Mary Wynne Kolle v. A.W. White, Jr., et ux--Appeal from 12th District Court of Leon County

AFFIRMED

JULY 12, 1990

NO. 10-89-241-CV

Trial Court

# 10,037A

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

MARY WYNNE KOLLE,

Appellant

v.

A. W. WHITE, JR., ET UX,

Appellees

* * * * * * * * * * * * *

From 12th Judicial District Court

Leon County, Texas

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

Mary Wynne Kolle brings this appeal from an order granting in part A. W. and Margaret Whites' motion for partial summary judgment and denying Kolle's motion for summary judgment. //

Kolle filed this case as a declaratory judgment action requesting the court to construe a deed from Kolle to the Whites as entitling her to three-fourths of the coal and royalty payments on a 383-acre tract in Leon County. The Whites counterclaimed that the deed from Kolle to them conveyed the entire surface estate, one-fourth of the oil and gas estate, three-fourths of the near-surface coal, and all of the lignite.

Kolle filed a motion for summary judgment attaching, among other exhibits, a 1946 deed from Walker to Washington, a 1949 deed from Washington to Kolle, and a 1967 deed from Kolle to A. W. White and wife. All three deeds covered the 383 acres involved here. The Whites filed a motion for partial summary judgment that under the 1967 deed and the summary judgment record, they were conveyed three-fourths of the near surface coal and all of the lignite under the 383 acres.

The trial court thereafter denied Kolle's motion for summary judgment and granted in part the Whites' motion for partial summary judgment, finding: that Kolle, prior to the execution of the 1967 deed to the Whites, owned all of the coal and lignite on the property conveyed by such deed to the Whites; that the term "coal" as used in said deed embraces all geological forms of coal including lignite; and that the operative effect of such deed was to convey to the Whites three-fourths of the coal and lignite, reserving to Kolle one-fourth of the coal and lignite.

As noted, all other matters in controversy in this case between the parties were severed from the case.

Kolle appeals on three points, and the Whites complain by crosspoint.

Kolle first asserts that the trial court erred in granting the Whites' motion for partial summary judgment because the Kolle deed clearly expressed that the Whites were to receive one-fourth of the oil, gas, and other minerals including coal, sand, and gravel.

On April 24, 1967, Kolle executed a general warranty deed by which she:

BARGAINED, GRANTED, SOLD and CONVEYED and by these presents do BARGAIN, GRANT, SELL and CONVEY unto Adair Wayne White and wife Margaret Ann White . . . all the following described property lying and being situated in Leon County, Texas, to wit: [Here follows metes and bounds description of 383 acres of land] . . . . This conveyance is subject to the following:

1. Mineral exception and reservation of one-half of all oil, gas and other minerals as set out in deed from Frances Hazel Walker, et vir, to Agnes D. Washington, dated April 26, 1946, and is of record in Volume 152, page 145, Deed Records, Leon County, Texas.

. . . .

EXCEPTED AND RESERVED from this conveyance is a one-fourth of all oil, gas and other minerals including coal, sand and gravel, and conveyed herewith is a one-fourth of all oil, gas and other minerals including coal, sand and gravel.

(Emphasis added).

Copies of the prior deeds to the property, which were attached as exhibits, reflect how Kolle arrived at her ownership interest before she conveyed to the Whites. In 1946, Walker conveyed to Washington by a deed which expressly provided:

It is understood that the ownership of the minerals in said land shall not be changed or affected by this deed, but shall be owned one-half by Frances Hazel Walker and one-half by Agnes Dean Washington.

In 1949, Washington conveyed to Fred W. Kolle all of Washington's interest in the 383-acre tract. Therefore, at the time of her deed to the Whites in 1967, Kolle owned one-half of the "oil, gas and other minerals," but owned all of the coal and lignite because the severance of the minerals from the surface estate, occurring in 1946, was before June 8, 1983, and because the 1946 deed did not include coal and lignite. See Acker v. Guinn, 464 S.W.2d 348 (Tex. 1985); Friedman v. Texaco, 691 S.W.2d 586, 588 (Tex. 1985).

