survey of 2,092.08
acres of land out of Block Sixteen (16), of Live Bee Land
Subdivision No. 4, according to the map or plat of said Live
Bee Land Subdivision No. 4 on file and of record in the
officer of the Clerk of the County Court and Recorder of said
Live Oak County, Texas, and original a part of the Festus
Doyle Survey No. 4 in said County; and [2] such an
undivided interest in an undivided one-half of any and all
oil, gas or minerals that may be found to be in, under or
upon any part of said tract of 2,092 acres described in the
Edward Mattison Survey of a portion of said Block 16 as the
number of acres purchased by said Ole P. Becken bears to
the entire number of acres in said tract.
D.E. 58-1 (emphasis added). Thus, in addition to granting surface rights to a specific half
acre of land, this instrument purported to transfer an interest equivalent to 0.5 / 2,092
(i.e., the “portion of . . . the number of acres purchased by said Ole P. Becken . . . to the
entire number of acres in said tract”) of half of any future oil and gas proceeds Mattison
received from the Property.6 There is no provision that restricts the right to a share of the
proceeds to only those grantees whose acre- or partial acre-sized portions of the land
actually produced the oil or gas. Instead, purchasers of any part of the Property could
claim a share of any oil and gas proceeds, no matter where within the Property oil or gas
might be found.
D. USIR v. Mattison, Green v. Plympton, and the USIR Bankruptcy
This series of transfers gave way to litigation in the early 1920s, as various parties
holding interests in the development failed to meet their payment obligations. First, in
6
The instrument does not specify that this grant is further subject to the 1/4 reservation from the USIR to Mattison
grant. In fact, there is no indication from the instrument that Mattison held anything less than fee simple to the
Property.
6 / 42
1921, USIR filed suit in Live Oak County against Mattison and one of his partners,
alleging that Mattison failed to pay the balance due on the Property. D.E. 58-15. In its
pleading, USIR listed the tracts Mattison had purchased and alleged that 51 of those
tracts, which were also listed, remained subject to the vendors’ lien. Notably, none of the
seven tracts in which the approximately 13 acres conveyed by the Mattison Deeds were
located—tracts 48, 68, 98, 133, 208, 214, and 231—was among those USIR identified as
still subject to a vendor’s lien. The implication from USIR’s pleading, then, is that by
that point, the vendors’ lien had been extinguished from the seven tracts in which the
acres covered by the Mattison Deeds were situated.
USIR’s case against Mattison was ultimately dismissed for lack of prosecution.
D.E. 58-15, p. 15. Meanwhile, in October 1923, the Green Owners sued Ms. Plympton,
USIR, and USIR’s trustee Reynolds in Live Oak County for the unpaid balance of the
promissory notes from the 1912 conveyance. D.E. 58-16. As had USIR, the Green
Owners acknowledged in their pleading that certain tracts that had formerly been subject
to the vendors’ lien “have been expressly released by plaintiffs from the operation of said
vendor’s lien.” Id. at 6. The Green Owners then listed various tracts from Blocks 14, 15,
and 16 that had been so released. Consistent with the USIR v. Mattison pleading, the list
of released tracts included each of the seven tracts that encompassed the acreage
purchased by Messrs. Becken and West.
While the Green Owners’ suit against it was pending, USIR declared bankruptcy
in Minnesota. D.E. 58-21. In April 1924, the bankruptcy trustee transferred to the Green
Owners the remainder of the approximately 16,000 acres conveyed by the Plympton
7 / 42
Deed, “saving and excepting therefrom all of those tracts of land which have been
heretofore sold and conveyed by said Companies and released from the operation of the
vendor’s liens retained [by the Plympton Deed].”
D.E. 58-22.
The effect of this
exception was to leave untouched by the bankruptcy any lands that had been previously
released pursuant to the Lien Release Clause from the Plympton Deed. The Green
Owners later voluntarily dismissed the Green v. Plympton matter. D.E. 58-16, p. 2.
E. Houston v. Stanford
In 1926, the Green Owners brought a quiet title action in Live Oak County,
naming as defendants a large group of purported holders of interests in the land that the
Green Owners had previously conveyed to Ms. Plympton and USIR. D.E. 58-25. The
named defendants included Mattison and Canning, as well as “the unknown heirs of each
of said persons,” but not Messrs. Becken and West. The Green Owners sought to clear
their title through adverse possession.
In an affidavit, S.V. Houston, one of the Green Owners, swore that “Miss
Plympton, nor anybody else, never did pay us for the land and we had to take it back for
our debts. . . . We had previously released some of the land, and these companies, had
some of that land on hand.” D.E. 58-26, p. 2. Houston went on to describe USIR’s
bankruptcy, and how the bankruptcy trustee had given the Green Owners a deed that
“conveyed back to us all lands which we had not released.” Id.
None of the defendants appeared, and the court entered judgment in the Green
Owners’ favor. Specifically, the Houston judgment declared that “all right, title and
interest of defendants and each of them in and to the said premises be cancelled and
8 / 42
removed as a cloud on the title of the Plaintiffs, and the Plaintiffs may have their writ of
possession.” D.E. 58-27.
F. Later Developments
The chain of title from the Houston judgment to the present day is less
controversial. After the Houston judgment, the Green Owners conveyed their interests in
the Property to a George C. Vaughan over the period from 1928 to 1938. Through
another series of conveyances, the Alamo Lumber Company (Alamo) came to acquire the
interests that had been conveyed to Vaughan.
In 1943, Alamo sold a portion of the surface estate to an Amos Gates, reserving all
oil and gas to itself. D.E. 58-38. In 1962, Alamo divided its retained mineral interest
between an E.L. Powell, who received a 1/4 interest, and a Geo. C. Vaughan and Sons,
Inc., which received a 3/4 interest. D.E. 58-39. 1893 eventually succeeded to the 3/4
interest granted to Geo. C. Vaughan and Sons, Inc., and ELP2 succeeded to the 1/4
interest granted to E.L. Powell. Since approximately 2010, oil and gas has been produced
from the Property under oil and gas leases granted by 1893 and ELP2. It is undisputed
that Verde has never received any of the proceeds from production on the Property.
STANDARD OF REVIEW
Summary judgment is proper if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
“A genuine dispute of material fact means that ‘evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” Royal v. CCC & R Tres Arboles,
L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477
9 / 42
U.S. 242, 248 (1986)). Evidence must be viewed, and all justifiable inferences drawn, in
favor of the party opposing the motion. Anderson, 477 U.S. at 255.
The moving party bears the initial burden of showing the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party meets that burden, the nonmoving party cannot avoid summary judgment by
“rest[ing] on mere conclusory allegations or denials in its pleadings.” Smith v. Reg’l
Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016) (quoting Hightower v. Tex. Hosp. Ass’n,
65 F.3d 443, 447 (5th Cir. 1995)) (internal quotation mark omitted).
Instead, the
nonmoving party must “identify specific evidence in the record and . . . articulate the
precise manner in which that evidence supports his or her claim.” Carr v. Air Line Pilots
Ass’n, Int’l, 866 F.3d 597, 601 (5th Cir. 2017) (quoting Ragas v. Tenn. Gas Pipeline Co.,
136 F.3d 455, 458 (5th Cir. 1998)) (internal quotation marks omitted).
“After the
nonmovant has been given an opportunity to raise a genuine factual issue, if no
reasonable juror could find for the nonmovant, summary judgment will be granted.”
Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002).
On cross-motions for summary judgment, the Court must “review each party’s
motion independently, viewing the evidence and inferences in the light most favorable to
the nonmoving party.” Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th
Cir. 2001).
