
    Mary D. SIEGERT, et. al. Appellants, v. SENECA RESOURCES CORPORATION and Daniel C. Herndon, et al., Appellees.
    No. 13-99-506-CV.
    Court of Appeals of Texas, Corpus Christi.
    Aug. 17, 2000.
    
      Bill Youngkin, Youngkin, Catlin, Bryan & Stacy, Bill Payne, Payne, Watson, Kling, Miller & Malechek, Bryan, for appellants.
    H. Miles Cohn, Sheiness, Scott, Gross-man & Cohn, Houston, for appellees.
    Before Justices HINOJOSA, CHAVEZ and RODRIGUEZ.
   OPINION

Opinion by

Justice CHAVEZ.

This is an appeal of a summary judgment. We affirm. Appellants Mary D. Siegert, James O. Siegert, Linda Siegert Warren, and William P. Siegert brought suit against Seneca Resources Corporation to recover damages for fraud regarding the execution of an oil and gas lease. Appellants allege that Seneca Resources Corporation had agreed as a condition of an oil and gas lease that appellants were the owners of all minerals in approximately eighty-one acres of land in Burleson County, Texas. Appellants further allege that the eighty-one acres of land were created by accretion to a 100 acre parcel of land. Appellees are twenty-five individuals who claim a three-fourths mineral interest in the entire tract of land. Seneca Resources Corporation interpled and brought appel-lees into this case because of a three-fourths reserved mineral interests reserved for appellees by deeds in 1932 and 1953. The dispute between appellants and appellees is the ownership of the suspended royalties attributable to the land to which both appellants and appellees claim. Appellees raise two cross issues, first claiming that the trial court erred when it refused to grant them attorney’s fees, and secondly they allege that appellants’ appeal is frivolous and therefore they should be awarded just damages. We reject ap-pellees’ arguments.

Our inquiry in this summary judgment is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to the plaintiffs’ cause of action. Tex.R. Civ. P. 166a; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). The burden of proof is on the movant, and all doubts regarding material facts are resolved against the movant. Nixon, 690 S.W.2d at 548-49. Grounds supporting or opposing a summary judgment must be raised in the motion or written response to the motion before the trial court renders judgment. City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex.1986); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979).

The land in dispute was located in Brazos County until 1913, when the Brazos River changed course and the land shifted to the other side of the river in Burleson County. Since this time, the water that runs along the property has been relatively stable, and the land has remained in Burleson County. The ownership rights of the minerals beneath the land depend upon how the deeds which have transferred the land since 1913 are construed under Texas law.

Appellants argue that the deed under which appellees claim their reservation of mineral interest fails for lack of a valid description. This reservation was made in a 1932 transfer of the land. If the 1932 deed were to fail for lack of a valid description, appellees would have no right to any of the land. In its pertinent part the deed reads:

Also 100 acres of land, now situated in Burleson County, Texas, and was formerly part of the Walter Sutherland League, and is lying in the bend of the old Brazos River, on the Burleson County side, as it now runs. This tract of land was formerly part of the Walter Sutherland League in Brazos County, Texas. But now since the Brazos River has changed its course, this land is in Burleson County, Texas, and almost surrounded by the Fisher League. An actual survey made by W.B. Francis on the 26th day of May, 1931 shows the land, contained inside of the banks of the old river to be 98.2 acres of land. If one half of the old river bed should be included in the survey, then the acreage would be 130 acres of land.

Appellants claim that no formal field note description of this parcel was made a part of the instrument, and that the above description would not facilitate the location of the property with reasonable certainty.

“The rule by which to test the sufficiency of description is so well settled ... as almost to compel repetition by rote: To be sufficient, the writing must furnish within itself, or by reference to some other writing, the means and data by which the land to be conveyed may be identified with reasonable certainty.” Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex.1972) (citing Norris v. Hunt, 51 Tex. 609 (Tex.1879); Osborne v. Moore, 112 Tex. 361, 247 S.W. 498 (1923); Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935); Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945); Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949); Hoover v. Wukasch, 152 Tex. 111, 254 S.W.2d 507 (1953); Broaddus v. Grout, 152 Tex. 398, 258 S.W.2d 308 (1953); Rowson v. Rowson, 154 Tex. 216, 275 S.W.2d 468 (1955)). If a conveyance does not describe the land to be conveyed sufficiently, it is void under the Statute of Frauds. Pick v. Bartel, 659 S.W.2d 636, 637 (Tex.1983); McDaniel v. Carruth, 637 S.W.2d 498, 505 (Tex.App.—Corpus Christi 1982, no writ). “If enough appears in the description so that a party familiar with the locality can identify the premises with reasonable certainty, it will be sufficient.” Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 248-49 (1955). This is referred to as the “nucleus of description” theory. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 909 (Tex.1982). Under this theory of construction, “[wjords of description are given a liberal construction in order that a conveyance may be upheld.” Gates, 280 S.W.2d at 248.

