Cushenbery v. Waite-Phillips Co.

240 P. 400, 119 Kan. 478, 1925 Kan. LEXIS 298

• Court: Supreme Court of Kansas
• Decided: October 10, 1925
• Docket: No. 26,380; No. 26,381; No. 26,382; No. 26,383
• Status: Published

Opinions

The opinion of the court was delivered by

Dawson,-J.:

These four lawsuits involve the interests of rival lessees holding under oil and gas leases executed by common grantors, and chiefly relate to a considerable acreage of accreted lands lying between the meandered lines of the west bank of the Arkansas river as of the time of the United States government survey in 1871 and the river bank as it is now located.

The grantors of the leases were A. P. Douthitt, Ike E. and Robbie Nelson, Ben Thurlow and W. E. Holman. These grantors are the owners of certain lands lying alongside the Arkansas river in Cowley county. The Arkansas river thereabout is a meandered stream and the government patents to the lands involved specify certain definite acreages in lots of fractional sections, instead of the typical section and quarter-section numbers which prevail in government surveys unaffected by the proximity of streams of sufficient importance to justify their being meandered.

The specified acreage of the original surveys made in 1871 and the land patents issued in accordance therewith bear little relation to the actual acreage pertaining to these lots at the present time. The reason for such disparity lies in the character of the banks and bed of the Arkansas river. Like most of the prairie streams of this state, the soil is either loam or sand, and alluvion and dereliction make changes in the course and contour of the river banks with much greater rapidity than where streams flow through sterile and rocky soils. The present cases give good examples of these physio-graphical phenomena. Thus in case No. 26,380 the lessor of the plaintiff, A. P. Douthitt, holds in fee lots 6 and 7 in section 17, township 33 south, range 3 east of the sixth principal meridian, in Cowley county. These lots lie west of and adjacent to the Arkansas river, each lot having the meandered river bank as one of its boundaries. Lot 6 calls for 35.60 acres according to the government survey of 1871 and according to the land patent under which Douthitt holds. By accretion and dereliction that lot now contains 51.75 acres. Similarly, lot 7, which called for 14.30 acres in 1871, and was patented accordingly, now contains 36.06 acres. Similar differences now exist between the actual acreages owned by the other lessors, Silas Thur-low and W. E. Holman, and those defined in the original surveys and specified in the patents under which these lessors hold title. To a much less extent the same is true as to the lands of the lessors, Ike E. and Robbie Nelson.

In January, 1923, Douthitt, the Nelsons, Thurlow and Holman granted to certain assignors of the defendants leases to prospect for and develop oil and gas on their lands. The lands described in these leases are in literal conformity with the descriptions of the original government survey, with the descriptions in the original land patents, and in accord with the legal descriptions and acreage upon which the lessors have paid taxes since the lands were patented many years ago. ■

None of the lessors had ever used or improved these accreted lands; nor had taxes ever been levied or paid thereon except as in legal effect such taxation might or should be so construed from the regular annual payment of taxes on the lands to which these accretions had attached.

Some months after the first leases were given to defendants’ assignors, oil had been found on or near these lands, and following such discovery, in December, 1923, and in January, 1924, the above lessors gave to the plaintiffs leases on their accreted lands lying between the original meandered lines of the Arkansas river as surveyed in 1871 and where the river is now located. This the lessors did, as they alleged and testified, on the theory that they had hot leased all their lands in January, 1923, to defendants’ assignors, bat only the actual acreage called for by the original United States surveys, and that in making their several oral contracts with defendants’ assignors they had expressly reserved and intended to reserve whatever lands might inure to them through accretion over and above what they held by record title and on which they paid taxes. In the prior leases to defendants, and by certain escrow agreements, the latter obligated themselves to pay the lessors $1 per acre for all the lands leased to them. The Douthitt lands leased to defendants were specified to be 131 acres, and for which defendants have paid at the rate of $1 per acre per annum, $131. The actual acreage of the Douthitt lands, including the accretions to lots 6 and 7 mentioned above, is 175.76. The Nelson lands, similarly leased to defendants at $1 per acre, were specified as 84 acres, and for which defendants have paid annual rent at $84, actually constitute 85.53 acres. The Thurlow lands, leased to defendants at $1 per acre, were specified as 352 acres, and for which defendants have paid annual rent at $352 actually constitute 442.87 acres when the accretions are included therewith. The Holman lands, leased to defendants, were specified as 312 acres, for which defendants have paid rents at $304, actually comprise 358.14 acres.

