Miller v. Railroad Commission of Texas, 9466.

• Decision Date: 17 January 1945
• Docket Number: No. 9466.,9466.
• Citation: 185 S.W.2d 223
• Parties: MILLER v. RAILROAD COMMISSION OF TEXAS et al.
• Court: Texas Court of Appeals

185 S.W.2d 223

MILLER v. RAILROAD COMMISSION OF TEXAS et al.

No. 9466.

Court of Civil Appeals of Texas. Austin.

January 17, 1945.

Rehearing Denied February 7, 1945.

Appeal from District Court, Travis County; J. Harris Gardner, Judge.

Consolidated suits by Paul Miller against the Railroad Commission of Texas and others on applications denied by the Commission for permits to drill oil wells. From a judgment upholding the Commission's action, plaintiff appeals.

Affirmed.

Pollard & Lawrence, of Tyler, for appellant.

Grover Sellers, Atty. Gen., and Geo. W. Barcus and Harris Toler, Asst. Attys. Gen., for appellee Railroad Commission of Texas.

Walace Hawkins, of Dallas, and Dan Moody and J. B. Robertson, both of Austin, for appellee Magnolia Petroleum Co.

BAUGH, Justice.

A Rule 37 case. Appellant applied to the Commission for permits for well No. 2 on a .81-acre tract, and for wells 9 and 10 on a 4.18-acre tract, both tracts situated within the city limits of Kilgore, Texas. Both applications were denied, separate suits filed thereon in the District Court of Travis County, which suits were consolidated, tried without a jury, and the action of the Commission upheld; hence this appeal.

The sole contention made by appellant is that the courts and the Commission in determining whether drainage and confiscation exist as to a given tract of land, the underground conditions being uniform, have adopted as a rule of comparison, the density of drilling in the eight times area surrounding such given tract; and that to deny the appellant the opportunity to drill his leaseholds to such overall average density, and thus put his production on a parity with adjacent leases, would be discriminatory against him and amount to confiscation of his property.

The underground conditions in the areas involved were admittedly uniform and the per well allowables were the same. Nor is it contended that the wells applied for were needed to prevent waste.

At the outset it is contended by appellees that appellant did not show ownership in all of the surface area delineated in his application to the Commission. This for the reason that as to the .81-acre tract the map accompanying his application shows merely surface area but no streets; whereas the map of the City of Kilgore, introduced in evidence, and the testimony, shows that said tract is divided into lots which abut upon streets along the southwest, the southeast, and perhaps the northeast; and that it was not shown whether in computing the .81-acre area appellant had included therein the area extending to the center of such streets, as he did in computing the area of the 4.18-acre tract. Obviously, if one-half of the width of streets on two, or perhaps three, sides of such tract were included in computing an area aggregating only .81 of an acre, the exclusion of such street surfaces would materially reduce the size of such tract as a basis for comparison with the eight times surrounding area. As to the 4.18-acre tract, treated by appellant as a single tract, the record affirmatively shows that it is in reality composed of two separate tracts. The one to the southeast consisting of a city block, subdivided into eight lots, which block is bounded by four streets, — those on the southwest, southeast and northeast being 50 feet wide; and that on the northwest, which separates this tract from the other portion of the 4.18 acres, being 60 feet wide. In computing the area of the two combined tracts, considered by appellant as one tract of 4.18 acres, appellant included therein one-half of the area of the three streets to the southwest, southeast, and northeast of the city block, all of the 60-foot street to the northwest thereof, and one-half of the street to the southwest of such other tract. Obviously if the surface areas of these streets be excluded the size of the so-called 4.18-acre tract would also be materially reduced, an important factor in comparing it with the eight times surrounding area in determining relative density.

If the City of Kilgore did not own title to its streets, but only an easement over the properties traversed, then the title to the abutting properties extended to the center of such streets, subject only to such easement. 39 Tex.Jur., § 51, p. 584. If, on the other hand, the city had acquired, either by purchase or condemnation, title in fee to its streets, then the abutting property owners had no interest therein other than that of the general public. Town of Refugio v. Strauch, Tex.Com. App., 29 S.W.2d 1041; 39 Tex.Jur., § 53, p. 588. There was no proof offered in the instant case as to such ownership, one way or the other.

However, in view of the general rule announced in 39 Tex.Jur., § 51, that unless otherwise declared in the grant, title to property abutting on a street extends to the center thereof, we will assume for the purposes of this opinion that appellant's leasehold included the lands within the boundaries laid out by him.

The spacings provided in Rule 37 at the time appellant's applications were denied by the Commission were 467 ft. from property lines and 933 ft. between wells, or one well to 20 acres. The circular eight times area — 33.44 acres — surrounding the 4.18-acre tract, excluding said tract and the eight wells already thereon, contained 89 wells, or a density of .38-acre per well; as against a density on said 4.18-acre tract of .52-acre per well. The two wells applied for would give said 4.18-acre a density of approximately .42-acre per well, still less than the...