*1 fully developed, say has not been then case right explain statements they denied the should depositions introduced. Under were letters 166-A,2 opportunity respondents an had of Rule hearing explain these filed before matters affidavits summary judgment. to do this failed the motion for Since present facts any showing inability essential or to make might by affidavit, possibility evidence the mere that other denying the a trial the case no reason for offered on affords summary judgment. motion for judgment Appeals reversed, Court Civil judgment of the trial court is affirmed. 24,
Opinion July delivered 1957. Company Oil Gas Et Al v. Newman Drilling Company Brothers Et Al No. A-6164. Decided 19, June 1957. Rehearing overruled October (305 169.) S.W. 2d Series Rules of Civil Procedure. 2“Texas *2 Terry Rodgers, Wynn, George
Turner, Scurlock & S. Bryan, Dallas, Terry, for Oil Gas Suhr all of Houston, Smith, Suhr, all for R. E. Bering D. E. War- '& Whitt, Corp., Sparks F. Petroleum Warren ren Arthur n and A. Okla., Tulsa, Smith, Thompson, and /. K. all of L. Worth, petitioners. Fort Walker, Jay ton, Ratliff, & Connor Bryant, Dawson Smith, all San Cox, and Burleson Spur, Smith J. Patterson & Folley, Hankins, and Folley, A.
Antonio, McConnell & J. Adkins, respondents. Amarillo, for all of opinion delivered the Court.
Mr. Justice Walker ownership of an undivided an determine the This is action acres in Kent leasehold in 786.33 mineral estate one-half County. upon rights parties the construction turn *3 following provisions identical application of two oil and of gas and leases: contained, Subject this
“2. other herein to the (called (5) years shall be a term of five from date oil, gas long ‘primary term’) other as thereafter as min- and produced land hereunder.” eral from said :¡c :¡: (( discovery
“5. If of oil or said land Lessee thereon, drill a should hole or holes or if after of oil gas production any cause, should this lease thereof cease from shall not terminate if Lessee commences re-working operations sixty (if (60) within thereafter or term) pay- within commences resumes paying or tender rental ment of rentals on or date before ensuing next of three months from date completion production. of expiration or cessation of If at oil, gas or other mineral is not produced land is then in drill- on said but Lessee thereon, re-working operations shall remain in long operations are no force days, in (30) and if result oil, or other minerals so thereafter *” * * oil, gas produced said or other mineral from land. 23, 1950, an March the owners of undivided one-half On under the land executed the leases interest in the minerals two Hedberg. question Company, A. Stanolind Oil Gas H. Corporation, petitioners, Petroleum R. E. Smith and Warren assignees Hedberg title under such leases. and claim Drilling Corpora- Company Newman Brothers tion, and Blanco Oil Newman, hereinafter to as leases referred claim title under Septembr all executed to the former June and of 1955 except the owners of mineral interest such undivided one-half Joseph Hilseweck, Mitchell, D. Jr. and whom each of William owns an interest. fact undivided mineral 20/786.33 ma- Newman has no lease from Mitchell and Hilseweck is not admittedly terial here. owner Stanolind is of the one-half interest estate is not in this suit. leasehold which involved
Respondents, who are Newman some of who the lessors leases, brought against executed the this suit two counts petitioners and the other interested mineral owners. The try count trespass is in title to recover the interest lease hold estate Newman ef- owns the 1955 leases are sought fective, respondents second count a declara- tory judgment Hedberg expired had are of leases Respondents no further prayed force or effect. ac- also for an counting produced by petitioners, minerals the land accounting agreement issues were severed left for future determination. In a trial the court without the before jury, judgment intervention of a the trial court rendered respondents nothing, holding Hedberg take thus leases Appeals are in effect. full force and Court Civil reversed judgment trial judgment court and rendered in favor respondents. 2d 296 S.W. have We concluded that judgment proper trial court and should be affirmed. *4 stipulated by
All parties. of the material facts are the Each Hedberg kept five-year of the was during leases in force the primary timely payment the delay term of annual rentals.1 drilling operations No were commenced on the land 1955, 1, March and there was no before expired year. on March 23rd of that Before the end primary term, however, Corporation Warren Petroleum and R. began Smith, petitioners, drilling E. two of the a well on Sieber, land as the No. 1 hereinafter Warren referred drilling well, prosecuted Warren of such well continu- 3rd, ously plugged May until when the same and abandoned Forty-five days began later as a hole. Stanolind a 1’Paragraph drilling clause, stipulat leases is a conventional “unless” of the operations year are not commenced within one delay provided paid therein, rentals are shall commencement of terminate unless and that may operations such be further deferred in the same manner during periods twelve each months successive Cravey, No. 1 on the land known as the Stanolind second well well, work called the such hereinafter continuously Stanolind completed as July 26th, until the well was when producer. not result from The well did commercial reworking well, for the two or additional of the Warren reworking entirely wells at different locations. No on land the abandon- were conducted between beginning May ment of the and the well 3rd Warren quantities has Stnolind well on June 22nd. Oil commercial produced the time of its been completion from the Stanolind well from including present time.
