*1 аas was entitled Appellant not et al. v. REINERT al. KUKLIES et favor, and judgment in law to matter of not was No. only requested by it which 3064. issue appellees jury was whether submitted to the Appeals Waco. Court Civil of Texas. de person insert authorized some deed, there scription the land Feb. 1953. which, upon absolutely was no evidence Rehearing 31, 1953. March Denied favor such could have been answered issue ably properly appellant. The trial court jury. this to the
refused to submit issue is a Appellant that their contends next between,
hopeless and irreconcilable conflict findings of the
certain issues and
jury issues mortgage the fraud and preponder-
against great weight and evidence, we are
ance of the but ren-
opinion we above that what have said imma- by appellant
ders these contentions
terial. judg
Appellant contends certain
ment should be reversed because counsel
alleged appellees’ misconduct story jury a recess during a
telling the jury that telling
which had effect of appellant
attorneys had been unneces ap-
sarily delaying the cause. Counsel of a
pellees jury he reminded told the lawyer
story employed a of a son who proper share
see that he received his to construe
his father’s estate. The suit postponed several
the father’s will was son, times, disappointment that he some ultimately
until exclaimed he father had never died.
times wished his story jury telling this
While we improper, circumstances was
under the to re not such misconduct
think- it was v.
quire cause. Cole reversal of the 849.
Waite, Sup., 246 Tex. S.W.2d complains next because
Appellant testimony Bier was given R. W. certain by appellees-. upon motion strike excluded contention, appel because
We overrule way ac to this object in lant did Rule Texas Rules court. tion Rule Civ.Proc. Procedure, Fed.Rules Civil U.S.C.A.; Gargac Smith-Rowland v. 177; Tex Cir., McDonald’s Co., F.2d 11.31; Procedure, Practice § as Civil Procedure, Federal Holtzoff § & Barron affirmed. judgment *2 Shank, Payne Dedman & & Johnson
Abney, Dallas, appellants. for Rice, Rice, Waitz & Antonio, ap- San pellees.
TIREY, Justice. The Lone Star brought Gas Company interpleader bill of against and wife necessary and other parties for purpose of determining ownership proceeds of the accruing gas pro- duced from a well drilled on be- the farm longing to Otto Reinert and his it deposited proceeds registry into the of the court and asked the court to deter- mine rights parties. Pertinent to this discussion the bill of interpleader alleged there were certain existing against liens property and that there was of record a certain unitization parties between the affecting the land that necessary made it court determine ownership proceeds gas. from the received parties Each of the named in the bill of interpleader appropriate filed answers set- up respective ting their rights. Otto Reinert and his wife in their an- swer and plaintiffs’ cross-action denied right shall, where on said consolidated to have sought interpleader, and to bill of paid sought among divided They void. declared the same lessors, heirs, successors, their try several title trespass cross-action proportion assigns, premises their possession of title and cover the acreage respectively owned them all of the damages against *3 area, in as hereinbe- consolidated appropriate relief. prayed for and forth,, fore set bears to the total an- Oils Texas Consolidated Defendant in contained said consolidated area. by the owner it was the effect that swered to completion pro- “2. The a well of mineral oil, gas and assignment of an ducing gas paying quantities in within 'Reinert and by Otto lease executed area, perpetuate shall IS, 1944, in recorded date under of June gas rights the oil and of lessee under 591, Hamil- 131, Records of page Deed Vol. leases said said in entire consolidated Texas, covering the Otto County, ton area fur- and relieve lessee from all by and it metes tract, and described obligation pay ther to drill by and/or bounds, up interest under and and set its delay any rentals and all leases and assignment the lease and virtue of covering lands within said area lessee Texas Con- prayed appropriate relief. for impliedly expressly shall not be or pleaded in the alter- further Oils solidated quired to drill more than one well Reinert and “that the said Otto native upon area, gas for the consolidated or Reinert, de- lessors in the above wife Dora gas contiguous to offset wells on lease, joined with scribed adjacent premises, when, regardless of Kuk- and Walter and wife Minnie where or whom It drilled. is ex- Kuklies, in lessors two wife Eline lies and pressly agreed by parties hereto here- particularly more other certain leases agreement that this shall not effect an described, Rudolph Grossen- inabove apportionment royalty payable leases, bacher, of said in first lessee two oil, nor shall it constitute a waiver of other, Sumner, in E. lessee and L. any rights require lessors to offsets February agreement an dated exeсution of wells, being to oil the intention of Op- 1944, 8, entitled Unitization parties royalties hereto that oil provides that all Agreement, which erating though remain in the same as leases shall in said of the lands described agreement had not been entered only developed production be for the into. designated therein operated a unit as agreement “8. rights This and the agreement Area’. Said the ‘Consolidated as of lessee under all covering leases 132, page 550 of record in Vol. is filed for tracts within the