10 / 42
DISCUSSION
A. Statute of Frauds
Defendants first challenge the Mattison Deeds as incapable of conveying any
legally recognized property interest. Specifically, Defendants argue that the Mattison
Deeds failed to comply with the Statute of Frauds, and for that reason conveyed nothing.
Under Texas law, which controls in this diversity case, interests in oil and gas
constitute real property and thus are subject to the Statute of Frauds. Long Trusts v.
Griffin, 222 S.W.3d 412, 416 (Tex. 2006). To comply with the Statute of Frauds, a
conveyance of real property must be memorialized in a writing that “furnish[es] within
itself, or by reference to some other existing writing, the means or data by which the land
to be conveyed may be identified with reasonable certainty.” Morrow v. Shotwell, 477
S.W.2d 538, 539 (Tex. 1972).
Each of the Mattison Deeds purported to convey acreage:
being a part of the Edward Mattison Survey of 2,092.08 acres
of land out of Block Sixteen (16) of Live Bee Land
Subdivision No. 4, according to the map or plat of said Live
Bee Land Subdivision No. 4 on file in the office of the Clerk
of the County Court and Record of said Live Oak County,
Texas, and originally part of the Festus Doyle Survey No. 4 in
said County.
Defendants contend that this grant fails because it lacks any metes and bounds
description or other means by which to identify the acreage purportedly conveyed.
Defendants further submit that the conveyance cannot be saved by reference to any
external document, as (1) there is no evidence that an “Edward Mattison Survey” ever
existed, let alone existed at the time of the conveyances; and (2) there is similarly no
11 / 42
evidence that a “map or plat of said Live Bee Land Subdivision No. 4” was actually on
file with the Live Oak County Clerk at the time of the conveyance. As “it is impossible
to identify and locate each ‘acre’ purportedly conveyed out of each ‘tract,’” Defendants
argue, the Mattison Deeds were ineffective to convey any title. D.E. 58, pp. 25–26.
The Mattison Deeds do not attempt to identify the conveyed property within the
four corners of the document, so the Court must look to other existing writings to see
whether they bring the Mattison Deeds into compliance with the Statute of Frauds. This
has been referred to as the “nucleus of description” theory, which provides that an
instrument may satisfy the Statute of Frauds if it presents a sufficient “clue or key so that
the land may be identified with reasonable certainty.” Gates v. Asher, 280 S.W.2d 247,
248 (Tex. 1955); see also Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903,
909 (Tex. 1982) (grant that “expressly directed [the court] to an instrument which
contains an adequate legal description” complied with Statute of Frauds).
Where
possible, the instrument is to be “given a liberal construction in order that the conveyance
may be upheld.” Gates, 280 S.W.2d at 248; see also Siegert v. Seneca Res. Corp., 28
S.W.3d 680, 683 (Tex. App.—Corpus Christi 2000, no pet.) (same).
Verde has not identified conclusive evidence that any document in the record is
the “Edward Mattison Survey” that the Mattison Deeds reference. Instead, Verde points
to a map bearing the title “Corrected Map Made for Edward Mattison” (the Corrected
Mattison Map), which shows a plan for subdividing into acre-sized plots the tracts listed
in the Mattison-USIR Deed. D.E. 58-13. The Corrected Mattison Map, which was dated
12 / 42
September 25, 1920, indicates that it was corrected from an earlier map by E.T. Abbott of
Minneapolis that apparently was then on file with the Live Oak County Clerk.7
As Defendants note, the Statute of Frauds requires an instrument to contain a
sufficient description of the property “within itself, or by reference to some other existing
writing.” Morrow, 477 S.W.2d at 539 (emphasis added). Here, three of the four deeds to
which Verde has allegedly succeeded predate the Corrected Mattison Map.
Thus,
Defendants contend, the “Edward Mattison Survey” as used in the Mattison Deeds cannot
refer to the Corrected Mattison Map.
The fact that there is no “Edward Mattison Survey” in the record, however, does
not cause the Mattison Deeds to fail under the Statute of Frauds. As noted, the Mattison
Deeds purported to convey both a surface estate and a share in half of the proceeds
Mattison received for any oil and gas discovered within the approximately 2,092 acres
comprising the Property. Verde seeks to recover its alleged share of any oil and gas
proceeds, not rights to the surface estate. It is therefore unnecessary to pinpoint the
particular surface acreage conveyed by each Mattison Deed, so long as the Mattison
Deeds and the documents referenced therein provide sufficient means to determine with
reasonable certainty the grantee’s share of the oil and gas proceeds conveyed.
The Mattison Deeds’ citation to “the map or plat of said Live Bee Land
Subdivision No. 4” provides such a means. Specifically, the record contains a 1913 map
prepared at the behest of USIR (the USIR Map) that shows Live Bee Land Subdivision
7
The corrected map seems not to have differed materially from the uncorrected one. The corrected map says that it
was “in accordance with” Abbott’s original map, and the different surveyors seem to have varied only slightly in
their calculations: Abbott apparently had Mattison holding 2,092.08 acres, the same figure as in the USIR-Mattison
Deed, whereas the Corrected Mattison Map estimated that Mattison held approximately 2,100 acres.
13 / 42
No. 4 broken into tracts. D.E. 58-14. The only reasonable conclusion from the record is
that the “tracts” Mattison agreed to purchase were those drawn by the USIR Map, the
“clue or key” that will allow determination of Verde’s alleged interest.
This approach finds support from other documents in the record, as other holders
of interests in the Property similarly described their holdings by reference to numbered
tracts. Each of the pleadings in the USIR v. Mattison, Green v. Plympton, and Houston v.
Stanford cases, for example, describes the property at issue by reference to tracts. There
is no suggestion that, for instance, tract 48 as used in the Green v. Plympton pleading is a
different parcel of land than the parcel of land described as tract 48 in the Mattison
Deeds.
Finally, Defendants’ own expert’s declaration belies their argument that the
Mattison Deeds do not provide a sufficient means to identify the interests in oil and gas
on the Property allegedly conveyed therein. As noted, in 1943, Defendants’ predecessor
Alamo conveyed to Amos Gates the surface estate of approximately 2,133 acres in Block
16 in Live Bee Land Subdivision Four. D.E. 58-38. The instrument memorializing the
transfer described the conveyed estate by numbered tracts, many, though not all, of which
appear to be the same numbered tracts as listed in the USIR-Mattison Deed. Defendants’
proffered geoscientific expert has identified where on a modern-day map the tracts
conveyed by the Alamo-to-Gates deed are located. See D.E. 58-46; D.E. 58-48. It would
seem the same method could be used to identify the tracts conveyed by the USIRMattison Deed, which would be sufficient to determine the estate as to which Verde
seeks to enforce its alleged rights.
14 / 42
As such, the Statute of Frauds does not negate the conveyance of a property
interest to Verde’s predecessors-in-interest.8
B. Analysis of the Mattison Deeds
While the parties disagree what if any interest was created by the Mattison Deeds,
they do not contend that the deeds are ambiguous. Under Texas law, the construction of
an umambiguous deed is one of law for the Court. Luckel v. White, 819 S.W.2d 459, 461
(Tex. 1991). Thus, “the court’s primary duty is to ascertain the intent of the parties from
the language of the deed using the ‘four corners’ rule.” French v. Chevron U.S.A. Inc.,
896 S.W.2d 795, 796 (Tex. 1995). In construing the Mattison Deeds, the Court is
mindful that Texas courts “have favored a holistic and harmonizing approach and
rejected mechanical rules of construction, such as giving priority to certain types of
clauses over others or requiring the use of magic words.” Hysaw v. Dawkins, 483 S.W.3d
1, 8 (Tex. 2016).