down to and
question
case,
purchaser
There is no
of innocent
in the
nor
any controversy
is there
as to the form or manner of execution
controlling
Hedberg
question
of the
leases.
is whether the
expired
leases have
under their own terms.
Since
progress
Warren well was
at the
time,
par-
term and there was no
at the
recognize
ties
the leases were
in force
the second
paragraph
clause,
thirty-day
sentence of
hereinafter called the
plugged
at least until
May
such well was
3rd.
abandoned
completion
Petitioners
contend that the
of the first
as a
well
brought
operation
paragraph,
into
the first sentence of the
hereinafter
sixty-day clause,
referred to as
pro-
and that this
keep
give
vision was
effective
the leases
alive
the lessee
right
begin
sixty days.
second well
time within
Respondents
position
sixty-day
take
clause is a non-
provision
forfeiture
which can be effective
while the lease
effect,
during
in full force and
either
term or
subsequent
to such term when the lease is otherwise extended.
They
say
then
thirty-day
when the
clause was exhausted
days,
for more than
the leases
automatically
nothing
upon
terminated and there was
left
sixty-day
operate.
could
precise question
was considered and determined ad-
versely
respondents’
contentions in
Royalty
St. Louis
Co. v.
Continental Oil
5th Cir.
uncertain as to the construction of ground holding paragraph that 5. As an alternative terminated, least that there at lease had not it was said was meaning its and that the actions and conduct some doubt parties required preventing forfeiture. a construction plaintiff and probably reference to fact This had that title, although predecessors fully of the lessee’s its informed lease, under the did not assert that the claim to years same had terminated until some ten after the end of the developed primary term, time the lessee had Nothing property by producing that seven wells. suit; petitioners character writing is involved in this were notified in began drilling well that New- before claiming Hedberg man leases had terminated. The was say lapsed, court then went on to if the leases had plaintiff still not entitled to recover because the evidence per- aas matter of law that defendants had established fected limitation title to the leasehold estate. provisions
A careful consideration convinces urged by petitioners adopted by us that the construction agree respondents is correct. Circuit Court We sixty-day clause can be if the in force effective lease is the time of the occurrence of the event which renders it operative. already expired It could not revive lease which had when the brings hole was drilled or when ceased. This respondents’ They us crux contention. recognize that if the leases had been maintained after the end by production minerals, sixty-day term brought provision play by would be into a cessation such beyond production. But here the leases were alive pri mary commenced and in accord Respondents thirty-day argue ance with the clause. that under Osborn, Rogers our decision 311, 152 Texas 261 S.W. 2d sixty-day thirty-day clause and the clause must be regarded provisions separate referring and distinct to dif situations, not in application, ferent factual cumulative may the other not be tacked to to extend the one lease. Rogers case contained
The lease the same *6 consideration, fact situa- the under but the instruments now present suit. the in quite from that involved different tion was quantities gas paying was discovered was drilled and A well production from term, there was no primary the kept alive the lease was contended that such The lessee well. upon reworking operations by: (1) beyond primary term the production from well, (2) of and the ceased for the first well had second well. on Work thirty-day clause could thirty days, and we that concluded well, by operations the second which not be satisfied begun primary the end of pointed this that
It was out in connection conditions could jumbled, not and that words the two sentences should be transposed under also said that not be from one to the other. We case, produc period that of and facts of period of from the second well could tacked to the tion reworking not be the first well. This was so because neither of sixty-day operative, made the i.e. the drill events which clause production, the cessation had hole or occurred. say did not two clauses could never We be tacked lease, sixty-day extend the not ef would be kept when under fective thirty-day the lease alive question clause resulted in a hole. involved in Royalty reached, simply Louis St. case was not sowe opinion. stated aspect, question
In its broadest case is what long may kept means and beyond for how the leases in force be produced the end of the term. If oil or had been five-year period, they at the end would have remained long production in effect as as such continued.
