*1 NYE, (dissеnting). or sus- damages incurred and all actual Justice tained, to the damages, any and such respectfully I dissent. balance unpaid principal extent thereof, direct credit a a lien shall likewise be suit based on second The $324,000.- plead, unpaid principal appellees of said promissory note. The and delivered and 00 note be executed certain offsets among things, other provisions Buyers pursuant of this amount principal Seller due credits ”* * * offsets allowed Among note. various hereof. in the аmount the trial pendens was filed Although lis notice a $16,492.16. March, 1968, the during by Hartgraves this offset on attack trial, Appellants no and brought to suit was never points of error. in number of time at the judgment had been entered render and points and reverse Cross-appellant sustain these this the trial in case. as to this amount. judgment Bloch, attorney for also party and contract in the pellees-cross-appellants agreement A modified the contract letter in this testified and case negotiations that all parties. sрecified between lis property of order clear received payable, invoices accounts notice, cross-appellants pendens so set days closing five after the date al., S, a resale P and et could effect contract, were to assumed cross-ap- acting all property, he spec- to a appellees. This was addition plaintiff pellants purchased the claims and agreed ified to be assumed amount Hartgraves suit for Hartgraves law The specifiсally the contract. set out asserted $35,000.00 cross-appellants only as this off- who testified witness in- $35,000.00 proper offset this as a set, account admittedly failed take into issue was All on this stant case. during period of the invoices received Bloch, case. given by to the instant party therefor, the cor- as to proof time. The offset, of this was insufficient rectness ap obligation assumed a matter law. pellants-cross-appellees to this claimed promptly discharge was to off-set any, if any judgments, off аll final liens, resulting from judgment any, if suit, and to main Hartgraves law has been diligent
tain defense. There judgment lien and no al., et NORTHWEST OIL COMPANY Appellants, find no evidence suit. We therein, cross-appellees, these defendants diligent defense maintaining were of Texas COMMISSION RAILROAD thereto; evi if there is such al., Appellees. et record, as if there well as dence in the No. 7185. $35,000.00 a rea evidence that claim, Hartgraves’ sonable evaluation of Texas, Appeals of Civil questions the trial court settled Beaumont. point against cross-appellants. Their cross Jan. 1971. of error is overruled. Rehearing Denied Jan. rec- find no reversible error ord.
Affirmed.
McDonald, Phillips, Sanders, Ginsburg, Newkirk, Worth, Fort Maddox & pellants. Texas, Martin, aries of Their land was Atty. Gen. Brachman’s
Crawford unit. Shivers, 1,000 White, Asst. located about feet from the and Linward producing Rex H. McGinnis, Kilgore, Gen., Lochridge, well which Brachman drilled. Attys. *3 Austin, Wilson, for Byfield, Hunter & drilling, commenced Brachman Before he
pellees. to in- Stephensons made overtures to the acreage clude their in the which unit KEITH, Justice. subsequently he producing drilled well. his governing Under our view law a of The from final cаse, agree- say it is to that no sufficient County, deny- Orange District Court of proceeded ment and Brachman was reached Company Mal- ing to Northwest Oil part to drill his and no of the revenue two or- any relief from K. Brachman colm paid to production from the been entered of ders the Railroad Commission Stephensons.1 6008c, pursuant provisions of Article to Ann.Civ.St, Vernon’s the Mineral Interest implied Accepting invitation Pooling tried Act. The case under appellees that the orders of the Commission proсedure rule substantial evidence subsequent support only find may disagreement as to are pool Stephensons to efforts this facet of the case. Brachman, to we turn land with that negotiations. those consideration of 1962 what Gas discovered subsequently designated as the Commission August On Mile Field in (2nd Nodosaria) Ten Creek Commission application an with the filed proration promul- The unit its orders. rule Pooling Act for under the Mineral Interest gated by for 320 provided the Commission their 6.198 entry permitting “an order plus per up to cent tolerance acres applicant) to be for each (2.066 acres acres