Cozart v. Crenshaw

• Decision Date: 16 July 1927
• Docket Number: (No. 11895.)
• Citation: Cozart v. Crenshaw, 299 S.W. 499 (Tex. App. 1927)
• Parties: COZART et al. v. CRENSHAW.
• Court: Texas Court of Appeals

299 S.W. 499

COZART et al. v. CRENSHAW.

(No. 11895.)

Court of Civil Appeals of Texas. Fort Worth.

July 16, 1927.

Appeal from District Court, Cooke County; Alvin C. Owsley, Judge.

Suit by H. E. Crenshaw against G. O. Cozart and another, in which defendants filed a cross-action. Judgment for plaintiff, and defendants appeal. Affirmed.

Kenley, Dawson & Holliday, of Wichita Falls, for appellants.

James R. Wiley, of St. Joseph, and Adams & Jones, of Gainesville, for appellee.

BUCK, J.

H. E. Crenshaw filed suit for injunctive relief, to restrain G. O. Cozart and the Swastika Refinery from erecting on a designated lot and plat of ground of 4.56 acres in the town of Muenster, Cooke county, an oil refinery or skimming plant, and from interfering with plaintiff's right as lessee of an oil and gas lease from Nick Stoffels and wife. He alleged: That he had leased the plat of ground from the Stoffels for oil and gas purposes, and had had his lease put of record prior to the time that the defendants attempted to place buildings thereon and interfere with his right of peaceable possession and with his drilling purposes. That defendants without plaintiff's knowledge or consent commenced to erect buildings of a permanent nature on the land under lease. That such buildings, when so erected, would deprive plaintiff of his right under the lease from the Stoffels, and would render plaintiff's lease useless for the purpose for which the same was secured. And that the operation of the refinery or skimming plant on any part of the land would create a fire hazard, and would prohibit plaintiff from drilling an oil or gas well on any part of such lease.

Plaintiff further alleged that in the Muenster field considerable gas is encountered in the drilling of oil wells, and, due to this fact, it would be dangerous for plaintiff to drill wells on said lease if the refinery should be maintained and operated on said land. Plaintiff further alleged that if the defendants should be allowed to construct such refinery, the amount of plaintiff's acreage would be reduced and the number of wells plaintiff would be able to drill on said land would likewise be reduced. Plaintiff further alleged: That in the Muenster field there are two distinct oil sands; one sand is found at the depth of about 1,200 feet, while the other is found at the depth of some 1,600 feet. That both sands show oil and gas in paying quantities. That it would be necessary for him to drill wells to both of said sands, in order to get the oil and gas therefrom. And that thereby it would be required that more wells should be drilled than if he were drilling to one sand, inasmuch as separate wells would have to be drilled to the different sands.

He further alleged, in his amended petition: That the railroad ran along the northeast side of the plant, and that a street or public road ran along the north boundary line. That defendants, if they should not be restrained, would deprive plaintiff of the right of ingress and egress to his lease, and also would interfere with the use of the railroad facilities for shipping purposes. That owing to the peculiar, irregular, and odd shape of the said leased premises, plaintiff's most practicable and only convenient entry onto said premises is from the north, and by reason of the lease executed to plaintiff on said land, its proximity to said highway on the north and said railroad right of way with track privileges, plaintiff acquired a valuable right to the entrance of his property from said highway and the convenience and use of trackage privileges on the railroad in handling all his supplies, drilling rigs, machinery, and equipment. That defendants, in appropriating to their use a strip of land across the north end and along the east and north side of plaintiff's said lease, which is that part of the lease adjacent to said highway and railroad right of way, have deprived plaintiff of the use of the north part of the lease and the means of ingress and egress to said lease without the inconvenience and hazard of passing over, through, and across property, buildings, pipes, and other improvements erected and sought to be placed thereon by defendants, all of which constitute an irreparable injury to plaintiff.