The plaintiffs’ leases cover the lessors’ accreted lands, viz.:

Douthitt accreted lands ............................ 44.78 acres

The Nelsons’ accreted lands......................... 1.53 acres

Thurlow accreted lands............................. 90.87 acres

Holman accreted lands ............................. 46.14 acres

Included in plaintiffs’ leases, also, the lessors gave plaintiffs a right to explore for oil and gas in the bed of the Arkansas river between the present river bank adjacent to these accreted lands and the middle of the main channel of the stream. Those parts of the river bed which the lessors have assumed to lease to plaintiffs are as follows:

Douthitt........................................... 16 acres

The Nelsons....................................... 29.50 acres

Thurlow ........................................... 60.9 acres

Holman ........................................... 43 acres

But touching so much of these lawsuits as arises from the leasing of the river bed, this court will avoid comment because it does not appear to be a yital issue between the parties to this litigation, and because we note that plaintiffs have instituted some sort of a lawsuit in the federal court against certain public officers of Kansas, under some claim of right to mine for oil and gas in the river bed; and these public officers have apparently come to some understanding with plaintiffs touching a disposition of the proceeds or royalties ■of any oil and gas found therein.

In plaintiffs’ actions herein the leases of the accreted lands are set up, and it is alleged that defendants claim ¿11 the oil and gas rights thereto by virtue of their earlier leases. Plaintiffs allege that defendants’ leases do not cover the accreted lands; that the lessors of the plaintiffs never intended to lease to defendants the accreted lands; and plaintiffs pray that their lease rights to the accreted lands be quieted, and that if the court should hold that as written the defendants’ earlier leases do cover the accreted lands, then such leases do not express the mutual agreements of the parties thereto and that mutual mistakes inhere therein which should be reformed, and they pray that the leases be so reformed to recite correctly the several contracts of the parties thereto, and for other equitable relief.

By amendments and supplementary pleadings other allegations of more or less significance were pleaded by plaintiffs, and after certain demurrers and motions were disposed of, defendants answered with a general denial, making certain admissions and allegations, and set up the leases executed to their assignors, alleging defendants’ reliance on the recitals therein and the records thereof, and alleging that they had no knowledge or notice of any mistake in the descriptions of the lands leased to their assignors or that their leases did not include the accreted lands, and alleging that at the time defendants acquired these leases they understood and believed they were acquiring all the lands owned thereabout by the lessors contiguous to the Arkansas river without regard to the acreage each tract might contain.

Certain varying details in the four actions appear in the pleadings of the parties which need no mention at this point.

Appropriate replies to defendants’ answers were filed. Issues thus joined were tried by the court without a jury. Evidence for plaintiffs was presented in extenso, developing all the facts set out above, and at its conclusion defendants’ demurrers thereto were sustained and judgment was rendered for defendants in each of the cases.'

Plaintiffs appeal, presenting with painstaking care the points on which they rely for a reversal of the judgment. Their elaborate arguments center about two main propositions: (1) That the defendants’ leases covered only the actual acreage specified in the contracts and on which the defendants have paid the stipulated rental of one dollar, per acre per annum; and (2) that if the defendants’ leases are given a construction which will include the accreted lands of the lessors, such construction is at odds with the contracts intended to be made by the lessors and defendants’ assignors, and that defendants had notice thereof and are bound thereby.

Touching the first of these contentions appellants present a formidable array of authorities touching the rebuttable character of the presumption which attaches to the quantity of land which passes in an instrument describing the land in terms of government survey. They concede that there is a presumption that all accretions are included and losses by erosion ignored, and that the call for a stated acreage yields to the actual acreage included in the terms of the government survey; but appellants emphasize the point that this presumption is rebuttable by proof of the true intent of the parties to the instrument. A majority of this court decline to recognize or apply that doctrine to the cases at bar and hold without qualification that the tracts defined by the government survey and described in the government patents under which the lessors hold title include the accretions which have attached thereto since the lessors’ lands were surveyed and delimited by the government surveyors in 1871 and patented in accordance therewith. So far as concerns the meandering lines along the river bank run by the government surveyors in 1871, it is to be kept in mind that those meandering lines were not the land boundaries. They were merely mathematical data for calculating the then existing but changeable acreage—no more. The true boundaries of the lessors’ lands always were the river bank itself, and such was and is the tenor and legal effect of the land patents under which the lessors of these rival litigants hold title. We have no present concern with legal questions which may arise from sudden changes caused by flood, storm or other unusual agency, as affecting boundaries of riparian lands along meandered streams. (Wood v. Fowler, 26 Kan. 682, 688, 689; Fowler v. Wood, 73 Kan. 511, 85 Pac. 763, and citations; Craig v. Leonard, 117 Kan. 376, 232 Pac. 235.)

