*1 Appellants, et al., G. B. HASTINGS et al., Appellees.
John J. PICHINSON
No. 14078. Appeals of Texas. Civil
Court of Antonio.
San
May July 10,1963.
Rehearing .Denied *2 wife, Cary
G. B. and and Bennie wife, husband, Mackey and Ethel exe- and cuted another gas oil and acres 273.4 survey land out of Hast- the same as the ings Hastings- lease. We shall it the call Cary lease. There is on it. no well Mackeys owned a one-fourth life estate tract, plaintiffs 273.4 acre concede and that their rights to interest have Mackey lapsed. That is not here Both involved. leases Company, were to Tower Production plaintiffs, and Pichinson and John J. others, assignees rights. are the Both of its provided leases lapse that the leases would year in one production. if there was no oil Plaintiffs claim rights. no oil leases Both provided royalties, gas for shut-in but royalties such would not continue a lease beyond January 1960. Both leases provisions: Subject provisions “2. the other contained, this herein lease shall be for year of one (1) a term from this date “primary (called and as term”) long oil, gas thereafter as or other mineral produced land is from said hereunder. Scofield, Austin, Lee, Frank L. Hubert expressly by It is understood and be- J. appellants. parties hereto, tween the and each does stipulate, hereby and agree so that this Christi, ap- Graham, Corpus Ralph J. may beyond not be extended Lease Jan- pellees. 9, 1960, uary of shut in gas gas royalty on well where is POPE, not sold or marketed from the Justice. premises provided above in Para- others, Plaintiffs, Pichinson and John J. 3(b) graph hereinbelow. It is further declaratory judg- obtained sued provided and herein agreed that not- own the under two withstanding gas may have been question whether the two leases. theretofore discovered on the above gas, terminated as to have so if premises may described or may not jury revived. The an- whether premises have marketed said been plaintiffs. for the all issues swered February prior to this Lease plaintiffs, law, as a matter of that' own hold never the less shall terminate as to oil lost the other. but one February prior unless executed February first lease was time Lessee shall have drilled B. premises G. an oil well on said which said under for oil 188.74 acres actually such time was well at producing County land. At the capable producing time of trial Frio oil in paying on that well tract. We quantities. purpose there It is the and intent parties provide it the lease. On same production- call date July until record not filed for of one tion was primary term within capable well Lease 1960. On October year shall continue *3 primary capped. The production as of was long thereafter so force effect 1959, which February, at land, pro- expired in term as produced from said oil is terminated. to oil rights of time lessees’ as hereinbefore, production hut vided at that quan- gas rights not terminate paying The did discovery in gas gas or of con- 1959, May made 1, in force time. lessees Lease On may tities continue this Com- primary Production tract with Coastal of said States and effect the end after the pany commence gas. as under which it would only to (1) Year term One 1960, 1, ac- April taking actual on gas paid by Les- royalties to be “3. The cording finding. to the At that time it jury oil, of that one-eighth are: on (a) see gas on royalty began taking gas. Shut-in land, the from said produced and saved 9, On March paid up January to 1960. was the wells or to be at same to delivered they 1960, 16, what paid lessees lessors pipe line the the credit Lessor into gas the lessors royalty called shut-in may he connected: to which the wells payment accepted as was tendered This purchase may time to time Lessee from February, 1960, gas. Lessees for the shut-in possession, paying any royalty inoil its 28, May royalty another check on tendered price prevailing the market therefor for 1960, lessors but the payment, the March for produced field on the date where upon the leases rej grounds ected it that including casing- purchase; gas on (b) undisputed had terminated. An and unat- substance, gaseous gas head or profound signficance is that fact of tacked sold or produced from said land and April 26, 1960, Hastings and wife on exe- in the premises off or manu- used a lease for cuted to C. G. product or other gasoline facture of Mabry, covering the 188.74 acre and N. therefrom, at the the market value well only. lease and wife tract that used, one-eighth gas so sold or gas of the lease then gas on sold at the wells provided that provision: this royalty eighth be one of the such rights gas from sale. “All to the will be turned amount realized gas well is not sold to the owners or lessees rightful from over Where used, may pay royalty or gas rights on tract lease Lessee of the this per year, provided, only, per well out in lessees as set $300.00 however, per per well being that at time the Tower Production $300.00 equals Company, Corporation, rental called which the annual a Texas year 4, gas only at this Paragraph rights hold the lease on in if that be considered is made will time.” produced meaning within the * * 15, 1960, Hastings Carys On Paragraph 2 hereof and June with Holcombe that would he in- contracted pro- later corrected leases were to recovery suit the mineral stitute pay per may the lessee month $300 vide and 273 both the 188 acre tracts of royalty. gasA as shut-in well well per which the land, and Carys after acre 188.74 discovered convey gas rights Hol- agreed 1958, but there were May, line in no tract a party defendant in He this suit. combe. permitted by As available. connections lessees, support payments judg- Plaintiff commenced. lease, shut-in they gas rights own with a notwith- two provision prohibited which 1958, 18, standing according to September tract 9, January 1960, payments after rely Designa- Unit finding, but shut-in jury Crenshaw,
upon
findings:
355; Myers
(1)
these facts and
Lessees
S.W.2d
Tex.Civ.