consolidated area shall County, Hamilton Deed Records of be and remain in full force and effect leases covered The lands and Texas. long produced so can be' par- more in included said paying quantities, any in from well in 127, ticularly described Vol. set out and area, and shall not be effeсted 130, page page Deed and Vol. expiration the primary term of Texas,” County, Records of Hamilton any said leases or of them.” alleged agree- further that such unitization provides part: ment It was further alleged that a well was completed within the consolidated area on hereby agree “1. Lessors December, 1945; the 14th of that it has purpose development and drilling continuously produced gas in paying quanti- production gas, said consolidated ties from the date completion the same however now or time, present and that the agree- ownership, shall hereafter divided valid, active, men is alive subsisting, unit, single and remain a and shall be prayed appropriate and it relief. operated developed as such and all royalties accruing gas produced from The cоurt submitted the following issues or, jury: located well wells any-
' Rudolph lessors, find Otto Reinert and wife as you “Special Do Issue No. One: 15,, Grossenbacher, date as lessee of evidence preponderance June as corrected lease 'dated Rudolph Grossen- that at the time June lessee, between the same lessors bacher, Rei- paid plaintiff Otto perpetuated which said lease was sum nert, that said the sum of $195.00 completion gas-well on such producing of a represented the considera- paid so cash tract. lease execution of the tion for the payment of date June The court that the instru- further found part lease of on a former rentals due ment called the Gas Division Order a cor- the latter lease was February Operating Agreement, dated jury answered rection?” tо which executed Walter Kuklies *4 paid as
that the sum of $195.00 Sumner, Kuklies, Eline Reinert L. E. Otto rental. wife, Reinert, and Reinert and Dora you “Special Issue No. Two: Do lessors, wife, Reinert, Minnie as and the evi- preponderance of from a find Grossenbacher, Rudolph in- lessee, as the time Otto that at dence in case a unit as a sufficient in law to create and delivered signed Reinert and pooling agreement the described above Di- 'Gas known as the the instrument belonging land to Otto Reinert and wife Operating Agree- and vision Order any The de- with other land whatsoever. 8, 1944, to ment’, February of date disposed par- then cree of all lessee, Grossenbacher, that Rudolph as findings, ties in accord with the above upon the was delivered said instrument pertinent details of which are not here. owning an that condition Rein- Walter Kuklies and wife and Julius contemplated block in the interest duly perfected appeal ert and wife their to before it was sign the same should this court. jury effective?”, to which become appellants These assail the decree of “Yes.” answered points. court on five you Do “Special No. Three: Issue ' preponderance of the evi- find from “Point 1. This case should be re- persons, any person own- appellants dence that as to judgment versed and constituting in the land ing appellants an interest rendered interest their for block, ‘to proposed drilling failed gas royalty produced in the and mar- Operat- and sign said ‘Division Order gas keted from the located on the well jury land, ing Agreement?’, which Otto Reinert 'because the Gas ‘No’.” Operating Agree- answered Division Order and ment acknowledged executed and jury thе court the verdict of On appellants appellees, and the Otto and Star Gas that the Lone and decreed found Reinert, lessors, provides Dora as for inter- file bill Company is its entitled royalty gas division of among and party to the action pleader, and no payment appellants appel- and said any claiming right or action asking lees as follows: Company it, was al- against and “ hereby agree than ‘Lessors that for the costs other go hence lowed to purpose development of drilling, attorney’s fees, it waived. The court production gas, Reinert and division of that Otto further decreed royalties gas, area, on judgment recover consolidated do Dora however the same now parties necessary and in- or here- against all of ownership, title after be divided in suit for the shall be dispensable to this unit, oil, single remain a gas and other and shall all the be possession of developed operated under, produced in, or to from such and all minerals royalties accruing gas produced from land, and described his 195 acres however, any bounds, subject, any- well or wells located to the metes and leases between where on said consolidated shall other mineral gas and oil and n undisputed land, evi- ert because the the sev- paid to among and divided contiguous lands successors, dence shows that the heirs, lessors, their eral appellee Reinert belonging to Otto which the proportion assigns, in the and Walter appellants respectively in by them acreage owned Kuklies, purpose pooled were' area, as hereinbefore pro- gas’ on rоyalties ‘division of forth, acreage con- total set bears on the con- from a well located duced area/ tained said consolidated 635 acres consisting of solidated area This case should be “Point II. of land. appellants judgment versed “Point IV. This case should be re- interest appellants for their rendered appellants judgment versed as market- gas royalty produced appellants their interest rendered gas from the well located ed royalty produced and gas market- land, recitals because the Otto Reinert ed from the' well