
                              NO. 07-11-0288-CV

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL B

                              FEBRUARY 11, 2013
                        _____________________________


      ELLEN CLYDE SMITH MAY, INDIVIDUALLY AND AS CO-TRUSTEE OF THE MAY
                                FAMILY TRUST,


                                   Appellants
                                     v.


       THE CHARLES MAYNARD BAKER AND WANDA JEAN BAKER FAMILY TRUST, ET
                                    AL.,


                                   Appellees
                        _____________________________

                FROM THE 106TH DISTRICT COURT OF LYNN COUNTY;

       NO. 09-01-06628-A; HONORABLE CARTER T. SCHILDKNECHT, PRESIDING
                        _____________________________

                             Memorandum Opinion
                        _____________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      This is an appeal from a declaratory summary judgment with respect  to
the  rights  of  the  parties  under  a  partition  deed.   The  1981   deed
partitioned the surface of a tract of land in Lynn County, Texas,  into  six
separate tracts.  Various of the parties now disagree as to whether  or  not
the rock, caliche, limestone, sand, gravel, and clay on the  land  prior  to
partition were also partitioned.  In addressing  cross-motions  for  summary
judgment, the trial court concluded that  they  were  not.   We  affirm  its
decision.
      The pertinent standard  of  review  is  well  settled.   We  need  not
reiterate it.
      Next, there is only one partition deed involved.  It served to  divide
the interests of each claimant  to  the  land.   And,  though  it  expressly
referred to the partition of the "surface estate only,"  the  document  also
contained a provision stating:
      Excepted from the surface estate as  partitioned  hereinabove  is  the
      rock, caliche, limestone,  sand,  gravel,  and  clay  which  shall  be
      treated as minerals under the land and in addition thereto the parties
      hereto agree that the natural springs and the  sources  thereof  shall
      not be used in the extraction, production,  or  mining  of  the  above
      excepted surface minerals and the parties hereto  further  agree  that
      the water  from  the  lake  known  as  Tahoka  Lake  as  well  as  the
      underground water from all the  tracts  herein  may  be  used  in  the
      extraction, production,  or  mining  of  the  above  excepted  surface
      minerals.


Nothing in the deed expressly limited, quantified,  or  otherwise  specified
the acreage on which the aforesaid caliche, limestone,  sand,  gravel,  etc.
was  located.   Nonetheless,  one  of  the  claimants  believed   that   the
"exception" related to only a 101-acre tract from which  caliche  was  being
taken  when  the  lands  were  divided.   She  supports  her  contention  by
referring to an appraisal of the land used to effectuate the partition,  and
which purported to exclude the 101-acre tract.
      A deed serves to manifest, in writing, the signatories' intent.   And,
unless  it  is  susceptible  to  at  least  two  differing  yet   reasonable
interpretations, Heritage Resources v.  NationsBank,  939  S.W.2d  118,  121
(Tex. 1996) (discussing the  test  used  in  determining  if  a  writing  is
ambiguous), we look only to the words  contained  therein  to  discern  that
intent.  Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991);  Moore  v.  Noble
Energy, Inc., 374 S.W.3d  644,  646  (Tex.  App.-Amarillo  2012,  no  pet.).
Moreover, a mere disagreement about  the  interpretation  of  an  instrument
does not make it ambiguous.  Moore v. Noble  Energy,  Inc.,  374  S.W.3d  at
646.
       Here,  the  partition  deed  is  relatively  simple  and  brief.   It
describes the land that was held in common,  identifies  those  owning  that
land  as  tenants  in  common,  expresses  that  those  co-tenants  wish  to
partition only the surface  of  the  land  into  six  different  tracts,  so
partitions the surface, and  then  specifically  excepts  from  the  surface
estate being partitioned "rock, caliche, limestone, sand, gravel, and  clay"
which substances  each  party  expressly  agreed  were  to  be  "treated  as
minerals under the land."   And,  while  allusion  is  made  to  "a  survey,
appraisal, and subdivision of the above property" (i.e., the  entire  parcel
before  partition)  no  particular  survey,  appraisal  or  subdivision  was
specified or incorporated into the deed.  Had the  parties  intended  for  a
particular survey, appraisal, or subdivision to control or otherwise  affect
the terms of the conveying instrument, they could have easily said  that  or
included the item as an attachment.  See GXG, Inc. v.  Texacal  Oil  &  Gas,
977 S.W.2d 403, 427 (Tex. App.- Corpus Christi 1998,  pet.  denied)  (noting
that if the parties had intended to encumber all  of  the  properties,  they
could have easily memorialized such  an  agreement).   But,  they  did  not.
And, as a general rule, we do not insert that which  the  signatories  to  a
document  omit,  unless  their  expressed  intent  demands  otherwise.   See
Tenneco, Inc. v. Enterprise Products Co., 925 S.W.2d 640, 646  (Tex.  1996).
We find no such intent here.  Simply  put,  and  as  a  matter  of  law,  we
conclude  that  the  exception  applies  to  all  of  the  "rock,   caliche,
limestone, sand, gravel, and clay" located on the land prior  to  partition,
not merely to that located on a 101-acre tract being mined at  the  time  of
partition.
      And to the extent that the complainant argues  that  caliche  normally
is included in the surface estate, we again allude to that old  maxim  about
the meaning of a document being dependent upon the intent of the  particular
parties involved.  Parties  are  free  to  deviate  from  commonly  assigned
definitions.  It is their writing.  They can say what they want  to  in  it.
And, unless some statute or common law prohibits them from  doing  so,  they
are free to treat rocks and caliche appearing on  the  surface  of  land  as
minerals appearing beneath it, so long as their intent to do  so  is  clear.
Not only is that intent clear at  bar,  but  the  complainant  cites  us  to
neither common law nor statute precluding them  from  doing  so.   See  e.g.
Wilderness Cove, Ltd. v. Cold Spring Granite Co., 62 S.W.3d 844,  849  (Tex.
App.-Austin 2001, no pet.) (holding that an express conveyance of a  granite
deposit created a severable mineral estate).
      The partition deed is unambiguous and clearly expresses the  intention
of the parties to maintain their co-tenant relationship with respect to  the
caliche and other "minerals" described in the  document.   Accordingly,  the
trial court was right, and we affirm its judgment.

                                        Brian Quinn
                                        Chief Justice







