As an incident of the receivership in this cause, it becomes necessary to determine conflicting claims to the royalty interest in the impounded proceeds of the oil taken from wells Nos. 152, 153 and 154, 258 U.S. 574, 581, 42 S.C.t. 406, 66 L. Ed. 771. These wells are immediately south of the south bank of Red River, and therefore in the State of Texas. 261 U.S. 340, 43 S.C.t. 376, 67 L. Ed. 687. The claimants are T. P. Roberts and A. H. Britain on the one hand and the Durfee Mineral Company on the other. Both claims are founded on Texas surveys-that of Roberts and Britain on the Lewis Powell survey made in 1861 and patented in 1868, and that of the Durfee Mineral Company on the A. A. Durfee survey made in 1886 and patented in 1889.
The principal question is whether the Powell survey extended northward to the south bank of Red River, leaving nothing between it and the bank, or stopped short of the bank, leaving a narrow wedge-shaped strip between it and the bank. The Durfee survey was made 25 years later on the assumption that the Powell survey left such a strip there. The three wells are in the wedge-shaped strip or land accreted to it. A secondary question is whether, if the Powell survey included this strip, the present owners of that survey are estopped from claiming the strip, and therefore the royalty interest, as against the Durfee Mineral Company.
January 19, last, the conflicting claims were referred to a special master with directions to take the evidence and report the same with findings of fact, conclusions of law and recommendations for a decree. 267 U.S. 7, par. 8, 45 S.C.t. 198, 69 L. Ed. --. The master made his report with findings, conclusions and recommendations favorable to the claim of Roberts and Britain; the Durfee Mineral Company excepted; and both claimants have been heard in briefs and oral argument on the report and exceptions.
The master found that the Powell survey fronted on the river and had the south bank as its northerly boundary. In the exceptions it is insisted that this finding rests on an erroneous interpretation of the survey. For reasons which will be explained, we think it rests on a right interpretation.
The Powell was one of five surveys made by the same surveyor on the same day-May 8, 1861. These surveys were contiguous and were in the form required of surveys fronting on a stream like Red River. They were also so tied together that the interpretation of one involves an examination of the others.
The surveyor began with the easterly one and proceeded westerly until he had finished all five. His field notes described all as 'on the south bank of Red River,' and the drawings or plats accompanying the field notes represented all as fronting on the river and having its irregular line as a northerly boundary. The field notes of all, excepting the Powell, also described the northerly line as beginning at the northwest corner of the adjoining survey on the east and running 'thence up the river with its meanders' in a stated direction a given distance to a stake or mound 'in the bottom' or 'on the bluff' at the other end. The Powell was the fourth survey in the line, and so as between others the field notes of which said 'thence up the river with its meanders.' The field notes of the Powell transmitted to the state land office, and on which the patent issued, were like the others, save that they said 'thence up the river' and omitted 'with its meanders.' But the field notes entered in the appropriate local records said 'thence up the river with its meanders.' Doubtless the discrepancy resulted from a clerical error in preparing the duplicate sent to the state land office.
We put aside the question of the effect to be given to the entry in the local records; for the phrase 'thence up the river' in the field notes sent to the state land office and in the patent evidently mean up the natural course of the river. Schnackenberg v. State (Tex. Civ. App.) 229 S. W. 934, 937; Stover v. Gilbert, 110 Tex. 429, 247 S. W. 841, 843; Brown v. Huger, 21 How. 305, 320, 16 L. Ed. 125. Of course, that phrase must be read with the declaration that the survey was on the south bank of the river and in the light of the drawing or plat representing the river as the northern boundary.