located on the own, severalty, ‘lessors land, the ‘con- because respec- opposite tracts of set their land consisting area’ of 635 acres solidated royalties ‘all ac- names’ and that tive sufficiently the Gas described produced from cruing *5 Operating Division Order Agree- and anywhere said located on well or wells ment. area, be divided shall lessors, paid and to the several among “Point V. case should be re- This heirs, successors, and assigns, their appellants judgment as to and versed acreage proportion owned which the appellants rendered for their interest in respectively them iri the consolidat- royalty gas produced and marketed forth, ed as hereinbefore set gas from the well located the Otto total bears contained land, Reinert because there is no evi- area’ in said consolidated that the dence Gas Division Order and Operating Agreement void Operating Agree- Division Order and is and there party,' pleading by any raising is no ment, acknowledged executed and issue that said Gas Division Order appellees, appellants and Otto Reinert Operating Agreement and was execut- wife, Reinert, Dora filed and and fraud, a result ed as accident or day July, 1945, the 27th record mistake.” County County, of Hamilton Clerk Texas, page points recorded in Vol. It is our view that 4 and undisputed facts, under the Records,' controlling, Deed Constitute and that each of must be them sustained. Estoppel ap- preventing an Absolute . wife, Dora
pellees Otto Reinert dispute Since it without is asserting against appel- from the land in the all of described unitization proceeds title all of lants agreement' contiguous and since there gas royalty produced sale question description no as to the gas from the well locat- marketed lease, Kuklies and that such lease covered land, being ed on Otto tract’,''arid 210 acre his of it is contained area’ of the ‘consolidated con- part agreement, in the unitization and since the 635 acres. sisting of description of the Otto Reinert tract is not questioned This case should be re- and all it is III. “Point contained in the appellants judgment as unitization agreement, only solé versed question for the appellants remaining amount of for our rendered consideration is description gas the sale to the proceeds from as - acres, interest tract of 230 out of a total allocable of 280 All produced marketed from royalty acres.' the land is located in Hamil and, County, before, Rein- located on ton gas well it is con- designated tiguous' adjoining, In the we find the: the “Consolidated following: Area”. own, severalty, “Lessors the tracts opposite respec- of land set their names; tive and lessee is the owner of oil covering leases all of land, tracts
.said to-rwit: Description Name Acres Water Kuklies and Waller and Barnes surs.
and L. A. Sumner Otto and Dora Reinert same land described in deed Jan. by Henry Auguste Reinert Otto page Reinert Vol. Deed Records 195 Reinert and Part Montgomery and-Wm. R. James surveys Minnie Reinert Barnes the above land being County, in Hamilton State Texas and situated containing a total of —-acres to be hereinafter collectively designated ” as the ‘ConsolidatedArea.’ quote We further the unitization area. Such change in the consolidated’ agreement: area shall be effective when Lessee executes and files for record an instru- “4. If Lessor lands which owns ment designating describing the- are not included the consolidated *6 area, revised consolidated setting- area but аre included in a lease which proportionate out the interest each area, also covers lands within .said therein, ownér acréage included and' drilling within area of well said shall provisions all hereof shall extend to- payment not relieve Lessee.from applied and be to such revised con-
delay respect rentals in to lands such n solidated area if original- it had been as said, may area, as not be within but ly designated herein. such lease such as to lands shall be separate deemed and to be a construed Lessors, “6. -Each-of the for him lease, only covering such lands. self, herself, itself, or and not for the- others, other or warrants the to- title Subj “5. ect to the limitation that the his, her, or its-land within consoli consolidated area not exceed a shall area, dated agrees his, her, that if total of shall consist of 640 acres and or thereto, its title any part or to there tracts, any contiguous Lessee at of, fail, his, shall her, or its interest un change time the consolidated area der agreement this shall be reduced addition, designated above re- proportionately, and the interest of the- acreage, moval or substitution o.f hereunder propor shall be royalties produc- accruing tionately' increased, provided that-the-: ed from the revised consolidated area successful adverse claimant shall have- among paid be divided shall right party to become a propor- hereto acreage owners in the and. several agree disputed that the acreage interest owned them shall tion part continue to be respectively in the revised consolidated of the consolidated' area and of the bears to the total con- interests area covered agreement. No tract therein. included in a In case tained the success consolidated area shall be ful producing claimant shall not party- become a hereto, unless it includ- removed therefrom an accounting among the Les n producing consolidated in another sors shall be ed had so as to restore the.-
-444 n (cid:127) (cid:127) . County, with' Deed Hamilton Records of rightful-'positions parties to their -Texas.” title to which respect the interests failed.