The parties diverge widely on their views of the Mattison Deeds. Relying on
Texas oil and gas precedents, Verde argues that the Mattison Deeds conveyed a share of
ownership in the mineral interest of the Property, or in the alternative, a fixed royalty
interest in any future oil and gas proceeds. Defendants, on the other hand, dispute both
characterizations and instead construe the Mattison Deeds as at most creating an
unenforceable personal covenant.
8
Defendants make a similar argument under the principle of contract law that “[a] contract must be complete within
itself in every material detail and must contain all the essential elements of the agreement.” D.E. 58, p. 27.
However, this argument fails because the essential term of the contract, that of the mineral interest in the Property, is
described with sufficient particularity.
15 / 42
1. Mattison Conveyed a Royalty Interest, But Did Not Convey Rights to
Bonus Payments and Delay Rentals
Verde’s first contention is that the Mattison Deeds conveyed a mineral interest.
“An instrument conveying land in fee simple transfers both the surface estate and all
minerals and mineral rights, unless the instrument contains a reservation or expresses a
contrary intention.” Hysaw, 483 S.W.3d at 9. Five severable rights comprise the mineral
estate: “(1) the right to develop; (2) the right to lease; (3) the right to receive bonus
payments; (4) the right to receive delay rentals; and (5) the right to receive royalty
payments.” Id. (quoting French, 896 S.W.2d at 797) (internal quotation marks omitted).
If not a mineral interest, Verde argues, the Mattison Deeds at least conveyed a
royalty interest. A royalty interest is “the right to receive, either in kind or its equivalent
in money, a stipulated fraction of the oil and gas produced and saved . . . , free of all costs
of development and production.” Lyle v. Jane Guinn Revocable Trust, 365 S.W.3d 341,
351 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citation omitted). It “derives
from the grantor’s mineral interest and is a nonpossessory interest in minerals that may be
separately alienated.” Hysaw, 483 S.W.3d at 9. A single instrument may convey both
“an undivided portion of the mineral estate and a separate royalty interest, and the royalty
interest conveyed may be larger or smaller than the interest conveyed in the minerals in
place.” Id. “In this manner, hybrid interests can be created.” Reed v. Maltsberger/Storey
Ranch, LLC, 534 S.W.3d 51, 55 (Tex. App.—San Antonio 2017, pet. denied) (citation
and internal quotation marks omitted).
Verde’s claim that the instruments conveyed a mineral interest focuses on the
second clause of the first sentence of the deed. That provision purported to convey:
16 / 42
. . . such an undivided interest in an undivided one-half of any
and all oil, gas or minerals that may be found to be in, under
or upon any part of said tract of 2,092 acres described in the
Edward Mattison Survey of a portion of said Block 16 as the
number of acres purchased by said [grantee] bears to the
entire number of acres in said tract.
D.E. 58-1. As Verde notes, the reference to “oil, gas or minerals that may be found to be
in, under, or upon” the land is reminiscent of the “in and under” formulation customarily
used to convey mineral interests. D.E. 57, p. 9 (quoting Reed 534 S.W.3d at 55).
It is also the case that “when an undivided mineral interest is conveyed, reserved,
or excepted, it is presumed that all attributes remain with the mineral interest unless a
contrary intent is expressed.” French, 896 S.W.2d at 797 (quoting Day & Co. v. Texland
Petroleum, 786 S.W.2d 667, 669 n.1 (Tex. 1990) (internal quotation marks omitted)).
Thus, the fact that an instrument is silent as to some portions of the mineral estate, while
explicitly reserving other portions of the mineral estate to the grantor, ordinarily would
suggest that those unnamed interests were intended to be conveyed.
However, “[t]o discern intent, words and phrases must be construed together and
in context, not in isolation.” Hysaw, 483 S.W.3d at 13. As such, the Court must consider
the entirety of the instrument to determine what the parties intended.
“A property owner’s rights are often described as a bundle of rights, or a bundle of
sticks.” Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 48 (Tex.
2017). Using the June 3, 1920 deed from Mattison to Ole P. Becken as an example, “a
careful and detailed examination of the document in its entirety” shows that it disposed of
portions of two related but distinct “bundles of sticks.” See Wenske v. Ealy, 521 S.W.3d
791, 798 (Tex. 2017) (citation and internal quotation marks omitted). One “bundle of
17 / 42
sticks” was the small parcel of land purchased by Becken. The other “bundle of sticks”
was the mineral estate corresponding to the approximately 2,092 acres of the Property.
Though the instrument itself does not explicitly distinguish between these property
interests, it is necessary to do so in order to discern the parties’ intent.
Again using the June 3, 1920 deed from Mattison to Becken as an example, the
first sentence of that instrument purported to convey both (1) “certain land and real
estate,” amounting to half an acre; and (2) “an undivided interest in an undivided one-half
of any and all oil, gas or minerals that may be found to be in, under or upon any part of
said tract of 2,092 acres.”
The next sentence of the grant, which begins “It is hereby agreed . . . ,” may be
divided into four parts. Each of the first three parts of that sentence refers to “said land,”
thereby calling back to the grant of “certain land and real estate,” i.e., the half-acre
purchased by Becken. The language of the instrument is also clear that Mattison would
retain the “ownership” of any oil, gas, or minerals “in, upon, or under said land,” as well
as the right to enter upon “said land” to extract any such oil, gas or minerals.
Specifically, the first three parts of the deed’s second sentence provided as follows
(numbering and emphasis added):
It is hereby agreed that:
(1)
18 / 42
the consideration paid for said above described land
is in payment only for the ownership thereof, exclusive
of the ownership of any and all oil, gas, minerals,
mineral oils, mineral paints, fossils or ores that may
be in or upon said land, except as an interest therein is
granted in the grant of an undivided interest in one-half
of the oil, gas, or minerals that may be found on the
2,092.08 acres in the said Edward Mattison Survey,
and
(2)
that the ownership of all such oil, gas or minerals,
mineral oils, mineral paints, fossils or ores that may
be in, upon, or under said land is not sold, paid for, or
conveyed to said second party, and that said ownership
is retained by said first party and his grantors;
(3)
that said first party and his grantors also retain the
right and are hereby, by the acceptance of this deed,
authorized and empowered by said Ole P. Becken on
behalf of himself, his heirs, executors, administrators
and assigns, to enter upon said land, and every part
thereof, and to dig and bore on said land for such oil,
gas or minerals; to remove and sell the same, and to
lay pipe lines and to construct roads over and across
said land for the purpose of removing therefrom any
and all oil, gas or minerals that may be found thereon; .
..
D.E. 58-1. Each of these references to “said land,” then, refers to the half-acre, and not
the mineral estate of the entire Property.
By repeating that Mattison retained
“ownership” of any oil and gas under “said land,” the effect of this conveyance was to
grant Becken a surface estate, reserving to Mattison the right to enter the land as
necessary to extract any oil and gas, also retained by Mattison, that might be underneath
the half-acre.
By contrast, the fourth part of the second sentence of the instrument—which
Defendants refer to as the “personal proceeds covenant”—does not address “said land” or
any rights pertaining exclusively to the half-acre purchased by Mr. Becken. It instead
refers to “said entire tract,” thereby alluding to “said tract of 2,092 acres,” i.e., the entire
19 / 42
Property. It clarifies that the grantee’s fractional share of any oil and gas proceeds was to
be determined after deducting for operating expenses:
[It is hereby agreed] that [Mattison] covenants on behalf of
himself, his heirs, executors, administrators and assigns, that
he will deliver and pay to said party of the second part; his
heirs or assigns, such proportion of all moneys that may be
received by him for one-half of all oil, gas or minerals that
may be found by said first party upon said entire tract and
sold by him, after paying the expenses of refining,
marketing, shipping, storing and other necessary expense
on same, as the number of acres conveyed to said party of the
second part bears to the entire number of acres described in
the plat of said Edward Mattison Survey, viz: 2,092.08 acres.
