Pearson v. Black

• Decision Date: 30 September 1938
• Docket Number: No. 1838.,1838.
• Citation: 120 S.W.2d 1075
• Parties: PEARSON et al. v. BLACK et al.
• Court: Texas Court of Appeals

120 S.W.2d 1075

PEARSON et al. v. BLACK et al.

No. 1838.

Court of Civil Appeals of Texas. Eastland.

September 30, 1938.

Rehearing Denied November 4, 1938.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Stephens County; B. H. Atchison, Judge.

Suit by William Black and others against L. R. Pearson and Pete Jensen and others to remove a cloud from title, to recover title and possession of a drilling rig and other personal property, and to recover the property of casing drawn by the named defendants from a well on the realty in question and appropriated to their use, wherein the named defendant filed a cross-action. Judgment for plaintiff, and the named defendants appeal.

Judgment affirmed in part, reversed and rendered in part, and reversed and remanded in part.

Lyndsay D. Hawkins, of Breckenridge, and Earl Conner, Sr., of Eastland, for appellants.

Ben J. Dean and Floyd Jones, both of Breckenridge, for appellees.

FUNDERBURK, Justice.

In this suit Wm. Black and others asserted against L. R. Pearson and others a number of alternative claims; but with reference to the judgment rendered, and the grounds upon which it is challenged by the appellants on the one hand, and sought to be sustained by the appellees on the other, the suit may be said to be one whereby plaintiffs sought to remove a cloud from their title to certain described land, being that covered by an assignment of an oil and gas lease; to recover title and possession of a drilling rig and all personal property upon said land; and to recover of defendants, L. R. Pearson and Pete Jensen, the value of certain 5-3/16 inch casing drawn by them from a well on said land and appropriated to their use.

In plaintiffs' pleadings it was alleged, in effect, that plaintiffs owned the land in fee simple, except an undescribed part of the minerals therein, and that on August 18, 1911 an oil and gas lease was executed by plaintiffs, or their predecessors in title, to the Texas Company, a copy of which, referred to in the pleadings, was set out as an exhibit. A provision of said lease was alleged to be that it was binding upon the representatives and assigns of the parties thereto. It was alleged that said lease was on January 6, 1920 assigned by the Texas Company to J. W. Link insofar as it covered a certain survey, and by the latter re-assigned to Link Oil Corporation. It was alleged that in 1920 Link Oil Corporation drilled a well on said portion of the lease; placed therein a large number of joints of casing, built a rig and discovered gas, which the well continued to produce until about January 1, 1932, since which time the open well has stood idle on plaintiffs' land with none of defendants in charge of the same and "has been abandoned by the defendant Link Oil Corporation"; that about September 1, 1934, the tubing in said well was pulled by the Texas Pacific Coal & Oil Company to whom it belonged; that from January 1, 1932 to the filing of plaintiffs' amended pleading (June 12, 1937) "no attempt was made by the defendant Link Oil Corporation, or anyone else, to produce oil or gas from said well, or to do anything calculated or intended to produce oil or gas therefrom, and that said lease as to said land, said well and all personal property therein, was abandoned." It was further alleged that about June 1, 1935, the rig was blown down; no attempt was made to re-erect or repair it, or to place any pumping machinery or anything else in the well, or to do anything calculated to produce oil or gas, or protect the oil or gas structure in or under said land.

From said alleged facts the conclusion was further averred that "the said defendant Link Oil Corporation abandoned said property and that under the law the same became the property of the land owners, the plaintiffs herein, upon the abandonment." Relative to abandonment, it was further alleged, alternatively to allegations of forfeiture and by way of repetition, in part, that "the Link Oil Corporation, on or about January 1, 1932, abandoned said lease and abandoned said personal property and went away and left it * * * and did not exercise any act of ownership or control over said property or pay the taxes thereon, or do anything to evince an assertion of any right or interest therein until shortly prior to the bringing of this suit when * * * Link Oil Corporation attempted to quit claim their interest in and to said personal property located on said lease to the defendant L. R. Pearson." Purportedly as an alternative to the claim that the lease was abandoned it was alleged that said "Link Oil Corporation did abandon the personal property located on said lease as more fully set forth hereinabove * * * and that in all events said personal property including the casing in the hole and the rig timbers blown down about the hole is and was the property of these plaintiffs at the time said defendant Pearson attempted to remove the same and did move a part thereof on or about the 28th day of March, A. D. 1937."

Then follow allegations to the effect that said Pearson and Jensen entered upon the land, removed and carried away 3072 feet of casing for the alleged value of which judgment was prayed.

The defendant Link Oil Corporation entered a disclaimer. The defendants L. R.

Pearson and Pete Jensen, in addition to defensive pleas, filed a cross-action claiming damages for the wrongful suing out of a writ of injunction, restraining them from pulling and removing the remainder of the casing in the well.

The jury, by their verdict, found that the lease and the personal property had been abandoned prior to January 13, 1937; that 3064 feet of 5-3/16 inch casing had been removed from the well which was of the value of 40 cents per foot. The issue of damages tendered by appellants' cross-action was submitted conditionally and in accordance with the conditions of submission was not answered. The court accordingly gave judgment for the plaintiffs for the land and personal property, removing the cloud from the title thereto cast by the abandoned lease, and for $1225.60, the value of the casing removed. The defendants Pearson and Jensen have appealed.

The deed or lease (so-called) conveying the minerals contained a provision that "for every well drilled there shall in all events be secure from forfeiture an area of 200 feet square with the well in the center, together with 160 acres of land adjoining." We are of opinion that this provision is immaterial to any question presented by the appeal. In their brief, appellees say that "This was not a suit for forfeiture, but was abandonment on the part of the Link Oil Corporation. * * * If the Link Oil Corporation did abandon this property the appellees are entitled to this property, but if the Link Oil Corporation did not abandon this property, then the appellees are certainly not entitled to recover."

It is our view that if the title of the grantee to "all of the oil, gas, coal and other minerals in and under" said land, which the deed or lease purported to grant, was subject to loss or extinguishment by abandonment (as contradistinguished from forfeiture or termination of the estate by a limitation expressed in the conveyance), and same was in fact abandoned; the above quoted clause of the lease would constitute...