Red Boot Production Company, Inc., Barbara Landrum, Widow of Claude John Landrum, Eric Landrum, Matthew Wayne Landrum, Scott Michael Landrum, Dawn Ewing Mills, Tamara Ewing, Sean Ewing, Laura Ewing, J. Patrick Morris Sr., Joseph J. Morris v. Samson Exploration, LLC and SM Energy Company F/K/A St. Mary Land & Exploration Company

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00191-CV
____________________

RED BOOT PRODUCTION COMPANY, INC., BARBARA LANDRUM,
WIDOW OF CLAUDE JOHN LANDRUM, ERIC LANDRUM, MATTHEW
WAYNE LANDRUM, SCOTT MICHAEL LANDRUM, DAWN EWING
MILLS, TAMARA EWING, SEAN EWING, LAURA EWING, J. PATRICK
MORRIS SR., JOSEPH J. MORRIS, THOMAS A. MORRIS, WILLIAM D.
MORRIS, MICHAEL M. MORRIS, KATHLEEN MORRIS REINE AND
ROBERT J. J. MORRIS, INDIVIDUALLY AND AS TRUSTEE
FOR TROY EWING, Appellants

V.

SAMSON EXPLORATION, LLC AND SM ENERGY COMPANY F/K/A ST.
MARY LAND & EXPLORATION COMPANY, ANN HARDER, PAULINE
HARDER AS EXECUTRIX OF THE ESTATE OF RAY EDWARD
HARDER JR., AND EDRA HARDER BOGUCKI, Appellees
_______________________________________________________ ______________

On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-190,319
________________________________________________________ _____________

MEMORANDUM OPINION

In this trespass to try title appeal that concerns oil and gas interests, the

parties to the appeal dispute whether the trial court properly granted summary

1
judgment quieting title to a strip of land in use as an irrigation canal. Based on the

summary judgment evidence, the trial court determined that a 1908 deed and a

1916 deed conveyed the grantor’s interest in the two tracts to the centerline of a

canal that runs between the tracts. We hold that the summary judgment evidence

was conclusive, and that the two deeds at issue indicate the grantor intended to

convey his interest in the tracts that he sold to the centerline of the canal.

Therefore, the trial court properly granted summary judgment in favor of the

parties who acquired their minerals based on the grants in the 1908 and 1916

deeds, and we affirm the trial court’s judgment, which found against the parties

claiming the 1908 and 1916 deeds did not include the right to explore and produce

the minerals lying beneath the canal.

Background

This dispute concerns whether the deeds executed by a grantor that sold the

tracts on both sides of a canal owned and intended to convey his fee simple interest

in the property lying beneath the canal. The dispute over the ownership of the

property arose after an oil and gas exploration company completed two successful

gas wells that produce minerals in a location that lies beneath the canal.

2
 In 2004, the Broussards 1 and the Harders 2 entered into an agreement with

Samson Lone Star, LLC (now known as Samson Exploration, LLC, “Samson”)

and St. Mary Land and Exploration Company (now known as SM Energy

Company, “SM Energy”) to pool various mineral leases in which they owned

interests to allow Samson and SM Energy to form the Paggi-Broussard Unit.

Currently, Samson operates the Unit, which covers approximately 640 acres of

land out of the James Gerish Jr. Survey in Jefferson County, Texas. Two producing

gas wells are located within the boundaries of the Paggi-Broussard Unit.

A 200-foot-wide, 38-acre canal, which is currently operated by the Lower

Neches Valley Authority (LNVA), runs across the surface of the tracts that form

the Unit. The canal was constructed over a century ago after August Delaune, in

1
The Broussards are Louis M. Broussard, William Arthur Roane and
William Arthur Roane Jr., Trustees of the William Arthur Roane Land Trust, Joe
Broussard II and Martin Eloi Broussard, Trustees of the Loretta B. Casey Mineral
Trust, James C. Broussard, Louis M. Broussard Jr. and Roland Polk, Agents and
Attorneys-in-Fact for the J. E. Broussard Heirs Mineral Agency agreement, and
Mixson Land Company. The Broussards were nonsuited after the trial court
granted the motion for summary judgment, and they have not participated in the
appeal.
2
The Harders are Ann Harder, Pauline Harder as Executrix of the Estate of
Ray Edward Harder Jr. and Edra Harder Bogucki. The Harders, Samson, and SM
Energy were some of the defendants who were parties when the trial court
rendered the take-nothing judgment, and they have submitted briefs in the appeal.

3
1898, granted the Beaumont Irrigating Company a private easement to build a

canal.

In 1908, Delaune executed the first of the deeds that is at issue in the appeal.

In the deed, Delaune conveyed the tract that lies on the south side of the canal; the

parties dispute whether the 1908 deed included Delaune’s interest in the strip that

lies between the southern edge of the canal and the center of the canal. The

problem regarding whether the grantor intended to include the strip between the

south border of the canal and the center relates to the 1908 deed’s metes and

bounds description, which generally calls for borders that run along the “south

edge of the Beaumont Irrigating Company’s Canal.” However, the 1908 deed

indicates that Delaune intended to convey the entire tract, as “more particularly

described” by the metes and bounds description that followed the general language

conveying all of Delaune’s interest in the tract. Additionally, the deed does not

contain any express reservation of Delaune’s interest in the strip of property that

lies within the Canal Tract, and he did not reserve any interest in the minerals in

the tract that lies to the south of the canal. The Broussards, the current property

owners, trace their mineral interest to Delaune’s 1908 deed.