Brachman, to the usual pursuant acres. pooled acreage productive basis procedures prevailing, then Commission Company Oil all interests in the Northwest January, established a 320-acre unit and in Redding (34101), 320 #1 Unit B. Gas producing gas well thereon drilled a acres, 2nd) (Nodosaria, Ten Mile Creek Redding Well. known as the No. B. appli- Field, County, Orange Texas.” operator Company is Northwest Oil acreage Stephenson as cation described the the well. acreage’ by the having made 'island “been acreage from M. B. tract appellees, Stephenson, exclusion of such small B.E. Dowler, Redding Company B. C. # Stephenson, Mrs. Northwest James that if application (hereinafter and sister referred Gas Unit.” The recited brothers granted, protect each collectively “Stephensons”), “will correlative to containing have rights applicants land of these since owned in fee tract of acres, ag- continue to be drained than or an been and will slightly more two Redding acres, Company B. all of which Northwest Oil #1 gregate of 6.198 entirely drilling exterior bound- and will avoid the situated within the Gas Unit well grave “Appellees subsequent have to this statement: This was the decisions Refining Supreme as to whether doubts and Court Atlantic our legal Commission, au- has the Railroad Commission Railroad Co. v. thority pool (1961) the Mineral force (usually referred to solely Pooling decision), an Act Interest based Normanna and Hal prior Commission, bouty the effective offer made v. Railroad Pooling (1962) (usually of the Mineral Interest date decision), Appellee Railroad Commission as the Port Acres referred to point prior for future of Texas reserves effective date par- litigation involve this Rail Mineral Interest Act. The (Emphasis original.) point.” ticular road Commission and joint we find brief in which have filed a reproduce margin applicants’ lands unnecessary on the the well. wells request part his refer special for re-direct examination with allowable position to his in thе matter said wells.” ence before drilled.2 well was alleged “Applicants then have It was opinion of This case is controlled opportunity provided a reasonable not been in Railroad Commission pool voluntarily. In offers pooling law no Coleman, 460 of Texas v. applicants North- been made rehearing De (1970; motion for overruled representatives. Company or its west Oil reversing Coleman v. cember applicants All alleged offers made Commission, (Tex. Railroad August dated by the attachеd letters shown *4 Civ.App. Texarkana, 1969).3 Chief Jus - 1, supra], and footnote 1964 [see June interpretation of the Mineral tice Calvert’s for K. Attorneys Malcolm from and the limitation Interest Act allegations were to Brachman.” Further pool to upon power of the Commission the had the the made effect that quotations from in two short set out these for the volun- “fair and reasonable offers opinion: the court’s interests, and re- tary pooling” their (see August to dated ferred letters from language quoted the interpret “We latter footnote and the authoriz- of the statute as 2(a) section June Stephen- for being from trial counsel the pow- the Commission’s ing invocation of sons, long the cost of the well written after who have pool owners by only er to those Brachman, and at a recouped had been prora- the or to drill on drilled producer prolific still time was when reservoir; that unit to the tion common gas. pro- drilled or person has only a who ‘any poses qualify can as to drill pause We to note that at nо time the p. at S.W.2d 407] owner.’ [460 correspondence, the Com application to mission, trial of the or cause, did adduced upon “After jji considering ‡ n all [*] ‡ arguments n allege or contend that had inten con- holding, we remain contrary for a gas acreage. tion to upon ever drill for intended that Legislature vinced that Upon being questioned matter about the to re- the Railroad Commission’s trial, upon Stephenson, B. acted only by E. who an quire pooling can be invoked applicants, testi spokesman for all three or to proposes has drilled owner who put up to drill money proration fied that he had no to to a com- on a unit drill well My pro- five [written “A letter trial commenced 1964] 3. The of this cause posed days granting writ that Brachman stand drill- Mr. after drilling costs, Coleman; and, my prorata Supreme share of Court permitted parties if I am with him be excused costs