Concord Oil Co. v. Pennzoil Exploration and Production Co.

GONZALEZ, Justice, joined by SPECTOR, BAKER and HANKINSON, Justices,

dissenting on motion for rehearing.

The dissenting opinion of October 18,1996 is withdrawn and the following is substituted in its place.

We agree with both the trial court and the court of appeals that the deed in question unambiguously conveyed two estates of different sizes and duration: a 1/96 perpetual interest in the minerals, and a 1/12 interest in rentals and royalties which ended with the existing lease. Accordingly, we would affirm the judgment of the court of appeals.

I

The rules of construction that govern this type of dispute were most recently articulated in Luckel v. White:

The construction of an unambiguous deed is a question of law for the court. The primary duty of a court when construing such a deed is to ascertain the intent of the parties from all of the language in the deed by a fundamental rule of construction known as the “four comers rule.” That intention, when ascertained, prevails over arbitrary rules. The court, when seeking to ascertain the intention of the parties, attempts to harmonize all parts of the deed. The parties to an instrument intend every clause to have some effect and in some measure to evidence their agreement. Even if different parts of the deed appear contradictory or inconsistent, the court must strive to harmonize all of the parts, construing the instrument to give effect to all of its provisions. The court should not strike down any part of the deed, unless there is an irreconcilable conflict wherein one part of the instrument destroys in effect another part thereof.

819 S.W.2d 459, 461-62 (Tex.1991) (citations and some punctuation omitted).

Luckel rejects mechanical rules of construction, such as giving priority to the granting clause over others, or requiring the use of magic words. Guided by Luckel, we conclude that the A.B. Crosby deed to South-land Leasing Co. (which the Court refers to as the “Concord deed”) unambiguously makes two grants: (1) the granting clause conveyed a 1/96 perpetual mineral interest and the corresponding royalty; and (2) the subject-to clause conveyed a separate and additional 1/12 royalty estate from subsisting leases. The Court errs because it begins with a presumption that different fractions in different provisions necessarily conflict. If we can give the differing fractions meaning according to the plain language of the deed, then we must do so.

Understanding the deed as two separate grants, we need not apply rules of construction to rewrite one of the fractions, as the Court has done. Under well-settled case law, a grantor may convey a different interest in the leased minerals and in the existing royalty income by the same instrument. See Luckel, 819 S.W.2d at 463; Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617, 621 (Tex.1954); Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166, 168 (Tex.1953); Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563, 564 (Tex.1945). Thus, the fact that the deed purports to grant two different fractional estates does not create a conflict.

Because we can give the deed’s language its plain and ordinary meaning, we have no reason to resort to rules of construction. Rules of construction come into play only to resolve irreconcilable conflicts in multi-fraction deeds. See Luckel, 819 S.W.2d at 462. But because no clear conflict appears on the face of the Crosby-Southland deed, this approach is improper here. See Jupiter Oil Co. v. Snow, 819 S.W.2d 466, 469 (Tex.1991).

For this reason, the cases the Court cites involving conveyances with irreconcilable provisions do not apply here. See, e.g., Luckel, 819 S.W.2d at 463-64; Jupiter, 819 *466S.W.2d at 469; Garrett v. Dils Co., 157 Tex. 92, 299 S.W.2d 904 (Tex.1957); Tipps v. Bodine, 101 S.W.2d 1076 (Tex.Civ.App.—Texarkana 1936, writ ref'd). These cases properly outline the rules for construing mineral deeds. These cases are distinguishable, however, because the deeds at issue in those cases each contained a future-lease clause.1 In each there were multiple provisions consistent with each other but inconsistent with the granting clause. Here, no irreconcilable conflict appears on the face of the deed, in part because only two fractions must be reconciled.

The deed at issue in this case is more like the one in Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 340 S.W.2d 548 (Tex.Civ.App.—El Paso 1960, writ ref'd n.r.e.). There, the granting clause conveyed an undivided 1/32 mineral interest, and the subject-to clause “cover[ed] and include[d] one fourth 1/4 of all of the oil royalty and gas royalty” in existing leases. Pan American, 340 S.W.2d at 556. Like the Crosby-South-land deed, the Pan American deed contained no future-lease clause. See id. at 557. The court held that the deed at issue conveyed two independent interests: (1) the granting clause conveyed 1/32 of all the minerals and the corresponding royalty interest; and (2) the subject-to clause conveyed a separate and additional royalty estate of 1/4 of the royalties allocated in existing leases. Id. The court declined to apply Garrett v. Dils—one of our early multi-fraction deed cases and a forerunner to Luckel — holding that the deed in Garrett was distinguishable. Id

