*1 judgment support to set a seeks aside default he troduced m of allegations. these state, must a show that he had meritorious As said of suit, only necessary defense that there was not allege no it is es- these part diligence permit- lack in of on his sential but in facts evidence introduce ting support the default and a failure to in equitable thereof order to obtain application answer and defend in not the time relief wat for bill of review. negligence. During result of his v. Paggi Rose appellant the trial case Co., 852; Mfg. Tex.Civ.App., 285 S.W. failed to concerning introduce evidence Co., possible Diggs v. Hubb Peters Tex.Civ. defense might which she had App., 35 action, 449. original S.W.2d cause nor was any evidence introduced to lack of show “Equity judgment not a will vacate negligence part diligence on the showing where there is no appellant, attorney, preventing or her attorney party failure his judgment being rendered. In the attend the trial was due to accident or light facts, these in view of the practiced by mistake or to fraud his ad- principles well-established of law enumer- versary; party’s nor is a mistaken be- above, appellant ated has in her failed employed lief that he counsel to take judgment direct attack on the trial ground care of his case a sufficient correctly requested. court denied the relief a vacate default there when showing is no that such belief was Judgment affirmed.
justified. Maytag Southwestern Co. v.
Thornton, Tex.Civ.App., 20 S.W.2d
383; Porter, Tex.Civ.App., Kahl v. 324; Chinn, Ames
S.W.
Iron
v.
Works
Tex.Civ.App.
“It is not sufficient that equitable judg- relief from former against plead rendered him AMBASSADOR OIL CORPORATION and prove that he had meritorious defense Gill, Appellants, Deane in the first He instance. must also v. diligence part show his he must ROBERTSON, Appellee. French M. reasonably prompt seeking his remedy. Relief will be denied him COMPANY, al., Inc., guilty such a case if he has been BLACKWELL ZINC et Appellants,
negligence protecting rights. his Mullins, Tex.Civ.App., Thomas v. v. 276; S.W.2d v. Coleman-Ful- Williams ROBERTSON, Appellee. French M. Co., ton Tex.Civ.App., Pasture Nos. 11236. 995; Jones, S.W.2d Garcia v. Tex.Civ. App., 671; City Brannen Appeals Court of Civil of Texas. Houston, Tex.Civ.App., 153 S.W.2d Austin. 676.” Nov. 1964. carefully We have examined the Rehearing Nov. Denied entire record in this case find that appellant although petition did in her
allege general good terms that she has
grounds negli defense has not been
gent diligence and has not lacked yet
premises, proof no was in- whatsoever *2 (Gardner)
boro Unit the East Goldsboro Field in Coleman and Runnels *3 plaintiff sought Declaratory Texas. The a Judgment determining (a) the title to all personal property upon a tract of land, the surface of which Robertson claim- his; ed (b) use “de- fendants” in operations; the unit (c) and plaintiff’s “rights, legal status or other relations thereto.” He also sued for an accounting all salt water used for the waterflooding of the and op- unit for unit erations, and money for damages for the operations used such unit and for operators furnished adjoining pool. leases within Finally, the same plaintiff injunction asked for restraining an defendants “from further to sell and use of the subsurface waters in the future express without written plaintiff. and consent of the petition In an plaintiff amended alleged that he had entered into a sales contract oil and properties leases and Hudson, Keltner, Cunningham, Goldsboro-Gardner field and Smith & had subse- Worth, quently Phipps, Alexander, Fort & entered into a Agree- Smith McLeod, Mills, Alexander, covering properties Shirley & providing Gal- said and veston, Stubbeman, McRae, operations. waterflooding Sealy Laugh- plead- & He lin, ed Moody, Jr., Nolan, that he Rush & had also “entered into a Plant G. James Midland, and Stayton, Site Water Use of the firm Black & Lease Austin, Perkins, ten Kirwan, acres of the Bezoni Mid- tract within & unit,” land, McMahon, which Petty, Ballinger, Paul “Plant Site Use Water Smart, Sprain, superseded, Lease contract merged Camp, Abilene, Wilson & and/or appellants. agreements” substituted other and which Plant Site Lease “had terminated and was King, Dickenson, Willoughby, & Vletas effect,” no further force and and in Abilene, Clark, Thomas, Harris, & Denius plaintiff this pleading alleged that he “does Winters, Austin, appellee. hereby join the following De- additional indispensable fendants as parties who ARCHER, representatives Chief royalty of a class of Justice. in the Goldsboro-Gardner Field Unit of Robertson, French M. surface Runnels and