D.E. 58-1 (emphasis added). In this portion of the deed, then, the acreage purchased by
Mr. Becken is relevant only inasmuch as it determines his share of half of the oil and gas
proceeds Mattison might receive from the entire Property.
Even though the first sentence speaks of conveying “an undivided interest” in the
mineral estate of the Property, the effect of the rest of the deed was to clarify that the
undivided interest was only an interest in any royalties produced from the Property. 9 The
rights to delay payments and bonuses, like the rights to develop and lease the Property,
were therefore retained by Mattison.
Verde’s argument that the Mattison Deeds conveyed mineral interests relies
primarily on Altman v. Blake, 712 S.W.2d 117 (Tex. 1986) and Delta Drilling Co. v.
Simmons, 338 S.W.2d 143 (Tex. 1960). Verde characterizes these cases as holding that
9
The Court notes as well that the instrument is silent as to production costs, which are “the expenses incurred in
exploring for mineral substances and in bringing them to the surface.” Cartwright v. Cologne Prod. Co., 182
S.W.3d 438, 444 (Tex. App.—Corpus Christi 2006, pet. denied). This is consistent with the principle that holders of
royalty interests usually are not required to bear such costs. See id. (“Absent an express term to the contrary,
[production] costs are not chargeable to the non-operating royalty interest.”).
20 / 42
the relevant conveyances “were intended to be mineral interests that included all of the
essential mineral rights other than those that were expressly reserved.” D.E. 57, p. 16.
Neither Altman nor Delta Drilling, however, involved a conveyance such as this
one. The conveyances in Altman and Delta Drilling granted an undivided interest in a
mineral estate that was then reduced by rights that were expressly withheld by the
grantor. In Altman, for instance, the relevant deed purported to convey an undivided
interest in the relevant mineral estate, then withheld to the grantor leasing rights and the
right to receive delay rentals. 712 S.W.2d at 118. The Altman court considered the deed
before it to be indistinguishable from the instrument in Delta Drilling, which the Altman
opinion cited for the proposition that “a mineral interest shorn of the executive right and
the right to receive delay rentals remains an interest in the mineral fee.”10 Id. at 118–19,
120 (citing Delta Drilling, 338 S.W.2d at 143).
Like the conveyances in Altman and Delta Drilling, there is language in the
Mattison Deeds that suggests the grant of an undivided interest in a mineral estate—that
of the Property. But rather than reducing that grant by expressly withholding to Mattison
selected components of the relevant mineral estate, the next portion of the instrument to
address the mineral estate of the Property—the fourth section of the second sentence—
clarified the nature of the “undivided interest” that was conveyed. It specified that the
interest that the grantee received was in fact an interest in oil and gas proceeds. Whereas
the instruments in Altman and Delta Drilling conveyed a full mineral interest and then
removed particular sticks from the mineral estate bundle, here, the Mattison Deeds
10
The “executive right” refers to the right to lease. Altman, 712 S.W.2d at 118.
21 / 42
conveyed a single stick, and then, later in the conveyance, described the precise nature of
the stick that had been conveyed.
Instead of Altman or Delta Drilling, this case is closer to Lyle, which concerned an
assignment of an oil and gas lease from Japhet, the assignor, to Humble Oil, the assignee.
In Lyle, the instrument stated that “[i]n further consideration of this transfer [Humble Oil]
further agrees to carry [Dan A. Japhet et al.] for a working interest of one-fourth (1/4) of
the net money profit realized by it from its operations upon said tracts of land,
accountings to be had monthly once profits begin to accrue.” 365 S.W.3d at 346.
Elsewhere, the instrument noted that the transfer was subject to “the royalties herein
reserved to assignors,” but the critical portion of the assignment—the assignee’s
“agree[ment] to carry [the assignor] for a working interest of one-fourth (1/4) of the net
money profit realized”—was not labeled a “royalty.”
The Lyle court nonetheless
concluded that the instrument reserved to Japhet his proportionate share of a “one-fourth
royalty interest in the profits realized from Humble Oil’s operations on the lease.”11 Id.
at 352.
Similarly, the instruments here conveyed to Mattison’s grantees a pro rata portion
of “all moneys that may be received by [Mattison] for one-half of all oil, gas or minerals
that may be found by [Mattison] upon said entire tract and sold by him, after paying the
expenses of refining, marketing, shipping, storing and other necessary expense on same.”
As Defendants note, the word “royalty” does not appear in the instrument. But there are
11
Before assigning the lease to Humble Oil, Japhet had assigned 8/60 of his interest to other parties, so the precise
royalty reserved in the Humble Oil assignment was “52/60 of the one-fourth royalty interest in the profits realized
from Humble Oil’s operations on the lease.” Lyle, 365 S.W.3d at 352.
22 / 42
no “magic words” that are necessary to create a royalty interest. Hysaw, 483 S.W.3d at 8.
Moreover, a promise to pay a “proportion of all moneys that may be received . . . for onehalf of all oil, gas or minerals that may be found by said first party” is equally descriptive
of a royalty interest as an agreement “to carry [grantor] for a working interest.” Lyle, 365
S.W.3d at 346. The unambiguous terms of the Mattison Deeds, then, reflect the parties’
intent to convey a royalty interest.
2. The Royalty Interest Conveyed Was a Floating Royalty Interest
Having determined that Mattison conveyed only a royalty interest, the Court must
next determine the nature of the royalty interest that was conveyed.
“Royalty interests may be conveyed or reserved ‘as a fixed fraction of total
production’ (fractional royalty interest) or ‘as a fraction of the total royalty interest’
(fraction of royalty interest).” Hysaw, 483 S.W.3d at 9 (quoting Luckel, 819 S.W.2d at
464). A “fraction of royalty interest” is also referred to as a “floating” royalty. See id. at
4; see also Graham v. Prochaska, 429 S.W.3d 650, 657 (Tex. App.—San Antonio 2013,
pet. denied) (“[T]he value of the royalty interest ‘floats’ in accordance with the size of the
landowner’s royalty.”).
Contrary to Verde’s contention, it is clear that the parties contemplated a floating,
rather than a fixed, royalty interest. Mattison’s grantees were not entitled to a fixed
fraction of any oil and gas production derived from the Property. Instead, they were
entitled to a fraction of half of whatever proceeds Mattison received from the Property
(an interest that was itself subject to USIR’s reservation of one-fourth of oil and gas
rights).
23 / 42
Mattison’s grantees’ interests would fluctuate, or float, based on whatever
royalties Mattison might negotiate for himself under any future leases. See Hysaw, 483
S.W.3d at 9 (floating royalty interest “varies in accordance with the size of the
landowner’s royalty in a mineral lease” (citation omitted)).
The conclusion that the instruments contemplated a floating royalty interest also
addresses another of Defendants’ arguments as to why the deeds should not be construed
as conveying a mineral or royalty interest. They argue that, if the Mattison Deeds
conveyed a mineral or royalty interest, there would have been no need to include the
“personal proceeds covenant” because, as a matter of law, the grantees, as holders of
royalty interests, would have been entitled to a share of the proceeds.