royal-
App.,
tendered and lessors
shut-in
116 S.W.2d
jury
7;
found
ty
February,
Simms,
Com.App.,
Mitchell
371;
Sinclair,
that between
Buchanan v.
actually began,
Cir.,
production
;
when
to the 188 applied been to revive deeds which were controlling legal principles. state wholly inoperative as to home non-joining subsequent
stead owners. execution of a formal per document even a was the date be third expressly recognized son which roy yond which would be no shut-in clear there language validity alty, clear of the lifeless according to the terms of deed or has thereafter, been held continued it give lease. If the lease life. Greene White, 361, 575, production and v. 137 Tex. 153 must be reason of actual S.W.2d 136 626; April 1, Anderson, A.L.R. Grissom was none from that date to v. 125 there 26, 619, Tex. 79 therefore S.W.2d The lease terminated. 623. Defective 1960. description, Co., even to the Magnolia v. Petroleum 141 extent its Freeman total omission, has 274, been supplied seek corrected and 171 The lessees Tex. S.W.2d subsequent recitals in a themselves the late lease which ac to excuse knowledged royalty, pay a since tendered the former deed. shut-in Court, in March and the lessors Reserve Petroleum Co. v. 115, accepted money 147 Tex. Hodge, 456, that the lessors 213 is true It S.W.2d 79 swept 288, tendered, not A.L.R.2d aside all but it was other conten and held against that. tions that the declared For us thing the contract necessary to the decision about shut-in after thing write case improvise 1960, need to a was the fact there was we clause not Grissom, as in Green thing lease at supra, in the all. It one found clearly compliance, it is another to make which the validity excuse parties. purposes contract for the earlier defective deed. “For different It opinion, this that we are not this reason concerned instrument will be * * special utterly infrequent void situations treated After positive statement, making Supreme force of excuse the limitation which Baker, Court, in Humble & Refining Hamilton v. 147 Oil Tex. events. Co. v. 460; Clark, Humble 126 Tex. 87 S.W.2d Oil & Re 214 S.W.2d never- who, Harrison, held that a minor theless 205 becom- fining Co. v.
