Appeal from District Court, Orange County; A. D. Lipscomb, Special Judge.
O'QUINN, J.
Appellant was plaintiff below. The following is taken from appellant's brief as to the nature of appellant's demand against appellee:
"This suit was filed by appellant as plaintiff on April 2, 1923, against appellee, to recover the rental value for oil purposes of a 50-acre tract of land in Orange county, and the petition of plaintiff sets out the cause of action substantially as follows:
"That on December 23, 1919, plaintiff owned a described tract of land containing 50 acres, a part of the Jas. Dyson league, in Orange county, and that one Isaac Lang owned an undivided one-fourth interest in the minerals on said premises, plaintiff owning title to the surface and the remaining three-fourths of the minerals, and that on that day he, together with the said Lang, leased said lands for oil purposes to the defendant company under a written lease, a copy of which was attached to the petition, and by the terms of which lease the same could be extended by additional payments and without operations to a date not beyond December 23, 1922.
"That said lease was kept alive by proper payments made by the defendant to December 23, 1922, being the latest date under its terms it would be so kept in force, and that during the existence of such lease the operations in the oil field in which the leased premises were located showed that said land was nonproductive in oil, and the defendant did not exploit same for that purpose during the life of said lease, but saw proper, as it had a right to do, to abandon said lease without operating for oil on the leased premises.
"That soon after the expiration of said lease oil was discovered in paying quantities in close proximity to the land described, thereby rendering this land valuable and in demand for oil purposes, and after the discovery of such oil the defendant negotiated with plaintiff for another lease on said premises, which negotiations were carried on in full recognition of the fact that the lease theretofore given had fully expired, and, the negotiations not resulting in any additional contract, and defendant being unable to negotiate on satisfactory terms with plaintiff for a lease on said premises, and said premises appearing to be of exceedingly great value at the time for oil purposes, the defendant unlawfully, and with force and arms, and without right, entered upon and took possession of the property, and asserted a claim thereto fictitious, and not valid, and erected derricks on said lands, and commenced the drilling of wells thereon and dispossessed plaintiff, and after notice from plaintiff refused to surrender to him the possession of said property, but continued to use and enjoy the same and convert to their own use and benefit the value of the use and rental of the land taken and being enjoyed, and deprived plaintiff of the value and use thereof, and rendered it impossible by such acts for plaintiff to derive any revenue from the rental of same for oil purposes, as was customary in said field and in all oil fields, and that said right so taken and enjoyed wrongfully by the defendant had a market value of $3,000 per acre, and but for the acts of defendant plaintiff could and would
have received for the right taken by the defendant the sum of $3,000 per acre, which could and would have been received as rental of said lands upon the same terms and conditions specified in the lease asserted by the defendant, and the plaintiff prayed for judgment for the damages sustained by him."
The defenses to plaintiff's cause of action are reflected by appellee's brief, as follows:
"I. The lease of December 23, 1919, was not executed and delivered to the Humble Oil & Refining Company as a completed instrument until after January 29, 1920, and, while it states that it is to run for three years from date, we contend that the word `date' used in this lease, under the facts disclosed by the evidence, means the `date' on which the lease was delivered to the defendant, Humble Oil & Refining Company, and went into operation as a valid contract, for the reason that the lease shows upon its face and by all of its terms that it was to run for the full term of three years, and the undisputed facts show that the Humble Oil & Refining Company, lessee in said lease, commenced drilling operations upon the 50-acre tract of land described in said lease on January 23, 1923, within three years after the lease was delivered, and within three years after it went into operation as a lease contract, if, in fact, it ever went into operation as a contract between the parties, which is not admitted, but is expressly denied.
"II. That there was an oil and gas lease executed and delivered on February 24, 1920, by K. Kishi and I. Lang to the Humble Oil & Refining Company, covering this identical tract of land, running for a term of three years, and that this last-mentioned lease contract was made as a substitute for and to take the place of the lease of December 23, 1919, and that in fact the consideration of $1,500 recited in the first lease of December 23, 1919, was not, in fact, paid until February 25, 1920, and that the same was, in fact, paid for the substitute lease bearing date of February 24, 1920, and not for the lease of December 23, 1919.
"III. That the minerals in the tract of 50 acres of land involved in this suit were owned and held by K. Kishi, of Orange county, and I. Lang, of Bexar county, as cotenants, the said K. Kishi owning three-fourths of the mineral estate in the property, and the said I. Lang owning one-fourth of the mineral estate, and that the defendant, Humble Oil & Refining Company, had and held at the time that it entered upon the 50-acre tract of land on January 23, 1923, and commenced drilling operations thereon, a valid oil and gas lease upon the interest of I. Lang in the minerals in said 50-acre tract of land, and entered upon said land as the lessee and with the knowledge and consent of the said I. Lang, and drilled said well with the knowledge and consent of the cotenant, the said I. Lang, holding and claiming the estate of the said I. Lang in the minerals in and under the said 50-acre tract of land, and the said K. Kishi had and held no cause of action for damages against his cotenant, I. Lang, or the Humble Oil & Refining Company, who entered upon said property as the lessee and representative of said I. Lang.
"IV. That the plaintiff did not prove or undertake to prove by the evidence offered that it actually had an opportunity to lease the property in controversy for $700 per acre, or for any other sum. There was no evidence of any kind offered that the claim of the Humble Oil & Refining Company that it held a valid oil and gas lease upon the property in fact deprived the plaintiff of an opportunity to lease the property. The proof offered merely went to show that the property could probably have been leased for $700 or $1,000 per acre, but the proof does not show, and no effort was made to show, that any one offered to lease the property from plaintiff, K. Kishi, and that the trade was turned down on account of the fact that the Humble Oil & Refining Company claimed to have a lease upon the property.
"V. That the cause of action for damages was too uncertain, speculative, and remote to permit a recovery in damages, and was not the natual and probable consequence of an act of trespass."
The case was tried before the court without a jury, and judgment rendered for plaintiff for nominal damages in the sum of $1, from which judgment he brings this appeal.
The court made and filed the following findings of fact and conclusions of law:
"The plaintiff, K. Kishi, of Orange, is the owner of all the surface and three-fourths undivided interest in the oil and mineral rights on 50 acres of land at the oil field in Orange county, adjoining a small tract on which a producing well about 150 feet distant was brought in on the 22d day of January, A. D. 1923. The bringing in of this well immediately rendered the 50-acre tract very desirable as a possibly productive territory. The remaining one-fourth interest in the oil and mineral rights belonged to Isaac Lang of San Antonio.
"The 50 acres had been covered by a lease from plaintiff, Kishi, and Isaac Lang to defendant, Humble Oil & Refining Company, which, together with certain payments duly made under its provisions, gave the lessee 3 years from its date in which to begin drilling. On the day following the bringing in of the well on the adjoining tract the Humble Oil & Refining Company moved on the 50 acres and began drilling a well, claiming that the 3 years from the date of the lease had not expired, and drilled a well which proved unproductive, and gave the land the character or repute of nonproductive land. The plaintiff asserts that the third year under the lease had expired; that the entry was wrongful, and by reason of such wrongful entry and detention of the land and operations showing it in the character of nonproductive land, or giving it that reputation, there was no longer any opportunity to sell or lease it as such, and that plaintiff, as owner of three-fourths interest in it, was damaged to the amount of three-fourths of the money value of a lease upon it, i. e., the value it had following the bringing in of the well on the adjoining tract and up to the time of the loss of value as oil land. The plaintiff sued to recover the value of such a lease contract as defendant claimed to...