A formal field note description of this parcel could make this instrument easier to construe. However, under the nucleus of description theory it is not necessary. Appellants draw our attention to a line of cases based in the primary sufficiency of description rule which instructs that when an unidentifiable portion of land contained in a larger identifiable tract is described in a conveyance, it is held to be void for lack of certainty as not satisfying the Statute of Frauds. Texas Builders v. Keller, 928 S.W.2d 479, 482 (Tex.1996); Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848, 850 (1946); Smith, 87 S.W.2d at 706.

The land described in the deed is not an unidentifiable portion of a larger tract. Appellants argue that the phrase, “lying in the bend of the old Brazos River” is uncertain because an infinite number of parcels of land could be constructed as lying in the bend of the Brazos River. Appellants also argue that the description of the land is void for lack of adequate description because it states only the amount of acres, and refers to a survey and asserts the county and state in which the land is situated; appellants then draw our attention to a case where this kind of information alone was held to be not an adequate description of the land in dispute. MacLane v. Smith, 198 S.W.2d 493 (Tex.Civ.App.—Fort Worth 1946, pet. refd n.r.e.). However, all of the descriptive language in a deed must be considered when construing the intent of the grantor. Randal v. Rutherford, 577 S.W.2d 368, 371 (Tex.Civ.App.—Fort Worth 1979, pet. ref'd n.r.e.). Both the phrase “lying in the bend of the old Brazos River,” and the acreage, together with the statements in the deed that the land “was formerly part of the Walter Sutherland League in Brazos County” and that the land is “almost surrounded by the Fisher League” are enough detail by which the land may be identified with reasonable certainty.

Appellants further draw our attention to the affidavit of a licensed surveyor admitted into evidence in which the surveyor states that he would be unable to locate the property as described in the 1932 deed. However, the surveyor testified that in 1932, the information provided would have been sufficient to locate the property. The land has been resurveyed twice since this deed was written, and better descriptions of the land appear in later deeds that transfer title of the land. The total area of the tract of land was established in a 1955 survey as 181.74 acres and is described in a metes and bounds description of the land in a 1955 deed.

Appellants argue that there was no error in measuring or recording the acreage in the 1932 deed. Instead, they assert that the additional land measured in the 1955 survey was added to the tract through accretion. Under the doctrine of accretion, an owner of riparian land gains title to increases to their property by natural forces. Coastal Indust. Water Auth. v. York, 532 S.W.2d 949, 952 (Tex.1976); Manry v. Robison 122 Tex. 213, 56 S.W.2d 438, 444 (1932).

Appellants assert that the mineral rights are not included in the lands that accrete onto riparian property, and that if we determine that the 1932 deed is valid, the deed only reserves mineral rights to the 100 acres recorded in the 1932 deed. Appellants further argue that appellees must follow the Texas Supreme Court’s standard for measuring accretion along rivers to designate 100 acres to which they hold the mineral rights, and eight-one acres accreted onto the land by measuring the accretion along their property. See Sharp v. Womack, 127 Tex. 357, 93 S.W.2d 712, 716 (1936) (provides method for measuring accretion on Texas riverbanks).

Appellees do not make the argument that they adversely possessed the eighty-one acres appellants claim. They instead explain that no one can know whether or not there was any accretion of the land between 1932 and 1955. The appellants recognize that there were major changes to the land, but these changes occurred back in 1913, well before the era between the 1932 and 1955 deeds. In 1993, when this litigation began, there was another survey of the same tract of land which measured the area as 182.08 acres. Appel-lees argue that during the thirty-eight years between the 1955 and 1993 surveys, the area of the land changed from 181.74 acres in 1955, to 182.08 acres in 1993, for a difference of 0.34 acres, and therefore it is highly improbable that during the prior twenty-three years from 1932 to 1955 the land accreted by over eighty-one acres. We recognize the logic and high probability of validity of this explanation, but base our opinion on separate legal grounds.