specifically provides. But here there was no at the end of the term and for some four months thereafter. merely It will noted that the habendum clause does provide years long pro- for a term of five and as thereafter as purport duction continues. does it make Nor subject provisions the lease. to the other Instead it provides “subject provisions contained, to the other herein * * * (5) long this lease a term of five shall be for there- * * oil, produced stipu- is after as or other mineral years produc- and as thereafter as lation for a term of five enlarged by thus modified the recital tion continues is both provisions, required subject the other lease yield and all other which affect the dura- may tion of the It lease. is clear then that force after the end of the term either operation provisions. of its other *7 thirty-day The provisions by clause is one of the the which may beyond primary be maintained pro- term without may duction. A production lessee have no at the end primary term (1) completed, either because no well has been (2) any holes, or all dry (3) wells drilled are oil or has been produced, (4) discovered but production or has been ob- tained has If kept ceased. the lease has been in force for term, primary the full production is no there but the lessee reworking is operation or at the end of such term, thirty-day applies clause keep and will the lease alive long particular as reworking operation or is prosecuted with no cessation of more than days. primary purpose The provision of this keep is to the lease long force as reworking as the operation or pro- is diligence, secuted precise yet and a quite liberal standard diligence is laid down. There must be no cessation of drill- operation reworking thirty days for more than if the kept lease is operation to be until completed alive pro- is dry duction or a operation hole. If the with the diligence required production obtained, the lease will remain in force as continues. thirty-day The clause does not happen tell what will to the pursued particular
lease if operation, diligently in accord- terms, ance with its results in a hole. In the absence of some provision other keeps force, lease in it would ter- noted, minate. It will however, be thirty-day that by implication provide does not expressly either that a lease which has provisions beyond been maintained primary term under its kept only can thereafter diligent be in force prosecution particular operation begun during such term. This leads ato consideration of the first paragraph sentence of sixty-day
The only clause deals with two fact situations: (1) where a holes are drilled discovery to gas, (2) of oil or where after of oil pro- duction ceases from cause. The provides sentence situations, either of the two fact may kept be in force reworking operations begun within (if sixty days or it be within the term) by resumption delay stipulated within a time. lessee payment rentals resuming right given keep the lease alive specifically is payment provided it situation occurs before of rentals in either By implication necessary term. the end reworking drilling or by the additional may in force occurring situation within or operations in either fact whether the end of the term. Although stipulates ter the clause the lease will not minate, simply it was not included to insure that grounds dry hole or would not only purpose, forfeiture of the lessee’s estate. If this its were is, at a time could be effective when the lease and would remain, provi otherwise sion, in full force and effect under its other during expression parenthetical i.e. beyond any question parties contemplated shows provision would be effective both and after such *8 give purpose Its is to a lessee who has incurred expense drilling opportunity the a well an to save his lease dry production in the event the well is a having hole or ceases after provision then, been obtained. The effect of the once operative begins and operations it becomes lessee additional stipulated time, keep within the lease alive as drilling reworking additional operations, any pro and resulting therefrom, duction continue. nothing suggest
There is in the lease to that sixty-day will clause not be particular operation effective begun results dry though term in a hole. Even dry drilling hole results from going which was on at the end of term, the kept or there is a the lease alive after term, parties the end of such agreed may