has The Otto Reinert tract is described as follows: any During pendency “7. “195
controversy dispute to title to acres more or less out of the or L. Survey, W. Dickerson the E. any within the Wal- lands Survey,' area, right being ler have the all the land out Lessee shаll payable surveys retain said owned said lessors in withhold and all sums surveys, County, said party title is in in Hamilton hereunder to the whose Texas, dispute being the final termination said lease recorded in until controversy dispute page and then Vol. 102of the Deed Records County, among law- of Hamilton those Texas.” distribute same fully thereto. entitled tract described as follows: rights “8. This covering “Bound as follows: Heirs on Lessee all leases Kuklies North, East, area Paul Noack on the consolidated tracts within Mary Mrs. and remain full force Zeiss and E. Anderson on shall be South, pro- West, can be Oscar Bufe long is or contain- effect so less, quantities any ing more said lease paying duced in acres having assigned not be been D. and shall C. Reed of well said .in Austin, Texas, pri- expiration subsequently affected leases, Rudolph Grossenbacher, mary аssigned term of s.aid only, insofar as it gas rights covers the them.” being said lease recorded in Vol. descrip- discussion of the Returning to a page 144 of the Records Plam- Deed Rein- out of the of the 230 acres tion Texas, County, ilton and reference be- lease, that the discloses ert we find record leases, ing made to the records undisputed following facts: Grossen- complete descrip- thereof for a more that he was bacher testified to effect tion.” the tracts described familiar with stated, As we have heretofore since the ground; that agreement on the *7 agreement unitization took all the Kuk- stipu- join together.” In the they “hang or tract, lies tract and the the Otto Reinert sup- by parties as to the lations filed only question sole and here is: Does exhibit plemental record we find defendants’ recоrd here made furnish within itself or evidence, which trans- No. 4 introduced in by existing reference to some other writ interests from Grossenbach- ferred certain by ing the or data 230 means Snowden, er, lessee, transfer to H. W. this acre tract to in the referred to and leases being with reference oil agreement' can identified reason with Kuklies, covering the Walter certainty? We think it able does. That instru- Reinert tracts. In this and Julius by is rule to followed as stated our ment the tract is described Walter Kuklies Wukasch, Supreme Court in Hoover v. 254 as follows: Supreme 507. Our Court made S.W.2d “210 being acres of land acres 51% substantially Maupin the same statement out of Edwin Waller Survey, Patent 426, Chaney, 139Tex. 163 v. S.W.2d 380. 491, 9, 855, No. Vol. Abstract No. provided acres out of the Since the unitization W. R. Barnes 158½ 260, Survey, 26, Patent No. it Vol. Ab- that was a the rule 52, adjoinder peculiar significance stract No. situated in Hamilton has here. County, Texas, being particularly applied by more That rule was stated and this by Plantation, Inc., Roach, described metes and bounds in court in Leone v. 675, 681, 674, w.o.m., lease writ to which reference is here made 187 S.W.2d ref. purposes. for all “A being Said this court there said: call for lease re- .130, ordinarily given page adjoinder controlling corded in 508 of the is Vol. 442 appeal distance, this from the briefs to call -for course a effect over court was judgment of the trial that the call for that the proved it is except where upon appellees mainly the the- by rendered by conjecture made
adjoinder was ory description of land as con- that the certainly mistake no is There mistake.” Clayborn to Cain tained in the deed line. adjoinder here as conjecture identify the to Will Rаther was insufficient adjoinder applied the again This court land, passed title and for that reason no Kretzmeier, S.W.2d 239 v. rule Giles * * * by Will of such deed. Rather virtue rule of 5-8, p. and the ref., points writ description Rather deed The in the Will &Oil Gas in Stanolind Supreme our Court 50 interpreted court this calls State, S.W.2d 129 Tex. v. Co. acres land east end of the 109.4 on the the court where 802 and S.W.2d deed was acres owned at the time the “ * * * adjoinder is If call for held Clayborn surviving and the made Cain mistake, rule that general through made Clayborn Baity sur- heirs of Ann