Lead Opinion
This is a rule 37 case. Turnbow and the Railroad Commission are appellants. Barns-dall Oil Company, the original plaintiff, and Humble Oil & Refining Company and Gulf Production Company, interveners, are ap-pellees. Suit was filed as an appeal from an order of the Railroad Commission, dated September 25, 1934, granting to Turnbow permits to drill two wells on 2½ acres of land, 200 feet wide by 545 feet long, in the East Texas oil field in Gregg county. After a trial upon the merits, the trial court granted the relief prayed for; hence this appeal.
The facts involved are fully stated in Barnsdall Oil Company v. Railroad Commission (Tex.Civ.App.)
The Attorney General, on behalf of the Railroad Commission, admits in his brief that, in so far as the trial court’s judgment sets aside the permits attacked, it should be affirmed for the reason that same were granted without notice or hearing by the commission. Other contentions, however, are made by him which will hereafter be discussed.
The trial court found, and such finding is not attacked, that, in addition to the granting of the permits without notice or hearing, said 2%-acre tract was voluntarily segregated in 1934, through аn agreed judgment, from a larger tract capable of development as a whole without the necessity of exceptions to rule 37; and which larger tract out of which it was carved was then in fact being adequately developed as a whole through wells already drilled thereon. This brings this case clearly within the rules announced originally in Sun Oil Company v. Railroad Commission (Tex.Civ.App.)
While the foregoing effectually disposes of this appeal, we advert briefly to the con
“The hearing just closed raises grave doubts as to the wisdom or valué of any Rule 37 in preventing waste or in aid of the recovery of oil.”
This recital, appellant contends, is an official finding by the commission that its rule 37 is valueless as a conservation measure, does not prevent waste which, under the statute, is the оnly foundation on which it can be sustained, and that the findings of the commission itself render the rule void.
Both of these contentions have been considered heretofore by the courts and overruled. Rule 37, one of the cardinal rules of the commission, adopted аfter extensive hearings as essential to conserve the natural resources of the State, has been repeatedly attacked by parties subjected to its provisions. Its validity is no longer an open question. Brown v. Humble Oil & Refining Company (Tex.Sup.)
The contention that the recitation above quoted from the commission’s order of August 26, 1935, constituted an official finding by the commission thаt a spacing limit between wells is not necessary to prevent waste was disposed of by this court in Railroad Commission v. Marathon Oil Company, supra, and need not be further considered here.
The remaining contentions of appellant Turnbow are predicаted upon the assumption that he had a legal right to recover the oil in place beneath his 2]4-acre tract. Since, however, under the undisputed facts and former decisions of the courts, he had no such legal or vested right to be protected, no property rights were invaded in contravention of the constitutional provisions urged. Nor were the issues moot because the wells had already been drilled. The petition alleged that the drilling of same would cause waste, the production therefrom would cause waste, and the failure to- plug same would cause waste. This . issue has likewise been decided against him. Humble Oil & Refining Company v. Railroad Commission (Tex.Civ.App.)
The Attorney General, on behalf of the Railroad Commission, while admitting that the permits involved were improperly granted and that the judgment of the trial court should be affirmed, asserts error of the trial court in two respects: First, in admitting in evidence, over objection, the transcript of the proceedings before the Railroad Commission; and second, in entering a mandatory injunction against Turnbow directing him to plug said wells. This on thе ground that such order invades an administrative function vested in the Railroad Commission.
On the first question, an examination of the plaintiff’s petition discloses an allegation, in addition to want of notice and hearing, that, if such hearing were had, “there was no evidence introduced at the hearing before the Railroad Commission * * * showing that said two wells, or either of them, were needed to prevent confiscation,” etc. This is the exact question presented, and decided adversely to the Attorney General’s contention, in Empire Gas & Fuel Co. v. Railroad Commission (Tex.Civ.App.)
As to the second contention made, the plaintiff in the trial court pleaded and proved a provision of rule 37 requiring that no well drilled without a permit or in violation of a permit granted “shall be permitted to produce oil or gas; and any such well so
While the principal issue in such suits is primarily the validity of the Railroad Commission’s order granting such permits, when the court strikes down such an order of the commission and determines that in no event can a valid permit be granted for a well on such tract, as ancillary to such adjudication, and to enforce such judgment, the court can properly enter whatever orders may be necessary to make its judgment effective. The litigant whose interests are affected is not limited exclusively to an adjudication of the validity of the commission’s order, and when that is done required to return to and rely upon the Railroad Commission to then enforce the conservation rules аnd regulations in the light of such adjudication; and, if the commission fails or refuses to do so, then to again return to the court for further relief. He is entitled to be granted the full relief which the law and the rules and regulations of the commission afford him.
In the instant case the permits grаnted were annulled, not only because of the commission’s failure to give notice and have a hearing, but because under the evidence no well was authorized to be drilled on said tract. After that matter was adjudicated, the status resulting, so far as the commissiоn was concerned, was the same as if no permit had been granted. And, had the court merely adjudicated that issue alone, without granting any injunctive relief, it would have been the-duty of the commission to enforce its rules both as to preventing production from the wells and causing them to be plugged. Railroad Commission v. Lamb (Tex.Civ.App.)
The sаme rule of the commissiov which prohibits production from illegally drilled wells also requires that they be plugged. We fail to see where the injunction granted invades the administrative province of the commission any more in the one instance than in the other. It is true that the mandatory provision of the injunction that the wells be plugged requires affirmative action by Turnbow, and not merely that he refrain from doing that which he was not lawfully entitled to do. But the Railroad Commission had authority to require of him this same affirmative act, and their rules did so exрressly require its performance. No injunction was issued against the commission in this regard either mandatory or prohibitive. Undoubtedly the court could properly have denied the mandatory relief sought to have these wells plugged, leaving that matter to be enforсed by the commission. But the order of the. court as entered, under the undisputed facts of this case and the settled line of decisions, did no more than, without it, the commission under its published rules was required to do — that is, to order these wells plugged. It does not deprive the cоmmission of the power and duty to see to it that such wells are plugged in accordance with the rules of the commission. The court’s order necessarily implies that the plugging of such wells be done in a legal manner, which of course would be in accordance with the rules of the commission; and the duty still rests upon the commission to -see to it that they are plugged, as the court’s" order directs, in compliance with their regulations.
We conclude, therefore, that the injunction granted does not trench upon the administrative powers and duties of the commission, but is in consonance with them; and that the functions of the commission in the premises are not invaded nor interfered with, but are merely given additional support, by court decree, in their enforcement as applied to the adjudicated issues in the instant case.
The trial court’s judgment will therefore be affirmed.
Affirmed.
Rehearing
On Rehearing.
In motion for rehearing by the Railroad Commission, the Attorney General urges that the trial court’s judgment setting aside the order of September 25, 1934, should be affirmed on the ground that, Turnbow having already filed suit in the district court to set aside the order of thе commission dated September 7, 1934, involving the same property, which suit was pending on said September 25th, the commission was without jurisdiction to issue its order of September 25, 1934; and not, as stated in our opinion,
It is true that the Attorney General does make such admission in his brief; but,, under the facts and circumstances, the aрplication, denominated a motion for a rehearing, filed with the commission on September 25, 1934, and then granted, was in effect a new application, seeking a different number of wells in different locations from those sought in the original application. It should hаve been so treated by the commission. And as stated by us in our opinion in Barnsdall Oil Co. v. Railroad Comm.,
Other matters complained of are, we think, sufficiently discussed in our original opinion and need not be further considered here. The motion is therefore overruled.
Overruled.