29 S.W.2d 809 | Tex. App. | 1930
Appellant insists that the right conveyed to appellees "of mining and operating for oil and gas" on the land did not pass to them a right to resort to seismographs as a means of determining whether there was oil or gas thereon or not; and that, owning no right to resort to seismographs, appellees should not have been heard to complain because appellant resorted to them for such a purpose, if it did. We think a right to prospect for oil and gas was incidental to the right conveyed to appellees to mine and operate for same on the land, and are inclined to think that in prospecting for such minerals appellees had a right to resort to seismographs. But in disposing of the appeal we do not think it necessary to decide the question; for if appellees did not have such a right they had no cause to complain because appellant exercised such a right, if it did; and if appellees had such a right they were not deprived of it by any conduct attributed by them to appellant. The fact, if it was a fact, that appellant used seismographs in prospecting for oil and gas on the land did not deprive appellees of the right, if they had any, to also use seismographs for such a purpose. It appears in the record that, if injury resulted from the use of seismographs as charged by appellees, it was to the land, and that the right to recover damages therefor was in the owners of the land and not in appellees.
The judgment will be reversed, and judgment will be here rendered that appellees take nothing by their suit against appellant. *811