to for counsel appreciated fully drilling having and he would recover costs then those for not production granting the writ. Al- from well. effect granted dry, though if wеll on the “Q But were to be then the writ was you pay any part point to with reference to did want have to Commission’s costs, procedure drilling right? type no- for use on the is that of trial part upon my proposal, yes, “A This was which tice Appeals based sir. the Court of Civil appli- your 790) (445 And at- Coleman’s “Q that indicated business S.W.2d time, denied, Court titude toward this matter at cation was that considering did it not? “find no sound basis could type required Yes, deciding “A of trial sir. did not feel that I could put up money (460 p. a risk. the issue of notice.” you willing so, prоceeded 406.) And “Q were not to do then to consider right? is that of Coleman’s contentions sustain rejected by sir, (Em- none, put up.” “A I had to had been which phasis supplied.) Appeals. Civil empha- finding that the one of which included a (Id. at reservoir.” mon 408— had who Stephensons were “such owners” supplied.) sis proposes either drilled or note, particularly, a common reservoir. pool” “power to spoke of the Commission’s brief, post-submission Appellees, in their require pooling” could “power to appellants precluded drilled contend by” an owner who ‘‘only invoked Case, upon relying citing the Coleman reservoir. proposes drill a common holding upon general rule that are restricted brings the This of words choice City the case was rationale of within the Stauffer below, tried in the court a rule which has Antonio, 162 San point support Appellees firm in our law. Jackson, 376 S.W. (1961), and State v. out, appropriately, mention 1964). As said 2d made of the rationale Refining which Coleman in Brown Humble & and, further, was decided (1935) stated their brief “It would thus “The that: (cited Jackson): Stauffer appear applicable act on power of the Railroad Commission *5 * * situation grant- now before the Court authority is limited matter to the eight days This brief filed before by Legislature.” ed was announced; and, as Coleman was decision Thus, possessed by delegated power upon (foot- previously we have commented require pooling the Railroad to Commission 3), surprising it that the admis- note is invoked, Coleman, only by could sion was made. showing applicant forced such quarrel the doctrine have no pooling “an has or We owner who drilled * * * his party to proposes which confines to drill to a common trial, theory urged upon the but here we reservoir.” question pre- have a fundamental more did not include sented, very to bedrock of going application such in their averment to power appellees’ right to claimed —the to Railroad so that failed Commission pooling forced of the to order Commission power “invoke” delegated to thе Com- century ago, request. at their More than a require pooling. proof mission to No Patterson, 491, Tex. v. 27 496- Withers offered cause which trial of the said: (1864), 497 it was support any position; tend to and, fact, jurisdiction “The of the court means the is as a matter of it clear power authority or conferred at time either which never court, by upon a the “constitution and to the “drilled or to drill” well laws, to be- hear determine causes have here a situa- common reservoir. We parties, carry judgments its by tween tion sоmewhat similar to faced plain proposition, into It is a effect. v. Central Petroleum court Foree Crown 312, power anything a court has no do Corp., (Tex.Sup., 316 431 S.W.2d discussing by is not law. which authorized 1968), wherein anoth- problem primary laid jurisdiction, n n n n n 5¡i exception general er rule “ * * * only juris- court exercises its “when jurisdiction not ousted courts are au- diction the facts exist which when powerless agency the administrative question. thing it to do thorize no author- grant sought and has the relief jurisdiction And the whether the findings which ity to make incidental not, is a court has been exercised or the relief.” granting essential to or by ascertaining solved whether court “inci- facts existed which authorized made extensive The Commission order, act as it did act.” no findings support of its dental” 376 power of a court is the Ferguson, Tex. Templeton See v. 89 also: “Jurisdiction