In 1916, Delaune executed the second deed that is at issue in this appeal. In

it, Delaune conveyed a 480 acre tract that lies on the north side of the canal. With

4
respect to the property conveyed, the 1916 deed’s metes and bounds description,

describes the boundary of the property as being in a corner “in the north line of the

right of way of the Beaumont Irrigating Company canal; thence in an easterly

direction following the north boundary line of the right of way[.]” The 1916 deed

contains no express reservation of title to the strip of property lying beneath the

canal, nor did Delaune reserve any of the minerals in the tract lying on the north

side of the canal. The Harders, the current property owners, trace their ownership

rights to the mineral estate to Delaune’s 1916 deed.

In 2009, Delaune’s descendants 3 leased the minerals that are at issue in this

appeal to Red Boot Production Company, Inc. According to Red Boot, the metes

and bounds descriptions in the two deeds indicate that Delaune never intended to

convey the two strips lying beneath the canal, the Canal Tract, based on the

language in the 1908 and 1916 deeds. In 2011, Red Boot sued Samson, SM

Energy, the Broussards, and the Harders, and claimed that it had acquired a valid

3
The descendants of Delaune who were parties in the trial court and to the
appeal consists of the following people: Barbara Landrum, Widow of Claude John
Landrum, Eric Landrum, Matthew Wayne Landrum, Scott Michael Landrum,
Dawn Ewing Mills, Tamara Ewing, Sean Ewing, Laura Ewing, J. Patrick Morris
Sr., Joseph J. Morris, Thomas A. Morris, William D. Morris, Michael M. Morris,
Kathleen Morris Reine and Robert J. J. Morris, individually and as Trustee for
Troy Ewing. These parties filed a brief, which Red Boot, in addition to filing its
own brief, joined.

5
oil and gas lease to the minerals beneath the Canal Tract. After some of the

defendants filed a motion to join additional parties, Delaune’s descendants joined

the suit as intervenors. In their petition in intervention, Delaune’s descendants

alleged that they were the rightful owners of the Canal Tract, a strip of property

that consists of approximately 38 acres that lies between the two tracts that

Delaune sold in 1908 and 1916.

In 2013, Samson filed a combined traditional and no-evidence motion for

summary judgment on Red Boot’s and Delaune’s descendant’s claims, which

asserted that they were the rightful owners of the minerals under the Canal Tract.

Subsequently, the Harders and the Broussards joined Samson’s motion. In the

traditional part of its motion, Samson argued that Delaune’s 1908 and 1916 deeds

included the Canal Tract. Although Red Boot and Delaune’s descendants filed

separate responses to the combined motion, all of them asserted that Delaune did

not convey the Canal Tract to the grantees that purchased property through the

1908 and 1916 deeds.

Standard of Review

In resolving the motions for summary judgment, the trial court was required

to construe the language of each deed to determine if Delaune intended the

respective grants to include the property lying beneath the canal to the canal’s

6
center. The trial court granted the defendants’ traditional motion for summary

judgment, and it granted their respective no-evidence motions. However, the trial

court did not make written findings or file conclusions to explain its rulings.

On appeal, a de novo standard is used in reviewing a trial court’s summary

judgment ruling. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,

215 (Tex. 2003). With respect to their traditional motions for summary judgment,

the defendants were required to demonstrate that no genuine issues of material fact

existed that required a trial, and they were required to show that under the language

of the deeds at issue, they were entitled to obtain a judgment in their favor as a

matter of law. Tex. R. Civ. P. 166a(c); see also Knott, 128 S.W.3d at 216. On

appeal, we review the trial court’s ruling that the summary judgment evidence did

not raise any issues of fact “in the light most favorable to the nonmovant, indulging

every reasonable inference and resolving any doubts against the motion.” City of

Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

The standards under Rule 166a of the Texas Rules of Civil Procedure apply

to the trial court’s resolution of the no-evidence portion of the defendants’ motion.

See Tex. R. Civ. P. 166a(i). To prevail on a no-evidence motion, the party moving

for judgment must establish that there is no evidence of one or more essential

elements of the adverse party’s cause of action or affirmative defense. Id; Fort

7
Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). To defeat

the motion, the party opposing a no-evidence motion must present evidence that

raises a genuine issue of material fact as to each of the elements of the claims that

have been challenged by the moving party’s no-evidence motion. Ford Motor Co.

v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

A no-evidence motion may be granted only when “(a) there is a complete

absence of evidence of a vital fact, (b) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered to prove a vital fact, (c)

the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the

evidence conclusively establishes the opposite of the vital fact.” Merrell Dow

Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citing Robert W.

Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.

Rev. 361, 362-63 (1960)). “When the evidence offered to prove a vital fact is so

weak as to do no more than create a mere surmise or suspicion of its existence, the

evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983); see also Ridgway, 135 S.W.3d at

601. More than a scintilla of evidence exists when the evidence “rises to a level

that would enable reasonable and fair-minded people to differ in their

conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994) (citing

8
William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and

“Insufficient Evidence,” 69 Texas L. Rev. 515, 522, 523 (1991)).