Texas,” Coleman royalty owner sued Blackwell Zinc Com- Newton, thus parties added as H. Wallace Inc., pany, Climax, Inc., American Metal Newton, Newton, Nana D. Harris D. First Corporation American Climax Petroleum Abilene, Texas, National Bank of Trustee Corporation, and Amax Petroleum as one Jay, deceased, under the ofWill M. S. companies, or a group of affiliated Fulwiler, W. and Annie Bright. E. J. Jr. Petroleum, Joseph Seagram Union Texas E. Sons, & Company, Frankfort Oil Trial jury was had with aid of d/b/a Joseph Seagram Son, Inc., E. & verdict, second based on ren- group, as operators claimed against Golds- dered Company, Blackwell Zinc Inc., appellee’s Climax, Inc., procedure Ameri- brief on the American Metal appeal, Corporation, can of this the basic is Petroleum Amax said that Climax Corporation, sue is: Union Petro- Petroleum
leum, Sons, Joseph Seagram E. & d/b/a “Does Rule trial court give 306b Company, Joseph Oil E. Frankfort power to within extend time Seagram Inc., Son, severally. jointly & appeal appellant perfect must his expired under after such time has trial, Appellant filed motion for new *4 appellee on the record and face of the which order was was dated overruled. Appeals has moved the Civil Court of 22, Tunc November 1963. A Nunc Pro ?” to affirm on under Rule 387 certificate order entered reciting was later correct the order date of was November question should We believe 25, 1963. in answered the affirmative. provides: 6, 1964, February
On Rule 306b Robertson his filed Motion to Affirm on Certificate under Rule is en- judgment a or order "When 387, Procedure, Texas Rules of Civil pro tunc, appeal right tered nunc Court, attorneys to giving notice rendition shall date the date of from appellants. order, pro judgment or nunc tunc the date which shall to be be deemed February 8, acting On Judge John upon judge signed which the trial order, Sutton entered a Nunc Pro Tunc pro if tunc or order nunc overruling the amended motion for new periods therein; date is shown trial, correcting the “to record show that steps in such within which the various fact, was, rendered, signed order appeal be com- an are taken shall to be November, day entered on the 25th 1963.” puted from that date.” February 26, On 1964 this entered Court 306b, Black Under Rules 363 and suspending pending order on the action Zinc, appellants, perfected a new well days appel- “for motions within which involved in appeal and different may, they desire, lants steps if so to take Certificate, appellee’s Motion Affirm on to prem- enter a Nunc Pro Tunc order right appeal dates from and their contemplated by Upon ises as Rule 316. order, Tunc Nunc Pro rendition completion any, proceedings, of such if 12, March 1964. this case was appellants may, they desire, if tender for Employers’ Association Insurance Texas herein, supplemental filing transcript a Hartel, Tex.Civ.App., 289 S.W.2d v. introduced, if supplemental evidence is Baucum, dism.; Tex.Civ. v. er. Hernandez reflecting statement of facts the record of history; writ App., 338 no proceedings.” Long, 257 S.W.2d 152 Tex. Knox Practice, McDonald, 12, 1964, hearing 289; On Civil March was held Judge 17.07, p. reaffirmed over- Sutton his order Section ruling the amended motion for a trial new on the the case now consider We will 25, 1963, excep- as of November to which repeat to not merits and will endeavor appeal tions were taken and notice of has been hereinabove. said what Zinc, given by appellants. Blackwell on 29 appeal is based
Blackwell Zinc’s error, the first points assigned On our March court erred trial petition the effect that Robertson to file refused leave to motions pleas require overruling in abatement seeking mandamus this Court because dismiss, jurisdiction lack of affirm on certificate. any joinder indispensable par- effective “Royalty or hereby grant Owners unto ties, royalty and that the surface and right inject Lessee the into the signed who had the Unitization Unitized Formation substances in represented person were not attor- whatever amounts Lessee deems ex- ney trial, pedient, and there no place effective right including the joinder indispensable parties so as to injection and maintain wells on the adequate representation insure the of all Unit Area and to use producing of the class. or abandoned oil wells for said purposes. Royalty further Owners In the pleading on which trial was had grant unto Lessee the to drill plaintiff stated that: extract subsurface waters and/or “For cause of action herein Plaintiff underlying the Unit Area and to use would to the Court show Plain- injection same for purposes any- tiff and ‘Defendants’ entered into a *5 where within