Cargill v. Buie

On Motion for Rehearing.

Appellant Cargill’s motion for rehearing urges nothing not presented initially and disallowed after a thorough consideration. However, a defensive theory has crept into the case that adverse possession for the requisite time will not mature a limitation title to the mineral estate if after the adverse possession began the mineral estate was severed from the fee. This theory will be briefly discussed.

Perhaps clarity will be served by mentioning that Port Bolivar Iron Ore Railway Company suffered a Deed of Trust lien to be foreclosed on its interest in the 8.83 acres, and its title thereto was transferred to Jewell P. Lightfoot, who in turn deeded the tract to the Port Bolivar Company, a corporation, by an instrument dated July 27, 1934, reserving to himself an oil payment out of one-fourth of the minerals. The Port Bolivar Company on September 1, 1934 conveyed by separate instruments fractional mineral interest to six different grantees. It is as lessee of some or all of the present owners of these mineral interests, as well as owner of a fee title emanating from the Port Bolivar Company *750that Cargill claims the right to explore for and produce minerals from the tract. The original opinion mentions evidence before the trial judge that Buie’s adverse possession of the 8.83 acre tract began March 2, 1929, the date of the deed from Squires to Buie.

There was evidence before the trial judge that Buie’s adverse possession began, and the statute of limitation started to run prior to the severance of the mineral estate from the fee, and continued without interruption for approximately 30 years. Severance of the mineral estate from the surface under such circumstances will not nullify the effect of the 10 year limitation statute. See Duval County Ranch Company v. Foster, Tex.Civ.App., 318 S.W.2d 25, n. r. e.; Houston Oil Company of Texas v. Moss, 155 Tex. 157, 284 S.W.2d 131; Leverett v. Leverett, Tex.Civ.App., 59 S.W.2d 252, w. r.; Clements v. Texas Company, Tex.Civ.App., 273 S.W. 993, writ refused; 2 Tex.Juris, 2d, 122, sec. 59.

The motion for rehearing is overruled.