47, 329, authority by cognizance it takes (1895); v. 33 S.W. 332 Cleveland of, Ward, 1063, decides, the court has 1, cases. If 1069 116 Tex. 285 S.W. 553, Corbin, subject-matter (1926); jurisdiction 122 Morrow v. 641, any judgment may it render (1933); litigation, National Life 711, seq., Company Rice, 9 et is void. 11 167 S.W.2d § Tex.Jur. Ferguson, may be said to be (1943). Pope notes. Cf. Jurisdiction kinds; subject-matter, and of (Tex.Sup., two jurisdiction give
the person. Consent person, but cannot do so as to power, The Commission had the subject-matter. e., jurisdiction, require pooling i. Tex.Jur. if the even It follows that notes. only of the mineral interests when such consent, entered judgment instant power person entitled was invoked is insuffi- illegal petition it is because the privileges claim the of the Act. State v. subject- jurisdiction cient to confer Olsen, matter.” au wherein the reviewed the also, extensively. thorities Muskrat v. See determined having been States,
United 31 S.Ct. U.S. pooling to force Commission And, L.Ed. only invoked when its has been where the of a court has not drill, proposes one who has drilled or invoked, legally been rendered follows that an order entered favor Olsen, supra, it is void. proposes to one who has neither drilled nor p. 402. have not a case involv found *6 drill beyond is Commis agency exercising an administrative beyond power, it is Being sion. its void. delegated power sphere within a limited Campsey Brumley, supra; v. Farmers’ Nat. Indeed, contrary which enunciates a rule. 834, 2 Daggett, (Tex. Bank v. 839 S.W.2d appears it that there is even reason to more Comm.App., 1928); Am.Jur.2d, Judg 46 a an require showing clear concise ments, 22-23, ; pp. 49 327-329 §§ invocation of jurisdiction agency of an ex C.J.S. 19c, 48; Judgments p. Tex.Jur.2d, 34 delegated power § limited ercising than Judgments, seq. et § general would be in a jurisdiction. court of Davis, Treatise, Cf. Administrative Law judgment legal A no void force 29.08; McDonald, Texas Civil Practice invalidity may or effect and its be asserted 6.07-6.08, (Rev.Vol.1970), pp. seq. et §§ by any persons rights whose are affected at Campsey Brumley, In v. any directly place time and at either or (Tex.Com.App., holdings collaterally. Surety Texas Southern Co. v. proved), Judge Critz said: House, Clearing 281 S.W. (Tex.Comm.App., Gentry Texas 1926); “The aof court is deter- Department Safety, of Public mined, rendered, by judgment 1964) (Tex.Civ.App. Houston, - petition. City of Fort Worth e., (Tex. error ref. n. r. v. Zane-Cetti (Tex.Com.App.) Furthermore, Sup., here the attack is petition settled that the must direct, not collateral. Crawford affirmatively jurisdiction, show and a McDonald, S.W. county rendered on petition affirmatively fails plead bringing facts case its agreement are in entire with jurisdiction presents fundamental they appellees when contend that the Ste- * * * reversible error. phensons are class of owners within the
n ;je n n [*] n who are entitled invoke out, pooling Stephensons of their is if the pooling “Q If to force of the Commission extent, adjoining able to interests, Coleman weren’t to that land, they open still facts. We had to them upon the distinguishablе Case is well, however, availability drilling is that appellees seek when part company, to those correct teaching of Coleman ? confine distinguished right drill who have (Emphasis “A That’s correct.” or have drilled those who Brief.) contention The short answer drill.4 “right”, inter- is that the word brought appellees, advanced Not is forward necessity is not to by appellees, polated answer, very next which we used in Coleman- language produce: be found now instead, applicant that the court held “Q you And I believе indicated that right, only possess but must must under the normal allowable [author- steps right taken overt to exercise ized be- Commission] actually drilling proposing or to drill. your lieve term be was it would foolhardy for anyone to drill a well Appellees, conceding that there small acreage, an evidence substantial correct ? well, actually drilled a contend had evidence that “the there was no substantial Yes, sir, “A derived because income well,” propose to Stephensons did not drill pay operаting from it would not 13 of pointing finding to “incidental” No. costs and it not return the would reciting that the Commission’s order investment.” enlarged establishment of the unit was nec