Jones v. Getty Oil Co.

• Decision Date: 22 July 1970
• Docket Number: No. 14847,14847
• Parties: John H. JONES, Appellant, v. GETTY OIL COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 93

458 S.W.2d 93

John H. JONES, Appellant, v. GETTY OIL COMPANY, Appellee.

No. 14847.

Court of Civil Appeals of Texas,

San Antonio.

July 22, 1970.

Rehearing Denied Sept. 16, 1970.

Cayton, Gresham & Fulbright, Lamesa, for appellant.

Turpin, Smith, Dyer, Hardie & Harman, Irby L. Dyer, Midland, Clyde E. Willbern, Cloy D. Monzingo, Houston, for appellee.

BARROW, Chief Justice.

This appeal presents the unique question of the right of the mineral lessee to use the vertical space over the land for the erection of pumping units to such height that they prevent the landowner from irrigating much of his land by an automatic sprinkler system in use at the time the oil wells were drilled. Appellant John H. Jones, brought this suit seeking an injunction to prevent appellee, Getty Oil Company, and two of its employees from maintaining said pumping units and to obtain permanent or temporary damages. The jury found that it was not reasonably necessary for Getty to erect its pumping units at such excess height which would cause permanent damage to Jones' land, resulting in a reduction of the cash market value of same by $117,475.00. Defendants' motion for judgment non obstante veredicto was granted and Jones has timely perfected his appeal as to Getty from the take-nothing judgment entered in said suit.

Jones urges that the judgment non obstante veredicto was erroneously granted in that there is competent evidence to support the verdict of the jury and permanent damages or, in any event, a judgment for temporary damages to date of trial as found, in the amount of $19,000.00, together with an injunction enjoining the continued maintenance of the pumping units at a height which will obstruct his irrigation system.

It is a fundamental rule that in considering whether a judgment non obstante veredicto was properly granted we must consider the evidence in the light most favorable to the jury finding, giving credit to all evidence supporting such finding and indulging every reasonable presumption in support of the verdict while disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S .W.2d 821 (Tex.Sup.1965); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); International Service Ins. Co. v. Maryland Casualty Co., 421 S.W.2d 721 (Tex.Civ.App.--San Antonio 1967, no writ).

In 1955 Jones purchased the surface only of Section 4, Block C--31, Public School Lands, Gaines County, Texas, except for five acres in the southwest corner of such tract which belonged to a church. He owns no interest in the oil, gas or other minerals in said land. The mineral lease under which Getty claims is dated January 15, 1948, and comprises the west one-half of Section 4, except for the five acres which belong to the church. However, Getty owns only 120 acres of such leasehold with the remainder being owned and operated by Amarada Petroleum Corporation. The mineral lease of the east one-half of Section 4 is owned and operated by Adobe Oil Company.

At the time Jones purchased his interest in this section there was an oil well equipped with a rod beam pumping unit located near the NW corner of such section. Jones is a farmer with cotton being the primary crop raised on this land. After he purchased the land, Jones drilled seven water wells for the irrigation of his crops, thus making same much more productive. Between 1956 and 1963, Jones irrigated the land, initially with hand-moved equipment and later with power-roll equipment. Labor became increasingly difficult to obtain, and in 1963 he installed a self-propelled irrigation system known as a 'Valley System.' This system consists of a pipe about 1300 feet long mounted seven feet above the ground on a series of towers, which automatically rotates clockwise from a pivot point. The only labor required is moving the unit from one pivot point to another. There are six pivot points on this section which irrigate all the land except for the corners and small areas between the pivot perimeters. At the time the Valley System was installed the only oil well was in the northwest corner of the section, and although the pumping unit on same extended over seven feet in height it was located outside the perimeter of the northwest pivot and thus did not interfere with the irrigation system. In late 1967 and early 1968 development was had of the mineral leases on this section . In January of 1968, Getty drilled its Bice No. 1 and Bice No. 2 on its 120 acres. Both wells were completed as producers; however, since they did not flow, beam type pumping units were installed on each well. One pumping unit extends about seventeen feet above the ground at the top of its upstroke and the other unit about thirty-four feet. Both units extend considerably above the seven-foot minimum height which can be cleared by Jones' Valley System, thus preventing the use of four of the six pivot points in this section, and thereby causing a depreciation in the market value of the land through reduced production potential.

