                                               OPINION
                                          No. 04-11-00699-CV

                                       Maurice C. HUNSAKER,
                                              Appellant

                                                     v.

                          BROWN DISTRIBUTING COMPANY, LTD.,
                                       Appellee

                     From the 81st Judicial District Court, La Salle County, Texas
                                 Trial Court No. 10-10-00109-CVL
                              Honorable Stella Saxon, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: March 21, 2012

REVERSED AND RENDERED

           In this appeal we are asked to construe a deed conveying a mineral interest in property.

At issue is whether Appellant Maurice C. Hunsaker conveyed the entire one-quarter mineral

interest he owned to Brown Distributing Co., Ltd. (“Brown”), or whether he conveyed one-half

of the one-quarter mineral interest owned by him. 1 It is undisputed that at the time Hunsaker


1
  The deed at issue was originally between Hunsaker as Grantor and J. Dan Brown as Grantee. By a series of
uncontroverted conveyances, J. Dan Brown’s interest was conveyed to Brown Distributing. For simplicity, Brown
and his successors are collectively referred to as “Brown.” Hunsaker does not challenge or dispute that Brown
Distributing acquired its interests from the Hunsaker Deed.
                                                                                   04-11-00699-CV


executed the deed and conveyed the property to Brown, he owned a one-quarter mineral interest

in the property. In the trial court, the parties brought competing motions for summary judgment

and stipulated that the deed was unambiguous. The trial court agreed with Brown’s interpretation

and ruled that the deed conveyed Hunsaker’s entire one-quarter mineral interest to Brown.

Because we hold that Hunsaker conveyed only one-half of his one-quarter mineral interest to

Brown, we reverse the trial court’s judgment and render judgment in favor of Hunsaker.

                                    STANDARD OF REVIEW

       We review a summary judgment de novo. Provident Life & Acc. Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003). We must therefore consider all the evidence in the light most

favorable to the respondent, indulging all reasonable inferences in favor of the respondent, and

determine whether the movant proved that there were no genuine issues of material fact and that

it was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548 (Tex. 1985). When competing motions for summary judgment are filed, and one is granted

and the other denied, we must review all issues presented and render the judgment the trial court

should have rendered. Comm’rs Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). Finally, when a

deed is unambiguous, as the parties agree the deed in this case is, then its construction is a

question of law for the court. Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991).

                                    THE WARRANTY DEED

       By Assumption Warranty Deed dated April 23, 1980, Hunsaker conveyed to Brown real

property located in La Salle County. The deed states the following:

       THAT MAURICE C. HUNSAKER . . . ha[s] GRANTED, SOLD AND
       CONVEYED, and by these presents do[es] GRANT, SELL, AND CONVEY unto
       the said Grantees the following described property situated in LaSalle County,
       Texas, to-wit:




                                              -2-
                                                                                    04-11-00699-CV


               1,120.84 acres of land, more or less, out of Survey 154, Abstract 1077,
               Survey 155, Abstract 275, LaSalle County, Texas, and being more
               particularly described by metes and bounds on the attached EXHIBIT
               “A.”

Exhibit A, in turn, stated the following:

       1,120.84 acres of land, more or less, out of Survey 154, Abstract 1077, Survey
       155, Abstract 275, LaSalle County, Texas:

       BEGINNING at a fence corner post found for the Northeast corner of said Survey
       154 and the Northeast corner of this tract;

       THENCE, [full metes and bounds description omitted].

       There is also included in this conveyance one-half (1/2) of all oil, gas and other
       minerals (such other minerals to include, but to not be limited to, hydrocarbons,
       lignite, coal, sulphur, uranium, sand and gravel) and all rights and appurtenances
       thereto in, on and under said property now owned by Grantor.