“The call for acreage in a deed is the least reliable of all calls in a deed.... The mention of the quantity of land may aid in defining the premises, but it cannot control the rest of the description unless there is an express covenant in the deed that the acreage mentioned is the only land to be conveyed.” Texas Pacific Coal and Oil Co. v. Masterson, 160 Tex. 548, 334 S.W.2d 436, 439 (1960). See Foster v. Bullard, 496 S.W.2d 724, 733 (Tex.Civ. App.—Austin, 1973, writ. refd. n.r.e.). There is not an express call in the deed that restricts the mineral rights to 100 acres of the land.

The Third Court of Appeals has decided that accretion applies to mineral estates as well as to surface estates, and that a severed riparian mineral interest is subject to accretion, just as a surface estate is subject to accretion. Ely v. Briley, 959 S.W.2d 723, 726 (Tex.App.—Austin 1998, no pet.). Two other jurisdictions have ruled on this particular issue, and both have come to the same conclusion. See Jackson v. Burlington Northern, 205 Mont. 200, 667 P.2d 406, 408-09 (1983); see also, Nilsen v. Tenneco Oil Co., 614 P.2d 36, 40-43 (Okla.1980); Cf. Eliason v. Registrar, et. al. (1980) D.L.R. (3d) 360, 1980 Alta. D. LEXIS 1271 (Court determined that accreted land takes on the characteristics of the land to which it is accreted, and awarded surface estate owner full rights to minerals under a dried lake which accreted to his adjacent formerly-riparian land).

We agree with the rationales the Third Court of Appeals provides in its holding. First, “because a constructively severed mineral estate is a property interest of equal dignity as a surface estate, it logically should be subject to accretion.” Ely, 959 S.W.2d at 726. Second, the location of a mineral estate boundary as it existed can only be determined at a river’s shore. Id. Otherwise we would effectively create claims to slivers or strips of small mineral interests along river edges that would not appear in title searches, and would be virtually impossible to administer or to litigate. Finally, in equity, there should be no difference between the mineral rights in unsevered riparian mineral interests and severed riparian mineral interests. Id. Otherwise surface estates could be lost or gained through accretion, but mineral estates could only be lost through accretion. We overrule appellants’ arguments.

We now address the cross points appellees raise on appeal. We will first address appellees’ claim for damages from a frivolous appeal. When faced with the issue of the alleged accretion of eighty-one acres onto the land between 1932 and 1955, the trial judge invited this appeal when he commented, “And probably I’m going to let the court of appeals rule on that portion.” At a post-trial hearing the trial judge stated, “[I]n my opinion this is a new area of the law that we’ve got developed here and I think both litigants in this case have been acting in good faith to try to find out what the law is.” Also, appellants’ arguments regarding the construction of the 1932 deed questioned the trial judge’s determination of the reasonable certainty of the detail used to identify the land in the deed. In light of these facts, we determine that this appeal was not frivolous.

Finally, we address appellees’ argument that the trial court erred when it refused to grant them attorney’s fees. Appellees assert that the law in Texas is that the burden of payment of all attorney’s fees for an interpleader should fall on the unsuccessful party whose claim rendered the interpleader necessary. We reject this assertion. Appellees’ statement of the law is true only to the extent that the unsuccessful party whose claim rendered the inter-pleader necessary must pay attorney’s fees for the disinterested stakeholder who must draw a third party into the suit. United States v. Ray Thomas Gravel Co., 380 S.W.2d 576, 581 (Tex.1964); see also Tex. Crv. PRAC. & Rem.Code Ann. § 37.009 (Vernon 1997). In appellants’ suit, this is Seneca Resources Corporation, not appel-lees. It should make no difference whether or not appellees were brought into the suit by someone other than the appellants, for if appellants were to sue appellees directly and lose they would not have to pay appellees’ attorneys fees.

When there has been a declaratory judgment, the court’s refusal to grant attorney’s fees is reviewed by an abuse of discretion standard. Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997). The record reflects careful consideration of this matter by the trial court. The trial judge listened to each side discuss the time and effort put into this case, the procedural history of the case, the experience of the attorneys working on the case, the unusual issues involved in the case, and the actions taken by a visiting judge regarding the awarding of attorneys’ fees before this case went on appeal for a first time in 1995. We see no abuse of discretion.

We AFFIRM the judgment of the trial court. 
      
      . Morrow, 477 S.W.2d at 539.
     