evidence, convincing Absent other we de- essary drilling unnecessary “to avoid the Stephen- the invitation to find that cline wells.” Our search of the record fails to “foolhardy” sons were or that supporting disclose substantial evidence procure able to others e., finding, pro i. party acreage their small when such third posed holdings. to drill a well on their small recоup could not his his investment Gardner, Appellees offered the witness operating costs. *7 testimony bring whose forward as Appellees urge upon proposi- us also the lending support their that the is tion that an order of the Commission Stephensons had a right drill on their presumed [Trapp to be valid v. Shell Oil acreage. testimony point, Gardner’s the (1946)], Co., 145 Tex. S.W.2d 424 by appellees as quoted is as follows: not dis- appellants that have contend “Q you I Douglass] believe testi- [Mr. showing that the charged their of burden yesterday рos- fied there were two supported the reasonably order was not recovery hy- sibilities as far as of accept and fol- substantial evidence. We Stephensons’ drocarbons the enunciated, do not so low the rule interest, one, two, by drilling and readily proffered conclusion. We reach the by pooling P the that “where order accept the rule exercise “A the agency that’s cor- under attack involves believe [Mr. Gardner] Yes, sir, discretion of rect. I remember that. of the sound argument рresented propose invoke and thus to drill a well is as follows: The [in Commission’s “It is clear the the Railroad Pooling par- talking The Act? Interest about the Mineral Coleman] was those royalty owner Interest is obvious. invoke Mineral answer ties can the well; right being to drill a the have not have those who does actually propose therefore, right propose right could not he to drill the ’ original.) (Emphasis in by asking simple hypothetical a well. drill to drill one royalty Why question. owner cannot a agency in matter to it must сommitted “Administrative determinations must Legislature, the court will sustain have a basis law and be agency granted authority. of order if action reach- Administration ing to make reasonably supported interprets such conclusion is when it a statute so as apply particular acts substantial evidence.” Railroad Com- circumstances power. delegate legislative mission v. Oil Shell * * * Assuming may finally An agency recognized power. its arguendo, statutory that this rule so decide limits of plies to the invocation is a judicial That funсtion.” appel- agency, we remain convinced that Holly See also: Addison v. Hill Fruit prevail doctrine of lees cannot under the Products, 322 U.S. 64 S.Ct. Coleman. (1943); A.L.R. 1007 L.Ed. all, After we admonished Chief Administrative Bodies Public C.J.S. Alexander Railroad Commission p. (black text). Procedure face § Justice Co., supra: v. Shell And, be raised Restatement, 11; Judgments, time. § “This does not [substantial evidence] Law, Am.Jur.2d, Administrative mean that mere scintilla of evidence 627; Kristensen, 340 McGrath v. U.S. suffice,
will nor does it mean that 173 (1950). 71 S.Ct. 95 L.Ed. court is bound to select the side, drill- record was shown our with absolute blindness to that Stephensons’ acreage all, a well introduced other. After and that the “foolhardy” have been is to render justice the case. whole, not even production therefrom would The record to be as a considered costs, in- operating much less return the and it is for the court to determine what positive testimony Against vestment. (Id.) constitutes substantial evidence.” appraisal the Normanna judicial and our decisions, supra, arewe and Port Acres We are faced with record which dis- beyond peradventure discloses of doubt showing that charged burden did not did not invoke 1964, having money Commission, order of put up therefor; and, under these circum power to en- being beyond its Commission stances would authorized to invoke ter, is invalid. presumption things that where a state time, proved particular to have existed at a joint post- appellees have filed presumed its continuance is con until the applica- discussing brief submission trary is shown. See the *8 discussion bility to that at the the Coleman Case of McCormick Ray,& of Texas Law Evidence conclusion, say In counsel bar. the (2nd 81, Ed.) p. 81. “Appellants avail themselves of this cannot