have in force additional reworking begun operations sixty within days, but only in the two fact situations mentioned. The lease was held Rogers Osborn, supra, to terminate in because neither of two fact situations existed keeping which authorized it in reworking operations begun force with- sixty days. Here the of the Warren well was as effective as keep leases May alive until 3rd. When this dry hole, completed was as a well the leases were in full force effect and had been there no oil on the sixty-day unequivocally clause states land. that under these com- the lessee lease will not terminate if circumstances the sixty- reworking operations within mences additional sixty began drilling within days. well Petitioners continuously prosecuted such additional continu- has been production resulted therefrom. There until therefore, hold, latter production from the well. We ous well operative sixty-day when the Warren clause became Hedberg hole, leases are completed not render their terms. This does under force and effect in full meaningless, sixty-day thirty-day clause or the either gives provisions. all of their effect to but argued lessee maintain the this will enable It is one indefinitely after danger another, lessor’s is little there that a cannot this manner. believe unduly prejudiced in We indefinitely money large spend sums of lessee will continue unproductive land. apparently Unless keep a lease in force realities obtained, therefore, the economic production is discontinue compel lessee to will soon situation the lease. under reversed, Appeals judgment of the Court Civil is affirmed. trial court judgment of the dissenting. Griffin Smith
Associate Justices Opinion delivered June *9 dissenting. Smith, by joined Justice
Mr. Griffin Justice gas lease agree the oil and construction of cannot to the I as opinion. the lease majority To construe in the set forth as case, drilling” contract, of our under the facts a “continuous writing contract and mean- is, my opinion, into the words in the contract by parties at the time ings included therein not gas analysis oil and lease here A careful was executed. support the result reached will consideration under majority opinion, it does I understand opinion. As majority Paragraph 5 of the lease which the last sentence away with expira- in force after the is to remain requires that if “operations prosecuted with term that tion of days,” (emphasis thirty consecutive more than no cessation of part the first sentence all con- the first added) makes language, by appropriate pro- whereas, parties, trolling;
499 prevent situations, would three, only three vided language adequate parties chose lapse lease. The necessary It intention. is not whereby expressed such courts, that the principle any authority fundamental for the cite same instrument, must construe the construing any written in as parties found carry the intention of as to into effect liberty to language parties used. are not Courts in parties, the courts add nor can made rewrite the contract language change plain parties thus that used parties as set in the contract. expressed intention of the out usually is what is denominated The lease under consideration conveys simple a determinable fee as an “unless” lease. The in, place on and under the land estate in the oil Paragraph is for term set 2 described. out subject 23, 1950, period years of five from and after March oil, lease, provisions the other and so thereafter produced land. and other minerals are from the described pay delay A failure of the lessee to drill or rentals within the course, limits, Paragraph subject, specified (and time 4 automatically 5) to the terminates the estate, any lessee’s and without kind taken action lessor, lessor, by the the lessee’s estate reverts to the their heirs assigns. Waggoner Sigler Co., 1929, T. 118 W. Estate v. Oil 509, 27; Stephens Texas 2d 19 v. Mid-Kansas & S.W. Co. Oil 160, 290, 566; Gas 254 113 Texas S.W. 29 A.L.R. Company Davis, 1923, 321, Texas v. Nelson 113 Texas 255 S.W. Rochmill, 601; 565, 783, v. Watson 137 Texas 2d 137 S.W. 1032; Chancellor, 1937, App., A.L.R. Guerra v. Texas Civ. 775, 2d S.W. wr. ref.
“* * * Generally parties every to an instrument intend clause to have some effect and in some their measure to evidence agreement, purpose except and this should not be thwarted plainest necessary repugnance. case of Even where different parts appear contradictory the instrument to be and inconsis- other, will, tent with possible, each the court harmonize parts way and construe the instrument parts in such that all may any portion stand and will not strike down unless there is part an irreconcilable conflict wherein one of the instrument destroys part. Hart, in effect another Associate Oil v.Co. Texas Benge Scharbauer, 1043; App., Com. S.W. 152 Texas *10 166, Sims, 1954, 259 2d and cases cited therein.” S.W. v. Woods 59, 617, 154 Texas 273 2d 620. S.W. Hughes Mayflower Co., also J. K. Oil v. 1946,
See Co. Inv. 500 971, ref.; v. J. & App., 2d wr.