Plaintiff further alleged: That said leased premises constituted a semiproved area for the production of oil and gas, and is situated about 1,000 feet from a producing oil and gas well, in the Muenster Town-Site Pool, and that in said Muenster Town-Site field there exists a number of oil wells in different stages of operation. That in the production of oil from said wells, there is a great amount of gas in said wells, and it is a fact that wells drilled in the southeast direction from the discovery well are heavy gas producers, and that as the structure rises, still heavier gas producers may be reasonably expected, and because of the nature of the gas production, the operation in this field is extremely hazardous, even though every known precaution be exercised. That, further, because of the topography of the country and of the changing atmospheric conditions, it is incumbent upon plaintiff within this particular area to use every precaution in order to protect the property rights of operators, the town of Muenster, as well as the lives of employees and laborers engaged in their employment, both by day and by night. That the building and operation of the said oil refinery upon the location mentioned would greatly increase the fire hazard on plaintiff's said lease, because in the nature of the refining business, the refinery must have adequate storage for its crude as well as for its refined products, both of which are exposed and highly inflammable, and in order to reduce their crude in the process of refining, they must and will use fires under their boilers and pots, which will be a permanent and continuous menace to the plaintiff in his drilling of oil and gas wells on his leased premises, as well as to other operators in that area. Plaintiff further alleged that he intended to drill and develop said leased premises and was prevented from doing so because of defendants' acts. He further pleaded damages in the sum of $10,000 and prayed for an injunction restraining defendants from erecting and maintaining the buildings on said leased premises.

The defendants filed their answer and cross-action, consisting of a number of exceptions to plaintiff's original petition, and further pleaded: That they had leased a narrow strip of land along the north side of the leased premises, extending from the northwest corner of the same east a distance of 313 feet to a point at the intersection of the north line of the railroad right of way, thence down the right of way approximately 200 feet to the gin lot, said narrow strip being 50 feet in width except for a distance of 40 feet near the middle of said strip where it is 70 feet in width. That said lease from the Stoffels was of the surface only, and for the purpose of erecting thereon a small skimming plant for refining crude oil. That defendants had, before plaintiff's petition was filed, made excavations and laid a concrete foundation for their said plant. That said plant would be located about midway of said strip and about 10 feet from the north property line of plaintiff's said lease, and would occupy a spot of ground 9 feet north and south, and 26 feet east and west. That it would be constructed wholly of brick and concrete and metal and that no combustible or inflammable materials would be used in the construction of the same, and that the only fires used in operating said plant would be underneath the boilers or stills and down in furnaces, most of which would be underneath the ground. That said furnaces would be practicable in that said fires would not be exposed in any way, except by the furnace doors, which would be located on the north side thereof and in about 10 feet of the north property line. That said fires would be fuel oil fires, and would be operated with a single valve or cut-off so that fires could be extinguished instantly.

Defendants further alleged: That the north part of plaintiff's lease in the vicinity of defendants' said refinery, while irregular in shape, is nevertheless more than 300 feet in width east and west, and 500 feet in length north and south, and because thereof these defendants say that, under rule 37, promulgated and enforced by the Railroad Commission of Texas for the conservation of oil and gas, which provided that no well for oil or gas should be drilled nearer than 300 feet to any other completed or drilled well on the same or adjoining tract of land, and no well shall be drilled nearer than 150 feet to any property line, plaintiff would have to make a location for a well on the north part of his lease at least 150 feet from the north line. That said location, if made, would be 130 feet from the fires of defendants' refinery, which distance would be greater than the distance from said location to the fire which plaintiff would have to have under his boiler for drilling purposes, unless he located said boiler at a much greater distance from the well than is usual and customary. If necessary to state any further pleadings of plaintiff and defendants, we will do so in the course of our opinion.

Upon presentation of the original petition for injunction to the district judge, the judge in chambers, on May 14, 1927, granted the petition as prayed for. Upon the filing of the original answer and cross-action of defendants, including a motion to dissolve the temporary injunction granted, the plaintiff filed his first amended petition. The court overruled defendants' motion to dissolve, and defendants have appealed.

Opinion.

Defendants below objected to the filing of the amended petition, after answer filed by the defendants and their motion to dissolve, and alleged that said amended petition sets out entirely new grounds for said injunction not...