On Rehearing.
The following assignments of error presented by appellee’s motion for rehearing are not covered by the original opinion:
“XIX.
“(a) The judgment of this court cannot be sustained by the judgment in the case of Weed v. Rio Bravo Oil Co., because the judgment in that case was not an adjudication that the Gulf Company had a valid lease on the right of way tract.
“XX.
“There was involved in Weed v. Rio Bravo Oil Company suit the question of ownership of the minerals underlying the railroad tract as between the railroad company and the owner of the abutting land. There was no issue in that case as to the rights inter se of the owner of the abutting land and his lessee of said land as respect to the oil underlying the right of way tract; and the judgment in Weed v. Rio Bravo did not and could not therefore adjudicate or determine any rights as between the parties to this suit which could in anywise affect or control the 'legal effect of the lease from the Oakwood Company to the Gulf Production Company; hence the judgment of this court awarding the Gulf Production Company recovery for the minerals produced from said right of way tract cannot be sustained by the judgment in the Rio Bravo Oil Company case.”
We think a sufficient answer to this contention is our citation in the original opinion of Roxana Petroleum Corporation v-Sutter, which presented to the court for decision the very question presented by this case — “the rights inter se of the owner of the abutting land and his lessee of' said land as respect to the oil underlying the right of way tract” — and which was-cited by the Commission of Appeals in Rio Bravo Oil Company v. Weed as one of the controlling authorities, with this striking introduction to the citation: “The-Circuit Court of Appeals, of which Judge Sanborn was a member, reached the same-conclusion.”
(b) It is contended that we are in-conflict with Couch v. Railway Co., 99 Tex. 464, 90 S.W. 860, and Cox v. Campbell (Tex.Civ.App.) 80 S.W.(2d) 1000, 1003 (writ granted). In these cases the grantor owned land on both sides of the right of way; in the case at bar no such, condition was shown to exist. In emphasizing the distinction between the facts off the Couch Case and this case where the-grantor owned land only on one side of railway right of way, the Commission of Appeals said in Rio Bravo Oil Co. v. Weed, supra:
“The case of Couch v. Railway Co., 99 Tex. [464] 467, 90 S.W. 860, is cited1 to sustain the proposition that the presumption applicable to public highways, and streams does not apply in case of a conveyance of land bounded by a railroad", right of way. This expression used by Judge Brown is cited as indicative of such holding: ‘The right of way of a railroad' is not a public highway, in the sense of a public road or street, and the rule of’ construction which applies to a deed for land bounded by a public highway does not apply in this case so as to make the deed convey land not included in its-terms.’
“This language standing alone would seem to sustain plaintiff in error’s view, but, when construed in connection with' that which immediately follows, there is-no such result. Immediately following the language above quoted Judge Brown., states: ‘At the time the deed from Couch-to Norton and McGowen was made Couch owned the land on both sides of the railroad, and after the sale the entire right of" way remained in connection with his land', south of the railroad.’
“He then continues: ‘Under this staf-e of facts there is no ground .for a presump-*625tion that Couch intended to convey that portion which lay between the line described in the deed and the railroad track.’ * * *
“It is thus made clear that the presumption was not applied in that case by the distinguished jurist who rendered the opinion for the obvious reason that the grantor owned lands on both sides of the railroad. His failure to convey to the center of the railroad right of way did not leave a narrow strip of land disconnected from any other tract. Such strip was as much an appurtenant to the grantor’s remaining tract as it was to the tract conveyed. It was as valuable to him as a part and parcel of his remaining tract as it was to the grantee. Evidently Judge Brown declined to apply the presumption because of the recited fact that the grantor, at the time of the conveyance, owned land on both sides of the railroad right of way. There was no other reason for his stating such fact except for the purpose of showing that no basis existed for the application of this presumption. * * *
“The prime object and purpose of such rules is to enable them to ascertain and give effect to the true intention of the parties unless such intention is inconsistent with some settled rule of law. In construing a deed, effect must be given, if possible, to every part of the deed, each clause being considered separately and being governed by the intention of the parties fairly deducible from the provisions of the entire' instrument. In other words, the intention must be gathered primarily from a fair consideration of the whole instrument, and the language employed therein, and the construction given it should harmonize with the terms of the deed, including its scope, subject-matter, and purpose.”
Recognizing the distinction made by the Commission of Appeals, the court, in Cox v. Campbell, supra, quoted as above from the Rio Bravo Case and then continued as follows: “Here, as in the Couch Case, the contention is that a presumption exists that a grantor, conveying land abutting upon a railroad right of way, intends to convey to the center of the right of way. But in this case, as in that, the grantor owned land at the time of his conveyance on both sides of the right of way.” Because of the difference in the facts, we are not in conflict with the Couch and Cox Cases.
(c) Appellee insists that, to have the benefit of the rule announced by the Supreme Court in the Rio Bravo Case, appellants rested under the burden of showing that their lessor did not own the land on both sides of the railroad right of way, and that they failed to discharge that burden. This point is one of rebuttal, and appellee and not appellants had the burden of showing — if such was the fact —that appellants’ lessor owned the land on both sides of the railroad right-of-way.