Texas 193 S.W. Williams Civ. 178, Co., wr. Royalty 1953, App., 2d Texas 254 S.W. Civ. C. 995, 1951, ref.; Brown, App., 2d Texas 245 S.W. Brown Civ. v. 588, ref.; 14-B wr. Texas Jur. Sec.
And further:
“* * * appears It to be the settled rule this state equally of which lan- two or more reasonable constructions guage gas susceptible more favor- of an oil and lease is the one * * *” Zeppa prevail. v. able to lessor will be allowed to Texas, 1938, App., 2d Texas 113 Houston Oil Co. of Civ. S.W. 612, ref. 1919, App., Aycock
Also v. Reliance Oil Texas Civ. Gilman, 1920, history; Hitson Texas no writ Civ. S.W. 140, 144, App., history. no writ S.W.
Bearing foregoing law, in mind the let us examine rules question. provision the lease in is the upon by petitioners support lease that is relied their con- respondents’ tention that the lease on interest did not mineral lapse, Cravey but authorized the No. 1 completion producer its well and that as a extended the lease respondents’ it, parties pro- as to mineral interest. As I see separate First, vided for three and distinct situations. “if discovery of oil or on said land Lessee should drill thereon;” Second, hole or holes “if after the oil production thereof should cease from cause (emphasis added) (a) lease shall not terminate” “Lessee re-working operations within commences additional thereafter;” sixty (b) (60) “if be within the payment [delay] term commences or resumes the or tender of * * *” detail; Third, rentals expiration as therein set out in “if at the oil, gas or other mineral is not produced on said land Lessee is then in drill- thereon, operations the lease shall remain in long as with no cessation force more than (30) days,” (emphasis added) and if results from such remain in force thereafter continues said land. necessity provided of a hole or holes
Of must drilled “First” above term. This
501 gas during production of oil or if there is no must follow because during term, kept can be alive primary rentals, by (a) payment delay (b) or drill- primary of term gas during ing. production primary If there is of oil or dry drilled, and at the time the hole or holes are lease term production specifically provided is alive such Paragraph drilling necessary, and no additional is nor does prevent Omitting, course, it con- termination of the lease. of obligation implied reasonably develop sideration of the to land, carry obligation failure this not to to out has been held Sigler Waggoner terminate the lease. W. T. Oil Estate supra. part Paragraph I set of 5 which out as “First” have applied only discovery can be gas. of or where there has been no oil language apply discovery does Such not if there has been of gas production oil and has ceased whether within or without primary gas because “Second” controls. If oil or during has primary been production discovered term and any cause, options should cease keep from lessee has two to (1) re-working in force: opera- to commence additional or sixty (60) days i.e., thereafter; tions within after ceased, regardless has dry of number of holes drilled production; to the (2) payment to resume of delay paragraph rentals as set out primary if within the term. is dry It not the holes where is had during primary gives right term which the lessee the fixes the time drilling, within pay which lessee must resume rentals, appropriate. The time within which must lessee re- sume in order hold to the lease —if he seeks to hold it by drilling begins to run with production, cessation whether — expiration after the “Primary of the expressly term” years. Thus, by Paragraph is limited 2 to the term of five provision Paragraph
we see that “First” 5 has application no part By “Second” is no thereof. the same token, say applicable I to “Third.” If dis- there no covery term, oil or end of the but lessee dry has term, drilled a or holes within the then lessee, keep terminating, the lease from must “commence ad- (60 days ditional sixty within thereafter;” i.e., sixty days completion dry from the of the hole. In that production. situation there could be no cessation In bar, petitioners the case at did not commence expiration until 90 pri- term. No holes had been drilled at the mary case, term. Under the facts of our I have shown that possibly by petitioners hole clause used keep cannot prevent respondent’s alive or the termination of the lease on min- Paragraph part I have denominated
eral That which interest. keep alive petitioners used cannot “Second” prior to the reason was no of oil or for the there therefore, commencing Cravey; No. 1 productio “cease must be ncould not cause” part *12 case in order make effective I call “Second.” necessary to