The dispute arises because the Kolle deed specifically deals with only one-half of the coal, sand and gravel, even though Kolle owned all of the coal, sand and gravel at the time of the conveyance. Kolle contends the language in her deed to the Whites, "EXCEPTED AND RESERVED from this conveyance is a one-fourth of all oil, gas and other minerals, including coal, sand and gravel, and conveyed herewith is a one-fourth of all oil, gas and other minerals including coal, sand and gravel," requires a construction that she only conveyed to the Whites one-fourth of the oil, gas and other minerals, including coal, sand and gravel. (Emphasis added).

We reject Kolle's contention. The granting clause of the Kolle-to-White deed, "I, Mary Wynne Kolle . . . have BARGAINED, GRANTED, SOLD and CONVEYED, and by these presents do BARGAIN, GRANT, SELL and CONVEY unto [the Whites] all of the following described property . . . ," operates to convey the full fee estate in the described property subject only to such interests as are expressly reserved elsewhere in the deed. The granting clause prevails over other provisions of a deed in that a deed will be construed to confer upon the grantee the greatest estate that the terms of the instrument will permit. Lott v. Lott, 370 S.W.2d 463, 465 (Tex. 1963).

Nowhere in the Kolle-to-White deed does it appear, either expressly or by implication, that more than one-fourth of the coal underlying the property was reserved to Kolle, thus the operative effect of the deed as to coal was to convey to the Whites three-fourths of the coal. The Kolle-to-White deed was subject to a reservation of one-half of the oil, gas and other minerals in the Walker-to-Washington deed, and one-fourth of the oil, gas and other minerals including coal, sand and gravel. Therefore, the Kolle-to-White deed conveyed the surface, one-fourth of the oil, gas and other minerals, and three-fourths of the coal, which included the lignite, to the Whites. Retained to Kolle and her predecessors in title was three-fourths of the oil, gas and other minerals (not including coal and lignite), and one-fourth of the coal (lignite). Point one is overruled.

Next, Kolle alleges that the trial court erred in refusing to grant her motion for leave to file the affidavit of A. T. Leveridge, Jr. Assuming, without deciding, that the trial court erred in refusing to grant Kolle's motion to file the Leveridge affidavit, no harm is shown. The evidence therein contained does not raise or controvert any disputed issue of material fact. The affidavit refers to what it terms the Whites' recognition that the Kolle deed is to "convey one-fourth of the minerals." The Whites have never claimed to own more than one-fourth of the "oil, gas and other minerals" underlying the property described in the Kolle deed. Kolle has stated in her brief the phrase, "oil, gas and other minerals," does not include any coal or lignite underlying this property. Therefore, nothing in the affidavit raises any issue concerning the parties' relative ownership interests in coal or lignite. We overrule point two.

Kolle maintains in her final point that the trial court improperly severed the Whites' claim for attorney's fees. The court severed not only their claim for attorney's fees, but also their affirmative claims against Kolle arising out of Kolle's failure to convey good title to all portions of the property described in the Kolle deed. The severed claims were separate from each other, could have been independently asserted in separate lawsuits, and were not so intertwined as to involve the same identical facts and issues. See TEX. R. CIV. P. 174; Ryland Group Inc. v. White, 723 S.W.2d 160, 161 (Tex. App.--Houston [1st Dist.] 1986). Because the trial court did not abuse its discretion in severing out the Whites' additional causes of action, point three is overruled.

The Whites, by crosspoint, assert that the trial court erred in denying in part their motion for partial summary judgment insofar as the court concluded that the Kolle deed reserved any interest in lignite to Kolle, because the term "coal" as used in the Kolle deed does not include lignite. The record on summary judgment establishes that lignite is one of the four classes of coal, viz, lignite, subbituminous, bituminous and anthracite. The trial court found that the term "coal" as used in the deed embraced all geological forms and varieties of coal including lignite. The Whites' crosspoint is overruled, and the judgment is affirmed.

TERRY R. MEANS

DO NOT PUBLISH Justice