The “personal proceeds covenant,” however, clarified that the “undivided interest”
received by the grantee was a floating, rather than a fixed, royalty interest, and thus
would vary based on what Mattison received for the minerals at issue. Rather than
surplusage, it provides an important qualification on the interest conferred to Mattison’s
grantees.
3. The Mattison Deeds Do Not Contain an Unenforceable Personal Covenant
Defendants construe the grants as containing, at most, an unenforceable personal
covenant on behalf of Mattison. The Court disagrees.12
As a preliminary matter, the Court does not attach much significance to the fact
that the Mattison Deeds used the term “covenant” in the portion of the instrument
describing the royalty interest. Such language seems unremarkable in early-twentieth
12
Defendants note that Verde pleaded its cause of action as one for breach of covenant. However, “the formal
issues framed by the pleadings are not controlling on a motion for summary judgment.” 10A Charles Alan Wright
& Arthur R. Miller, Fed. Prac. & Proc. § 2721 (4th ed.).
24 / 42
century conveyances of oil and gas interests.
See, e.g., Phillips Petroleum Co. v.
Williams, 158 F.2d 723, 724 n.2 (5th Cir. 1946) (lessee “covenants and agrees . . . [t]o
pay lessor for gas produced from any oil well . . . .”); Sheffield v. Hogg, 77 S.W.2d 1021,
1023 (Tex. 1934) (“lessee covenants and agrees . . . .”); Southland Royalty Co. v. Pan
Am. Petroleum Corp., 378 S.W.2d 50, 52 (Tex. 1964) (same).
Moreover, whether the instrument is framed as a conveyance of a royalty interest
or as a covenant running with the land does not impact Verde’s right to recovery. A
covenant will run with the land “when it [1] touches and concerns the land; [2] relates to
a thing in existence or specifically binds the parties and their assigns; [3] is intended by
the original parties to run with the land; and [4] when the successor to the burden has
notice.” Inwood N. Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d 632, 635 (Tex.
1987).
Contrary to Defendants’ assertions, the Mattison Deeds contemplated the
conveyance of an interest in real property—a fraction of the royalty interest in the
mineral estate of the Property—and thus satisfied the requirement that the covenant be
memorialized in a transfer of property.13
As for the “touch and concern” element, it has been characterized as a requirement
that the promise “affect[] the nature, quality or value of the thing demised, independently
of collateral circumstances, or . . . the mode of enjoying” the property. See Westland Oil
Dev. Corp., 637 S.W.2d at 911 (citation omitted). The transfers at issue meet that test.
Again, Lyle is instructive: in addition to holding that the instrument reserved in the
assignor a royalty of “one-fourth of the profit realized,” the Lyle court held that “[t]he
13
For this reason, privity of estate also existed between Mattison and his grantees. Westland Oil Dev. Corp., 637
S.W.2d at 910–11.
25 / 42
covenant to pay a one-fourth royalty also clearly touches and concerns the land as it
affects the value of the lease.” 365 S.W.3d at 353; see also Westland Oil Dev. Corp., 637
S.W.2d at 910 (“contract to convey interests in oil and gas leases . . . . involved covenants
running with the land”).
Defendants direct the Court to the provision in the deeds obligating Mattison to
pay to the grantees “such proportion of all monies that may be received by him for ½ of
all oil, gas, or minerals that may be found . . . upon said entire tract and sold by him.”
D.E. 58, p. 30. They claim the repeated references to “him”—Mattison—illustrate that
the parties did not intend the payment obligation to survive Mattison’s personal interest.
This argument is unpersuasive. In the deed, Mattison “covenant[ed] on behalf of
himself, his heirs, executors, administrators and assigns” to make the payments that
Verde claims were improperly withheld. If the payment obligation had been limited to
the oil and gas proceeds that Mattison himself personally received, it would have made
no sense for the instrument to state that the obligation would be binding on Mattison’s
successors. The implication from the deed in its entirety, then, is that the deed obligated
Mattison, “his heirs, executors, administrators and assigns” to pay to their grantees “such
proportion of all monies that may be received by Mattison, his heirs, executors,
administrators and assigns.”
Defendants also rely on In re Sabine Oil & Gas Corp., 550 B.R. 59 (Bankr.
S.D.N.Y. 2016) to argue that the payment proceeds covenant is unenforceable. The
agreements at issue in that case, however, concerned the delivery and refinement of
resources extracted from real property, along with ancillary obligations such as
26 / 42
constructing a pipeline system and meeting minimum supply commitments. As the court
noted, “[a] right to transport or gather produced gas is clearly not one of the[] ‘sticks’”
comprising the mineral estate. Id. at 80. Here, by contrast, the parties intended to convey
an interest in oil and gas.14 Sabine Oil is inapposite.
Finally, Defendants cite a number of cases that they submit are examples of
analogous “personal” covenants that are unenforceable against anyone other than the
original promisor. These cases, however, involve promises unlike those at issue. For
instance, Blasser v. Cass, 314 S.W.2d 807 (Tex. 1958), held that a property owner’s
covenant to pay commissions to his real estate broker for any future lease renewals was
unenforceable against later buyers of the property. Likewise, Wayne Harwell Properties
v. Pan American Logistics Center, Inc., 945 S.W.2d 216, 218 (Tex. App.—San Antonio
1997, writ. denied), rejected a claim based on a covenant to pay a portion of the “net cash
flow interest” on land slated for foreign trade zone and warehouse development. Unlike
the covenants at issue in these cases, the Mattison Deeds contemplated the conveyance of
an interest that Texas law recognizes as an interest in real property. These cases therefore
are unpersuasive.
14
Defendants further argue that because the deeds allow Mattison to pay his grantees after paying the expenses of
refining, marketing, and so on, the deeds contemplate payment for “substances which have been separated from real
property” and thus there is no conveyance of a real property interest. D.E. 58, p. 33. But in Lyle, the grantor
reserved a fraction of the “net money profit realized” from the grantee’s operations. 365 S.W.3d at 346. The Court
sees no distinction between obligations to pay a share of the “net money profit realized” and “moneys that may be
received.” See also Cartwright, 182 S.W.3d at 444–45 (noting that post-production costs, “includ[ing] taxes,
treatment costs to render the gas marketable, compression costs to make it deliverable into a purchaser’s pipeline,
and transportation costs,” “are normally proportionately borne by both the operator and the royalty interest
owners”).
27 / 42
C. The Deeds Do Not Violate the Rule Against Perpetuities
Defendants’ final challenge to the facial validity of the Mattison Deeds falls under
the rule against perpetuities. This challenge also fails.
The Texas constitution provides that “Perpetuities . . . are contrary to the genius of
free government, and shall never be allowed.” Tex. Const. art. I, § 26. To implement
this prohibition, the Texas courts have adopted the rule that “no interest is valid unless it
must vest, if at all, within twenty-one years after the death of some life or lives in being at
the time of the conveyance.” ConocoPhillips Co. v. Koopman, 547 S.W.3d 858, 867
(Tex. 2018). If an instrument is equally susceptible to multiple interpretations, the Court
is to adopt the construction that will not run afoul of the rule. Id.
It appears that many decades passed before any oil or gas was removed from the
Property and marketed. Defendants thus characterize the interests conveyed by the
Mattison Deeds as invalid springing executory interests that might not, and in fact did
not, vest within twenty-one years of anyone alive at the time of the conveyance.