Summary Judgment Evidence

The summary judgment evidence includes abstracts of title, and the abstracts

demonstrate that all of the parties to the suit trace their claims to a common

grantor, August Delaune. Part of Red Boot’s argument concerns Delaune’s

authority to convey title to the entirety of the two tracts at issue based on the

interest his children had in the two tracts at issue. The summary judgment evidence

includes Delaune’s affidavit, dated and recorded by Delaune in 1923. According to

Delaune’s affidavit, he married Azima Delaune in 1884, and she died in 1894,

leaving two children, Bertha Delaune Maley and Irving A. Delaune.

Approximately four years after Azima’s death, Delaune granted to the

Beaumont Irrigating Company an easement that gave it “the right to build,

maintain and operate in and upon any lands a canal through which to convey

water[.]” The easement includes a provision that required the Beaumont Irrigating

Company, upon Delaune’s demand, to “construct and maintain” a bridge over the

right of way and to “construct and maintain” any “drain flumes and culverts” to

drain and irrigate the land he owned that is the same land relevant to the parties’

current dispute. The easement further provides that Delaune, and

9
 his heirs and assigns shall have the right to fence across said canal at
any place in such manner as not to obstruct the flow of water therein.
It is further agreed and understood that [Delaune and] his heirs and
assigns shall have the free and unrestricted right and privilege to dam
and back water through and under said canal to and upon his lands
North and above said canal and against the embankment of said canal
and maintain such water for irrigating purposes and that said
Company its successors and assigns shall construct and maintain the
necessary flumes or drain pipes for so doing at its cost and expense
under said canal upon said lands.

A reversion clause in the easement provides that if the canal was “abandoned or

changed upon said land[,]” that the right of way “shall revert to and again become

the property of the said A. Delaune his heirs or assigns.”

In 1908, Delaune sold a 1101.74 acre tract that is located just south of the

canal to A. Bernard (the “Bernard Tract”). The metes and bounds description for

the Bernard Tract states that the northern border runs “along the south edge of the

Beaumont Irrigating Company’s Canal.” The Broussards that are parties to the suit

are the heirs and assigns of the Bernard tract.

In 1915, Delaune conveyed 3.69 acres adjacent to the Bernard Tract to J.E.

Broussard (the “Broussard Tract”). 4 The metes and bounds description in the 1915

deed recites that the northern border of the tract runs “west along Delaune’s south

line 1229 feet to a stake in the south right a way line of the Beaumont Irrigating

Company Canal; thence along the said south right a way line[.]”
4
The 3.69 acre tract is not one of the tracts that is at issue in the appeal.
10
 In 1916, Delaune sold a 480 acre tract that is located just north of the canal

to Ed Paggi (the “Paggi Tract”). The 1916 deed describes the southern border as

“following the north boundary line of the right of way of said Beaumont Irrigating

Company . . . .” The Harder co-defendants are the heirs or assigns of Ed Paggi.

The parties dispute whether the grants in the 1908 and 1916 deeds include

the property that lies beneath the canal separating the Bernard and Paggi tracts.

The canal still exists, and is operated by the LNVA. Red Boot and Delaune’s

descendants contend that Delaune never transferred title to the land burdened by

the canal easement based on the metes and bounds description in each of the

respective deeds. They also argue that Delaune could not have conveyed the

interest that his children inherited from their mother in the tracts.

Samson, SM Energy, and the Harders contend that when a grantor conveys

land bounded by an easement, the grant generally extends to the center of the

easement that is referenced in the metes and bounds description of the deed absent

a specific reservation otherwise. They also contend that Delaune’s children ratified

his 1908 and 1916 deeds.

11
 Construing the Deeds

None of the parties contend that either deed is ambiguous, so the deeds are

construed as a matter of law. Stribling v. Millican DPC Partners, LP, 458 S.W.3d

17, 20 (Tex. 2015). In this case, the question is whether the trial court properly

concluded that the language in the two deeds established that Delaune intended to

convey title to the property that lies beneath the Canal Tract. Relying primarily on

the metes and bounds descriptions in the two deeds, Red Boot claims that Delaune

never intended to sell the Canal Tract when he sold the tracts to the north and south

of the canal. It concludes that Delaune’s descendants acquired title to the Canal

Tract, and its mineral lease with them is valid. In contrast, Samson, SM Energy,

and the Harders contend that the rules of construction as applied to the two deeds

leads to the conclusion that Delaune sold the entirety of his interest in the two

tracts at issue, including the Canal Tract, which properties were ultimately

acquired by the Broussards and the Harders.

When construing an unambiguous deed, the grantor’s intent regarding the

conveyance is derived from the language that is found within the four corners of

the deed. Luckel v. White, 819 S.W.2d 459, 461-62 (Tex. 1991). When possible, a

court is to harmonize and give effect to all parts of a written instrument, but when

there is conflict in a deed’s various provisions, the more specific provisions in the

12
deed generally control over more general expressions that apply to the same land.

Stribling, 458 S.W.3d at 20. This rule of construction is “but a means of discerning

the parties’ true intent.” Id.

