*1 339 ’ lеigh-Maple this automobile' that the manner Terrace, Inc., Tex.Civ.App., neg- defendants was not 226 was handled (Writ S.W.2d 926 Refused). see Also findings of facts- ligence”. Under such Hawker, v. arid Ablon Tex.Civ.App., 200 trial court entered conclusions SW.2d 265. law> appel- appellees ruling judgment for that ' points' The three assigned of error by ap- n Appellant suit. nothing lant take his pellant are judgment sustained. The perfected court’s trial trial court is reversed and is ren- points three of error. assigns appeHant dered for $1,035. in the sum of points principle under such contention erred error- is that the trial court appel- of law that the holding a matter as. The rulings not herein negligent. lees were dispose appellant’s points of
made will error. disposed to be issue first appellees having two legal effect of COMPANY, Inc., al., et WHITSON Respon reading garage their “Not signs in Appellants, Fire or Material sible Case of Theft”. v. not fact' such issue is the .was al., CREEK OIL BLUFF et appellant had seeii COMPANY not shown whether or Appellees. undisputed those issues signs. As “It. appellant. fact, the law is with No. 15600. post keeper, by. garage held has been: Appeals of Civil of Texas. Court business, place sign or his ing a notice theft, fire,, liability, Fort Worth. limit for cannot Unless the bailor’s generally. negligence 18, March 1955. sign such a and-he-ex is called to attention April Rehearing 15, Denied 1955. provisions impliedly agrees to the pressly or thereby”. therein, bound 61 he is not 872; Vehicles, 726c, p. Motor
C.J.S.,
§
Nevin, Tex.Civ.App., 293 S.W.
Langford v.
130,
Tex.Com.App., 117 Tex.
Cavitt,
536;
v.
Tex.Civ.
McAshan
S.W.
by Supreme,
App., 227 S.W.2d
affirmed
Court,
Stine Henrietta, & and Hassell & Hassell, Hassell and Dallas, W. Jr., J. for appellants. 1 Robinson, Shipp, Barnes, Robertson & City, Okl., Okahoma Donald, Donald & Bowie, Coffield, T. B. appellees'.
MASSEY, Justice, Chief
From' a entered in behalf of of an owner royalty “overriding” inter- lease, est one behalf of the owner of the leasehold estate" in- it and another' lease, for damages because of the-destruc- tion of the . the leasehold of. estate royalty interest, prop- for-conversion of equipment. erty- and leases, in- part cluding restoration of property part for the value con- verted, injunctive and for relief, and other appealed. defendants Judgment affirmed in and reversed and remanded part. Suit in the actually court below involved action, several 'causes of some of which parties plaintiff did not have as and defend- persons ant the same as in others. It explanation
believed the following helpful. would be Rucker, Jr., R. H. was- an individual who occasionally gas dealt oil leases. corporation He was officer in a called which cor- leases," convey assign unto Whitson gas in oil poration dealt also Inc., and as its successors operated leases. signs, an undivided fifteen-sixteenths of O. W. officer was an R.L. Whitson *3 six-eighths (%ths) interest (1%sths) owned corporation, which Company, a oil, proceeds gas, casing- from all leases, producing gas operated oil and and produced, head and other minerals gas Whitson, gas. and L. selling oil and saved and sold under terms 'connection no official though having gas lease. above described oil and corporation, the Whitson similar another subject"to assignment . is made in interested “This personally pri- following terms and conditions: welfare. The Whitson by managed owned, operated marily * * * shall be Assignee “1. Whitson, he was whom the sons of L. R. receive fifteen-sixteenths entitled to guide toward success- inclined to aid and (1%cths) six-eighths (%ths) of the profitable business activities. ful oil, proceeds gas, casinghead produced, gas saved parcels real and other minerals were two There Texas, were from above described land County, and sold which Montague until it has been reim the Bluff Creek time as gas oil under leases bursed, expended it in by first will be herein- for all sums Company. The completing the well now drilling after termed the prem second, leases located the above described Lease. These ises, adjacent. it for though including by advanced neighboring, sums Nabpurs lease, vyas casing seven-inch a full the excess cost of %ths lease, well, all sums ex was a- used in said Fenoglio Lease but-the %ths n , “overriding” roy- pended by of said it being with a burdened ** Rucker, well, re- Jr., who *. interest in R. H. alty of the com- interest as tained such “2. At such time as said pensation original transfer him shall have been reim- Inc. leasehоld interest to Bluff Creek of the %ths expended bursed for all sums and ad- it, paragraph vanced as set out 1, it drilling an No. shall be entitled to receive begun toward Procedure oil, six-eighths ’the full (%ths) well on each of these: leases. Whitson' oil proj gas, casinghead gas ects and other minerals interestéd in both Company became produced, saved and sold from the negotiation into of contracts and entered above until it whereby acquired rights described land has re- certain equal céived a sum produced, any well sums re- oil saved and sold from them, acquired ceived Bluff Creek Oil cer Co.' or wells on" and also (¼6 n ) six-eighths one-sixteenth rights tain estates leasehold held (%ths) retained by it interest assignment. . - “3. When the net returns parties equalized, hereto have been Bluff Creek Oil and Whitson provided, then and thereafter above August entered into contract on shall be Inc. entitled
31, 1949, provisions the material of which" six-eighths to receive one-half of (1/2 language: included the following oil, %ths) gas and other min- “Now, Therefore, in con produced, sold from erals .saved of the sum of one premises, sideration dollar described and the above assigned ($1.00) good herein and other interest and valuable excess * * * considerations, receipt Company, Inc. hereby shall acknowledged, Co. thereafter Bluff Creek Oil Bluff Creek Oil one-half of bargain, sell, transfer, does receive six- Co. hеreby entitled instance, oil, ent gas by express agreement, title %ths) (½ of eighths automatically was prescribed pass produced, saved minerals and other land, performance preced- described of the conditions above sold from thereafter ent. shall hereto- parties and the equal one- estate own the course, produc Of whether shares, subject to over- half (½) question, tion along the well in or from it by R. reserved royalty riding with, might wells other -which have been * ** H. Jr. through drilled Bluff Creek Oil “4-, Co., right, so, do under terms of .to its lease Assignor, Bluff *4 time, acquired hold to interest right, any at from-R. H. reserves the rer imhurse, expended Jr., the Company all sums Whitson had right for to Assignee it, pro- possession take produced hereinabove its all the oil or, into advanced saved, vested thereupon subject right to become of vided, to Rucker (½) owner, inter- and the primary royalty one-half and-to sell with undivided an estate, it on right leasehold the market. gas It had the to retain est in the oil' royalty inter- overriding (which amount subject x%Gths but 'for to of'.the contract and Company to above. services of Whitson est referred under the belonged contract would have to rights Hold and To Have “To Bluff up Creek Oil Company) yielding to assigned unto herein and interests ½6 n Company only Bluff Creek Oil thereof. and as- its Assignee, successors Iiowever, this to be credited x%'6ths and condi- to the terms signs, pursuant to expense, 'whiсh —but contract— lease above gas oil and tions of the expense would have been the Bluff of assignment prior described Company. Oil Creek But for the unfor hereof.” ' tunate related, circumstances hereinafter expected would have been contract, continued drilling this to Pursuant n application of the said completed Com- of such at Whitson 1%eths begun or either proceeds received completion from the sale upon the of the oil pany’s expense, produced and eventually saved would have incident to well, the! of, conducted, Company made production oil were Whitson whole. With such —the done, Company paid supplemеnted by Whitson expense period which a short provisions according during contract. time Company which the to Whitson (which take the proceeds would entire but for the contract gone would have to Bluff be transaction this view Our Company) Creek Oil until it was reimbursed Company and Oil Bluff Creek tween the of the cumulative ¾6 n the amount further regard to Company Whitson payments made to Creek Bluff Oil Com acquired thereby a Whitson Lease is that pany, Whitson Company would have be n option, an analogous right, come, in the provided, manner the owner interest one-half acquire undivided an of one-half of the whole interest thereto six-eighths title of Bluff Creek to the possessed fore owned by the Bluff place gas to the oil and Company Company. Creek Oil ' lease, and an undivided one- under the contract, From the date of the to all the interests virtue in and half interest of the fact that Company Whitson Company might otherwise assumed Bluff Creek obligations certain Bluff own, rights- such Com- be considered pro pany, thereby the latter relieving the search arid of these use surface oil, option passes obligations, etc. An Oil Company’s no Bluff Creek duction of prescrib executory contract estate and interest an leasehold became bur- title ds but provided rights the occurrence of which with those dened conditions ing entitled to optionee'may belong beсome demand contract Tex.Dig., day-contemplated passage title. '37 Vendor and