In Peuker v. Canter, 62 Kan. 363, 63 Pac. 617, where the legal significance attaching to the description in a government survey and land patent was under consideration, it was said:

"Lots 1 and 2, as described in the original survey, were at that time fractional forty-acre tracts bordering on the river. Their shore line was meandered. The river, not the meander line, was the western boundary. Meander lines are not boundary lines. (Gould, Wat., 3d ed., § 76; Kraut v. Crawford, 18 Ia. 549; Railroad Company v. Schurmeir, 7 Wall. 272, 287, 19 L. Ed. 74.)” (p. 368.)

In Gould on Waters, 3d. ed., § 76, cited by the court in Peuker v. Canter, supra, the text reads:

“According to all the decisions in most of those states in which the lands were originally surveyed under the laws of the United States, the lines run by the United States surveyors along the river banks are not lines of boundary, the owners of the adjacent lands taking at least to the water’s edge, thus giving them the benefit of the river frontage, with the right of access to the river, and the incidents of riparian proprietorship as to the use of the water. The true boundary line of a navigable stream or lake is the point to which the water usually rises in ordinary seasons of high water. The position of that line is a question of fact for the jury, and it controls although the meander line of the survey is found not to be coincident therewith. When landowners once become riparian proprietors they are entitled to the accretions, or newly formed ground which may be left by the river after the survey and sale by the United States of the adjacent land, and which, if not their property, would separate them from the river. The tendency is to accept the decisions of the supreme court of the United States in Railroad Co. v. Schurmeier and Barney v. Keokuk in those states in which the rule extending the riparian owner’s title to the center of the stream had not been previously adopted. These decisions have been followed in Missouri, Minnesota, Arkansas, Oregon, Nevada, Kansas, Florida and California.”

See, also, Rose’s Notes to Railroad Co. v. Schurmeier, 74 U. S. 272, in 19 L. Ed. 592 et seq.

It is argued for appellants, and supported by some authorities, that while the foregoing may be the prevailing rule as to the legal significance to be given to land descriptions in ordinary conveyances, they ought not to be so interpreted in oil and gas leases, which are mere licenses to come and go on the property concerned and to explore it for these products and to remove them if discovered. This court holds that such a distinction as to the legal effect of a land description in a deed and in an oil and gas lease is too dogmatical for practical purposes and would introduce a subtlety into our law which would be thoroughly mischievous. A legal description which sufficiently defines a tract of land in terms of government survey, in a government patent, and according to the terms of which the land passes from one fee holder to another and is thus listed for taxation, should be given no variable significance whether that description appears in a deed, an ordinary lease, an oil and gas lease, or any other instrument in which the property is the subject of any contract or transaction. (Ratcliff v. Paul, 114 Kan. 506, 509, 220 Pac. 279.)

Turning next to the error assigned in sustaining defendants’ demurrer to plaintiffs’ evidence, a majority of the court are of opinion that appellants’ contention on this point is also without merit. The defendants’ leases were unambiguous and were therefore not subject to alteration by parol testimony; and given its largest significance, plaintiffs’ evidence disclosed no such mutual mistake as would permit the defendants’ leases to be reformed. The evidence adduced in plaintiffs’ behalf went no further than to show that there was a question or doubt in the minds of the lessors as to the legal effect of the recitals of land descriptions in their land patents and in the' leases- they had given to defendants; and there is no rule of law or equity which will sanction an alteration in a written instrument for the mere reason that some of the parties thereto were mistaken as to the legal effect of the language to which they had set their hands. It therefore follows that the demurrer and plaintiffs’ evidence was properly sustained, and the judgment must be affirmed.