the Goldsboro Pool prop- sales contract oil of and lease Coleman and Runnels Texas. erties concerning Goldsboro-Gard- required Lessee shall not be pay ner Field and Runnels Coleman for water so used. Lessee shall also Counties, Texas, subsequently and en- any have the free of use other water Agreement tered into a Unitization operations from the Unit Area for covering properties, said and subse- except hereunder Royalty water from plaintiff quently and ‘Defendants’ en- wells, private Owners’ ponds or lakes tered into a Plant Site Water Use irrigation or ditches.” Agreement Lease (attached hereto and part purposes made for hereof In reply to the for cancellation, action references) on a certain 10 acres answers by were made two of the named of land on the Bright Fee Land de- “indispensable parties,” The First National above and owned the Plain- scribed Abilene, Bank of Trustee under the will tiff; that the Unitization Jay, S. M. Fulwiler, Jr., W. who J. acreage described the involved allegations. denied the operations, unit the Plant Site superseded, merg- parties Water Lease All other contract plaintiff selected represent agree- ed substituted all other class made default. No and/or express- requested ments service existing had, heretofore was or or notice ly granted given right parties to the ‘Defendants’ the to the other signing Agreement. drill a water well and the Unitization that said Pleas in abate- filed, by water well was to serve were drilled all said reason of the absence operations parties unit agreement, and which ‘Defendants’ to the and were granted 'were overruled. to use water ** * Furthermore, the Plant Site superseded, and Water Use Lease plaintiff The contends that the merged substituted all other superseded had been and cancelled and/or previous agreements and the ‘Defend- main the Plant Site Lease. lease This ought estopped ants’ to he claim signed by plaintiff Molyb- and Climax any rights by any agree- other prior denum Company and was at delivered ments.” same part time and as a of the same trans- action Agreement. as the Unitization sought possession Plaintiff title and theory plaintiff’s ground recovery personal all the property on the .10 acre plant that site and water use lease plant site, injunction, etc. superseded precedence and took over all Agreement provides The Unitization other signed instruments were that Injection Article Rights: Section 3.5 negotiations, chain of and controlled. Practice, McDonald, 3.5, Texas Civil In 1 in Article Sec. As is stated 3.16, p. following definition in the Goldsboro leases Sec. operators of the waters is set forth: subsurface extract may Unit part unit area -underlying’ indispensable party is “An one who injection purposes, with- the same (cid:127)use interest, a direct has or claims such plaintiff’s petition at- payment. The out subject equitable, in the mat- legal or sought cancel contract and tacked sought the relief ter the action or basically. alter it be made 'a final decree cannot interest, affecting that without leav- signers of the rights controversy in ing the such a condition affected Agreement were may wholly that its final termination be trial in which judgment of the court equity good con- inconsistent with been, they parties, but should have not were ” science.’ they may defense in order presented, and this was had could proceeding class action indispensable joinder not done. not sufficient as a parties to meet the test of the rule. royalty says Plaintiff action, through T.R.C.P., provides 42(a) a class “for Rule joined were follows: only” purposes “no jurisdictional and that *6 “Representation. persons If consti- money sought judgment” personal tuting class are so numerous as to owners; plaintiff royalty did against impracticable bring them make to all as to status expressly seek a declaration them, court, before the such of one or owners, royalty and that the “free of the adequate more, fairly will insure the provisions'of Agree- Unitization water” representation may, all on of of behalf superseded annulled had been ”* * * all, sued, sue or be and the another contract between himself operator. unit actions, history both before class 42, and after the codification of Rule is Carr, Tex.Civ.App., In the case of Hill v. McDonald, ably in discussed 1 Texas Civil 828, history, the doc- no writ 307 S.W.2d 334, Practice, pp. 269-279, and 1962 Sec. reiterated, indispensable parties is trine of Part, pp. Pocket 81-88. Thomason, v. and the case of Veal 472, cited, 341, is Tex. 159 S.W.2d Lee, 32, Hansberry U.S. 61 S.Ct. royalty involving rights a case own- 22, 741, 132 A.L.R. holds 85 L.Ed. ers under unitized mineral leases. adequate representation