Renwar Oil Corp. v. Lancaster
| Decision Date | 09 March 1955 |
| Docket Number | No. A-4861,A-4861 |
| Citation | 154 Tex. 311,276 S.W.2d 774 |
| Parties | RENWAR OIL CORPORATION, Petitioner, v. E. L. LANCASTER et al., Respondents. |
| Court | Texas Supreme Court |
J. M. Easterling and B. D. Tarlton, Corpus Christi, George Gilbert, Shreveport, La., Shank, Dedman & Payne, Ralph B. Shank, Dallas, for petitioner.
William M. Bates, Dallas, for respondents.
The only question presented in this appeal from a trial court's order sustaining a plea of privilege is whether this is a suit for the recovery of land within the meaning of subdivision 14 of Art. 1995, V.A.C.S. We hold that it is. The parties will be identified as in the trial court where E. L. Lancaster and Mrs. Vesta P. Gamble, independent executrix of the estate of G. A. Gamble, were plaintiffs and Renwar Oil Corporation was defendant.
To determine the true nature of this suit, we must look first to plaintiffs' pleading and the relief they seek. The two plaintiffs allege that together they owned one eighth of the minerals under the north half of the Davis Survey in Nueces County; that the Davis Survey 'was on dry land on Mustang Island above the high water mark when surveyed and plaintiffs submit that they are entitled to a finding to that effect'; that they executed an oil and gas lease now belonging to defendant by which they are entitled to a royalty of one sixty fourth of the oil and gas produced from the north half of the Davis Survey; that defendant has drilled three producing wells on the north half of the Davis Survey but has refused to pay plaintiffs a full one sixty fourth of the oil run from the three wells on the north half of the Davis Survey; that paragraph 5 of said oil and gas lease, containing a pooling clause, is void and unenforceable under the Statute of Frauds and for other reasons; that nevertheless defendants have under paragraph 5 attempted to unitize the Davis Survey tract with other adjacent tracts owned by the School Land Board which unitization is void and ineffective as to plaintiffs; that several of the unitization agreements attempt to unitize particular strata known as Zone No. 5 and Zone No. 10 which method of unitization is not covered in paragraph 5 of the lease; that defendants have secured working agreements in oil and gas leases on State land alleged to be in conflict with the Davis land and by reason of this seek to diminish plaintiffs' royalties; that the two tracts are not in fact in conflict; that the State leases and unitization agreements did not comply with Art. 6008b, Section 1, Subdivision 1, or with Art. 5359 or with Art. 6014, and are void for these and other reasons; and that plaintiffs have no objection to defendant's paying to the State a one-eighth royalty to be paid out of the working interest without diminution of the royalty due plaintiffs, but do object to paying the State a royalty in diminution of their royalty as defendant has attempted to do in a proposed division order not signed by plaintiffs. On this point plaintiffs' specific allegation is as follows:
'It is apparent from an inspection of this division order that it is proposed to pay Bascom Giles, Commissioner of the General Land Office, this 1/8th royalty as a royalty interest along with the lessors holding under the A. B. Davis Patent thereby diminishing the amount of royalty that should be paid to the plaintiffs instead of paying the same as an overriding royalty out of the 7/8ths working interest according to the plain terms of the contract between Renwar Oil Corporation, Arkansas Fuel Oil Company and the state officials.'
Plaintiffs' prayer includes the following:
'First: Judgment that they are entitled to receive from the defendant as royalty 1/64th of the value of the oil, gas and gas distillate produced and marketed by defendant from any wells already drilled or that may hereafter be drilled on the North 320 acres of the A. B. Davis Survey without diminution or reduction on account of the 1/8th royalty promised to the State under the lease to Arkansas Fuel Oil Company or on account of the several unitization agreements made by defendant with the State School Land Board.
'Fifth: For such other further and different relief as the plaintiffs may be entitled to receive at law or in equity.'
In their brief plaintiffs contend that this suit is '* * * for a declaratory judgment based...
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