I. over controlling effect given call is such vey, point beginning of the 50-acre applica is not and distance call for course survey the northeast corner of be at always that course ble, follow it but does 109.4-acre With information tract. control, court call will and distance and the further faсt that the 109.4 acres survey in man such left free to construct parallelogram, in the form of the rule effect to intention give will best ner as survey that the courts will construct a description.” entire be determined from designated acreage drawn lines call, adjoinder have we In addition to parallel designated line or lines of boundary description of the an accurate 238, p. the 109.4-acre tract. 14 § Tex.Jur. * * * bound It is Reinert tract. lines of well-settled rule of con- A heirs, bn the by the Kuklies the North on requires interpretation struction an. Mary Noáclc, by Zeiss Mrs. Paul East operative will be which the valid and deed Oscar South E. Anderson on it; preference nullify which will one description recites Bufe the West. Such on equally another as well-settled rule is less, acres, more contains language that the of the deed is the lan- in Vol. is rеcorded that the lease any guage grantor, if there is of Hamilton Deed Records 144 of the page construction, doubt as to should be testified County, Texas. Grossenbacher Curdy against grantor. solved v. Staf- “hang adjoin and positively that the tracts ford,. 88 Tex. 551.” S.W. familiar that he was together” Gambill, applied Clayborn rule v. lay ground. No witness they them supra, applied by was also the Commis 230 acres in that the the effect testified Appeals Selby sion in Woods v. Oil & definitely located not be question could Co., 12 S.W.2d 994. See also casesi written instruments description in the Sanger, there cited. In Pierson v. Tex. cir facts or to, there *8 nor referred 160, 1012, 1013, 53 S.W. we find this state tending to establish in evidence cumstances duty ment of the rule: “It is the Tex. Dunlap Wright, v. fact. See a such court to so construe the deed of trust as 276, point page on6 S.W. Civ.App., 280 give effeсt to par the intention of the by pleading or was tendered No issue 279. ties, if that intention can be legally as Division Order proof that cases, The foregoing certained.” when void, that it was Agreement Operating light us, in the viewed of facts before fraud, accident a result of executed application are not in conflict with the contrary, we think the theOn mistake. by Supreme the rule made our Court in parties that all discloses evidence Sorelle, 353, 126 Tex. Smith v. 87 S.W.2d in into entered 703, Greer, 528, nor with Greer v. 144 Tex. good faith. 191 S.W.2d (cid:127) Tex.Civ.App., Tex.Civ.App., Gambill, Krider In v. Hempftling, Clayborn v. In ref., 83, 85, 510, writ we 7 S.W.2d no writ .his S.W.2d 7 13 8 gather tory, we find this “We statement of the of the rule:" rule: statement this find “* * * by par- declared void to the given not be construction them the deed will a (cid:127) pos- themselves, description they if is ties uncertainty given it have where construction, practical same by construction to as- a and made any sible rules of by applicable ex- them description, property, aided to certain this certain is in- will be evidence, property strong it a circumstance in ascertain- what trinsic Bergman, ing their convey. Hodges, Rhoden v. intention. Miller tended to v. Tex.Com.App., 993.; 8 R.C.L. Tex.Civ.App., 168.” S.W.2d 260 S.W. * * * 14 Texas said; page 1074. In Wolfe, Juris- Tex.Civ.App., In Battle v. rule prudence, ‘The page it 1073, 1077, opinion April, S.W. dated sufficiency generally determining the ref., writ we find statement rule; description in deed is contained a '“If there is the de- data from which party famil- enough there is to enable a if scription certain, may be made it is suffi- premises’ * locality identify iar with the * * cient. especially And this is true conveyed, exclusion intended to be party where the dealing with or interested others, enough It is it will be sufficient. in the land knew within thе its location * description points and indi- * out * larger part. tract of which is a premises applying it to cates the so that Although description is uncertain and .the ” the land it be found and identified.’ can ambiguous, if the land intended to be con- veyed can be identified the aid of ex- Martin, Tex.Civ.App., 244 In Benton v. testimony, void, trinsic the deed is not' history, 931, 933, writ we S.W.2d np especially possession by where the sev- “A deed is find this statement of the rule: eral of a definite tract is shown.” uncertainty face not void for unless on its description evi cannot extrinsic In Hodges, Miller v. Tex.Com. apply be definite dence made to App., 168, 170, Judge 260 S.W. German “ Court, Supreme The in Hermann v. land. expressed the rule in this manner: ‘The S.W.282, Likens, held 90 Tex. purpose land, description sole of a field notes or bound that ‘Without giving in conveyance, contained deed being a аries, conveyances referring identify subject-matter grant, description, a tract which contained such deed will not be declared void for un definitely pointed be so out may of land certainty possible, by if it is any reason identified’, unmistakably may that it be construction, able rules of to ascertain ' grantee, his if ‘Between the owner and description, aided extrinsic description given from the evidence, facts property what it is intended to * * * property intended to be con the deed the convey.’ is also a It well-estab certainty, it veyed can identified principle that, lished the words if used data in the deed If there is sufficient.’ description uncertain, of a deed are re may description made from which the sort be had to the given construction n certain, Rooney, Porch sufficient. v. parties themselves; аnd, them 494, error refused. Tex.Civ.App., 275 S.W. they given practical where have same a Land & Caddell v. Lufkin As stated applicable construction and them made Tex.Com.App., Co., S.W. Lumber property, certain this will strong be a cir party deal especially true where this is cumstance ascertaining their intention. * * * in the land knew its interested ing with or gravamen plaintiffs’ con larger tract of which within the location description tention is that the is insufficient *9 the land intended to part. When it is a and the inopera lease the Millers was by the identified aid conveyed pass can be legal tive to the be title to the minerals testimony, deed not the is because county extrinsic the state and the where possession the where the are situated void, especially given. lands are not may It stated, think, is tract shown. we a definite as a parties of well-settled prop several Tex.Civ.App., 196 that if the deed Thomas, osition S.W. written instru v. Folmar description ment furnishes in other sufficient used the words means of the If identifying uncertain, the property conveyed, resort be had the are fail- deed in a U4 that is suffi county, state the consolidated area town, have the
ure to state
Order
ciently
make
described in the Gas
will not
Division
is situated
where the same
Operating
Agreement. See also Cook
inoperative.”
instrument void or
the
1094,
Smith,
119,
3
v.
107
174 S.W.
Tex.
stated, no issue
previously
weAs
have
940;
Edens,
420,
Hervey
Tex.
A.L.R.
v.
69
proof
that
by pleading or
was tendered
306;
Pullman,
6
Miller
Tex. Civ.
S.W.
v.
uniti-.
description
acres
230
ref.;
App.,
379,
v.
72 S.W.2d
er.
Taffinder
Reinert
agreement out of
zation
Merrell,
95, 65
95 Tex.
S.W. 177. See
bind
or insufficient to
tract was indefinite
323, p. 1015,
also 14
Title
seci
Tex.Jur.
contrary,
On
and his wife.
him
Deeds.
all of the
dispute that
without
evidenсe is
description
parties were' satisfied
From what
have said it neces
we
unitization
various tracts
sarily
must
that we think Point 1
follows
pay-
produced in
until
sup
point
likewise be sustained. Such
tract.
quantities on the
ing
341,
ported by
Thomason,
Veal v.
138 Tex.
part:
testified
Mr. Grossenbacher
472;
Smith, 141
159 S.W.2d
Brown v.
one of
these
got
we
“Whenever
425,
43;
Elsi
Tex.
174 S.W.2d
Clark v.
unitiza-
sign
him
made
leases we
476;
Co.,
6,
Cal.App.
nore Oil
138
P.2d
tion.”
Co.,
41,
Cal.App.2d
Andrews v.
K.
W.
part:
605;
testified
Parker,
Otto Reinert
94 P.2d
Parker v.
Tex.Civ.
ref.;
App.1940, 144 S.W.2d
writ
“Q. Now,
Gas Division
about this
George,
French v.
Tex.Civ.App., 159 S.W.
Order,
you
to
Mr.
was said
what
DeMontalvo,
ref.;
2d
writ
Garza v.
delivery
about
Grossenbacher
988;
Perry
Tex.
v.
217 S.W.2d
before all
to him
that
instrument
Venable, Tex.Civ.App.1940, 112 S.W.2d
Well,
that we
he said
signed it: A.
ref.; Superior
writ
Oil Co. v. Dab
sign
to
that division
have
would all
ney,
563;
147 Tex.
Board of
S.W.2d
drill a well.
he could
order so that
Insurance
v.