5 cases, ratification rule of From these mineral deed to ing age, executed a Accord, de- is well established. land revivor party and recited that the Hunt, S.W.2d Turner 131 116 v. Tex. scribed then under an oil and Oil 1066; Lion it, Tracy A.L.R. thereby lease and identified restored 562; Company, Tex.Civ.App., the fact 312 S.W.2d stated that even lease. The Court Co., Tex. Leopard Oil & question the lease in had terminated v. Stanolind 259; Civ.App., alter Deventer pay not Van delay for failure to did rentals Tex.Civ.App., Co., restoring the conclusion lease. Gulf Production about Gas, 1029; S.W.2d 3A Oil Summers Tex.Civ.App., Mason, In Rainwater v. 606.1; Oil Ninth Annual Institute § lease ex- an oil and Law, 165; Note, and Gas A.L.R.2d arrange- pressly prohibited certain pooling produc- At a time when there was actual ments made. which nevertheless were tion, un- by a clear and Production was obtained on lands which mistaken doc- statement in a written formal should not have with lessor’s been ument, acknowledged that Tower Produc- however, predecessor, land. Lessor’s *5 Company tion was the holder of “the lease assigned royalties the under the rights Hastings at this time.” lease to his and this constituted a creditor lessors, and the made complaining pooling ratification. a ar- prohibited Hence recognition the statement in a lease to Hol- rangement by recognition was ratified a combe, they gave to whom the oil lease on in party. contained a document to a April 1960, and who claimed the Mason, supra. Rainwater v. rights at stronger the trial. is This case is than principles cited, Our case some those all governed the since claimants of against others, announced in these cases and original in Loeffler v. Pichinson and the King, lessees, participated Tex. in 149 236 the rec- ratifying ognition Loeffler a lessee claimed a waiver of statement respect a with to the by acceptance limitation Hastings event small of a tract.
royalty lapsed, lease check had well as the fact that he had made valuable apply principles now improvements on the lease. The re- Court to the two Hastings leases. and his wife jected pleas estoppel, waiver and of recogni and in participated and discounted the facts about the late ac- tion writing. They statement in in made it ceptance royalty payment improve- of and the oil covering lease on ments. Those same contentions made are the 188.74 acre tract. That was by the in lessees this case. court The rec- the tract on which the well was located. ognized the difference between forfeitures respect recognition was with to the and held, have, limitations and as we that only. 188.74 acre tract With terminated, lease Watson citing v. respect tract, judgment to that for Rochmill, Tex. plaintiffs, others, Pichinson is affirmed. and Freeman Magnolia Co., Petroleum recognition validity There was no of spite of S.W.2d 339. In Hastings-Cary which would lease termination, held the lease Court revive It terminated was revived. The which revived it thing non-production non-payment was the fact that Loeffler later place royalty production, deed fractional in which there it was revived. never was a distinctly recital which said: is “It stipulated understood herein that said the trial is judgment court accord- land is under provid- an Oil and affirmed as to the lease. It ingly ing n oil and cer- Hastings- is reversed and rendered that the royalties tain or rentals Cary lease reverted on ** minerals appellants partially prosecuted Since
fi appeal success, their with the costs are that the gas thereunder were owned equally. divided Tower Company.” Production issues, Most of the trial related to other Rehearing.
On Motion for plaintiffs but when proved enough, that was and required is all them. rehearing Defendants’ motion for The motion for is overruled. rehearing grounded upon point plaintiffs theory did not invoke the of ratification opinion plaintiffs, by In our
revivor. brief, proof
pleading, have done
enough By pleading, to invoke it. par that the conduct para
ties ambiguity an gave meaning opin leases, graph 2 in our quoted COMPANY, Appellant, DALLAS TRANSIT ion, respect gas. to the sale of pleading specific words also asserted the al., Appellees. E. D. YOUNG et April 26, wherein the defendants No. 16190. They 1958 lease. alleged Appeals Court of Civil of Texas. recognition, lease was a defendants Dallas. made demands for shut-in and that *6 plaintiffs paid clearly “thus June recognized said lease evidencing Rehearing July 26,1963. Denied as in full force and effect.” recognition
At the trial the oil lease from Mabry and wife to Holcombe and introduced, while himself was him, “now,
on the stand. asked Plaintiffs here, date of this oil lease Mr.
Hastings, you position taking were still Company
that Tower Production or the
assignees still owned the leasehold property,
insofar is that answered, To this he
correct?” sure “I
did, belonged anybody didn’t it think I time, give up
else at that he hadn’t recognition
nothing.” The 1960 lease was objection.
admitted without points brief
Plaintiffs’ to the statement facts and the exhibit 1960 lease argument, “in fact makes the evi- clearly established that
dence such indi- such leases
viduals considered insofar as rights thereunder were concerned force effect as late as full when entered into an Lease to and with G. Holcombe
Oil C. property
the same wherein it was recited