(emphasis added). Further, at the end of the deed, the following is stated:

       This conveyance is made and accepted subject to all reservations, restrictions,
       covenants, conditions, rights-of-way, mineral leases, royalty and mineral
       conveyances and easements now outstanding and of record, if any, in LaSalle
       County, Texas affecting the above described property, including, but not limited
       to, the following:

           (1) Oil, Gas and Mineral Lease to I. W. Lovelady dated December 15, 1976,
               and recorded in Volume 201, Pages 147-149, LaSalle County Deed
               Records.

           (2) Road right-of-way to the State of Texas, dated April 17, 1954, and
               recorded in Volume Z-4, Pages 371-372, LaSalle County Deed Records.

           (3) Road right-of-way to the State of Texas, dated April 30, 1956, and
               recorded in Volume 115, Pages 265-267, LaSalle County Deed Records.

           (4) Channel Easement to the State of Texas, dated April 30, 1956, and
               recorded in Volume 115, Pages 262-265, LaSalle County Deed Records.

           (5) An undivided one-quarter (1/4) interest in and to all of the oil and gas and
               other minerals and mineral rights reserved as set out in Deed to George
               Strickhausen, III, Inc., dated June 30, 1978, and recorded in Volume 213,
               Pages 181-185, LaSalle County Deed Records.



                                                -3-
                                                                                    04-11-00699-CV


           (6) One-half (1/2) of all oil, gas and other minerals reserved in Deed from
               Fred M. Crapo, Trustee of the Davis M. Kitselman Trust to I. W. Lovelady
               dated June 29, 1977, and recorded in Volume 206, Pages 263-266, LaSalle
               County, Texas, Deed Records, which reservations read as follows:

                      “Grantor does hereby except and reserve unto Grantor, Grantor’s
                      successors and assigns forever an undivided one-half (1/2) of all
                      the oil, gas and other minerals and mineral rights, whether metallic
                      or non-metallic (including, but not by way of limitation, coal,
                      lignite and fissionable materials and any other valuable mineral or
                      mineral right, whether now known or not), in, on, upon or
                      underlying said premises, whether same be drilled for mined, strip
                      mined or recovered in any other manner, together with the
                      perpetual right of ingress and egress to and from said land for the
                      purpose of drilling, exploring, and mining and in every way
                      operating for such minerals and mineral rights and removing same;
                      it being understood that Grantor shall be entitled to receive one-
                      half (1/2) of any delay rentals, royalties or other payments which
                      become due or payable or are paid under the terms, of the existing
                      oil and gas lease on the lands herein conveyed.”

(emphasis added).

                                           DISCUSSION

       Our primary duty when construing a deed is to ascertain the intent of the parties from all

of the language in the deed by considering its “four corners.” Luckel, 819 S.W.2d at 461. Thus,

we “harmonize all parts of the deed,” understanding that the “parties to an instrument intend

every clause to have some effect and in some measure to evidence their agreement.” Id. at 462

(quotation omitted). “Even if different parts of the deed appear contradictory or inconsistent,” we

must “strive to harmonize all of the parts, construing the instrument to give effect to all of its

provisions.” Id. Thus, the labels given clauses, such as “granting,” “warranty,” habendum,” and

“future lease,” do not control; instead, we must “give effect to the substance of unambiguous

provisions.” Id. at 463. We therefore determine the parties’ intent from the whole document, not

by the presence or absence of a certain provision. Concord Oil Co. v. Pennzoil Exploration &

Prod. Co., 966 S.W.2d 451, 457 (Tex. 1998).

                                               -4-
                                                                                    04-11-00699-CV


        Brown argues that the granting clause in the deed conveys Hunsaker’s entire interest in

the property, including his one-quarter mineral interest, because Hunsaker did not specifically

reserve any mineral interest in the property. See Eastin v. Dial, 288 S.W.3d 491, 500 (Tex.

App.—San Antonio 2009, pet. denied) (explaining that a “deed will pass whatever interest the

grantor has in the land, unless it contains language showing the intention to grant a lesser

estate”). Hunsaker agrees that he did not reserve one-half of his mineral interest in the property,

but emphasizes that he need not have reserved anything as he conveyed only half of his mineral

interest. Thus, in considering the four corners of the deed, we must determine whether the deed

conveyed Hunsaker’s entire mineral interest in the property or whether it conveyed only one-half

of Hunsaker’s interest.