Interests in royalties from oil and gas production, like any other interests, are
subject to the rule. Luecke v. Wallace, 951 S.W.2d 267, 273 (Tex. App.—Austin 1997,
no writ). However, the fact that Mattison’s grantees might have to wait many years
before seeing any return on their investment does not cause the instruments to fail under
the rule. “By definition, a royalty interest is an interest in a share of the future product or
profit from an oil and gas lease.” Id. at 274. As such, “neither oil and gas production nor
the existence of an oil and gas lease are necessary for a royalty interest to be a vested,
present interest (i.e., a fee simple interest in royalties).” Id.; see also Haywood WI Units,
28 / 42
Ltd. v. B&S Dunagan Investments, Ltd., No. 13-15-00454-CV, 2017 WL 6379737, at *4
(Tex. App.—Corpus Christi Dec. 14, 2017, pet. denied) (interest in a share of future
mineral production was a “vested, present interest”).
The cases Defendants cite are easily distinguishable.
Peveto v. Starkey, 645
S.W.2d 770, 771 (Tex. 1982), for instance, concerned a deed that purported to grant
Starkey a royalty interest that would only become effective upon the expiration of the
royalty interest that had previously been conveyed to Peveto, which itself would continue
so long as oil and gas production continued on the property. Here, the Mattison Deeds
did not defer the effective date of the conveyed interests until after the expiration of some
other, earlier-conveyed royalty interest. As for ConocoPhillips, that decision held that a
reservation in an oil and gas conveyance, which would admittedly have been voided
under a strict application of the common law rule against perpetuities, was nonetheless
enforceable. 547 S.W.3d at 868, 873. ConocoPhillips, then, represents a relaxation of
the rule in the oil and gas context, where the typical justifications for the rule—“restraint
on alienability and promoting the productivity of land”—are not at issue. Id. at 869.
For these reasons, the Mattison Deeds therefore did not violate the rule against
perpetuities.
D. The Vendors’ Lien Did Not Void the Mattison Grantees’ Interests
Defendants next contend that Verde cannot succeed to any interest conveyed to
Mattison’s grantees by operation of the vendors’ lien established by the Plympton Deed.
They argue that under the terms of the Plympton Deed, the full fee simple estate would
not be conveyed until the vendors’ lien was satisfied in its entirety, and as the vendors’
29 / 42
lien was never fully paid, whatever interests Mattison attempted to convey were
reclaimed by the Green Owners when they enforced their vendors’ lien in the USIR
bankruptcy.
Defendants’ “delayed conveyance” theory focuses on the last paragraph of the
Plympton Deed, which they describe as “a requirement for the parties to extinguish all
promissory notes before title in the property became absolute.” D.E. 58, p. 12. That
provision states as follows:
But it is expressly agreed and stipulated that the vendor’s
lien is retained against the above described property, premises
and improvements, until the above described notes, and all
interest thereon, are fully paid, according to their face and
tenor, effect and reading, when this deed shall become
absolute.
D.E. 58-3, p. 5 (emphasis added).
This provision is somewhat in tension with the Lien Release Clause, which, as
noted above, allowed for portions of the conveyed premises to be freed from the vendors’
lien before the notes were all paid in full. The Lien Release Clause, which immediately
preceded the last paragraph of the Plympton Deed, provides:
The grantee herein, her heirs or assigns, shall, upon
request, receive from the grantors herein, a release from the
vendor’s lien retained by said grantors herein of any portion
of said lands selected by her at the rate of one acre for each
$20.00 paid on account of the purchase price, but no release
shall be for less than 20 acres.
Id. Defendants ask the Court to resolve the tension by deciding that the Lien Release
Clause is “subordinate and subject to” the final paragraph of the Plympton Deed. D.E.
30 / 42
58, p. 38. If so, they argue, title never fully vested in Ms. Plympton or any of her
successors, rendering Mattison’s grants void as well.
The text of the Plympton Deed forecloses Defendants’ interpretation. It states just
the opposite: that “[s]aid notes are secured by a vendor’s lien on all of the land herein
conveyed, and are subject to the partial payment and release clause hereinafter
mentioned.” D.E. 58-3, pp. 1–2 (emphasis added). If the notes were subject to the Lien
Release Clause, then releasing tracts of land from the vendors’ lien extinguished any
interest the Green Owners previously held in those tracts.
Moreover, Defendants’ proposed reading would render the Lien Release Clause a
nullity. The $20-per-acre option in the Lien Release Clause represents a substantial
premium over Ms. Plympton’s purchase price of roughly $16 per acre. The benefit to be
gained from invoking the Lien Release Clause was to purchase freedom for that tract
from the vendors’ lien. Otherwise, Ms. Plympton would have had no reason ever to
invoke the Lien Release Clause. Defendants offer no explanation as to what purpose the
Lien Release Clause served under their interpretation.
Although the Court need not consider extrinsic evidence to decide the question, it
is nonetheless noteworthy that the Green Owners appear not to have construed the deed
in the manner urged by Defendants. In their 1923 suit against Ms. Plympton and USIR,
the Green Owners sought to foreclose on the property based on the unpaid balance of the
promissory notes from the Plympton Deed. The Green Owners’ pleading in that case,
however, acknowledged “that said vendor’s lien securing payment of said notes should
remain and continue in full force . . . , excepting from the operation of said agreement
31 / 42
all lots or parcels of land theretofore released from the operation of said vendor’s lien
by plaintiffs.” D.E. 58-16, p. 6 (emphasis added). The Green Owners’ pleading went on
to list dozens of tracts that had been so released, including all seven of the tracts in which
the acreage purchased by Messrs. Becken and West is situated.
Had the Green Owners shared Defendants’ view of the Plympton Deed, they
would have had no reason to distinguish between parcels that had been released from the
vendors’ lien and those that had not. They instead would have sought to recover all of
the land they sold to Ms. Plympton, on the theory that they retained superior title until the
notes were fully paid. The fact that they did not only reinforces the conclusion that the
Lien Release Clause was not subordinate to the Plympton Deed’s final paragraph.15
Defendants’ predecessors placed great significance on the distinction between
tracts released from the vendors’ lien and those that were not, as seen by the fact that that
distinction was observed over the succession of controversies in the early 1920s. Now,
Defendants seek to elide that distinction in a manner inconsistent with both the text of the
Plympton Deed and Defendants’ predecessors’ actions. In sum, the Green Owners’
efforts to foreclose on their vendors’ lien did not void the conveyances to Mattison’s
grantees. Defendants’ motion for summary judgment on this point is therefore denied.
15
Defendants also cite Talley v. Howsley, 170 S.W.2d 240 (Tex. Civ. App.—Eastland 1943), aff’d, 142 Tex. 81
(1943), for the proposition that a covenant is “coextensive only with the estate to which it is annexed” and “is
extinguished when the estate ceases.” The distinction between Talley and the present case, however, is that in this
case, parts of the estate subjected to the encumbrance were released before the foreclosure.
32 / 42
E. Defendants Did Not Acquire Title Through Adverse Possession
Defendants next argue that any interest Verde and its predecessors may have held
has since been acquired by adverse possession. Their arguments are unavailing.
1. Houston v. Stanford
Defendants’ first argument rests on the effect of the 1927 judgment in Houston v.
Stanford, which conveyed to the Green Owners “all right, title and interest of defendants
and each of them in and to the said premises be cancelled and removed as a cloud on the
title of the Plaintiffs, and the Plaintiffs may have their writ of possession.” D.E. 58-27.
Defendants contend this judgment left the Green Owners as owners in fee simple of the
Property and its associated mineral estate.
By the time of the Houston v. Stanford litigation, however, the mineral estate of
the Property had been severed from the surface estate. It has long been settled Texas law
that “after the mineral and surface estate have been severed, an adverse possessor of the
surface estate cannot accomplish adverse possession of the mineral estate unless he takes
actual possession of minerals under the surface by drilling and producing them for the
statutorily-described period.” Sarandos v. Blanton, 25 S.W.3d 811, 815 (Tex. App.—
Waco 2000, pet. denied); see also Luse v. Parmer, 221 S.W. 1031, 1032 (Tex. Civ.