“XXVII.
“(d) The evidence was conflicting upon the proposition as to whether the Oakwood Company’s president, Mr. Cartwright, prior to the execution of the lease in question, went upon the ground and specifically pointed out the tract to be covered by the lease, which designation did not include the railroad right of way tract. Since this conflicting issue of fact was not submitted to the jury, or request made for submission, it will be presumed in support of the judgment rendered by the trial court that such issue was determined in such a way as to support the judgment; hence the situation is this: The parties to this lease have specifically agreed that it was not to cover the railroad right of way tract, a.nd such agreement was tantamount to an express reservation by the grantor of the right of way tract from the lease and this court erred in not so construing the lease contract as to give effect to the intention of the parties thereto as clearly and plainly appears from their acts and conduct.
“XXVIII.
“Since under the presumed finding of the trial court, the parties to this lease prior to its execution actually went upon the ground and the lessor pointed out to the lessee the land to be covered by the lease as extending only to the outside line of the railroad right of way, the law will not presume that the lease was intended to cover other and different land from that actually designated on the ground but will regard the acts of the parties under such circumstances as effecting a reservation by the lessor of the minerals in the right of way tract from the operation of the lease.
“The facts being undisputed:
“(a) That the 200 foot right-of-way was a separate conveyance in fee simple, wiih no defeasance clause therein, vesting in *626the Railway Company all the land and all ‘the earth, stone and mineral therein,’ save and except oil and minerals of that class reserved as matter of law to Mrs. Janes;
“(h) And the fact that the terms of the lease in controversy from the Oakwood Company to the Gulf Company in unambiguous language conferred upon the latter the restricted and contingent right to exploit the minerals by drilling wells on the land specifically described in the lease, exclusive of the railroad tract or right-of-way ;
“(c) And the fact that neither the lessor nor the lessee had the right or power to enter upon the right-of-way and drill wells for the purposes plainly evidenced by the lease contract in question, but only as to the area entirely outside the railroad right-of-way which excluded by metes and bounds the railroad tract;
“(d) And the fact that fhe parties themselves, as testified to by Mr. Cartwright and denied by Mr. Bordages, but presumptively found and determined by the trial court, no complaint thereof having been made in the appellate court, expressly agreed at the time said contract was being executed, and in complete conformity with the written terms of that instrument, that the intention was to limit the land on which the lease was given, and-all rights thereunder, to the area east of the fenced right-of-way:
“Such facts, so appearing in the record, and the legal effect thereof being to establish as matter of fact that there was no intention to, include any part of the railroad right-of-way in that instrument, but such intention was thereby expressly negatived, it was error in this court to assume and presume without evidence, — the burden being upon the lessee to establish the basic facts upon which the assumed presumption could be predicated, — that the lessor did not owij land on the west side of the railroad right-of-way, but only on the east side thereof, thereby seeking to escape the conclusive effect of the decision of the Supreme Court in Couch v. Railway Company, re-affirmed' in Rio Bravo v. Weed.
“This court, therefore, is in error in presuming, contrary to the finding and decision of the lower court, and of the Supreme Court in the cases cited, that such condition of fact existed as a basis and predicate for the further presumption that the Oakwood lease extended to the center of the railroad right-of-way and included the 7¾00 acres of land not embraced in the field notes of the lease, and contrary to the express purpose and intention of the parties inter sese.”
If there was a conflict as to whether or not “Mr. Cartwright, prior to the execution of the lease in question, went upon the ground and specifically pointed out the tract to be covered by the lease, which designation did not include the railroad right-of-way tract,” as assigned by appellee, the conflict presented an issue of fact for the jury, which the court had no power to decide by instructing a verdict in favor of appellee; an instructed verdict against conflicting evidence presents fundamental error, requiring reversal of the judgment of the lower court. Harlington Land & Water Co. v. Houston Motor Car Co. (Tex.Com.App.), 209 S.W. 145. But ap-pellee does not- ask us to reverse the judgment and remand the cause that the issue on the conflict may be tried to a jury, but insists that the court correctly decided that issue in his favor. That contention, as just stated, cannot be sustained; and, since it asks no other relief, this assignment, for that reason, must be overruled.
But, for this additional, fundamental reason, this assignment is without merit. On the face of the lease made by appellee to appellants, by the very terms of that lease, „by the use of language many times construed by the courts where the issue of title to the center of a way was under consideration — language of identical import — appellants acquired title to the center of the right of way. The language of the lease was not ambiguous; its legal significance was perfectly clear; therefore, parol evidence to the effect that “Mr. Cartwright, prior to the execution of the lease in question, went upon the ground and specifically pointed out the tract to be covered by the lease, which designation did not include the railroad right-of-way tract,” was not admissible, but if received, was without probative force in the construction of the lease. 18 C.J. 252. This rule was given controlling effect by the Commission of Appeals in the Rio Bravo Case.
(e) As the Supreme Court has jurisdiction of every point in this case, ap-pellee’s motion to certify is overruled.
The motion for rehearing is in all things overruled.