Another rule of construction provides that a warranty deed, generally, is

considered to have transferred the grantor’s entire estate in the property that is

being sold “unless there are reservations or exceptions which reduce the estate

conveyed.” Cockrell v. Texas Gulf Sulphur Co., 299 S.W.2d 672, 675 (Tex. 1956).

Samson, SM Energy, and the Harders rely on this rule of construction, and they

point out that the two deeds do not include provisions stating Delaune expressly

intended to reserve title to the strips of property lying beneath the Beaumont

Irrigating Company’s easement. Nevertheless, in deciding what property Delaune

intended to convey through his deeds, we are to gather his intention from each

deed as a whole, “without reference to matters of mere form, relative position of

descriptions, technicalities, or arbitrary rules.” Sun Oil Co. v. Burns, 84 S.W.2d

442, 444 (Tex. 1935). A court’s purpose in construing a deed is to arrive at and

effectuate the grantor’s true intent, and the purpose is not to enforce arbitrary rules

of construction that are based solely on considerations of public policy. See Rio

Bravo Oil Co. v. Weed, 50 S.W.2d 1080, 1085 (Tex. 1932).

13
 In this case, the metes and bounds description of the deeds created a 38-acre

strip of property that lies beneath an existing irrigation canal. A specific rule of

construction, the strip and gore doctrine, applies when the tract of property in

dispute consists of a tract of property between two other tracts, each of which the

grantor conveyed. The strip and gore doctrine developed in response to a “fruitful

source of litigation” that concerns claims of separate ownership to long narrow

strips of land. Cantley v. Gulf Prod. Co., 143 S.W.2d 912, 915 (Tex. 1940).

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.

Id. “The strip and gore doctrine can have application only when the specific strip is

not included in the field notes of the conveyance. If it were so included, it would

pass under the conveyance.” Strayhorn v. Jones, 300 S.W.2d 623, 638 (Tex. 1957).

The doctrine “was conceived and intended to apply to relatively narrow strips of

land, small in size and value in comparison to the adjoining tract conveyed by the

grantor.” Angelo v. Biscamp, 441 S.W.2d 524, 526-27 (Tex. 1969). “[W]hen it is

apparent that the narrow strip has ceased to be of benefit or importance to the

grantor of the larger tract, it can be presumed that the grantor intended to convey

such a strip.” Id. at 527.
14
 In the traditional portion of their joint motion for summary judgment,

Samson, SM Energy, and the Harders relied, in part, on the strip and gore doctrine

to argue that they were entitled to summary judgment on the claims of Red Boot

and of Delaune’s descendants. Red Boot and Delaune’s descendants contend that

the strip and gore doctrine does not apply to the Canal Tract. According to Red

Boot, by calling for a border on the edge of the Canal Tract in the Paggi deed,

Delaune expressed his intent to retain the strip that lies beneath the canal, which it

argues renders the strip and gore doctrine inapplicable. Additionally, Red Boot

argues that even if the doctrine applies, an issue of material fact exists regarding

whether the 200-foot-wide, 38-acre tract that comprises the Canal Tract is small in

size and value as compared to the Bernard and Paggi Tracts. In their brief,

Delaune’s descendants argue the Canal tract is not small, given that Delaune

owned or conveyed other even smaller tracts located in the same survey.

In our opinion, the strip and gore doctrine is relevant to resolving the

questions surrounding whether Delaune intended to convey the property lying

beneath the canal. With respect to the comparative size of the Canal Tract to the

other two tracts, the summary judgment evidence reflects that Delaune owned

approximately 1600 acres in the James Gerish Jr. Survey before he sold the two

tracts at issue, and that he conveyed his ownership in the property he owned in the

15
survey through a series of transactions in a period of less than ten years. The

Bernard Tract, one of the tracts relevant to the question of whether the strip and

gore doctrine applies, contained 1100 acres. The Paggi Tract, the other tract

relevant to the doctrine under the facts in this case, contained 480 acres. Even if

Delaune’s conveyances of other properties within the same survey were relevant to

whether the strip and gore doctrine applies, a tract of land that is 200-feet wide,

contains 38 acres, and is burdened by an easement is small in comparison to 1580

acres of land. We conclude the evidence conclusively proves that the Canal Tract

is small and narrow when compared to the Bernard and Paggi Tracts. See

Escondido Servs., LLC v. VKM Holdings, LP, 321 S.W.3d 102, 109 (Tex. App.—

Eastland 2010, no pet.).

Red Boot also argues the strip and gore doctrine does not apply because

Delaune sold the Bernard and Paggi tracts at different times. However, in Cox v.

Campbell, 143 S.W.2d 361, 365-66 (Tex. 1940), the Texas Supreme Court

presumed the grantor intended to convey property to the centerline of an easement

where the grantor conveyed the property on each side of an easement in separate

transactions, several years apart. We are not persuaded that the applicability of the

strip and gore doctrine requires the sales creating the strip to occur around the

same time.