Having none of facts demonstrated that of plain provisions keep the lease in accordance with the alive exist, analyze the next of the “First” “Second” lease I will Paragraph that sentence did sentence in if last to determine pro- keep the lease This sentence is the “Third” situation alive. lease, parties they executed the vided for the time “* * * expiration primary term and is as follows: If at the oil, gas being land produced or other on said mineral is not re-working engaged operations then in or Lessee is long thereon, operations as shall remain in force so lease thirty (30) prosecuted are con- no cessation of with oil, gas days, production if secutive result long oil, gas or or other mineral other mineral thereafter as so * * added). produced (Emphasis land *.” from said “Third,” required by part other As oil or being expiration produced at the mineral was not from land engaged primary term. Lessee was in Warren term; therefore, 1 at the Sieber No. perfectly. part fits of “Third” Neither this case subdivision present fit no facts are which will or “Second” because “First” bring into Those cover either “First” or “Second” effect. two entirely separate sets of in this and distinct facts those parties drawing evidently just foresaw in case. term, this at end of such a situation as Sims, their in wrote “Third” into lease. As stated Woods v. every Paragraph supra, parties in intended for agreement. and to evidence their The courts have some effect says. just long “Third” mean what How should construe provide last, lease shall if the this “Third” clause does application present? plainly are requisite It facts to its * “* * states, long clearly shall remain in so force operations prosecuted added) are (emphasis as with no cessa- * * thirty days *,” (30) more than consecutive tion of being (i.e., operations at the “they” carried on end of the those oil, term) or other mineral result long as such continues. It must thereafter re-working —that —whether pro- result on at the end of the term which carried pro- keep thereafter” duction to force “so language used, it duction In the cannot continues. face of re-working” “drilling operations. The other or additional “they” plural pronoun, word and refers to both preceding (1) situations, next viz.: Lessee (2) operations. possibly It could refer back “drilling to “First” or “Second” so to include production.” Further, holes” or operations or “cessation of it refers to such as “are cessation more than no thirty (30) days.” consecutive must remember that 49 We expired between abandonment of Sieber No. 1 on Warren Well May 3, 1955 and the commencement of on Stanolind Cravey No. 1 on June 1955. There is not word one about drilling keeping the lease alive after cessation days. In the “First” and “Sec- ond” drilling parties provided clauses of 5 the for additional re-working operations sixty days commenced within *13 — thereafter production. either a or clearly instrument parties demonstrates that knew how to provide re-working for or and they provide did so in “First” and “Second” clauses. The fact provide that did proves not so in “Third” clause to me that they did not intend for such additional to applicable be to “Third” situation. separate reading The three and distinct. A Paragraph separate that 5 shows each is from the and other entirely each covers an different set of facts. It will be noted that provision covering “Third” has its own the situation where oil, gas, being or other produced. parties mineral is not If the had intended mutually the three supplementary clauses to be other, necessary each it would any not have been to include thing oil, gas in “Third” clause about and other mineral not being produced at the primary very end of the term. The sentence in 5 “if of oil or “production on said land” and any thereof should cease for adequately cause” would have covered the situation where lessee engaged drilling- re-working operations in at the end of language term. But there are other differences in used in “First” and “Second” with that in clauses used “Third.” provide “First” and for “commences “Second” additional drill operations(emphasis re-working added) ; pro “Third” operar vides if is then “lessee added). Re-working (Emphasis tions.” has a different and dis Working opera meaning working. many tinct includes tions, necessarily process a and not confined to well in the being drilled; a well from has ceased from which fact, necessarily must cause. it does not a In mean well steps preliminary existence-—it includes taken drill well. working Re-working implies again, work means has already been done. There must be well existence has “worked,” drilled, process is in the been before Thus, applies can “Third” the well be “re-worked.” primary term, the end of the or a well from term, well is had ceased at the end of the being and which new, separate apply and cannot to a and dis re-worked provide shall tinct well. “this lease “First” “Second” * * added). (Emphasis provides terminate *.” “Third” “this * * *.” shall in force remain “First” “Sec provision that ond” have no ing operations” the “additional or re-work diligence. prosecuted any required must be requires “drilling re-working operations” “Third” with no are to be cessation more con days. secutive This difference is accounted for the fact that provides an of the “Third” extension diligence required of lessee in order to secure the ex King, As tension. said Garcia 139 Texas 164 S.W. 2d 509, 512: object development
