(dissenting).
The majority opinion is unique; it attempts to distinguish five cases involving fractional mineral interest but cites no authority in support of the holding.* Being unable to follow the rationale of the majority, I respectfully dissent.
An examination of the authorities cited by the parties, some of which are cited in the majority opinion, reveals that the interpretation of instruments conveying fractional mineral interests has been a source of considerable judicial reasoning during the past forty years. One of the better analyses of the problem is to be found in the article by W. Barber, "Fractional Mineral Interests,” 13 Sw.L.J. 320, 322 (1959), where most of the authorities relied upon by the parties are discussed. From his analysis of the many cases, the author distills the rules which should govern our case in this manner:
“In applying the above general principle [of ascertaining the intention of the parties to the instrument], the courts have distinguished between language referring to land described in the deed and language referring to land conveyed by the deed.” (emphasis in text)
Mr. Barber then articulates the two rules in these words:
“The ‘Described’ Rule.- — Where a fraction designated in a deed is stated to be a mineral interest in land described in the deed, the fraction is to be calculated upon the entire mineral interest.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“The ‘Conveyed’ Rule. — Where a fraction designated in a reservation clause is stat*771ed to be a mineral interest in land conveyed by the deed, the fraction is to be calculated upon the grantor’s fractional mineral interest except where the granting clause purports to convey the entire mineral interest.” (Id. at 323, emphasis in text)
Although stating some of the rules of construction applicable to the case at bar, the majority has overlooked one important rule which is applicable to the case at bar. It was aptly stated by the late Chief Justice Hickman in Garrett v. Dils Company, 157 Tex. 92, 299 S.W.2d 904, 906 (1957): “[Sjhould there be any doubt as to the proper construction of the deed, that doubt should be resolved against the grantors, whose language it is, and be held to convey the greatest estate permissible under its language.”
Construing the deed in question under the recognized rules of interpretation, I am of the opinion that it is within the “Described” rule laid down by Barber, supra.
The key words in the royalty grant (paragraph NINTH quoted by the majority) are “all” and “above described.” The use of the term “all” in some of the cases has been interpreted to include the whole of the physical land in question and the whole of the oil, gas and other minerals in and under and that way be produced and saved from the whole of said area of land. Thus, in Clemmens v. Kennedy, 68 S.W.2d 321 (Tex.Civ.App., Texarkana, 1934, error ref.), a granting clause which purported to convey an undivided one-half mineral interest in the “following described land” was held to convey one-half of the entire mineral interest and not just one-half of the grantor’s one-half mineral interest. Accord: King v. Cron, 285 S.W.2d 833 (Tex.Civ.App., San Antonio, 1956, error ref. n. r. e., per Norvell, J.); Spell v. Hanes, 139 S.W.2d 229, 230 (Tex.Civ.App., Texarkana, 1940, dism. judgm. cor.). See also McElmurray v. McElmurray, 270 S.W.2d 880, 882 (Tex.Civ.App., Eastland, 1954, error ref.).
It will be remembered that in our paragraph “NINTH”, supra, the ⅝4 royalty interest conveyed was “to all of the oil, gas and other minerals in and under and that may be produced and saved from all of the above described land and premises.” This interpretation of the contract is realistic when considered along with the statement from King v. First National Bank of Wichita Falls, 144 Tex. 583, 192 S.W.2d 260, 263 (1946): “ . since oil or other minerals would necessarily be produced from the whole land irrespective of the ownership of undivided shares thereof.”
The Broussard-Middleton deed consistently uses the words “above described”, “described”, and “description.” In the first and third through sixth paragraphs, the physical land is referred to by survey number and then reference is made to recorded deeds, patents and corrected field notes “for a more definite description.” The word “description” is obviously referable to the field notes or the metes and bounds set out therein and not to any undivided interest owned by any party. Sharp v. Fowler, 151 Tex. 490, 252 S.W.2d 153, 154 (1952): “To describe land is to outline its boundaries so that it may be located on the ground, and not to define the estate conveyed therein.”
Thus, the phrase “above described” as thereafter used in the ninth paragraph and in the reservation paragraph of the deed must necessarily be referable to the whole of the physical land or tracts therein mentioned and not to the grantors’ undivided interest therein.
In McElmurray, supra (270 S.W.2d at 881), relied upon by the Broussard plaintiffs, the granting clause purported to convey all of the grantor’s undivided interest in “land described here below,” and a prior clause purported to reserve an undivided one-half mineral interest in “the land here*772in described” (also referred to as “the following described land”). The court held that the deed reserved to the grantor an undivided one-half of the entire mineral interest.
In the earlier decision in King v. First National Bank, supra (192 S.W.2d at 262), which was followed in McElmurray, a clause reserving an undivided one-eighth of the usual one-eighth royalty interest in the “hereinabove described land” was construed to reserve one-eighth of the entire royalty interest in the land described, even though the granting clause purported to convey only the grantor’s undivided one-half mineral interest in the described land.
The leading authority cited by the Broussard appellants in support of their position is Hooks v. Neill, 21 S.W.2d 532 (Tex.Civ.App., Galveston, 1929, error ref.). There the deed purported to convey all of the grantor’s undivided one-half interest in described property and to reserve ½2 of all oil in “the said land and premises herein described and conveyed.” Relying upon the word “conveyed”, the court concluded that the clause reserved ⅛2 of the grant- or’s undivided one-half oil interest rather that ½2 of the entire oil interest.
The word “conveyed” appears only once in the Broussard-Middleton deed, in a paragraph following “NINTH”, and is there used to make a general reference to the prior royalty grant and not in reference to lands, tracts or property previously described. T find no language in the deed which restricts or limits the grant of the royalty interest to the land “conveyed” or to any interest less than the whole. Hooks does not support the Broussard position.
Appellants’ reliance upon Clack v. Garcia, 323 S.W.2d 468 (Tex.Civ.App., San Antonio, 1959, no writ), is likewise misplaced. The deed considered in Clack, like the one involved in Hooks v. Neill, is clearly distinguishable from the deed now under consideration. Grantor Clack excepted from his conveyance and expressly retained and reserved an undivided Vie interest “(same being one-half of the usual one-eighth royalty)”, and contended that he reserved Vie of one-eighth or a ¾28 royalty. The court, speaking through Justice Pope, noted that since at the time of the conveyance Clack owned only ¾6 of the minerals, he reserved only a Vie interest thereof or ½56. Hooks v. Neill, supra, was the only authority cited.
The first eight paragraphs of the granting clause conveyed only surface and not minerals. In the first seven instances, an undivided interest in a larger tract was conveyed. I am not persuaded that the parenthetical insertion of the quotient in the first seven descriptions is entitled to determinative effect. I submit that an undivided three-fourths interest in and to a survey containing 640 acres is in fact and in law precisely 480 acres by simple arithmetical calculation. One reason for the insertion of the parenthetical quotient may have been to simplify the calculation of the purchase price of the surface had it been upon an acreage basis. However, it should not be allowed to override the language in paragraph “NINTH” where a ⅛⅜ royalty interest is conveyed in and to all of the minerals in, under and that may be produced from all of the “above described land and premises.”
To do so, as has been done by the majority, subverts the rule of construction set out in Garrett v. Dils Company, supra.
I would affirm the judgment of the trial court.
All emphasis lias been supplied unless otherwise indicated.