until that when of- course, pres- Purchaser, -.Company Of- Oil. Bluff Creek any “overriding” leasehold Whether or not there was joint owners would become royalty reserved out of leasehold estate latter in estate opinion covered contract immaterial it is our words, In other Lease. appeal. this single oil well which estate of leasehold the value drilled particular yielded Nabours Lease com- at Bluff Creek production, dispute be mercial no and there is would period interim date production but what from case. the sale this ordinary iri application profits was a proper value of be the would such value Rather to the contract with the of Whitson burdened estate as Bluff day’s Fiad Creek Oil' Each rights production brings nearer day upon inter- Company sold Creek Oil Company might reasonably period, the during est it had expected to become the owner subject to Whitson of an have been sold would equal say- interest'with Bluff without goes Com- rights, and it pany in the leasehold purchaser would estate'of the'Nabours prospective that a n '. reduction upon a substantial insisted have *5 pro- price, knowing that Wioths The Nabours Lease involved being the oil were the sale of from ceeds appeal expenses because сertain of a re applied Company and kept by the Whitson ceiver appointed operations to conduct its Oil Creek upon its contract with Bluff were taxed against the Company, Whitson additionally that Company, knowing —and though the receivership so far as it —in perform- complete had been a once extended to such dissolved. —was contemplated Company, as ance Whitson Company, Inc., See Whitson v. Bluff Creek contract, and interest title to Company, 1953, Oil Tex.Civ.App., Fort reduced, by be purchased would in what he Worth, dismissed, writ S.W.2d 50%. o. this, w. Of j. Whitson complains. The Nabours Lease fur true as not be thing would The appeal ther involved because dam royalty interest оf "overriding” ages for the conversion with the it was not burdened equipment from lease were said Therefore, assessed his inter- the value of contract. this, against Company. O. W. .Oil Of R. affected contract. est would Company complains. R. the O. W. is involved Fenoglio Lease Also, Léase the Nabours is involved in Company and appeal the Whitson because permanent injunc because a complain of the R.L. Whitson tion the trial was issued court restrain damages be- against them for rendered ing Whitson L. R. of the market of the destruction. cause of, disposing O. W. R. Oil from Company’s lease- of Bluff Creek Oil disconnecting using or otherwise than estate, of the destruc- and because hold operation lease, equip for the said market value of Rucker’s “over- tion thereof, ment interfering with the There was riding” royalty interest. production and the the lease operation of extended this, therefrom, Of all three oil etc. Whitson, R. L. parties complain. Company because of conver- O. W. R. sion of Controversy, History of receivership Fenoglio involving Lease The well protection in connection with costs part latter 1949 and was drilled property, etc. of such part or all producer. brought in as commercial oil operated by the Bluff initially It was Nabours Lease. opera- from such profits All to the Whitson delivered Com- into tion was entered similar contract A Company made all parties. pany, by the same the Nabsurs 34á applied Whitson, Mr. L. R. who was still disbursements, kept the books present, n contract, they .thp what should under provisions of do credits under circum- to, began replied, well stances. He “It spring of looks like ‘In the me etc. , is, you ought though it was to abandon the he That well”. Then “make water”. oil, producing vicinity. Glenn, the. it started' Mr. C. O. still producing left. Then, superintendent in about .Company, for the same time. at thé water ¡him quit flowing. Swab- testified that gave of 1951 L. in- June resump- “pull brought pipe”-.and about structions to.
bing operations
move it
same time off the
production. About the
tion of
lease.
caused to be made
a test of the well
During
period
neсessarily incurred
in the hole which
the location
to determine
in the doing, and immediately following
By agree-
the water.
the source of
was
ment,
receipt of such instruction or suggestion
without
reduc-
parties, but
Whitson,
from L. R.
the Whitson Com-
the Whitson Com-
writing,
tion
thereof
pany employees proceeded
pull
casing
posses-
took
pany
L. Whitson
and -Mr.
well,
it,
out of the
plug
and abandon it.
premises and from that
the well
sion of
They,
employees
of the O. W. R. Oil
opera-
point
the well
full control of
assumed
moved the
equip-
is,
“shot”,
The well was
tions.
ment
theretofore at the well-site off the
explosive
charges were
charge or series of
premises
Lease and onto
belong-
perforated the zone from
set off which
ing to the O. W.