16
 In another argument, Red Boot contends that because Delaune described

another canal that crossed the Paggi tract in his 1916 deed differently, the 1916

deed reflects that Delaune did not intend to convey title to the property beneath the

Canal Tract. In the deed to the Paggi Tract, Delaune specifically excepted from the

conveyance “whatever rights or titles I have conveyed to the Neches Canal

Company[,]” which is the other canal easement that Delaune granted before he

sold the Paggi Tract. Additionally, the deed to the Paggi Tract states that the

conveyance includes all land described in a partition suit that the deed specifically

identifies, which consists of land “situated north of the Beaumont Irrigating

Company canal, excepting, however, the V. Collier 50 acre tract and the right of

way of the Neches Canal Company and to any right of way for a public road.”

We note that the calls for borders in the Paggi deed follow the edges of

public roads, and do not describe the border at the centerlines of the easements for

the roads. The deed carves a tract previously conveyed to V. Collier out of the

northwest corner by calling for a border on the north line of the Neches Canal

Company right of way line, turns for a corner, and then proceeds south across the

canal to a point in the north line of the Beaumont Irrigating Company right of way.

Delaune called for borders on the edges of the roads and canals described in the

deed, but enclosed the Neches Canal Company right of way in the Paggi Tract.

17
Red Boot argues that Delaune would have enclosed the Canal Tract in the

description if he had intended to convey it. But, Delaune’s deed conveyed the fee

to the canals and the roads because he expressly excepted the right of way, not his

interest in the fee. See Haines v. McLean, 276 S.W.2d 777, 782 (Tex. 1955); Lewis

v. East Texas Fin. Co., 146 S.W.2d 977, 980 (Tex. 1941) (“An instrument of

conveyance which conveys land definitely described in such instrument, and then

excepts from such conveyance a road, railroad right of way, canal right of way,

etc., as such, occupying a mere easement on, over, or across the land conveyed,

conveys the fee to the entire tract, and the exception only operates to render the

conveyance or grant subject to the easement.”).

Red Boot and Delaune’s descendants raise several additional arguments in

an effort to create doubt about whether Delaune intended to convey his title to the

land that lies beneath the Canal Tract. According to Red Boot, Samson’s summary

judgment evidence fails to conclusively establish that the Canal Tract ceased to be

of any benefit or importance to Delaune. See Angelo, 441 S.W.2d at 526-27. In

support of this argument, Red Boot points to the reversion provision of the deed,

concluding that the Canal Tract had value to Delaune because the strip included the

mineral estate, which is the dominant estate. Also, Delaune’s descendants point to

18
evidence that, at the time Delaune conveyed the tracts, the property was close to

highly productive oil fields.

We are not persuaded by these arguments that the 38-acre strip was valuable

to Delaune. Clearly, the two tracts were principally used to farm rice. With respect

to Delaune’s possible interest in the minerals, the summary judgment evidence

includes a 1901 agreement between Delaune and others to produce oil on 580 acres

of land, including the Canal Tract, in return for an ownership interest in an oil

company. Nonetheless, Delaune subsequently conveyed both the Bernard and

Paggi Tracts without reserving any portion of the mineral estate on either of those

large tracts. The reversion clause in the canal easement gave Delaune the right to

use the surface, and the existence of the easement would not have prevented him

from producing the minerals from the land beneath the Beaumont Irrigating

Company’s canal had Delaune desired to do so. We hold that the summary

judgment evidence does not raise an issue of material fact regarding whether the

Canal Tract was highly valued by Delaune for its minerals. See Escondido Servs.,

321 S.W.3d at 109.

Samson also argues that the trial court correctly followed a rule of

construction that indicates courts should presume that a grantor, when the deed

describes property along the edge of a road, intended the deed to include any

19
property the grantor owned to the center of the roadway easement. The Texas

Supreme Court explained the presumption to the centerline rule in Mitchell v. Bass,

26 Tex. 372, 380 (1862).

[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.

Id.

Texas courts have applied the centerline presumption to easements other

than those used for public highways. In Texas Bitulithic Co. v. Warwick, the metes

and bounds description ran along the street, but the court held that “title extends to

the center of the street unless the express terms of the grant show a contrary

intention.” 293 S.W. 160, 162 (Tex. Comm. App. 1927, judgm’t adopted).

As a rule, deeds do not describe property beyond the bounds where
the grantee has exclusive rights. For that reason, no mention is
generally made of adjoining sidewalks and streets, where the public
generally has concurrent rights and control. The use of adjoining
sidewalks and streets is so essentially connected with the lot itself that
grantors have deemed it unnecessary, as a rule, to mention them as
being included within the terms of the deed.

Id. at 164.

20
 In Weed, 50 S.W.2d at 1084, the Texas Supreme Court applied the

presumption to the centerline rule to a railroad easement. In that case, the Court

stated that “a legal presumption exists that a person conveying land situated upon a

public highway or stream intends to convey to the center line thereof, in the

absence of an expression of a clear and unequivocal intention to the contrary.” Id.

The Court, in Weed, noted that a person owning land abutting a railroad right of

way enjoys important rights, including the right to have a railroad crossing,

culverts and sluices installed, while the strip has little practical value to the grantor.