a class process of law. suit essential to due Ass’n., Sharpe Oil In v. Land Owners 435, the Tex. S.W.2d Slattery, Tex.Civ.App., Knioum v. said: ref., is the leading er. case, deciding representation and Rule class beyond quesion in all “It is settled 42. in a suit to cancel this state persons written instrument all whose royalty were known to the interests, rights, or relations with testimony attorney plaintiff, of an since the subject-matter suit through the of the personally participated per- is that he by the cancellation are will be affected royalty sign suading owners to * * * parties. necessary The ab- Agreement. party necessary in a suit sence of a actions, handled ju- recognize class fundamental and We for cancellation is requirements of due with the must in accordance such extent that it risdictional to proper. process, be both useful can be this court.” considered Appellants’ eighth points portion seventh and of the tracts to the effect that the trial court erred in described Exhibits A and C to overruling motions for because and on and all other the written contracts executed and delivered lands within the Goldsboro Pool at the same time one constitute overall Coleman and Runnels Texas. transaction and are construed to- required pay Climax shall not be gether, expressly provided use free used, water so obtained and all water. liability damages of Climax for the surface land caused April 11, 1957, agreed On Mr. Robertson operation drilling and equipping and assign (predecessor to Climax in title to such water wells shall be limited to Blackwell, Climax, American Metal Ameri- crops damage growing actual other Corporation can Climax Petroleum pasture.” than Petroleum) Amax oil and various leases what later was called the Golds- closing date of the boro Unit. These leases included the May 31, fixed at acres, Bright Lease covering 202 Agreement provided: The Unitization de- itself included the ten acre tract later in a scribed Plant Lease Site between Oil Rights “3.1 and Gas Unitized. Molybdenum Company and Robert- Climax Subject to the terms conditions of son. Agreement, all the and Gas- Oil Rights Royalty in and Owners agreement during furtherance in Exhibit A lands described May Robertson secured the execution Rights all of the Oil and Gas Agreement, of the Unitization the various hereby- in and to said lands are Lessee lease, surface, owners, royalty mineral and respective unitized so far as said agreement approved and had *7 pertain Rights and the Oil Gas to Railroad Commission of Texas and executed Formation, all Unitized to same the Plant covering Lease the ten acre Site extent as if the Formation Unitized tract. single had been included lease by Royalty Owners,, executed all the plead agreement Robertson to sell lessors, Lessee, lessee,, as favor of as gas properties oil and and the contract subject and if said lease been had between himself and his associates and to all of the terms and conditions of Molybdenum Company Climax and intro- this Agreement.” agreements duced these in evidence: gas prop- 3.5, The to sell oil and Injection- We have inserted Section provided erties that Robertson and his as- Rights, hereinabove. convey sociates were to sell and all im- Operation.1 “4.1 As Waterflooding provements, easements, etc., op- for useful reasonably possible soon as after the gas pro- erating other minerals to be Lessee Agreement, effective date of this pro- duced from the lands. The contract carry shall and with on rea commence vided : diligence sonable and accordance that,' agrees “2. Robertson produc if good engineering with and closed, Agreement is Climax practices shall have waterflooding opera tion portion right any of the lands respect tion with to the For Unitized owned Robertson and described in plan mation. The and method of such Agreement A Exhibits and C to waterflooding operation be shall at drill, equip operate to and wells discretion of Lessee and Lessee shall and take water therefrom use such liability Royalty and be under no to Owners secondary recovery operations good action taken or faith nection omitted ties [******] 10.1 Grant of Easements. hereto, therewith. to be taken to the extent of Lessee their in con rights par- Tex. much of Warren Holt v. Southwest Fifth Enlarged, operator had the Petroleum 271 S.W.2d the surface Okl., Corp. v. Antioch Sand as was P.2d right Supreme Martin, to necessary. use so Court; Unit, interests, hereby grant to Lessee and in evi were the contracts Since the surface much of right to use as dence, questions and the fact there was no the Unit Area land within power duty in trial court had the necessary may reasonably apply to the facts. Brown