R. Oil
Shortly
realized,
production
being
which the oil
thereafter,
properties
the O.
R.W.
was successful. At least
in the vicinity were all ac-
*6
profitable produc-
put
on
the well was
back
quired by
the Whitson
op-
Company continued to
tion.
Company
the well. Bluff Creek
erate
No effort was made to drill
into and
in connection
activity
with
ceased
production potential
test
lower
operation.
zone of the
formerly
same formation as that
production
well,
yielding
though
appears to have been a similar
There
such lower zone had been logged and tested
experience'
the well
in the fall of
With
sufficiently
prоbability
to indicate a
that a
correction,
followed
and a similar
yield.could
expected
commercial
there-
experience
and correc-
a second like
from. No one
any person
contacted
con-
of 1952. The trouble
January
tion in
with the
Company
Bluff Creek Oil
nected
exasperat-
have been somewhat
seemed to
Rucker,
or Mr. R.
Jr.,
H.
and it was some
Finally,
was encoun-
ing.
further trouble
time
parties
later when these
first discov-
in'April of 1952. Mr. L. R. Whitson
tered
happened.
what
By
ered
had
that time the
went to
scene
trouble.
well
pulled,-
on
lease had been
plugged
authority,
direction and
what is known
abandoned,
all
and
shooting
“Torpedo
a hole 1 inсh”
Jets
equipment
used
connection therewith re-
discharged
depths
the hole at
be-
were
moved.
6,178
The
tween'6,188
feet.
character
what
is sometimes
was
discharge
Company
The Whitson
officials
its.
The
open-hole gun”.
charges
“an
called
opinion
prop-
were
clearly
holes,
inch in
each one
di-
made several
equipment
erty
on the
the metal
ameter,
perforating
casing
belonged
to the Whitson
well,
perforating the formation
Company and that
Bluff Creek Oil
Approximately twenty
casing.
around the
rights
no
They
had
had
Company
therein.
set
in the ten
were
off
discharges
equip-
such
as to the
like belief
Despite this ac-
perforated.
zone
ment on thе Nabours Lease at the site
feet
produc-
production.
come into
there in
tion,
the well
The Whitson
well did
Company
coming from the well
and its officials
fluids
were also of the
tion.
Instead
oil,
they
water,
opinion that
about
were
owners of
about
at
95%
5%.
employees
majority
asked least
The Whitson Company
permanent
into a
injunction.
Na-
We will con
Fenoglio and
both the
under
estates
authority
sider this
suit as
the various causes
Leases,'and
their
bours
leases,'
ap
action
both
involved in the court below-ánd
on
operations
connection
’ 1
pealed
they thought
to this
right
do as
court.
including'’
property- and
removing
relative
best
Damages
Because
Award
wells,
abandoning
casing,
pulling
equipment,
Lease Destruction.
right of the
etc.,
by any
'unaffected
(cid:127)
Creek Oil
Bluff
'Bluff
suit was
against
the Whitson
R.'
Company and L.
Pursuant,
position,,
opinion
to its
on
and'damage
account
its loss
permitted
Whitson,
had caused
Company
resulting from the
of the value
destruction
remove certain
Company
O. W.
L.
Fenoglio Lease.
R. Whitson
premises
equipment from
property.‘and
jointly
claimed to have been
liable
Lease,
least caused
or at
of the Nabours
along
with the
under
to be delivered
explained.
the circumstances above
Company, though, as
to the O. W.