Commissioners
Great South
not, or did he
“Q.
agree
he
Did
Co., Tex.Sup.,
ern Life Ins.
239 S.W.2d
everybody
go
get
agree,
to
803; Indemnity
ofCo. North America
Ins.
in this block
interested
who was
Sons,
v. W. L. Macatee &
Tex.
***
sign
Yes.
it? A.
44.5 conveyance render the instrument valid as a deny that estopped to necessarily they are any part en of an estate in all or of the lands Reinerts Kuklies Julius to, appears produced therein referred because it royalty to me gas in share titled to undisputed tract. that in this 195-acre evidence on the well located from Camp case the owners of the tracts land v. three Parker supported by This view is conclusively estopped Tex. are inter Langham, sese 763; Elliott v. bell, 21 Tex. history; denying validity binding the' or the force no writ Civ.App., 60 S.W.2d 256; proper and effect of the instrument as Turner, 15 S.W. a Tex. Burk v. 868; correctly basis for Blount, dividing S.W. the funds ten- Cope v. 99 Tex. registry Tex.Civ.App., 128 dered of the Book, S. into court below Henderson v. Smith, by Company ref.; through v. Lone Star Havard writ W.2d 743; interpleader. Ludtke v. bill of Tex.Civ.App., 13 S.W.2d Co., Tex.Civ. Building & Houston Lumber McDONALD, (dissenting). Chief 802, writ ref. Justice App., 5 S.W.2d originally by This case was filed the Lone it follows we have said From what Company Interpleader Star Gas as a Bill in trial wherein judgment of the сourt royalty pay- to determine to whom certain Or- Gas Division found and held that the produced ments on in lands dated Feb- Operating Agreement der and County paid. Hamilton should be law ruary 1944 was insufficient Appellant Kuklies and wife own pooling agreement create or a a unit tract; Appellant acre Reinert and be re- must property described therein Julius tract; Appellee a 280 own acre rendered. versed and Accordingly^ Reinert and wife a 195 own acre tract. respect reversed and judgment in that is adjacent each of these 3 owners lands of agree- judgment is here rendered said to the land of at least one of the other 2 things binding valid and ment is-in owners. judgment is fur- parties thereto, and Reinert and ther here rendered that separate Each landowner executed a Julius wife, Kuklies Minnie and Waltеr par- oil and lease on his Kuklies, wife, Eline be allowed to noted, adequately ticular land above proceeds gas produced share in the describing same. and saved from the land of Otto Reinert wife, The leases from Otto Reinert and wife, Reinert, according to the Dora and from Reinert dated Julius June provisions terms and of the unitization wife, dated 8 December were agreement. Rudolph Grossenbacher; the lease from wife, February dated 8 Kuklies and assigned Inasmuch as no error is was to L. E. Sumner. decree, other awards made in judgment things is in all other affirmed. April Kuklies and wife on 8 1944 trans- E. Sumner ferred L. one-half Accordingly, the judgment hereby royalty produced from their land. part, versed and rendered in as above indi- 1945 Sumner transferred On 17 March cated, respects all other is affirmed. to Grossenbacher. his lease - rendered, part; Affirmed reversed and Grossenbacher transferred Julius part. lease to W. H. Read instrument Reinert 1942 and was Read dated 12 December HALE, (concurring). Justice back Grossenbacher in- transferred I concur in the reversal and rendition of dated 25 March 1945. strument judgment, opinion as indicated in the assigned all three leases Grossenbacher However, written I TIREY. do Justice on 5 November 1945. H. W. Snowden necessary think to determine on wife, appeal Reinert and whether the 635 acres covered Otto wife, Sumner, wife, L. E. Kuklies “pooling agreement”, or the 230 Lessee, Lessors, Grossenbacher as acres owned an joined in execution of instrument sufficiently was or was not described to *11 446 1945; by Otto- July and and'wife on 26 and Division Order “Gas denominated April 23 wife on 20 and Reiner-t and recited Agreement” which
Operating respectively. February into on 8 entered it was acknowledged L. instrument was I will hereafter The instrument which This ' ; by agreement” April “pooling 2 1945 Kuklies and on refer to as E. Sumner 1944; among things: Reinert cites other February 8 wife-on opposite names land their severalty own in the tracts of Lessors “Whereas covering all of said tracts gas owner of oil and leases is the and Lessee land, towit: Description Acres Name 210 Survey & Barnes Kuklies & Wife Waller Walter and E. Sumner L. January land in deed Same
Otto & Dora Reinert Henry Otto Vol. Reinert to 93, p. 23 Records Deed Montgomery Part & Wm. R. Reinert & Wife James Surveys Barnes County, of Texas being situated in Hamilton State above land “The collectively designated to be hereinafter total of-acres containing a area’.” ‘Consolidated as the purpose pro- gas for of oil recites that further
