I am of the opinion that the evidence is insufficient to show that the reserved or excepted interest in section 57 passed from Dillingham, special master commissioner, to Olcott by the deed dated January 18, 1889. Because of the generality of the description of the lands and interests conveyed by that deed and of an exception in the granting clause of like generality, it became incumbent upon appellees to show by evidence aliunde that the mineral interest in controversy was not a part of "the land and other property subject to the first mortgage on the Waco Northwestern division, dated June 16, 1873."
For this reason I concur in the reversal of the judgment, and think the case should be remanded for retrial. In my opinion this presents the only reversible error in the case and that all other assignments should be overruled.
The rendition is based upon the rulings of the majority: First, that the reservation or exception of the minerals did not reserve the oil and gas; second, that such reservation or exception is repugnant to the grant, and therefore void.
For the reasons indicated in Luse v. Boatman (Tex.Civ.App.)217 S.W. 1096, and Luse v. Parmer (Tex.Civ.App.) 221 S.W. 1031, error refused in both cases, I dissent from the ruling that the exception did not embrace the oil and gas. In my opinion the ruling of the majority upon this question is in conflict with the two cases cited.
I also dissent from the ruling that the exception is repugnant to the grant and void. There is a difference between a reservation and an exception. But the terms are often used synonymously and sometimes in a deed what purports to be a reservation has the effect of an exception. In such cases the intention of the parties as evidenced by the whole instrument will be given effect, and in a proper case what purports to be a reservation will be construed as an exception without regard to the refined distinctions between the terms. Freudenberger Oil Co. v. Simmons, 75 W. Va. 337, 83 S.E. 995, Ann.Cas. 1918A, 873; 3 Washburn on Real Property (6th Ed.) §§ 2352, 2353; Devlin on Real Estate (3d Ed.) §§ 980, 980a, and cases cited.
The clause in the deed to Jane R. Smith, out of which the controversy in this case arises in terms, imports to be both a reservation and an exception. The terms were evidently used as synonymous. It is placed in that position of the deed more appropriate for a reservation than an exception.
Its manifest purpose and intention, how ever, was to dissever the minerals from the surface estate and except the same from the operation of the grant, so that title thereto would remain with the grantor, together with the surface rights necessary to the complete enjoyment of the mineral resources of the land. I am of the opinion that the effect of the clause is that of an exception rather than a reservation. It seems to me to be clear that the exception from the grant of the minerals in the land conveyed, "and the license to search for and work the same, together with the right of way for convenient access thereto," is but a part only of the thing granted and not all of it, and therefore not subject to the objection of repugnancy. So far as I can ascertain it has always been *Page 512 considered competent to make such an exception and that it is valid. In addition to the authorities above cited see, also, Lindley on Mines (2d Ed.) §§ 9-812; Thornton on Oil and Gas (2d Ed.) §§ 302, 303.
While the validity of such an exception as against the objection of repugnancy was not raised in the two Texas cases above cited, nor in States Oil Corporation v. Ward, 236 S.W. 446, by the Commission of Appeals, yet impliedly its validity was recognized because the judgments rendered in those cases can only be sustained upon the theory that such exceptions are valid.
For the reasons thus briefly stated, I dissent from the ruling of the majority that oil and gas was not embraced in the exception contained in the Smith deed and that such exception is void for repugnancy.