terpret and them Unit operation development Payne, 142 Tex. 176 S.W.2d Area hereunder.” Court; v. First & Combs Hill Climax lease from Robertson Texas, F.2d Angelo, Nat. Bank of San acres, pro- covering 740; et al Railroad Commission of : vided 560, Supreme al, v. Manziel et 361 S.W.2d Court. use, “Lessee shall pro- cost, gas, free oil Appellants assign as error the action operations duced on said land for failing the Court in hold Robertson thereon, except wells of from water part question any estopped lessor.” continuing Agreement, and the force effect thereof. covering the ten The Plant Site Lease pro- Bright tract 202 acre acres out of the question execu- be no as to the There can operat- drilling, equipping and for the vided and the tion of the Unitization wells, maintaining a water ing of water on the Lease Mr. Robertson one Plant secondary with supply plant connection parties on hand and the other interested recovery operations anywhere, for oil stor- hand. the other employees, stations, age; pump houses continuing plaintiff to claim activity its incident to other lawful royal- leases, accept under the Runnels Counties. hold operations in Coleman or paid production
ties reason of produced agreement, under the oil and testified Mr. Robertson *8 part of the its terms are Agreement was and now insists that most of 1, full force. effective whole trade June having been separate instruments written accept Generally party who has a common at the same time and as delivered part of a ed the beneficial and retained they to understanding will be construed repudiate any estopped dis contract gether as one contract. case, thereof; advantageous part this Authority Guadalupe-Blanco v. River water, without cost. Guad right to the the 611, Antonio, City Tex. 200 145 of San City Authority alupe-Blanco v. River 989, wrote di our Antonio, supra; Ragland, v. Lowe San question. rectly on 668, Supreme 504, Court. Tex. 297 S.W.2d ownership of question of the There the the unitization was effect a min water, is held to be which the salt into one oil and leases merge the all of Bright Mrs. eral, deed from reserved with the lessors vest all of and to contract Robertson, must be determined. pro to Mr. any royalty participate in the Tex.Civ.App., Neumann, S.W. Cain v. Belt v. any in the block. tract on duced Robison, hist.; v. writ Cox 2d no Tex.Civ.App., Company, 175 S.W. 1149; Flemming Foun- Tex. S.W. 622, er. ref. 2d Texaco, Tex.Civ.App., “Q being water 337 S.W. Is taken or dation used the er. ref. n. r. e. 2d from water well on the put Bright tract into 14, 15, Appellants’ assignments Nos. wells located outside of the Golds- 17, 18, 19, to the ac- 20 and are directed field boro in Coleman and Run- appel- overruling of the trial tion court in nels Texas? there lants’ motion because No, “A sin was insuffi- evidence the evidence no cient to show the amount of water taken you “Q now obtaining Are addition- well, evidence or the salt water and no from production al from the Goldsboro' evidence was insufficient to establish the by reason unit of this in- water into the injected amount water of salt jection secondary recovery- tract, or into wells on 202 acre operation, or not? Unit, input wells within the Goldsboro input into on the off- Yes, sir, wells located “A we are. setting tracts. “Q put you If salt water down into- sought money damages based Plaintiff on formation, oil as that salt reasonable market of the salt value water drives the oil towards the produced from Cambrian salt bore hole the salt water go- will well on the ten acre tract. hole, towards bore won’t it?' positive as to There no evidence “A Yes. of salt taken the well amount from alone, the ten acre tract but as to “Q your And as project water flood and', from produced amount of salt water total proceeds, your salt water Gardner formation with oil and from the your up oil come through back formation, and claim is made Cambrian no ? oil well plaintiff to the salt water from Gard- water, Only “A that salt where we- ner sand. emergency, superintendent Hagan, of Amax M. L. back, which comes none- where Corporation, deposition intro- Petroleum by, you per- came have 100 by plaintiff, duced into evidence testified as cent ideal where none comes back.. repressuring injection into bypass. We have some to Whem plant sand of salt Gardner water from the bypass we have some to that wa- tract, ten acre and: on the ter, back,, go that water that didn’t put we have to it back down and. being
"Q What is the wa- done with push it back. produced ter well on the *9 Bright tract? you “Q get Where water in this- producing The water are “A we formation, Gardner other- into being injected that well is formation, your gets that well the Gardner sand. hole, hole, bore going it is to come- your up oil? with “Q How? Yes, you produce up. “A will it produced filter-