(The instrument royalties produced accruing' pooled and that lands are duction the among paid will be divided to Les- consolidated area anywhere in the respectively acreage owned each proportion which in the sors area). acreage total of the consolidated bears to the consolidated area Appellants seek to Reinert reverse the trial court on Otto was drilled A well completed a on Five Points. These summarized in latter 195 acres Appellants to the effect contend that gas well. the Gas Division Order Operating Company,purchaser of Lone Star a Agreement pooling is valid Interpleader to find out gas, filed Appellants many should be enforced. cite royalties. pay the whom to pooling agreements cases the effect that wife, an- Appellees, Otto valid and will be enforced as such in which was a action filed cross swered proper With agree, cases. the above I but specific 195 Try Title Trespass to point problem appeal that the out case tried before The tract. acre done”, but, “can it “was done”. jury the on the verdict jury. Based question appellees The here is whether pertinent judgment, rendered court Reinert and wife are Otto entitled to all of appeal are: on this provisions of well, royalty ap- from the or are are entitled and wife 1) pellants royalty entitled to share in the all minerals in possession of title and provided an basis as (subject acre tract the 195 answer, “pooling agreement”. To must outstanding). leases mineral “pooling agreement” be determined if called Gas Division 2) instrument The validity “pooling is valid. Opеrating Agreement is insuffi- Order depends agreement” on whether or not the' pooling create a unit or cient law consisting area acres agreement. sufficiently in the pooling agree- described - itself, by reference trial were overruled and ment in- Motions new struments, appeal. as to be made certain. (cid:127)appellants
447 I pooling agreement do not be description the believe that these leases can in The to, .inadequate. descrip- be cer- looked Can it made to make definite the itself is sought the re- tions of tain reference to leases the various lands to be then agreement.” covered belonging “pooling cited as to Grossenbacher? the “pooling agreement” recites that “lessee possible Even were it to the vari- utilize ¡andgas oil (Grossenbachеr) is the owner attempt ous leases in evidence to to make land.” said tracts covering leases sought certain pooled, the land to be these still fail to make certain which 230 acres of Upon of the dates of the examination Reinert’s 280 tract was intended acre evidence, wé find various instruments Julius to be pooled. Appellant contends that there February the daté given if that 8 description acres, is sufficient of the 230 the “pooling agreement” is correct the requirement pooled the is, that the area proof there (and execution is no date of that, must be it contiguous acreage, and date except other date the of acknowl- therefore, would be the acres of the 280 edgments), the recitals in it at which time contiguous acre tract which was to the true, see that Grossen- are to be taken as we maining in the consolidated area. that time owned no leases from bacher at Reinert, Otto either appellants’ I agree Julius do with conten- the ac- Kuklies. date when If the tion. as the true date knowledged, taken Then, way there is no to know that Otto instrument, only find that the of the we Reinert would have been entitled to lü%35 date, acknowledged 8 Feb- Kuklies on royalty, of the had well been drilled on ruary 1944, date and on that Grossenbacher way Reinert’s land. There is no to Julius lease. did not own the Kuklies know if a well Reinert’s land were Julius “Lessee acres, Hence the recital is owner of pooled. on or sought be to off covering Appellants’ oil leases all of said up case does not stand under the true and of land” is not can add tracts test mutuality.
nothing
descrip-
definiteness
Thе law is well
settled Texas that Oil
because
owned none
tion
Grossenbacher
place
regarded
land
are
February 1944,
leases on
date
conveyances
real estate and
of same
that
“pooling agreement”;
he did not
.
subject
the same rules governing
to
acquire
IS
lease until
conveyance of real estate. Smith v. Sor
1944;
not own
Kuklies
he did
June
elle,
126 Tex.
tified with It reasonable Order and
lows that the ‘ÍGas Division
Operating insufficient in law Agreement” is It pooling agreement.
to create a valid
my judgment conviction
trial court should-be affirmed. ..... CO. et al. & RUBBER TIRE
FIRESTONE v. RHODES.
No. 10115. Appeals of Texas.
Court of Civil Austin.
March