“The contract was to secure parties. property mutual was con- the templated for the It benefit period would be done * * * required should not the contract. lessors suf- pri- after the fer a continuation of mary speculation part merely purposes period on the * * *14 lessees *.” only gas” deal “oil or “Third” “First” and “Second” with and added). “oil, (Emphasis other mineral.” cover language “First,” The differences between and “Second” my they emphasize and contention that “Third” show correct situations, separate and distinct none can cover and each majority opinion The onto the other. construction the tacked express aside of sets and renders no avail of 5 language as to the time shall remain in of “Third” into and adds to “Third” words Also it reads “com- force. operations within mences sixty days “dry pro- hole” “Third” contains no thereafter.” lease, majority opinion trans- but that will extend vision
505 “Third” and provision a of “First” “Second” poses out such limits language of “Third” express the lease. The to extend only- time force to such remain in the lease shall the time of no cessation with time “as such opinion majority days.” thirty (30) consecutive more than sixty days. time to extends this provisions general specific
“If a deed contains both of intention matter, relating clear to the seems same general reading grantor ascertained can specific terms. light expressions the restrictive or more added specific were presumption words usual is that preceding part. This explain greater certainty, and to construction, however, the rule principle is limited a given a definite as whole the instrument effect must be weight give text meaning to the due can be extracted that will Deeds, 588, Sec. 138. clauses.” 14-B Texas Jur. of both ex- My gives instrument effect to the whole construction “First,” parties either ecuted and does set aside weight give all. “Second,” “Third,” due harmonizes keep Cravey must was not We in mind No. 1 begun days until 49 Sieber No. 1 was abandoned Warren re-working” “drilling- aas hole and had ceased days. period of 49 Petitioners cannot avail themselves sixty day they had of “First” or because “Second” expiration drilled no hole or holes at they can term. Neither avail themselves “Third” because “drilling re-working operations” had ceased for more commencing operations Cravey. My harmony construction Stanolind No. Rogers Osborn, holding this in the recent Court’s case beginning 1953, 152 311, very At the Texas S.W. 2d opinion our answered the of question that case wherein we “Second”
“No,” unequivocally we held that commenced after the keep from second well would not the lease alive. We further language applicable our said in clear and unmistakable present situation: upon notice when drilled Well No.
“Lessees were had terminated. Under the lessors then contended period lessees tack facts of case the cannot *15 period re- drilling 2 production from No. to of and Well working lessees would have In to do No. 1. order Well drilling commences borrow words from paragraph
first transpose sentence of 5 and them the second separate sentence. The conditions contained in the sentences two jumbled. apply should not be The first to dif- two sentences provides ferent factual ‘addi- situations. the first Since drilling’ not, tional and the second does we hold that the sec- operates ond as used in include the second sentence does not expiration additional wells commenced after the * * *” “* ** rehearing justice writing On opinion said: However, majority agree do not that the well believe * *”* support must result in the lease. Even begin dissenters day period thirty believed the should within the “* * * they said, In the think sense there used I it should solely ‘drilling not be restricted to refer or re- working operations’ in which the lessee was at primary term, of the prosecuted according but should include additional to the terms of the contract * * *” days. no thirty (Emphasis cessation more than added). agreed analysis Also the dissent with both con- clusions reached Appeals opinion the Court of Civil in its 296, 298, in 250 2d S.W. would affirm that decision. The Appeals, quoting part Court Civil the first of “Third” (the thirty day clause), said: “* * * clause, Under may keep the lessee the lease in force after by conducting term continuous reworking on the land toith no cessation more days, providing, course, drilling re-working operations being prosecuted were the termina- tion Clopton term. The No. 2 was drilling operation upon question the land. then ivhether (with not continuous no cessation) more days than 30 prosecuted upon were the land covered the lease from the termination of the drilling operations upon to the Clopton commencement of No. * * *” 2d (Emphasis added). Thus we see Appeals the Court of held that Civil keep the lease alive there must no cessation in activities of days. stipulated than 30 In our case it was that there was a cessation of 49 time the Warren No. Sieber Cravey well was time abandoned Stanolind No. Appeals’ So commenced. even under the of Civil decision Court in the Osborn case and under the dissent our lease was *16 507 land” said “drilling operations alive because thirty (30) than more “prosecuted with no were days.” consecutive that proposition clearly authority for case The is Osborn re-worked” “drilled or
only production
the well
from
alive.