R;
suit of
Jr.,
H.
have,
noted,
we
heretofore
defendants because
the loss
production and
was under
Lеase'
damage
“overriding”
to his
interest in
competently
operating
Was
complaint
lease. There is no
on
operations
same. The
Nabours appeal of
findings
right
underlying
Lease were
Whitson Com-
conducted
of Bluff
and R. H.
pursuant
agreement of
pany
to an oral
Rucker, Jr.,
damages, at
least in so far
consent,
whereby
had
similar
to that
it
as Whitson
is concerned. The
initially
charge
taken
circumstances were somewhat similar
Fenoglio Lease.
on the
those in the case of Comanche Duke Oil
Co.,
Co. v. Texas Pac. Coal & Oil
Tex.
of these
As result of the affirmation
Com.App.1927,
However,
347 noticed; premises L. R. was previously As which vicinity receiver, in possession by or not taken present at the scene into the was made orders, any event having in it been alleged the be which gave employees of the by the was converted Company R. suggestions direct O. W. and jointly were treated Company which concert with Whitson Com- orders, pany and resulted upon as L. R. judg- Whitson. Under acted in. l ment, of the wel the value destruction interest of Bluff evidence Company Under the in such was complaint that L. R. Whitson point further shown No $883.12. was things upon by do all authority to is made full L. Whitson had far as the Whitson in so or the Whitson he did do which concerned, account and on was Company point complaining A of this action the Whitson Com doing which established, by brought trial court is forward jury liability by the was pany’s appeal by O. W. that L. R. We believe verdict. assigned but error so jointly verdict to be briefed was found having is therefore considered us as along with the Whitson liable severally waived. Texas been See Rules of Civil competent evi sufficient Procedure, rule and cases annotated 418 agent, an was liability His dence. thereunder. adventurer, agent an since joint if not torts liable for his own always primarily Expenses Matter On the of Receivership principal is like despite that his the fact Operating Incurred in through responsible him under wise Nabours Lease. . superior, respondeat where the doctrine (cid:127) noticed, previously As this court are existent additional facts those reversal of the court trial connection agency in commis their demonstrate appointment op 589, receiver to Tex.Jur., p. sec. “Agency”, sion. erate the well on the 'Nabours va 177, Employment as Affect “Agency or . appointment cated the respect in that course, Liability Of of Tort-feasor” it would seem that Whitson au posed upon was a situa the issue submitted thоrity thereupon conduct joint analogous to the case of tion entered restored. adventurers, wrongful where one commits cause, trial the merits of the enterprise joint acts in conducting expenses during time premises or the controlling and operating was under the control receiver’s where all use of contrivances adventurers at figure $712.50, found and ad are liable the tort of the one. 48 Company along against judged Adventures, e, C.J.S., p. sub. § Joint should be order that such amount with an 870; p. Tex.Jur., (for 30-B sec. 31 contract charged against the between said merly Tex.Jur., 776). p. We believe n and Bluff finding in the instant case to be suffi expense, operating Under contract undoubtedly it would those cient as' reimbursing itself Whitson . C.J.S.,-particularly since cases considered *9 expenses and the issue, its costs at rate of 1%6ths objection to was no the there profits gross. from oil the the request specially no .of received there was for since produced, saved and sold as result of the posed along requested the usual lines issues ,the the, operations- of well on disputed agency. of instances in “pay Assuming complete an ultimate Lease. Judgment Against the Matter of O. W. On expenses by charged con out” of the the Company yalue of R. the parties ques the in against well tract of the n Bluff Creek Interest in tion, ownership equal of the result to in Property from Converted thе Nabours Whitson leasehold estate between (cid:127) , Company, expenses and Bluff the Creek.Oil receivership eventually .equally borne such connection with the' would In there property parties entirely borne certain removed from the if Bluff Creek was However, of would Mr. Glenn- such should -not that freely of the be property belonging failure of a handled to possibility a course be expense . Company, all such Whitson -had been of as theretofore in which event case, question the that there was upon the Whitson fall would belonged about whether Whitson Com- it to amount the that pany. question is contention interfering There no the of receiv- the operation Lease, for- unreasonable is the -Nabours $712.50 appears from supervisory services. It er’s state of the the record indicates that the was based said amount evidence that charge the was left Supervi- operations, services. upon though the value of such might: these this not ac- nec- have been any event, respect tually would be the In sion . case. appoint- receiver essary -operations,-the even had no been to or to .evidence have, been ed, would requisite'-that, and the cost thereof falls ishort of an the show it paid expenses, operation chargeable persons to the en- intention on the the Company, in- turn injure joined something to do which would n par- the account between charged complainants, enjoined to the ac- the Un- “pay upon and well out”. sufficiently lease threatening-and ties cer- tions order of- reasonably these circumstances the der the fear as to have tain aroused complained respect' applicant Tex.Jur., court trial for the writ. 24 between, which, adjustment 146, pp. 145 For was secs. 103 and -104. proper equitable reason, parties, 'respect was in- -the to the discre- was within junction circumstances cannot stand. 