new Coleman] [enunciated essence, or considered the plead, proved was not appellees In ask that we exceptions were special court.” No implied take the trial jurisdictional finding of plead- of appellants’ 14 paragraph Commission as a leveled final determination made that allegations were ings presumption issue of the whеrein because “are But, complained of validity findings order inherent and therein. this runs to, contrary by, procedure counter established authorized rule of Article 6008c.” by provisions as is quotation shown this from terms and Social con- Nierotko, 358, event, Security which we Board In v. 327 U.S. 718, invo- appeal is one of 66 sider in this overall S.Ct. 162 L.Ed. of the Commission (1946): jurisdiction A.L.R. cation of being roneous, and now REVERSED and is here jurisdiction trial court’s plead- setting aside RENDERED the statute. under derivative terms, naught ten- of the orders holding both general the most ings, albeit in mеet involved herein. now we issue which dered the be without is found to argument appellees’ and rendered. Reversed merit. course, consid given have, of We STEPHENSON, Justice. the cause remand of to a
eration by concept referred justice” “interest of respectfully dissent. Here, dissenting brother. our Liebman, 404 S.W. case of Scott leading apparent everything It is the rec- a decision (Tex.Sup., 2d parties ord before us that none of the after down handed Supreme Court was anticipated this suit ruling in the Cole- submission the trial and before case, supra. Appellants plead man did not but, construction cause; case the in our directly in the trial either or indirect- requires Supreme Court by the statute ly, that the had not invoked here. Under reach the result which we by alleg- the trial court (see decisions Acres and Normanna Port ing proving they pro- had drilled or record before supra), and the footnote posed to reading A well. us, Liebman the rationale Scott statement of facts indicates none reach result which we inapplicable. The attempting disprove were statute, wording by the is dictated prove relating question. facts to that too, say can Coleman. as construed in Cole said rule, Calvert just as Chief Under substantial evidence it is Justice : proof upon man clear that the burden of appellant attempting to set aside conclusion, the in our be mistaken “If we Commission, prove order of the Railroad regular session meet in Legislature will sup- the absence of substantial evidence provide and “can Jаnuary, port such Board of Re- order. Firemen’s in- equivocation, for legislation, without lief & Retirement F. Tr. of Houston v. provisions of 6008c vocation Marks, oil or other interests owners of ; (1951) Commission v. Railroad Shell Oil reser- proration in a common gas in units 139Tex. voir.” majority The statement is made in the governed Additionally, being a case testimony shows drill- procedure, rule of the substantial evidence Stephensons’ acreage of a the “facts” can reviewed foolhardy would have been and that An- City of San on writ of error. production therefrom even Commission,407 S.W. tonio v. Texas Water cost, operating much less return the 2d investment. That is character- “positive”, majority ized as and the con- has been said from what follows discharged cludes the since the Commission’s *9 did not showing burden of application of the Ste- invoked invoke the Commission. pooling en- of forced phensons, the orders than nothing evidence is more Such under not lawful orders tered were testimony, does not establish Article 6008c provisions of Hood v. material faсt as a matter law. judg- “power” of the Commission. Indemnity Texas Ins. denying trial court ment of the therefore, (1948). orders, 209 S.W.2d er- relief from such only Appellants did not mention court, in its initial brief
matter the trial Mineral Interest
admitted the applicable to the situation before points error so re-
court and all of the long law in this State
flect. been the appellate parties are restricted case was which the Casualty Safety
tried in the lower court. Wright, 138
Co. v. Tex. Corp., Huber (1942); State v. M. J. reasons,
For I affirm these event, In trial court. case, would not render there was reversible justice,
interest if
error trial I would remand case, plead so the could case,
prove their case the Coleman Liebman,
supra. Scott v. al., Appellants,
David KER et Texas, Appellee. STATE
No. 6145. Appeals Texas,
Court of Civil
El Paso.
Dec. 1970.
Rehearing Denied Jan.