keep the lease
suffice
the end of
term will
completion
reasoning
majority that
error in the
of the
a
hole extends
1 as
of the Warren Sieber No.
sixty
is
drilling may
commenced
in
which additional
part
of
reasoning
and nullifies that
that such
sets aside
“* * *
remain in
says,
the lease shall
thirty day clause which
of
prosecuted with no cessation
operations are
force
language
plain
days.”
thirty (30)
This
than
language
transposes
ignores,
majority
the lease the
of
face show
on their
These clauses
“First” and “Second” clauses.
our
situation from
they
entirely separate
distinct
an
cover
provide
a
where-
attempt
situation
case and
make no
of the
in
at the
lessee
part
to extend
“Third” is
sufficient
If
of
past
primary term, why is
limitation
not the
equal
part
given
last
to be
the lease contained in the
ef-
life of
legal
good reason,
equitable, for
I can
of no
conceive
fect?
using
refusing
part
use all
“Third.”
of “Third” and
upon
Royalty
rely
v.
Petitioners
case of
Louis
Co.
St.
1952) ;
(5th
F. 2d
1 Oil &
Continental Oil
193
778
Cir.
day
Rep.
holding by
sixty
that
Gas.
court
holding
was
sufficient
one of other alternative
company.
judgment
in order to sustain
for the oil
Plaintiffs
pro-rata
idly by
accepted
part
sat
their
that case
production
permitted
years
for more than
and also
the oil
ten
large
“bring-
money
company
spend
sums of
producing
the land.
said
in”
seven wells on
The Court
equities
equity
should strain
were such that
court
against granting
sought
would
“to do so
relief
because
unjust
plaintiffs’
In
the oil
result
enrichment.”
our case
began
Cravey
company
with full
of Stanolind No. 1
respon-
knowledge,
of,
part
and after
the claim on the
notice
Further,
lapsed.
company,
the oil
dents
the lease had
covering-
ownership
its
of a valid leasehold
one-half
virtue of
right
interest,
a co-tenant’s
to drill Stano-
of the mineral
had
addition,
holding upon
Cravey. In
the court
its
lind No. 1
based
undisputed
and stated that such facts es-
facts of
case
law,
every
element
the ad-
“as a
tablished
matter
year
statute of
possession required under
five
limita-
verse
present
tion was
in this case and that
en
the defendants were
judgment
titled to
superior
on the basis of the
thus ac
title
*
*”*
quired.
Royalty
I believe that
Louis
St.
case incor
rectly
lease,
decides the effect of
and I would
support my
Skelly
not follow it. In
contention see the
cases
Wickham,
Oil
(10th
Co.
Okla.),
F. 2d 442
2 Oil
Cir.
&
Rep.
Gas
559. This
Royalty
later
case
Louis
St.
*17
Co. case.
Also the case of Producers Oil & Gas
Inc. v. Con
Corp.,
tinental
564,
(1937).
Securities
188 La.
Associate Justice Smith this dissent.
Opinion 19, delivered June 1957.
Rehearing 2, overruled October 1957. Company
Lone Star Gas v. Jack E. Et Sheaner Al No. A-6237. Decided May Rehearing overruled October 2, 1957. (305 150.) 2d S.W. Series