HUGHEY et al. v. ATLANTIC OIL PRODUCING CO. et al., 109 S.W.2d 1041

CRITZ, Justice. This cause is before this court on motion for rehearing filed by M. B. Hughey and J. Zeppa, appellees in the Court of Civil Appeals, and plaintiffs in error in this court. The opinion of the Court of Civil Appeals fully states the facts and issues of the case, and we here refer to it for that purpose. It is published in 107 S.W.(2d) 613. At a former day of this term, we dismissed W. O. J., the above-mentioned application for writ of error filed by Hughey and Zeppa.

It appears from the record that Hughey was plaintiff in the district court, and that his petition was in form of trespass to try title and for damages. The prayer was for title and possession of 3.04 acres of land out of the Wm. McCurry survey in Gregg county, Tex., fully described in the petition, for damages, and for a receivership. Zeppa intervened in the district court and adopted the,pleadings of Hughey. On trial in the district court, Hughey and Zeppa recovered a judgment awarding them title and possession of the above-mentioned land.

On appeal by Atlantic Oil Producing Company et al., this judgment was reversed by the Court of Civil Appeals and judgment rendered for Atlantic Oil Producing Company et al., appellants in that court. The judgment of the Court of Civil Appeals is as follows : “This cause came on to be heard on the transcript of the record, and the same being inspected, it is the opinion. of the court that there was error in the judgment.

It is therefore ordered, adjudged and decreed that the judgment of the trial court be reversed and judgment here rendered in favor of plaintiffs-in-error, Atlantic Oil Producing Company, Byrd-Frost, Inc., J. B. Stoddard, F. G. Delaney, and Daisy H. Delaney, that defendants-in-error, M. B. Hughey and J. Zeppa, Trustee, take nothing by reason of their suit. It is further ordered that all costs incurred in this and the trial court be and the same are hereby taxed against the defendants-in-error, M. B. Hughey and J.

Zeppa, Trustee, fór which let execution issue, and that this decision be certified below for observance.” An examination of the opinion of the Court of Civil Appeals shows that, while Hughey’s petition in the district court was in statutory form of trespass to try title and for damages, only the leasehold mineral rights to the above land were and are actually involved.

On motion for rehearing in this court, Hughey and Zeppa for the first time contend that the take nothing judgment of the Court of Civil Appeals has resulted in decreeing to the defendants in error the surface rights and royalties in and to the above-described land. The defendants in error have filed reply to the above motion and contention, and, in effect, say that they do not claim the surface rights and oil royalties to the above land. Also, a reading of the opinion of the Court of Civil Appeals shows that such court Only intended to adjudicate the leasehold mineral rights to the above land.

In this regard, the opinion plainly states: “The leasehold mineral rights alone are involved.” Considering the judgment of the Court of Civil Appeals in the light of its opinion, we conclude that it has not deprived the plaintiffs in error of their surface rights and oil royalties. Furthermore, the reply of Atlantic Oil Producing Company et al., defendants in error here, shows that they make no claim to such surface rights and oil royalties. In fact, we treat such answer as a formal disclaimer thereto. The motion for rehearing filed herein by M. B. Hughey and J.

Zeppa is overruled, with the further order that we construe the judgment of the Court of Civil Appeals as not affecting the surface rights and oil royalties.