Id. at 1084-1086. In Weed, the Court then explained:

The use of this presumption is merely the application in a
different form of the familiar rule of construction which has always
been enforced by the courts, that is, to indulge the presumption that a
grantor intends to convey to his grantee all of the appurtenant rights
incident to the beneficial enjoyment of property which he has
conveyed. In other words, when a person conveys a piece of property
abutting upon a public highway or nonnavigable stream it is but
natural to assume, in the absence of an express reservation to the
contrary, that he intends to convey the same with all of the beneficial
rights enjoyed by him in its use.

Id. at 1084.

In Cox, 143 S.W.2d at 366, the Texas Supreme Court applied the

presumption to the centerline rule in a trespass to try title action. Id. The dispute in

Cox concerned a railroad easement, on which there was a producing well. The facts

in Cox showed that in 1898 and 1904, the grantor, Campbell, executed deeds that
21
conveyed the property on each side of a railroad easement. The deeds did not

describe the property being conveyed as consisting of the property to the center of

the railroad easement. Instead, the two deeds described the conveyances in terms

that used the north boundary of the easement for the 1898 deed, and the south

boundary of the easement in the 1904 deed. Id. at 361. Thus, the Cox deeds are

similar to the deeds Delaune executed in 1908 and 1916, as the property

descriptions in the deeds called for borders on the railroad’s right of way, and the

deeds did not describe borders to the center of the railroad easement. Id. at 361-62.

Although Campbell sold the property at issue in Cox several years apart to

different grantees, the presumption to the centerline rule was still applied. Id. at

365-66.

Red Boot and Delaune’s descendants argue that the presumption to the

centerline rule does not apply to a canal easement. According to Delaune’s

descendants, as a category of easements, irrigation canal right of ways are not

burdened with a public right of passage like an easement for a highway, street, or

railroad. In response to Red Boot’s arguments that the authorities Samson cite

concern cases that do not involve canal easements, Samson cited cases from other

jurisdictions holding that a boundary call on an artificial waterway such as a canal

22
conveys the property to the center of the canal. 5 See Tagliaferri v. Grande, 120 P.

730, 732 (N.M. 1911); Goodyear v. Shanahan, 43 Conn. 204, 210 (1875); Bischoff

v. Walker, 107 So.3d 1165, 1169 (Fla. Dist. Ct. App. 2013); Warren v. City of

Gloversville, 81 A.D. 291, 293 (N.Y. App. Div. 1903); Thornhill v. Skidmore, 32

Misc.2d 320, 326-27 (N.Y. Sup. Ct. 1961); Scholl v. Emerich, 36 Pa. Super. 404,

417 (Pa. Super. Ct. 1908).

Like owners of land adjoining railroad rights of way, owners of land

adjoining irrigation canals enjoy statutory appurtenant rights. See Cox, 143 S.W.2d

at 366; Weed, 50 S.W.2d at 1085-86; Tex. Water Code Ann. § 11.038 (West 2008).

At the time of the conveyances to Bernard and Paggi in 1908 and 1917, adjoining

landowners could acquire permanent rights to purchase water from the irrigation

canal. See Act approved March 21, 1895, 24th Leg., R.S., ch. 23, § 11, 1895 Tex.

Gen. Laws 27 reprinted in 10 H.P.N. Gammel, The Laws of Texas 1822-1897, at

757 (Austin, Gammel Book Co. 1898) (amended, current version at Tex. Water

Code Ann. § 11.038). The permanent water rights created by the 1895 statute

relevant to canals imposed an easement that runs with the land. Id. (current version
5
While we have not located an opinion from a Texas court expressly
holding that the presumption to the centerline rule applies in cases involving a
canal easement, the Texas Supreme Court has stated that railroad, road, and canal
easements are the types of easements that a grantor cannot reserve by merely
excepting such easements in deeds that convey the tract on which the easements
exists. Lewis v. East Tex. Fin. Co., 146 S.W.2d 977, 978 (Tex. 1941).
23
at Tex. Water Code Ann. § 11.040 (West 2008)). At the time Delaune granted the

canal easement, the laws authorizing irrigation canals imposed burdens on

landowners and provided rights and benefits to the owner of the property burdened

by the canal. See id.; see also id., Act of March 9, 1895, 24th Leg, R.S., ch. 21, §§

1-21, 1895 Tex. Gen. Laws 21.

We are not persuaded by Red Boot’s arguments that the presumption to the

centerline rule does not apply to Delaune’s 1908 and 1916 deeds. We hold the trial

court properly applied the rule, in conjunction with the other rules of construction,

in deciding whether Delaune intended the deeds to convey the deed’s grantees the

property to the center of the canal easement.

The Appurtenance Doctrine

Red Boot and Delaune’s descendants argue that no appurtenant rights in

Delaune’s grant to the Beaumont Irrigating Company justify construing Delaune’s

deeds as having conveyed the property beneath the canal to the purchasers of the

adjacent tracts. Also, they argue that the benefits described in the easement

Delaune granted were in the nature of easements in gross, and that as such, the

benefits were personal to Delaune.

We disagree that the canal easement did not create any appurtenant rights

that were of benefit to the individuals that purchased the Paggi and Bernard Tracts.

