727 S.W.2d 605; CHEROKEE WATER COMPANY, Appellant, v. Martha Paul
Rogers FORDERHAUSE, et al., Appellees. (Tex. App.);
CHEROKEE WATER COMPANY, Appellant, v. Martha Paul Rogers
FORDERHAUSE, et al., Appellees.
Court of Appeals of Texas, Texarkana.
February 10, 1987.
Rehearing Denied March 4, 1987.
John W. Stayton, Jr., McGinnis, Lochridge & Kilgore, Austin, Gordon Wellborn,
Wellborn, Houston, Adkison, Mann & Sadler, Henderson, for appellant.
T.A. Bath, Bath, Turner & Barber, Henderson, D.L. Case, Jackson, Walker, Winstead,
Cantwell & Miller, Dallas, for appellees.
Cherokee Water Company appeals from an adverse judgment in which Forder-hause,
et al prevailed in a jury trial by obtaining reformation of an option clause contained in a
deed. This cause was severed from an original suit for which the opinion is found in 623
S.W.2d 435 (Tex.Civ.App.---Texarkana 1981), and the reversal by the Texas Supreme
Court is found in 641 S.W.2d 522 (Tex.1982).
In the original suit, the Supreme Court determined that the language of the deed was
not ambiguous and that an oil and gas lease was within the scope of the language
providing for a preferential right to purchase. The Supreme Court determined that the use
of the word "sale" encompassed what is sometimes referred to as a "lease" of the
minerals, because the common oil and gas lease creates a determinable fee and vests the
lessee with title to the oil and gas in place.
The language in controversy in the deed is as follows:
Grantee is hereby given the first option to purchase the oil, gas and other minerals
herein reserved, at the same price and on the same terms as Grantor has agreed to sell to a
third party; such option to be accepted or rejected within five (5) days after Grantee has
been furnished with the bona fide offer made by such third party. Failure to exercise such
option on one sale, shall not be a waiver to purchasing at any subsequent sale or sales by