        In considering the deed as a whole document, we agree with Hunsaker’s interpretation

that he conveyed only one-half of his mineral interest in the property. As noted above, the deed

states that Hunsaker grants, sells, and conveys land that is more particularly described on Exhibit

“A.” Exhibit A, in turn, describes the metes and bounds of the property and then states the

following:

        There is also included in this conveyance one-half (1/2) of all oil, gas and other
        minerals (such other minerals to include, but to not be limited to, hydrocarbons,
        lignite, coal, sulphur, uranium, sand and gravel) and all rights and appurtenances
        thereto in, on and under said property now owned by Grantor.

(emphasis added). The end of the deed then states that the conveyance is made and accepted

“subject to all reservations . . . now outstanding and of record.” It then lists three reservations

relating to the mineral estate at issue:

                (1) Oil, Gas and Mineral Lease to I. W. Lovelady dated December 15,
                    1976, . . . .




                                               -5-
                                                                                     04-11-00699-CV


               (5) An undivided one-quarter (1/4) interest in and to all of the oil gas and
                   other minerals and mineral rights reserved as set out in Deed to George
                   Strickhausen, III, Inc., dated June 30, 1978, . . . .

               (6) One-half (1/2) of all oil, gas and other minerals reserved in Deed from
                   Fred M. Crapo, Trustee of the Davis M. Kitselman Trust to I. W.
                   Lovelady dated June 29, 1977, and recorded in Volume 206, Pages
                   263-266, LaSalle County, Texas, Deed Records, which reservations
                   read as follows:

                       “Grantor does hereby except and reserve unto Grantor, Grantor’s
                       successors and assigns forever an undivided one-half (1/2) of all
                       the oil, gas and other minerals and mineral rights, whether metallic
                       or non-metallic (including, but not by way of limitation, coal,
                       lignite and fissionable materials and any other valuable mineral or
                       mineral right, whether now known or not), in, on, upon or
                       underlying said premises, whether same be drilled for mined, strip
                       mined or recovered in any other manner, together with the
                       perpetual right of ingress and egress to and from said land for the
                       purpose of drilling, exploring, and mining and in every way
                       operating for such minerals and mineral rights and removing same;
                       it being understood that Grantor shall be entitled to receive one-
                       half (1/2) of any delay rentals, royalties or other payments which
                       become due or payable or are paid under the terms, of the existing
                       oil and gas lease on the lands herein conveyed.”

       In considering these provisions of the deed so that we can harmonize all parts of the deed

and give effect to every clause, we agree with Hunsaker that the first clause of the deed conveys

property that is “more particularly described” on Exhibit A. Exhibit A then states that Hunsaker

is conveying one-half of all gas and other minerals “in, on and under said property now owned

by” Hunsaker. (emphasis added). The end of the deed explains the reservations that existed at the

time Hunsaker made the conveyance, i.e. “all reservations . . . now outstanding and of record, . . .

including, but not limited to, the following . . . .” (emphasis added). In listing the reservations

now outstanding, the deed makes clear that Hunsaker could not own one-half of the oil, gas and

other minerals in the property. According to the plain language of the deed, an undivided one-

quarter mineral interest was reserved as set out in Deed to George Strickhausen, III, and an



                                                -6-
                                                                                     04-11-00699-CV


undivided one-half mineral interest was reserved in Deed from Fred M. Crapo, Trustee of the

Davis M. Kitselman Trust, to I.W. Lovelady. Thus, in harmonizing all parts of the deed and

giving effect to all provisions, we hold that Hunsaker conveyed to Brown one-half of the mineral

interest he owned at the time of the conveyance. See Stewman Ranch, Inc. v. Double M Ranch,

Ltd., 192 S.W.3d 808, 809, 813 (Tex. App.—Eastland 2006, pet. denied) (holding that a deed

reserving “an undivided one-half of the royalties to be paid on the production of oil, gas and

other hydrocarbons from the described lands which are presently owned by Grantors for and

during the lives of Helen A. Stewman and O.T. Stewman, Jr.” reserved a life estate in one-half of

the royalties that the grantors owned at the time of the conveyance, not one-half of the total

royalties).