II

The subject-to clause states that the conveyance was subject to “any valid subsisting oil, gas and/or mineral lease or mineral lease or leases.” The deed plainly limits the subject-to clause to existing leases, but the Court avoids this construction by interpreting the conclusion of the phrase “or mineral lease or leases” to mean future leases. It is unlikely that after carefully limiting the subject-to clause to existing leases, Crosby meant “or mineral lease or leases” to include an entirely different interest — future leases. “Valid subsisting” is a compound adjective that modifies everything afterward. What follows is a list of each type of lease that could have existed when Crosby made the grant. The list is connected by commas and conjunctions, consistent with other serial lists. Under this construction, the deed is subject to:

• An oil, gas, and mineral lease
• An oil and gas lease
• A mineral lease
• A mineral lease or leases

The phrase “or mineral lease or leases” is broad enough to cover any combination of these lease types or to serve as the plural form of any single type of lease. It is best understood as lawyerly writing bordering on the redundant, such as “grant, sell, and convey” or “right, title, and interest.”

Ignoring the subject-to clause’s serial nature, the Court takes the phrase “or mineral lease or leases” out of context and concludes that Crosby really intended to convey a 1/12 royalty interest under both the existing lease and all future leases. However, we may not isolate this phrase and read it as an independent clause. We have never before read a future-lease clause into a mineral deed when the parties did not clearly express their intent about future events. See, e.g., Jupiter Oil Co. v. Snow, 819 S.W.2d 466, 468 (Tex. 1991) (describing grantee’s mineral interest “[i]n the event the lease now on said land is forfeited or terminated”); Luckel v. White, 819 S.W.2d 459, 461 (Tex.1991) (stating that grantor reserved “the right upon expiration of the present term of the lease on said premises to make other additional leases” and that grantee would receive 1/4 of any future lease royalties); Garrett v. Dils Co., 157 Tex. 92, 299 S.W.2d 904, 906 (Tex.1957) (specifying that grantee would receive 1/8 of future lease benefits “in the event the then existing lease should terminate”); Tipps v. Bodine, 101 S.W.2d 1076, 1077 (Tex.Civ. *467App.—Texarkana 19B6, writ ref'd) (providing that, “in the event that the above described lease for any reason becomes canceled or forfeited,” grantee would receive “One-Half of the lease interests and all future rentals on said land” (emphasis in original)). Unlike these deeds, the Crosby-Southland deed did not specify that Southland would hold an interest when the existing lease terminated. Thus, Crosby retained a possibility of revert-er in future lease benefits that vested when the existing lease expired. The Court’s construction ignores the word “subsisting,” which unlike “or mineral lease or leases” has substantive meaning.

The Court and Justice Enoch contend that the lease may not be enforced as written because the granting clause includes within the “bundle of sticks” a royalty interest which must be added to the interest in existing leases conveyed in the subjeet-to clause. They assert that when the implied royalty interest of the granting clause is added to the express conveyance of the royalty interest in existing leases, it results in an interest larger than Crosby owned. The Court and Justice Enoch over-complicate the deed’s plain language to create a false conflict. The deed says “subject to,” not “added to.” A far simpler interpretation is that Crosby intended to convey to Southland a 1/96 interest in all of his rights, except for the rentals and royalties in subsisting leases, of which he conveyed a 1/12 interest. The net effect is that Crosby conveyed to Southland all of his royalty interest from existing leases, being 1/12, and a 1/96 interest in the possibility of reverter; Crosby retained the other 7/96 interest in the possibility of reverter. The right to royalty from subsisting leases and the possibility of reverter are two different interests which should not be added together. Under this interpretation, Crosby conveyed all of his right to royalty in subsisting leases and less than his interest in the possibility of reverter; it does not require us to assume that Crosby meant to convey 1/12 when he wrote 1/96.

In sum, the only way to justify the harmonizing approach is to create a conflict between the fractions where none exists. Even then, the Court assumes that the grantor intended to convey something other than what appears on the face of the deed, thereby violating the four-comers rule. This Court cannot substitute what it thinks the grantor really meant for the unambiguous grant of a 1/96 mineral interest and an additional 1/12 royalty from existing leases. See Luckel, 819 S.W.2d at 463. Nevertheless, the Court interpolates a future-lease clause into the deed and holds that 1/96 really means 1/12. The Court’s opinion promotes ad-hoc analysis of every mineral deed and wreaks havoc on title stability. For these reasons, we would affirm the court of appeals’ judgment.

. As the Court acknowledges, "The Concord deed does not give as much guidance as the conveyances considered by this Court in other cases.” 966 S.W.2d at 457. The Court again observes that the Concord deed “is not as explicit as the deeds in Luckel, Jupiter Oil, Garrett, or Tipps.” 966 S.W.2d at 458.