“A It is into a central tank, mixing treated, ing we are “Q you get top ground; it As produced with our water you going separate are it: or, Cambrian with the Gardner — again ? water, through pressured it is then "A plant. Yes. high pressure our Now, “Q does this see. where put I it "Q that water And take hundred and million six put seven your plant it through fifty-five and a barrels thousand again? there back down men- more, you have little right. “A That’s spe- tioned, does this where from, cifically other than come project you get in a “Q When formation; it the Gardner does water, ex- has Cambrian come from other wells? your Gardner wa- ample, and has oil, produces it ter above No, “A sir. wa- Cambrian go get the you can one “Q it come from this Does still top ter, bring it you have? supply well that right? ground, No, “A sir. put down. “A it back And you your plant on “Q pipe it to Do Gardner, “Q right? it back in the Put well, supply where “A Yes. the— “Q top back to the It will come No, “A sir. ground your with some of oil, right?
water, your with Well, it “Q you tell me where would comes from? “A right. That’s “Q You take the water and separate [******] again your and let go words,
it oil Now, then, in see. other “Q I purchaser? you producing are some salt wa- wells; your ter from oil is “A Put it back down. it? Gardner; “Q it back down in the Put Yes, “A sir. you circulating? so that are to, go “Q And where this water does Circulating '“A the water that is not sir? any good. doing sys- injection goes “A It our into “Q circulating keep- are You tem. your unit? ing it on Now, your “Q much water have how going your '“A which is That into produced other than from sources back coming well out Hagan? lease, Mr. unit, your you well on other n circulating; that which goes into Through June, of we have “A your injection and comes back produced hun- million six seven being out circulated. The wa- seventy-five thousand dred and good that didn’t do much ter seventy-three three hundred returned. unit. barrels in the Goldsboro *10 you Now, “Q of all the water have what, “Q From the sir? produced, whether it be from the or the Cambrian formation And “A Goldsboro unit. we sand, has it come from Gardner water quite taken amount of Bright well located Bristol Herring and from S. G. plant site lease? amount, I can- Petroleum. That No, not answer. “A sir.
762 year year
“Q does this come two statute the four Where statute million, from, apply. seven six hun- would fifty-five odd dred and thousand 26th, points The 27th and 28th are di- barrels ? rected to the action of trial court in producing refusing of to enter “A From the horizon for defendants jury because the the Gardner sand. found that the salt water had no place market value and the put you “Q is And damages amount of should have lim- been and, then, your plant, back into ited- to the of the value salt water above reinject; you is what do? ground less the reasonable cost of producing, using, water, etc. and the Yes, “A sir.” jury having pro- found that the cost of Appellants’ points 22nd 23rd ducing greater the water was than the directed to the action trial court in of the top value of ground. the water on of the appellants’ judg- overruling motions for The evidence of Mr. Robertson was that or the because there was no evidence 6 barrel, the salt water was cents a without evidence was insufficient establish the taking costs, into consideration the market of used value the salt water 12 produce. would be cents to appellants. jury found reasonable mar- stated, As we have the suit for the was water, ket of value a barrel of without reasonable market value salt considering the costs of same producing taken and the defendants from the sold per cents barrel further that 2]/i operators Cambrian salt water well to oth- production of per costs cents input er than defendants for use in wells barrel. unit, on land outside of the and for water within the located unit. Generally, damages con loss, version action is the actual We have hereinabove the evi- discussed fraud, damages absence of measure of dence to amount of water used and such as property is the value of at converted such, applicable value of the time of conversion and when and again. we will not restate where it was converted. 