24
The summary judgment evidence demonstrates that the rights Delaune reserved

under the canal easement attached to the Bernard and Paggi Tracts. For instance,

the grant of the canal easement that the Beaumont Irrigating Company gave

Delaune allowed him to require the irrigating company to construct and maintain a

bridge over the canal, and the right to construct and maintain drain flumes and

culverts under the canal so that he could drain and irrigate his land. Also, the grant

provided that Delaune, his heirs, and his assigns could, among other things, dam

water passing through and under the canal against the canal’s bank, and that he

could fence across the canal. In our opinion, Delaune’s recorded easement to the

Beaumont Irrigating Company expresses a variety of obligations that run with the

land. See generally Inwood N. Homeowners’ Ass’n v. Harris, 736 S.W.2d 632, 635

(Tex. 1987) (describing when a covenant runs with the land).

With respect to the various obligations that Delaune described in the

easement he gave to the Beaumont Irrigating Company, Delaune’s descendants

argue that none of these rights are necessary and essential to the purchasers of

either the Bernard or the Paggi Tracts. Additionally, Red Boot argues that Samson

failed to tender any evidence to show that the subsequent owners had ever

exercised any of the appurtenant rights that relate to the canal easement.

25
 In construing a deed, we presume that a conveyance reflects an intention to

carry with it the appurtenant rights that belong to the property at the time of the

conveyance. See Weed, 50 S.W.2d at 1084. Delaune’s easement to the Beaumont

Irrigating Company created appurtenant rights with respect to the canal not only

for his benefit, but also for the benefit of his heirs and assigns. The easement runs

with the land and relates to ensuring that the land adjoining the canal remained

irrigable. We conclude that Bernard and Paggi, and then the Broussards and the

Harders, acquired appurtenant rights relating to the canal by purchasing the two

tracts at issue. See Weed, 50 S.W.2d at 1085.

Reversion of the Canal Tract

Red Boot argues that the summary judgment evidence shows that the

Beaumont Irrigating Company constructed the canal outside the boundaries of the

easement that Delaune gave it in 1898 to build the canal. Red Boot argues that

because the canal “changed upon said land,” the canal easement reverted to

Delaune before Delaune executed to Bernard and Paggi deeds.

Assuming the discrepancy in the call on the two instruments raises a fact

issue regarding whether the canal is actually located within the metes and bounds

described in the granting instrument, it is undisputed that the canal was built and

that it still exists and is in use. If the canal is not located within the called

26
boundaries of the grant of the easement, Bernard acquired the property where the

canal is located subject to Beaumont Irrigating Company’s easement by

implication and the land described in the grant was conveyed with the fee in the

Paggi deed. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207-08 (Tex.

1962) (describing elements of implied easement appurtenant). The transactions that

relate to the Bernard and Paggi deeds occurred after the canal was built on

Delaune’s property, and both deeds refer to the canal right of way as the common

border. See Cox, 143 S.W.2d at 365-66. We conclude that the reversion provision

in the easement is not relevant to the question of whether Delaune’s descendants

own the minerals beneath the Canal Tract or to the question of whether Red Boot

has a valid lease.

Holding as to Deeds

Based on the four corners of the Bernard and Paggi deeds, we find no error

regarding the trial court’s conclusion that the deeds conveyed the fee to the

property that lies below the canal to the respective grantees of those deeds. We

further find no error in the trial court’s conclusion that, as a matter of law, Delaune

27
intended to convey the respective properties described by the deeds to the

centerline of the canal easement. 6

Delaune’s Children and their Interest in the Tracts

Delaune’s descendants contend the trial court erred in granting summary

judgment because Samson did not establish that Delaune owned the entirety of the

tracts conveyed by the Bernard and Paggi deeds. The record shows that Delaune

bought the tracts while he was married to Azima Delaune. However, the Bernard

and Paggi deeds post-date Azima’s death, and neither deed expressly states that the

grant includes the one-half interest in the community estate that August’s and

Azima’s children, Bertha and Irving, inherited from Azima upon her death.

Delaune’s descendants contend that a fact issue exists regarding Delaune’s

ownership interest that precludes summary judgment. According to Delaune’s

descendants, a fact issue exists even though Delaune, as the survivor of the

marriage, was authorized to sell their community property to pay community debts.

6
In its motion for summary judgment, Samson presented an additional
ground for summary judgment based on the doctrine of presumed lost deed. On
appeal, Red Boot and Delaune’s descendants argue the judgment cannot be
sustained on a presumed lost deed theory, and Delaune’s descendants contend that
their leases to Red Boot raised fact issues regarding their claim of ownership. We
do not reach the issues the parties advance under their presumed lost deed
arguments because the summary judgment may be affirmed on other grounds. See
Tex. R. App. P. 47.1 (allowing the opinion to address only the issues that are
necessary to the Court’s final disposition of the appeal).
28
They further contend that a fact issue exists even though Delaune’s children later

ratified the deeds their father made to convey all property in Jefferson County after

Azima died. 7 In particular, Delaune’s descendants argue that a report that Delaune

made to the probate court in 1900 shows that the community debts from his

marriage to Azima were paid before the date he sold the Bernard and Paggi Tracts,

and the document ratifying Delaune’s decisions to sell property in Jefferson

County, which bears the signatures of Delaune’s children, merely references “some

actual or apparent interest in the lands[.]” Additionally, they note that the

document ratifying the deeds Delaune executed quitclaims only their interest “in

and to the lands described in said deeds[.]”

