Heard v. Nichols

• Decision Date: 27 April 1927
• Docket Number: (No. 722-4644.)
• Citation: 293 S.W. 805
• Parties: HEARD v. NICHOLS et al.
• Court: Texas Supreme Court

293 S.W. 805

HEARD v. NICHOLS et al.

(No. 722-4644.)

Commission of Appeals of Texas, Section B.

April 27, 1927.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Mrs. Fannie V. W. Heard against C. F. Nichols and another. A judgment for plaintiff was reversed and the cause remanded by the Court of Civil Appeals (282 S. W. 831), and plaintiff brings error. Reversed, and judgment of the district court affirmed.

S. B. Dabney and Kennerly, Williams, Lee & Hill, all of Houston, for plaintiff in error.

Dougherty & Dougherty, of Beeville, for Nichols.

J. T. Vance, of Refugio, for Hewit.

POWELL, P. J.

We quote the findings of fact and conclusions of law of the district court as follows:

"This case having been tried without a jury and decided for the plaintiff, and both the plaintiff and the defendant, C. F. Nichols and W. E. Hewit, having requested the court to make his conclusions of fact and law, and I now make and file them as follows:

"(1) I consider it unnecessary to state the nature of this suit, which is sufficiently shown by the pleadings, except as below

"(2) The plaintiff, Mrs. Heard, is a widow. Her husband, the late W. J J. Heard, died in September, 1920, testate, and his will has been probated, and his wife, the plaintiff here, his sole legatee and devisee, and entitled to every right or interest which he would have had in this suit if he had survived.

"(3) On the 12th of December, 1919, Mr. and Mrs. Heard of the first part, and Burt, of the second part, executed an agreement, Exhibit A, plaintiff's amended petition, providing for the exploitation for oil or gas, or both of them, on the land therein described, and Burt made certain assignments thereunder, and the plaintiffs (defendants) Nichols and Hewit claim under assignments.

"(4) The defendants, other than Nichols and Hewit, defaulted, and those not served were dismissed; all as appears in the judgment.

"(5) This suit was brought by Mrs. Heard, claiming, as appears from the pleadings:

"(a) That she had a right to recover the property; therefore the first count is trespass to try title.

"(b) That Burt and all persons under him claim under the agreement executed by herself and husband, mentioned above, with Burt, but that such agreement was unilateral, and bound Burt and persons under him to do nothing; therefore a revocable license, and that she has revoked it. This is the second count.

"(c) For a third count, she claims that, if the agreement was a contract and not unilateral, then that Burt, or persons under him, had failed to comply with the contract, and had brought in a gas well, but had permitted it to be injured by letting in water, to her great damage, and otherwise, as in her pleadings set out.

"She prayed for recovery of the land and for general relief and damages as set out in her petition, and, if none of this relief should be awarded, then that the court should enforce specific performance, under equitable terms, but this only in the alternative.

"The defendants Nichols and Hewit claimed that there had been a performance, under their general denial, and claimed under Burt.

"(5) I find that in September, 1920, Burt and associates discontinued their drilling, and that the well at a higher level at about 1,500 feet had come in as a gas well, and blown in as a water and gas well from about the 1,900' level, and that it continued as a water and gas well, a gauge being put on the casing, and the flow of water and gas stopped from it, but flowing out from around the well and so continued flowing both water and gas in large quantities, until, in about June, 1922, when Stevenson, under an agreement with Mrs. Heard, having tried to condition the well, and failing, plugged it and stopped the flow of water and gas.

"(6) I find that the well was left unprotected; that the water and gas was permitted to mingle; that no casing was set below the 1,500' gas level; that water was flowing at about 1,700' and not shut off, no casing being used below 1,500', but mud used, and that finally the drill stem was drawn and a liner put in of much smaller diameter than the 6" casing, but sealed to it at the 1,500' level with lead, but drilled and punctured to let in the gas at that level, and again drilled and punctured at the 1,900' level, and that, when the well came in from the 1,900' level, the water and gas intermingled, and shot out of the top of the casing with great force, and was thereafter driven out through the ground around the casing in large quantities until the well was finally plugged with mud and closed by Stevenson, after he had failed to condition it. This well was not properly protected, and the water was not shut off so as to hold it back and prevent it from mingling with the gas. The well was improperly drilled and left in an improper way by Burt and associates, who were finally unable to protect it, and who were inexpert.

"(7) The well as a gas well, it producing no oil, was progressively being ruined by the intermixture of water; and their permitting water to come in in such quantities, as it did in this way, and, under the conditions it did in this well, would, and was, progressively ruining the well, and would, and was, injuring the gas strata, or stratum, from which the gas came, in violation of the law of the state; and that, in the process of time, this particular well would have been ruined as a gas well by the influx of water, and also the strata or stratum from which it was drawn would have been injured.

"(8) Mrs. Heard waited a sufficient time before bringing this suit, and Stevenson made an attempt to condition the well, all as shown in the evidence, and, having failed to condition the well, all as shown in the evidence, and having failed to condition it, plugged it, as Mrs. Heard was entitled to have it done; and this well has produced no gas, and has been plugged and absolutely dry from in June or July, 1922, to the present time.

"(9) No adequate evidence was shown in the trial of the case, showing the extent of the damage by the failure of Burt and his associates. ...