Cox v. Rhodes
| Decision Date | 01 June 1950 |
| Docket Number | No. 4716,4716 |
| Citation | 233 S.W.2d 924 |
| Parties | COX et al. v. RHODES et al. |
| Court | Texas Court of Appeals |
McCampbell, Wood & Kirkham, and Dean B. Kirkham, all of Corpus Christi, for appellants.
Jesse J. Lee, Houston, Neel, King & Rachal, Fischer, Wood, Burney & Glass, and Robert B. Wallace, all of Corpus Christi, for appellees.
This is an appeal from a judgment of the District Court of Nueces County, 28th Judicial District. The suit was brought by appellants, who were remote assignees from the lessee in an oil and gas lease dated July 13, 1936, executed by C. C. Miller as Guardian of the Estate of Mrs. Nannie M. Webb, a non compos mentis, as Lessor, to the Texas Company as Lessee, covering approximately seventy acres of land in Section 107 of the George H. Paul subdivision of the Driscoll Ranch in Nueces County. Appellees, who were defendants in the trial court, are the heirs of Mrs. Nannie M. Webb, deceased, and lessees under a lease dated March 18, 1948, by which the heirs leased the same property to such lessees. Appellants sought to recover damages for the conversion of certain casing located in an oil well known as Webb No. 1 Well, which was drilled on the lease by appellants' immediate assignor, O. W. Killam, to whom the lease had been assigned by the Texas Company; in the alternative appellants sought to recover title to and possession of the casing and to enjoin defendants from interfering with their right to go upon the premises and salvage the same. Trial was to a jury, but when the parties had closed, the court on motion of defendants discharged the jury and rendered judgment that plaintiffs take nothing and that defendants recover of plaintiffs all costs.
Plaintiffs requested the court to file Findings of Fact and Conclusions of Law, and in response to such request the Court did file elaborate findings and conclusions. Both appellants and appellees rely somewhat on these findings and conclusions in their briefs. In our opinion they are not entitled to a feather's weight. Rule 296, Rules Civil Procedure, requires the court upon a trial by the court at the request of either party to state in writing conclusions of fact found by him separately from the conclusions of law. (Emphasis ours). Where trial is to a jury and the court peremptorily withdraws the case from the jury, we know of no authority by which the court is authorized to file findings and conclusions. If there was any evidence tending to support any material issue presented by the pleadings then it was the duty of the court to submit such issue to the jury. Upon withdrawal of the case from the jury, only the evidence supporting issues favorable to the losing party, viewed in its most favorable light, will be considered on appeal. This proposition is elementary and requires no citation of authority. If an appellate court should give any weight to the trial court's findings under such circumstances it would in effect deny the right of trial by jury. We will, therefore, consider the case in the light of the record, including the Statement of Facts, as though no findings had been filed.
The material facts reflected by the record may be briefly summarized. Paragraph 6 of the lease of July 13, 1936, above referred to, is as follows:
On March 9, 1939, the Texas Company, the original lessee, assigned the lease to O. W. Killam, retaining an over-riding 1/4 royalty. Thereafter Killam drilled four producing wells and one dry well. Well No. 1 in which the casing in question is located was one of the producing wells. On September 24, 1940, Killam assigned the lease, together with the wells, tubing, casing, tanks and other personal property to appelllee W. M. Averill, who on the same day transferred a one-half interest therein to appellant Rupert Cox, and thereafter appellants operated and produced oil from the lease. Production gradually ceased and one well, No. 5, was plugged and abandoned and the casing salvaged. Shortly before November 1946 all production on the lease ceased. Production from well No. 1 had ceased approximately one year before all production on the lease ceased. The tubing was removed from well No. 1 and in March 1947 an attempt was made by appellants to force gas through this well into the sand to restore pressure in the sand. Nothing was accomplished by this experiment. Mr. Sidney Webb, one of appellees, passed by the well when this experiment was being conducted but testified that he did not know what the effect of injecting the gas into the well would be and that he did not approve of what appellants were trying to do. On June 26, 1947, appellant W. M. Averill and the Texas Company, at the request of the land owner defendants executed the following release of the original oil and gas lease:
'State of Texas
'W. M. Averill and The Texas Company, in consideration of $1.00 cash, and other valuable considerations, receipt of which is acknowledged hereby release, relinguish and forever quitclaim any and all rights whatsoever now held or claimed by them or either of them under the following described oil, gas and mineral lease: dated the 13th day of July, 1936, executed to The Texas Company by C. C. Miller, Guardian of the person and estate of Mrs. Nannie M. Webb, a non compos mentis, recorded in Volume 26, on pages 415-417, Oil and Gas Records of Nueces County, Texas, and covering 70 acres of land more or less out of Section Number 107, Geo. H. Paul Subdivision of the Driscoll Ranch in Nueces County, Texas.
'Executed on this 26 day of June, 1947.
'W. M. Averill
(W. M. Averill)
THE TEXAS COMPANY
Attorney in Fact.'
(Emphasis ours.)
Shortly prior to the 18th day of July, 1947, appellant W. M. Averill discussed with one of appellees, Sidney Webb, the desire of appellants to procure a new lease of the land covered by the original lease and on July 18, 1947, such a lease was prepared to be executed by the landowner appellees as lessors to appellants as lessees and was delivered to Sidney Webb with the request that he procure the signatures of all the heirs and Sidney Webb agreed that he would send the same around and attempt to procure the signatures. This lease was signed by several of the heirs, some on July 23, 1947 and some on August 5, 1947. On March 18, 1948, the appellee landowners executed an oil and gas lease to appellee Elbert Rhodes as lessee which covered the well in question. There was no cash consideration for this lease and its validity was conditioned upon the reworking or drilling operations being commenced within ninety days. The lease contained a recital to the effect that the 'lessors herein are the owners of the oil and gas and other minerals and the casing and other equipment now at and in said oil wells so drilled by the said Texas Company' and that
'Lessees upon abandoning this lease shall have no right to pull, take or remove any of the casing or other equipment now at and in the said wells, but same shall remain the property of lessors.'
Rhodes assigned this lease to appellee Drisco Oil Company, retaining a one-eighth over-riding royalty. On June 18, 1948, appellants through their production superintendent for the first time learned of the new lease and of appellees' intention to seek new production in some upper sand of the well and promptly notified some if not all of appellees of their claim of ownership to the casing. At this time no actual work on the reconditioning of the well had been started although some equipment had been moved to the well for this purpose. The appellants did not learn or know they would not be able to obtain a new oil and gas lease covering the well in question until they saw the rig being moved onto the lease by appellees in June 1948. Appellants' points, in substance, are that the court erred in withdrawing the case from the jury and rendering judgment against them; in holding that tha execution of the release above quoted had the effect of passing title to the casing, and that the lessees (appellants) had no right to salvage the casing from the well, which was bottomed in a sand no longer capable of production, if there was a possibility of further production by reworking and completing the well at some upper sand, and that a suit for conversion of the casing would not lie until the Railroad Commission of Texas had first granted permission to plug and abandon the well; and in refusing to consider parol testimony to show the purpose and intent of the release above quoted and the construction placed thereon by the parties, and in refusing to consider parol testimony showing accident and mistake covering the execution of the release.
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