It is undisputed that Delaune qualified as a community administrator before

he executed the deeds to the Bernard and Paggi Tracts. A qualified community

administrator may dispose of the community property, including the interest that

passes to any children under the laws of descent, although no community debts

existed on the date of the conveyance. Brunson v. Yount-Lee Oil Co., 56 S.W.2d

1073, 1074-75 (Tex. 1933). Any claims that Delaune’s heirs may have for the
7
The probate of Azima Delaune’s estate and the ratification of Delaune’s
conveyances are listed in Samson’s abstract of title, but are not included in the
abstracts of Red Boot or of Delaune’s descendants. In the trial court, the parties
argued at length concerning the effect of the documents; however, copies of the
documents are not included in the summary judgment evidence.

29
manner in which Delaune administered Azima’s estate are claims they would have

against Delaune as the community administrator on his bond; they are not claims

that Delaune’s heirs can bring against the grantees of the property that purchased

property from Delaune in the course of his administration of his wife’s estate. See

id.

Given the summary judgment evidence showing that Delaune’s children

ratified the deeds to the Bernard and Paggi Tracts, and the summary judgment

evidence showing that Delaune acted as the administrator of his wife’s estate, we

conclude the trial court properly rejected Delaune’s descendants’ claims that the

deeds at issue failed to convey Azima’s interest in the property.

Motion for Continuance

Delaune’s descendants contend the trial court erred in denying their request

for a continuance of the summary judgment proceedings. The record shows that

Delaune’s descendants intervened in the case on June 27, 2013. Samson filed its

motion for summary judgment on August 22, 2013. In their first motion for

continuance, which was filed on September 24, 2013, Delaune’s descendants

requested a continuance of forty-five days to conduct additional discovery. The

additional discovery they desired to conduct concerned a Division Order title

opinion that Samson asserted was privileged. Delaune’s descendants argued that

30
Samson had waived any privilege because it had produced the opinion to the

Broussards. The trial court held a summary judgment hearing on October 1, 2013,

and indicated that it would consider the request to continue the case but it never

ruled on the motion.

On January 7, 2014, Delaune’s descendants filed another motion for

continuance. On the same day, Delaune’s descendants filed an additional summary

judgment response with additional evidence. In the second summary judgment

hearing, which the trial court conducted on January 30, 2014, Delaune’s

descendants argued that compelling Samson to produce additional documents

would reveal that Samson and SM Energy were aware that fact issues existed on

the question of whether they had valid title to the minerals they were producing

from the Canal Tract. During the hearing, the trial court indicated that it would

examine the documents Samson claimed were privileged in camera.

On February 5, 2014, the trial court granted Samson’s, SM Energy’s, the

Broussard’s and the Harder’s motions for summary judgment. Subsequently, Red

Boot and Delaune’s descendants filed post-judgment motions asking the trial court

to reconsider its rulings. On April 2, 2014, the trial court conducted a hearing on

the post-judgment motions, and granted Red Boot’s request to allow it to file

supplemental evidence. Two days later, the trial court denied the post-judgment

31
motions.8 Red Boot and Delaune’s descendants have not raised any issues in the

appeal complaining about the trial court’s discovery rulings on the documents that

the trial court reviewed during the in-camera inspection.

“A request for a continuance is within the trial court’s discretion, and the

trial court’s ruling will not be disturbed on appeal unless an abuse of discretion is

shown.” Karen Corp. v. Burlington N. & Santa Fe Ry. Co., 107 S.W.3d 118, 124

(Tex. App.—Fort Worth 2003, pet. denied). Several nonexclusive factors are

considered when reviewing the trial court’s ruling, which include “the length of

time the case has been on file, the materiality and purpose of the discovery sought,

and whether the party seeking the continuance has exercised due diligence to

obtain the discovery sought.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d

150, 161 (Tex. 2004).

Delaune’s descendants contend the trial court abused its discretion because it

ruled on the motion for summary judgment when there was an outstanding motion

to compel production of documents relevant to issues of title. But, Delaune’s

descendants have not challenged the trial court’s ruling on the discovery dispute,

8
The order denying the motions specifically excepts the post-judgment
motion that Red Boot and Delaune’s descendants filed on February 5, 2014. In the
February 5 motion, Red Boot and Delaune’s descendants asked the trial court to
dismiss the Broussards from the proceedings. The trial court subsequently signed
an order dismissing the Broussards as defendants from the proceedings.
32
and they have not shown that a further continuance would have allowed them to

secure documents relevant to the matters in dispute. We conclude no abuse of

discretion has been shown.

Conclusion

Based on the summary judgment evidence, we conclude that Delaune,

through his 1908 and 1916 deeds to Bernard and Paggi, intended to convey the fees

in the two tracts to the centerline of the canal separating the tracts. We further

conclude the trial court did not abuse its discretion by refusing to grant the Delaune

descendants’ motion for continuance. Having concluded that the summary

judgment was appropriate, we affirm the trial court’s take-nothing judgment.

AFFIRMED.

________________________________
HOLLIS HORTON
Justice

Submitted on January 22, 2015
Opinion Delivered October 1, 2015

Before McKeithen, C.J., Kreger and Horton, JJ.

33