In my opinion the pertinent deeds, the deed from the Wallace heirs to H. J. Cobb et al., dated January 14, 1941, conveying the 17.3 acre tract and the deed from the Wallace heirs to Eugene Talbert, dated April 25, 1941, between the same parties conveying a 30 acre tract including the 4.4 and 1 acre tracts shown on the plat in the majority opinion should be construed as *Page 556 conveying the 1/4th interest owned by the Wallace heirs in the 7.047 acre tract in suit.
These deeds describe the south boundary of the lands being conveyed as a public highway.
The following stipulation of the parties was carried into the judgment of the Trial Court:
"Mr. Crenshaw: It is agreed between all parties to the suit, Intervenors, Plaintiffs and Defendants, that concerning the land in question, namely, the seven-acre tract in Wood County, Texas, which is now occupied by U.S. Highway No. 80, over the surface of said land —
"Mr. Stayton: And State Highway 15.
"Mr. Crenshaw: — and State Highway 15, * * *.'
The record also shows this stipulation:
"Mr. Stayton: Your Honor, I represent the Texas Company, the Intervenor in this case, on the side of the State. I would like to ask these gentlemen, to save a little time, while they are making their stipulation, if we couldn't stipulate that State Highway 15, which I believe Mr. Harrington will verify, was the first highway that is here involved, has been there, according to my information in the Highway Department, since 1918. Is that correct?
"Mr. Harrington: That is just on a portion of this land. You have had some changes. Following 1933, the Deed in question, the highway was enlarged and took in additional area, but there was the original highway —
"Mr. Stayton: Occupied part of the area —
"Mr. Harrington: Occupied a part.
"Mr. Stayton: — since 1918, known as State Highway 15?
"Mr. Harrington: That is correct.'
The following facts are undisputed:
(1) The State of Texas owned a 3/4ths fee interest in the tract in suit by virtue of a deed from Minnie L. Cobb, dated August 8, 1933. This deed recited that 3.889 acres of this tract was 'additional right of way.'
(2) A portion of the tract in suit had been used as a public highway since 1918.
(3) The Wallace heirs owned, when the above mentioned deeds were executed by them, an undivided 1/4th interest in the tract in suit.
(4) Such deeds contain no language reserving or in any manner indicating that the grantors intended to reserve any interest in the land in suit.
(5) The lands in suit border or run along the margin of the lands conveyed by such deeds by specific description.
The only conclusion which I can draw from the stipulations of the parties and the undisputed facts is that the undivided 1/4th interest owned by the Wallace heirs in the lands in suit when their two deeds were executed was subject to an easement for road purposes in favor of the general public. The Wallace heirs by the descriptions contained in such deeds admitted, in effect, the existence of such easement. If this conclusion is correct then the decision here is controlled by prior decisions of our Supreme Court.
In Mitchell v. Bass, 26 Tex. 372, it is stated:
*Page 557"The established doctrine of the common law is, that a conveyance of land bounded on a public highway carries with it the fee to the center of the road as part and parcel of the grant. Such is the legal construction of the grant unless the inference that it was so intended is rebutted by the express terms of the grant. The owners of the land on each side go to the center of the road, and they have the exclusive right to the soil, subject to
the right of passage in the public. Upon the discontinuance of the highway the soil and freehold revert to the owner of the land.'
In commenting upon this case the court in Cox v. Campbell,135 Tex. 428, 143 S.W.2d 361, 362, stated:
"The rule announced in the foregoing case has been constantly followed and applied in this State. In the important case of Texas Bitulithic Co. v. Warwick, Tex.Com.App., 293 S.W. 160, it was held that a deed to a city lot, fronting or abutting on a street, described by metes and bounds, carries the fee to the center of the street, unless the contrary is expressly declared. The deed involved in that suit described the property conveyed by metes and bounds, stopping at the line of the street. Judge Powell wrote the opinion in that case, and, after an exhaustive review of the authorities, held that the conveyance carried the title to the center of the street."
As a corollary to this rule it is held that:
"Where a highway is laid off entirely on the owner's land, running along the margin of his tract and he afterwards conveys the land, the fee in the whole of the soil of the highway vests in his grantee.' 9 C.J. p. 203, Sec. 97. See, also, 11 C.J.S. Boundaries Sec. 35.
Cantley v. Gulf Production Co., 135 Tex. 339, 143 S.W.2d 912, Haines v. McLean, 154 Tex. 272, 276 S.W.2d 777.
In Cantley, supra, the Court said:
"It is well known that separate ownership of long narrow strips of land, distinct from the land adjoining on each side, is a fruitful source of litigation and dispute. To avoid this source of contention, it is presumed that a grantor has no intention of reserving a fee in a narrow strip of land adjoining the land conveyed when it ceases to be of use to him, unless such fee is clearly reserved. The reason for the rule is obvious. Where it appears that a grantor has conveyed all land owned by him adjoining a narrow strip of land that has ceased to be of any benefit or importance to him, the presumption is that the grantor intended to include such strip in such conveyance; unless it clearly appears in the deed, by plain and specific language, that the grantor intended to reserve the strip."
In Cantley it was also held that the fact that the roadway was never used or that it had been abandoned did not affect application of the rule which I have quoted.
In my opinion appellees have no title to the lands in suit and their plea for partition should have been denied. I respectfully dissent.