App.—El Paso 1920, writ refused) (“[O]rdinary possession of the surface to which he
was entitled under his deeds, . . . would not defeat by limitation the title to the minerals . .
. .”); Green v. W. Tex. Coal Mining & Developing Co., 225 S.W. 548, 552 (Tex. Civ.
App.—Austin 1920, writ ref’d) (“After the estate in the mineral has been severed by
33 / 42
grant, possession of the surface by the grantor is not possession of the mineral, and is
therefore not adverse to the owner of the mineral.”).
There is no suggestion that the Green Owners took actual possession of the
minerals under the Property by drilling or producing them prior to Houston v. Stanford.
As such, the Houston v. Stanford judgment was ineffective to convey title to the mineral
rights held by Mattison. See, e.g., Sarados, 25 S.W.3d at 813, 816 (state vacancy award
purporting to convey both surface and mineral estates did not constitute possession of the
mineral estate for purposes of establishing adverse possession); see also Atl. Refining Co.
v. Noel, 443 S.W.2d 35, 41 (Tex. 1969) (cautioning against “a rule which would permit
the acts of a surface owner to reduce the ownership of the mineral estate, even without
notice or knowledge of the facts by the mineral owner”).
For these reasons, the Houston v. Stanford judgment was insufficient to extinguish
Mattison’s grantees’ royalty interest.
2. Adverse Possession Through Oil Production
Defendants also claim that they obtained title through oil production.
This
argument too is unavailing. It is undisputed that at least since 2007, Defendants, or their
predecessors-in-interest, have been lessors of oil and gas interests. It is also undisputed
that the relevant leases cover the tracts in which the acreage conveyed by the Mattison
Deeds is situated.
“Under Texas law, adverse possession requires ‘an actual and visible
appropriation of real property, commenced and continued under a claim of right that is
inconsistent with and is hostile to the claim of another person.” BP Am. Prod. Co. v.
34 / 42
Marshall, 342 S.W.3d 59, 69 (Tex. 2011) (quoting Tex. Civ. Prac. & Rem. Code
§ 16.02(1)). “The ‘possession must be of such character as to indicate unmistakably an
assertion of a claim of exclusive ownership in the occupant.’” Id. at 70 (quoting Rhodes
v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990)).
In the oil and gas context, the Texas Supreme Court has repeatedly recognized that
a lessee under an oil and gas lease may adversely possess the leasehold interest after the
lease terminates. For instance, in Natural Gas Pipeline Co. of America v. Pool, 124
S.W.3d 188 (Tex. 2003), the leases at issue allegedly terminated due to a brief period of
non-production, but the lessees continued to drill and produce oil and pay the lessors the
negotiated royalties. Observing that “[o]nce the leases terminated, the lessees had no
right to explore for, produce, or sell any of the oil and gas” on the property, the Texas
Supreme Court held that continuing to produce oil and pay royalties was sufficiently
“open, notorious, and hostile to the lessors” to establish adverse possession of the
leasehold interest. Id. at 197. Similarly, BP America Production Co. v. Marshall held
that even if a lessor and lessee became co-tenants upon expiration of a lease, the lessee’s
“payment of royalties—not a cotenant’s share—to [lessor] for the entire time it operated
on the lease was thus an unmistakable and hostile assertion of exclusive ownership of the
leasehold.” 342 S.W.3d at 71.
Thus, while a lessee’s possible adverse possession of a leasehold estate is wellestablished, whether adverse possession defeats Verde’s claim is a different matter. The
record reflects that 1893 and ELP2 are presently lessors under oil and gas leases and that
drilling and production have occurred on the Property since at least 2010. The mineral
35 / 42
leases on the Property, as is typical of oil and gas leases, convey all possessory rights to
the lessees and retain in the lessors only a royalty interest with the possibility of reverter.
See Pool, 124 S.W.3d at 192 (“When an oil and gas lease reserves only a royalty interest,
the lessee acquires title to all of the oil and gas in place, and the lessor owns only a
possibility of reverter and has the right to receive royalties.”). Defendants have not cited
a single case in which oil and gas lessors, as holders of non-possessory interests,
successfully asserted an adverse possession defense against a claim for unpaid royalties.
Nor does it appear that Texas courts would look favorably on such an argument.
For instance, in Coates Energy Trust v. Frost National Bank, No. 04-11-838-cv, 2012
WL 5984693 (Tex. App.—San Antonio Nov. 28, 2012, pet. denied), Coates, as the holder
of a mineral interest, sought to recover unpaid oil and gas proceeds from Frost Bank,
which was the lessor under oil and gas leases with the Sanchez Oil & Gas Corporation.
Frost claimed that it had adversely possessed Coates’s purported interest because it had
paid Coates, and Coates had accepted, a smaller share of royalties for the statutory period
than the share Coates claimed in the litigation. The court rejected that contention:
[U]pon entering into the Sanchez leases, Frost’s interests
changed. . . . [A]s the lessor of the Sanchez leases, Frost
retained only a royalty interest. A royalty interest, as
distinguished from a mineral interest, is a non-possessory
interest. . . . As the holder of only a right of reversion and a
royalty interest under the Sanchez leases, Frost had no
possessory interest of the mineral fee; it therefore could not
have asserted the required possession, and certainly not
open and hostile possession, over Coates’s mineral interest.
There is no evidence that Frost took actual possession of the
minerals by drilling and producing oil and gas. Instead, it
conveyed the minerals, by an oil and gas lease, to third party
oil and gas companies, holding only a non-possessory royalty
interest.
36 / 42
2012 WL 5984693, at *9 (emphasis added, citations omitted).
Here, under the relevant leases, Defendants possess only a royalty interest in the
Property with the possibility of reverter. They cannot possess the oil and gas on the
property, let alone adversely. Defendants’ claim to have extinguished Verde’s interest
through adverse possession therefore fails.
F. Statute of Limitations
Defendants next argue that any claim Verde might have possessed is barred by the
statute of limitations. They assert, and Verde does not dispute, that the governing statute
of limitations falls under Texas Civil Practice & Remedies Code § 16.051.
That
provision states that “[e]very action for which there is no express limitations period,
except an action for recovery of real property, must be brought not later than four years
after the day the cause of action accrues.” Id.
Verde characterizes this case as a “continuing breach” of the obligation to pay
royalties, which it contends allows recovery of “‘damages from four years prior to the
filing of [its] original petition . . . to the date of trial.’” D.E. 64, p. 29 (quoting Dvorken
v. Lone Star Indus., Inc., 740 S.W.2d 565, 567 (Tex. App.—Ft. Worth 1987, no writ)).
Verde also argues that the discovery rule should apply to toll the statute of limitations in
light of Defendants’ “continued non-disclosure of the data central to Plaintiffs’ claim.”
Id. at 30.
The Court rejects Verde’s proposed application of the discovery rule.
“The
discovery rule provides a ‘very limited exception to statutes of limitations.’” Beavers v.
Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (quoting Computer Assocs. Int’l v.
37 / 42
Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996)). It applies only where “(1) the nature of
the injury incurred is inherently undiscoverable; and (2) the evidence of injury is
objectively verifiable.” Id. (citing Altai, 918 S.W.2d at 456).