        We decline to adopt Brown’s interpretation of the deed because to do so would not give

effect to all of the deed’s provisions. Brown argues the granting clause conveys all of Hunsaker’s

interest in both the surface and mineral estate. In an attempt to discount the last paragraph of

Exhibit A, Brown argues that “[w]hen Hunsaker conveyed . . . ‘(1/2) of all . . . minerals . . . in,

on and under said property now owned by Grantor,’ he was conveying 1/2 of the mineral interest

from the land described, not from the interest described.” According to Brown, “[t]his means that

Hunsaker conveyed 1/2 of all the mineral interest in the land, not 1/2 of the minerals he owned.”

However, such an interpretation renders the last paragraph of Exhibit A meaningless as there

would have been no need to include it. Such an interpretation also conflicts with the deed’s list of

reservations, which reflects that three-fourths of the mineral estate had been reserved by other

parties. Thus, the four corners of the deed show that Hunsaker could not have conveyed one-half




                                                -7-
                                                                                                     04-11-00699-CV


of all the mineral interest in the property as he did not own one-half of all the mineral interest in

the property. 2

         Brown also argues that Hunsaker’s interpretation of the deed is inconsistent with the rule

that when a deed or conveyance references a mineral interest “under the land described,” the

deed conveys the mineral interest under the entire tract, regardless of the part of the mineral

interest actually owned by the grantor. For support, Brown cites Middleton v. Broussard, 504

S.W.2d 839, 842 (Tex. 1974), and Averyt v. Grande, Inc., 717 S.W.2d 891 (Tex. 1986).

However, those cases are factually distinguishable from this case as neither contained the unique

language “now owned by Grantor.” See Stewman Ranch, 192 S.W.3d at 812 (distinguishing

similar cases by explaining that the language in its deed included the words “which are presently

owned by Grantors”).

                                                   CONCLUSION

         In order to harmonize all parts of the deed and give effect to all provisions, we conclude

that the deed conveyed only one-half of Hunsaker’s mineral interest in the property. As

Hunsaker owned a one-quarter mineral interest in the property at the time of the conveyance, he

conveyed one-half of a one-quarter mineral interest. We therefore reverse the judgment of the

trial court and render judgment that the Assumption Warranty Deed executed by Hunsaker to

Brown dated April 23, 1980, conveyed one-half of Hunsaker’s one-quarter mineral interest in the




2
  We note that in its brief, Brown argues that such a common sense conclusion conflicts with this court’s opinion in
Hausser v. Cuellar, 345 S.W.3d 462, 470 (Tex. App.—San Antonio 2011, pet. denied). We disagree. In Hausser, we
disapproved of Neel v. Killam Oil Co., 88 S.W.3d 334, 341 (Tex. App.—San Antonio 2002, pet. denied), for relying
on a prior deed to interpret the deed at issue in that case. We emphasized that by relying on a prior deed, Neel failed
to ascertain the parties’ intent from the four corners of the deed. Hausser, 345 S.W.3d at 470. Here, however, we are
not looking to a prior deed for interpretation. The deed at issue in this case reflects through its reservations that
Hunsaker could not have owned a one-half mineral interest in the property.


                                                         -8-
                                                                                 04-11-00699-CV


property to Brown, resulting in Hunsaker retaining ownership in one-eighth of the minerals

under the 1,120.84 acres of land, more or less, described in the Assumption Warranty Deed.



                                               Catherine Stone, Chief Justice




                                             -9-
