Mueller v. Sutherland
|18 November 1943
|179 S.W.2d 801
|MUELLER v. SUTHERLAND et al.
|Texas Court of Appeals
Appeal from District Court, Jim Wells County; L. Broeter, Judge.
Suit by J. W. Sutherland and others against Mrs. Augusta Mueller, individually and as independent executrix, and others, to recover their share of certain oil and gas royalties. From a judgment for plaintiffs, the defendants appeal.
Lloyd & Lloyd, of Alice, for appellants.
Keys, Holt & Head and Tillman Smith, all of Corpus Christi, and Carmel F. Davis and Perkins & Floyd, all of Alice, for appellees.
This appeal is from a judgment of the District Court of Jim Wells County. We shall almost literally adopt the statement contained in appellants' brief as to the nature and result of the suit.
The appellants are Augusta Mueller, a widow, and her children. They now own Tract 2, containing 124.2 acres, and Tract 3, containing 124.7 acres, in the F. S. Schleicher Subdivision of 1502.9 acres of land in Jim Wells County, with the exception of 24 acres in the southwest corner of Tract 3, sold by them to Henry Deuval, Sr., and with a certain other exception later noted. The Deuval tract of 24 acres is not involved in this controversy. However, it may be noted that the sale thereof left appellants owning 100.7 acres in Tract 3.
On January 26, 1938 appellants executed in favor of appellee Anderson-Prichard Oil Corporation an oil, gas and mineral lease which covers Tract 2 and the aforesaid 100.7 acres of Tract 3. Subsequently the lease as applied to the 100.7 acres in Tract 3 was conveyed to and is now held by appellee Atlantic Refining Company; otherwise, there has been no change to the title to that lease. All of the royalty, which is one-eighth, under these two tracts is owned by appellants and appellees John F. Judge and Gilbert W. Judge, except under 24 acres of land owned by Alfred Nollkamper. Appellee Southern Minerals Corporation is a party because it purchased and has impounded the proceeds of the royalty from oil produced from Tract 2.
By deed dated February 16, 1938, appellants conveyed a tract of 24 acres of land out of Tracts 2 and 3 to Farmers State Bank of Orange, Texas. Appellee Nollkamper later acquired that tract, which was subject to the oil and gas lease above mentioned. Appellees J. W. Sutherland, A. G. Thompson, George E. Gray, Maston Nixon, J. C. Hatridge and Nathan Pitcairn purchased and now own a portion of the royalty under that 24 acres of land. The controversy involved in this litigation revolves about this particular tract, which we shall hereafter refer to as "the Nollkamper land."
The north 12 acres of the Nollkamper land lies in Tract 2 and is under that portion of the aforesaid oil and gas lease now owned by Anderson-Prichard Oil Corporation and there is a producing well thereon. The south 12 acres lies in Tract 3 and is under the portion owned by the Atlantic Refining Company, and there is a producing well thereon.
In the field in which the aforesaid land is located the Railroad Commission has limited the drilling to one well on each 20 acres by virtue of its authority under Rule 37, and has also fixed the quantity of oil, usually referred to as "allowable," that can be produced from each well on the basis of that acreage. There are two wells drilled on the Nollkamper 24 acres of land, one on the portion lying in Tract 2, and the other on the portion lying in Tract 3.
Appellees Sutherland, Thompson, Gray and Nollkamper brought this suit to recover their share of all the royalty produced from the Nollkamper 24 acres, alleging that they and the appellees Nixon, Hatridge and Pitcairn own all the royalty under that tract. In their cross action Nixon, Hatridge and Pitcairn sought the same relief.
Southern Minerals Corporation and the Atlantic Refining Company, being purchasers of the oil, in their answers set out the amount of oil they each purchased and tendered the proceeds of their various purchases into the Registry of the Court.
Defendants John F. Judge and Gilbert W. Judge disclaimed any interest in the 24 acres of land, but alleged they owned one-fourth of the royalty under the remainder of Tracts 2 and 3 covered by the lease.
Appellants answered that those appellees who own the royalty under the Nollkamper 24-acre tract were entitled to only 12/20ths of the total royalty produced from each of the wells under the spacing rule and allowable made and fixed by the Railroad Commission of Texas. They based this contention upon the fact that the two wells drilled upon the Nollkamper lands were drilled upon two units, each composed of 12 acres belonging to the appellees and 8 acres belonging to appellants.
The trial court sustained the two special exceptions of the royalty owners in the Nollkamper land directed at paragraphs seven and eight of appellants' Second Amended Original Answer, and the appellants having declined to further amend, the court struck from their answer the aforesaid pleaded defense of appellants. Upon the trial of the case the court refused to permit appellants to introduce any evidence in support of that defense. Judgment was rendered for all of the appellees as prayed for. Plaintiffs were quieted in the title as to the royalty interest and recovered all royalty payments from the two wells on the 24-acre tract. Appellants perfected this appeal.
In this case the specific ground of error urged is as to the sustaining by the court of a special exception urged to paragraphs seven and eight of Appellants' Second Amended Original Answer.
Paragraphs seven and eight are as follows:
In view of the fact that some question is raised as to the sufficiency of the special exceptions we here reproduce same.
Defendants Nixon, Hatridge and Pitcairn urge this exception:
"These defendants specially except to Paragraphs VII and VIII of said second amended original answer for the reason that the facts set forth therein constitute no basis for a cause of action against them or any defense to the cause of action alleged by these defendants, but that such facts are wholly irrelevant and immaterial to any of the issues involved in this case."
The special exception urged by plaintiffs was as follows:
"Plaintiffs specially except to Paragraphs VII and VIII of said Answer for the reason that the allegations therein contained constitute no defense to Plaintiffs' cause of action as set out in their First Amended Original Petition, nor any basis for any cause of action against them, but on the contrary that such allegations, even if true, are wholly irrelevant and immaterial to any of the issues involved in this suit."
Plaintiff appellees sought a vindication of...
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