Nothing about Defendants’ alleged nonpayment of royalties made it “inherently
undiscoverable.” As a holder of royalty interests, Verde has “some obligation to exercise
reasonable diligence in protecting [its] interests.” Wagner & Brown, Ltd. v. Horwood, 58
S.W.3d 732, 736 (Tex. 2001) (quoting HECI Exploration Co. v. Neel, 982 S.W.2d 881,
886 (Tex. 1998) (internal quotation marks omitted)). The record reflects that memoranda
of oil and gas leases were publicly filed in the Live Oak County records as early as 2008,
at which point the exercise of reasonable diligence would have alerted Verde, as well as
any other similarly-situated holders of interests in the Property, to the need to assert its
interests.
Verde’s alleged injury was not inherently undiscoverable, then, and the
discovery rule does not apply. Wagner & Brown, 58 S.W.3d at 737 (claim based on
underpayment of oil and gas royalties was not inherently undiscoverable); see also
EnerQuest Oil & Gas, LLC v. Plains Expl. & Prod. Co., 981 F. Supp. 2d 575, 616 (W.D.
Tex. 2013) (“Texas courts have repeatedly rejected application of the discovery rule to
claims involving oil and gas operations.” (citations omitted)).
The Court agrees with Verde, however, that the statute of limitations does not bar
claims accruing within four years of the date it filed its complaint. This conclusion is
consistent with those reached by Texas appellate courts in other cases brought by
plaintiffs seeking to recover unpaid royalties. See Lyle, 365 S.W.3d at 355 (“The statute
of limitations here . . . only bars recovery of the royalty payments accruing more than
38 / 42
four years prior to the filing of the suit.”); Dvorken, 740 S.W.2d at 567 (“If a continuing
breach has occurred then appellants would be entitled to damages from four years prior to
the filing of their original petition . . . to the date of trial.”).
Verde filed this action on November 2, 2016, meaning the relevant period for
purposes of the statute began on November 2, 2012. Any claims for unpaid royalties
accruing after November 2, 2012, thus are not barred by the statute of limitations.
G. Laches
Finally, Defendants argue that Verde’s claim is barred under the equitable doctrine
of laches. This argument also fails.
“Two essential elements of laches are (1) unreasonable delay by one having legal
or equitable rights in asserting them; and (2) a good faith change of position by another to
his detriment because of the delay.” Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76,
80 (Tex. 1989). “As a general rule, laches is inappropriate when the controversy is one to
which a statute of limitations applies.” Graves v. Diehl, 958 S.W.2d 468, 473 (Tex.
App.—Houston [14th Dist.] 1997, no pet.).
Defendants claim that “[t]he law required Verde—or its predecessors—to act
timely at any point in the last 90 years” and that Verde’s failure to do so bars its claim
under the doctrine of laches. D.E. 58, p. 47. They have not attempted to show, however,
how they detrimentally relied on inaction by Verde or its predecessors. Dismissal based
on laches is therefore inappropriate.
39 / 42
For the above reasons, the Court construes the Mattison Deeds as conveying a
floating royalty interest.
Defendants’ motion for summary judgment is therefore
DENIED and Verde’s motion is GRANTED IN PART AND DENIED IN PART.
MOTION TO AMEND
Verde has also sought leave to amend its complaint under Federal Rule of Civil
Procedure 15(a)(2).
In its amended complaint, Verde asks (1) to add Burlington
Resources Oil and Gas Company, LP (Burlington) as a defendant, asserting against it a
claim arising under the Texas Natural Resources Code (TNRC); (2) to add as additional
named plaintiffs other alleged successors to Mattison’s grants; and (3) to add a cause of
action seeking a declaratory judgment that the Mattison Deeds conveyed either a mineral
interest or a royalty interest. D.E. 67, pp. 1–2.
Under Rule 15(a)(2), “[t]he court should freely give leave [to amend] when justice
so requires.” The rule thus “‘evinces a bias in favor of granting leave to amend,’ and ‘[a]
district court must possess a “substantial reason” to deny a request.’” SGK Properties,
L.L.C. v. U.S. Bank Nat’l Ass'n for Lehman Bros. Small Balance Commercial Mortg.
Pass-Through Certificates, Series 2007-3, 881 F.3d 933, 944 (5th Cir. 2018) (quoting
Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004)). Factors for the Court to
consider include: “(1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure to
cure deficiencies by previous amendments; (4) undue prejudice to the opposing party;
and (5) futility of the amendment.” Id. (citation and internal quotation mark omitted).
40 / 42
The Court will permit Verde to file its amended complaint. It is undisputed that
Verde filed its motion within the time permitted for amended pleadings under the
governing scheduling order, which sets March 1, 2019, as the deadline for Verde’s
amended pleadings. D.E. 50. Verde also has not previously sought leave to amend.
Defendants complain the amendment will be futile, but they do not offer any arguments
as regarding futility other than the ones urged in their summary judgment briefing as to
why Verde allegedly does not hold any legally enforceable interest.
Defendants also focus on the length of time this matter has been pending, as Verde
filed its complaint in November 2016. Defendants note as well the somewhat unusual
sequencing of Verde having filed its proposed amendment while summary judgment
motions are pending, which Defendants claim is evidence of bad faith and dilatory
motives.
Nonetheless, the amendment does not appear to be the product of bad faith or
dilatory motive, nor does it appear that Defendants will suffer any undue prejudice as a
result of the amendment. Verde’s proposed claim against Burlington appears to be a
modest addition to the matter.16 The joinder of new named plaintiffs likely does little to
complicate the proceedings, as Verde itself has yet to prove its own chain of title. As for
Verde’s desire to pursue a declaratory judgment claim, the parties have already
extensively addressed the construction of the Mattison Deeds and whether they may be
16
Defendants claim that the rule in issue as regarding Verde’s assertion of its TNRC claim against Burlington is
Rule 21, which addresses misjoinder and nonjoinder of parties. Because Verde seeks to assert a new claim against a
new party, however, the Court considers Rule 15 to be the better fit, although the analysis is similar under either
provision. See 6 Wright & Miller, § 1474 (noting, among reasons for amended pleadings, “to change the nature or
theory of the party’s claim” or “to add, substitute, or drop parties to the action”); see also id. (“[T]he same basic
standard for adding or dropping a party will apply whether the pleader moves under Rule 15(a) or Rule 21.”).
41 / 42
characterized as conveying a mineral or royalty interest—the same question as to which
Verde seeks a declaratory judgment.17
With respect to Verde’s sequencing its request for leave to amend after the parties
have filed summary judgment motions, the parties asked the Court to entertain their
cross-motions for summary judgment before the deadline for amended pleadings.
Defendants cannot claim to have been surprised that Plaintiffs would seek leave to amend
while summary judgment motions were pending (or afterward). Nor has the request for
leave to amend mooted the parties’ briefing, as the proposed amendment only clarifies
the issues developed at length through the summary judgment briefing.
For the foregoing reasons, the Court GRANTS Verde’s motion for leave to amend
its pleading.
CONCLUSION
Defendants’ motion for summary judgment (D.E. 58) is DENIED.
Verde’s
motion for partial summary judgment (D.E. 57) is GRANTED IN PART AND
DENIED IN PART. Verde’s motion for leave to amend (D.E. 67) is GRANTED. The
Clerk of the Court is ordered to file the First Amended Class Action Complaint for
Declaratory and Monetary Relief which was filed as Exhibit 1 to Verde’s motion (D.E.
67-1).
ORDERED this 9th day of January, 2019.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
17
In this regard, the Court notes that its prior determination that the Mattison Deeds conveyed floating royalty
interests does not necessarily entitle Verde to a declaratory judgment on this claim. As the parties have not
addressed the issue, the Court has assumed in this Order that Verde can establish chain of title.
42 / 42
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?