Magnolia Petroleum Co. v. De Garcia, 10638.

• Decision Date: 29 March 1939
• Docket Number: No. 10638.,10638.
• Citation: 126 S.W.2d 1006
• Parties: MAGNOLIA PETROLEUM CO. et al. v. de GARCIA et al.
• Court: Texas Court of Appeals

126 S.W.2d 1006

MAGNOLIA PETROLEUM CO. et al. v. de GARCIA et al.

No. 10638.

Court of Civil Appeals of Texas. San Antonio.

March 29, 1939.

Appeal from District Court, Duval County; L. Broeter, Judge.

Suit by Bernarda S. de Garcia and another against the Magnolia Petroleum Company and another to restrain the defendants from proceeding with drilling operations on certain land and to cancel an oil, gas and mineral lease. From an order granting a temporary injunction, defendants appeal.

Order reversed and application therefor dismissed.

Walace Hawkins, of Dallas, and Frank T. Morrill and Perkins & Floyd, all of Alice, for appellants.

F. G. Garza, of Falfurrias, and W. Kennedy Smith, of Raymondville, for appellees.

SLATTON, Justice.

This is an appeal from an order granting a temporary injunction after notice and hearing by the judge of the District Court of Duval County. The appellees filed suit on February 1, 1939, in two counts, one in trespass to try title, and in the alternative pleaded an oil and gas lease covering the described land in Duval County, alleged to have been executed and delivered by the appellees to Hart Mussey and by him assigned to the Magnolia Petroleum Company. The term of the lease was alleged to be for a period of ten years, beginning January 11, 1929. The lease was alleged to have expired on midnight, January 11, 1939, and that the lessees and assigns had failed and neglected to begin the drilling of a well on said premises for the exploration of oil or gas.

It was alleged that appellants some time during the morning of January 12, 1939, without the permission of appellees, and after said lease had terminated, moved a water well rig upon the land and drilled a hole four to six feet deep in a belated and vain attempt to comply with the lease, and without any expectation or intention to find oil or gas in paying quantities.

It was further charged, that appellant Glasscock, acting for himself and the Oil Company, after the termination of the lease over the protest of the appellees, began moving drilling equipment etc., to the premises, and is at the present time attempting to drill a well or carry on some kind of drilling operation. That the appellees have protested against such operations and trespasses and unless restrained appellants will continue to do so. That appellees are without any adequate or speedy remedy in law, and that unless the remedial writs hereinafter prayed for issue, appellees will be irreparably damaged by said acts. That Glasscock is setting up some kind of claim to the minerals under said premises, the exact nature of which appellees are unable to state, but the same is inferior to that of the appellees. They prayed for a restraining order prohibiting and restraining appellants from proceeding and continuing with new drilling operations and from hauling any drilling equipment upon, over or across the premises described. That notice issue to appellants commanding them to show cause, if any, why said temporary restraining order should not be transformed into a temporary injunction effective until this cause is finally decided. Appellees further pray that upon final hearing hereof said temporary injunction be made permanent; that they have judgment removing the clouds from the title and cancelling and holding void the oil and gas and mineral lease, etc.

The appellants answered under oath, alleging the oil and gas lease and an entry upon the land upon the 11th day of January, 1939, by Glasscock, under an agreement with the Oil Company to assign him a part of the lease and did in good faith begin the drilling of a well on said premises in search of oil and gas, and has continuously thereafter diligently prosecuted the same and has now drilled said well to a depth of 3,920 feet. The provision of the lease was pleaded under which the drilling was claimed to continue said lease in effect. Specific denials were made of the belated entry as charged by the appellees, as well as that the...