27- Tex.Jur.2d 30, 26; 28, 24, Reynolds v. Conversion Mc There was evidence to the sale Co., Man Oil & Gas Comm. operators water to outside the unit for App., opinion affirmed price top per cents barrel on 2^ Court. instance, the ground, only but this was one point appellants The 29th and last requirements and does not meet the to fix directed to the failure of the trial court value. Damages, Sec Tex.Jur.2d grant the motion for a new trial because tion 234. jury argument. We do not consider point reversing further since was are points and 25th 24th are directed remanding the cause. refusing to the action the trial court apply limitation, year the two statute of carefully We have considered the entire Article Vernon’s Ann.Civ.St. record filed herein in behalf briefs parties, appellants appellee. of all plain- suit was filed June tiff pleaded year record, and defendants the two weAs understand the the title statute of tract, limitations. to the We do not deter- 202 acre minerals surface, mine the limitation statute —whether is as follows: *11 retrial, parties On all at interest should a Surface opportunity ap- be and to given cited Robertson pear. Minerals interest) (working Climax leasehold % regard to With the annual rental of $20.- parties
Third Vie pay we not consider the failure to do Vis Robertson consequence such sum to be of to produced appellee enable to defeat the If water which was the salt ownership Bright the value or to determine the tract and for from the suit, is brought salt water. which Robertson prop- the “mineral”, then it is owned judgment The the Trial Court is re- however, stated, subject, erties above versed and the cause is remanded. agree- provisions of the unitization the record, the which, we understand Reversed remanded. as and executed. owners .all mineral estate ON MOTION FOR REHEARING opinion our that salt It is In Bright deed acre tract meaning of the mineral within Is a appellee, Bright Mrs. reserved all of "oil, as gas other minerals” phrase and “oil, gas and other minerals.” One half with by held Climax in the leases used concededly of such minerals are owned now “minerals” meaning of the word by parties. Appellee third claims to own Bright to Rob the deed from Mrs. used one half of these although minerals no con- reserving conveying land but ertson veyance to him is shown. “minerals”. appellee’s for it is Rehearing Motion opinion support which Authorities pointed by out the leases executed Parker, 61 Tex. of Texas v. State Bright, assigned himself Mrs. Newmann, San and Cain operator, only the unit are for oil and history. Civ.App., no writ Antonio and do not include other minerals. ' water, then, be would The salt is The effect of this not material. proportions parties in the owned ap- agreement unitization was executed pooling subject to the terms of stated pellee Bright Mrs. it defined understanding of agreement. Our “Royalty including any party Owner” wa salt agreement dedicated mineral, who thereto was the “owner of flooding parties by the ter owned royalty” etc. so, parties en were then all project. If so used salt water to have the titled Appellee Mrs. as owners of a diversion resulting any damage for mineral, water, land under their salt they be entitled would waters of such wherein it were bound If, however, only excess salt recover. provided operator could extract the unit by Climax and sold was diverted purposes with- water for certain subsurface mineral, water, being a salt than such paying out therefor. royalty and the as oil be treated should pro paid appellee may their have owned royalty be fact of such proceeds. than others who share of the more of the salt portionate consequence. agreement is of no signed the Robertson awarded Mr. judgment opinion, relief If, original held in our $200,000.00, of ais water, e., i. of salt sought conversion water sold $33,877.73 was for sum of provided in unitization utilized as not $166,122.27 was to others prorated recovery should agreement, then of water. operator wrongful use *12 accordingly ownership of the mineral
estate established.
The motion is overruled. overruled.
Motion Jr., MORRISON, Appellant,
R. R. al., Appellees.
L. A. PARISH et
No. 7605. Appeals Civil Texas.
Texarkana.
Dec. 1964.
Rehearing Denied Dec. 1964.
Neal Birmingham, Linden, appellant. Boyet Daingerfield, appel- Stevens. lees.
CHADICK, Chief Justice. try trespass is a A This title action. summary judgment plaintiffs trial rendered court and is affirmed. Connor, widow, Mrs. Lula borrowed J. $15,000.00 Omaha, from the State Bank of Omaha, Texas, August To payment secure she loan executed and delivered a Deed of Trust to R. G. Moore, Trustee, conveying acre tract land, subject of this suit. less “ * * * thereafter, than two months consideration of the sum of Ten and No/1001 ($10.00) Dollars, and other váluable con- * * * ”, sideration Mrs. Connor grantor Warranty executed a General Deed