262, p. Tex.Jur., of the trial court. 36 tion er “Receivers”, procedural claimed “Liability for Costs There is a sec. ' damages even-though relativе the matter Expenses”. ror This is true upon im- Lease. A witness appointment of the receiver was upon market value of the proper in initial instance. prior trial, in which a the occasion of occurred, been mistrial shown to have was Injunction. Matter On. the upon beyond jurisdiction of the court occasion, trial, ear later and his of the' issued, injunction permanent A testimony direct examination was lier merits, pursuant the suit on trial impropri jury. read There was no Whitson, Whitson which restrained L. evi ety introduction shown W. R. Oil and the O. evi jury. no given There was dence equip property and disposing of from proof introduced contradicting dence in ment on the Nabours beyond that the witness was effect lease. terfering with the jurisdiction of the trial court at the .Whitson The record indicates Hence, time later trial. occasion only operating the lease. testimony for introduction dem hav might be considered as evidence exception onstrated as an hearsay came from upon the matter bearing rule, Tex.Jur., p. sec. 276. Whit- Glenn, superintendent C. O. introduction of during the son entered be- in the court case, from L. plaintiffs’ opening —and Jr., low favor of R. J. Whitson on cross-examination. Such Inc., and L. R. evidence as there was matter of the matter damages indicates affirmed. prior the occasion of such as taken *10 judgment in the belief that it The entered in be- suit was taken the court belonged Company, which to Com low in favor of Creek Bluff only, upon corporation, pany being against filed a but that the suit O. W. R. -Oil Com- might pany against Company, as well as recognized it was mistake Inc., given Orders to and L. Whitson the sum of been for have made. personal Bluff of the issue to of as $883.12, posing value of n Fenoglio recovered from the property converted Company in Creek Oil lease, judgment of trial court premises Lease having plain- vested title to restoration, affirmed. thereto practical and not tiff, Bluff no Company, Creek-Oil be- court entered judgment The disposition having appel- made been upon receivership taxing low сosts lants’ claim therefor.” Whit- operations against Lease the Nabours Inc., said provision that son with Appellee Bluff Creek Oil makes against charged costs should assignment as follows: existent contract between Bluff the Na- on Company Whitson “The error Ap- Court Civil operations, affirmed. bóurs in, failing affirm judg- peals ment ;the trial' in. court favor be- in the court judgment The entered Bluff Creek Oil Company against all low in of' favor title, Appellants possession for Company., corporation, against property, Fenoglio from removed the. Inc., upon the matter and L. R. lease, and equipment for the value of damages for destruction of the $3,957!77 converted sum as" Of in.the interest in estate former’s set out' in judgment.” is reversed and to the - remanded for another trial. original In opinion, .append .our we find below in the court judgment entered paragraph ed giving the reason -the Company, a favor Bluff Creek .of in, ¡lease -appeal is involved corporation, against Whitson effect; our statement there was L, Inc., Com- Whitson and W. R. Oil tí. part, .entered .a injunction pany, permanent. granting n bythe trial1 court which extended of, disconnecting us- against disposing or appellants all three because of' operation conversion than for otherwise equipment from that lease. on said the Nabours Lease The language was inserted as it was and lease, .any way interfering in place at the where it was inserted because pro- lease. and the appellants’ from our understanding of the therefrom, etc., duction of oil is reversed error, points assigned nowas error for and remanded another trial. rendered lower particular. true, court being this That Rehearing. Motion for On pass any point we had no occasion to filed rehearing for motions question opinion. or belabor our controversy, parties both sides of on Furthermore, appellants’ points if the assigned find we error same matter construed having could be so as em by all. complaint braced now made motion rehearing, such would properly have appellants assignment make as fol- been considered any us waived in , : lows event, since it not briefed. in' making erred “The Court rendering any judgment finding rehearing dis- All motions are refused.