Adobe drilled four wells on the land leased by it about the same time and installed beam type pumping units on each of these wells. Two were drilled outside the perimeter of the pivot points of the irrigation system. The two within the system were placed in concrete cellars or pits which were constructed so that the upstroke of the pumping unit extends less than seven feet above the ground, thus the Valley System will operate over the pumping unit. Amarada operates two oil wells within the perimeter of Jones' Valley System; however, both wells are equipped with hydraulic pumping units whereby the equipment at the well head extends less than seven feet in height so as not to interfere with the Valley System. The power units for such hydraulic units are located outside the perimeter of the Valley System. The battery tanks belonging to Getty were located outside the perimeter of the Valley System and do not interfere with same.

Getty's lease granted the described land to it 'for the purpose of investigating, exploring, prospecting, drilling and mining for and producing oil, gas and all other minerals, laying pipe lines, building roads, tanks, power stations, telephone lines, houses for its employees, and other structures thereon to produce, save, take care of, treat, transport, and own said products.' Lessee agreed to bury all pipe lines below ordinary plow depth, but there is nothing else in the lease relative to vertical height of any installation. There were no allegations of negligence by Jones nor any attempt to prove same. Jones does not contest Getty's right to determine the location of its oil wells or its right to install some type of pumping equipment on said wells which will not otherwise produce. Jones' basic contention is that, under the facts and circumstances shown in this record, it was not reasonably necessary for Getty to install and maintain the pumping units at such height as to prevent Jones from using his irrigation equipment.

The oil and gas lease gave Getty the dominant estate. It thus had the right to use as much of the premises, and in such a manner, as was reasonably necessary to comply with the terms of the lease and to effectuate its purposes. Humble Oil & Refining Co. v. Williams, 420 S.W.2d 133 (Tex.Sup.1967); Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954); Warren Petroleum Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 65 A.L.R.2d 1352 (1957); Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961); Keeton & Jones, Tort Liability and the Oil and Gas Industry, 35 T.L.R. 1. In Warren Petroleum Corp. v. Martin, supra, the Supreme Court in discussing the relationship between the owners of the dominant estate and the servient estate said: 'Of course each must exercise their respective rights of state with due regard for the rights of the other.' See also: Reading & Bates Offshore Drilling Co. v. Jergenson, 453 S.W.2d 853 (Tex.Civ.App.--Eastland 1970, no writ); McMahon, Rights & Liabilities With Respect to Surface Usage by Mineral Lessees, Sixth Annual Institute on Oil and Gas Law, 231, 232. Although each case must stand on its own particular facts, the above authorities recognize that the question presented is usually one of fact.

We have examined the entire record in this cause. Although there is sharp disagreement among the witnesses on matters involving expressions of opinion, the testimony of R. S. Gunther, an independent petroleum engineer, is sufficient under the 'no evidence' test to support the jury finding that the installation by Getty of the pumping units to a height in excess of seven feet was not reasonably necessary under the facts and circumstances of this case. He testified that the pumping units could be safely and efficiently installed in cellars or pits so that they would not interfere with Jones' irrigation system. Furthermore, he said the cost of such installation would not be excessive. His opinion was corroborated by the fact that Adobe has two such installations on its lease and, under the uncontradicted testimony of the pumper on such units, there have been no difficulties with either installation.

Thus it is seen that in this record, as distinguished from that in Humble Oil & Ref. Co. v. Williams, supra, which case is heavily relied upon by Getty, There was proof that Getty used more of the land than was...