Smith v. Stewart

• Decision Date: 02 January 1934
• Docket Number: No. 8069.,8069.
• Citation: 68 S.W.2d 627
• Parties: SMITH et al. v. STEWART.
• Court: Texas Court of Appeals

Page 627

68 S.W.2d 627

SMITH et al. v. STEWART.

No. 8069.

Court of Civil Appeals of Texas. Austin.

January 2, 1934.

Rehearing Denied February 7, 1934.

Appeal from District Court, Travis County; W. F. Robertson, Judge.

Suit by Maurice Stewart against Lon A. Smith and others, in which the Sun Oil Company intervened. From a judgment granting a permanent injunction, defendants and intervener appeal.

Reversed and rendered.

T. L. Foster and J. W. Timmins, both of Dallas, and Ben H. Powell, J. A. Rauhut, and Phillip Tocker, all of Austin, for appellants.

Claude Pollard and J. J. Biffle, both of Austin, for appellee.

BAUGH, Justice.

This case arose as follows: Appellee, Stewart, owned an oil and gas lease on 1.192 acres of land in Gregg county. He applied to the Railroad Commission for a permit to drill a well thereon. This permit was refused, and he filed a suit in the district court of Travis county to enjoin the commission from interfering with the drilling of such well on the ground that the refusal of such permit was unjust, unreasonable, and arbitrary, and that he was entitled to same under exceptions to rule 37 of the commission, to protect vested rights and to prevent drainage. In this suit the Sun Oil Company, owner of a lease on the adjacent lands, intervened. A permanent injunction was granted as prayed for, from which judgment this appeal is prosecuted.

We think this case is clearly controlled by our decision in Sun Oil Co. v. Railroad Commission, 68 S.W.(2d) 609, rendered December 22, 1933, and in Humble Oil & Ref. Co. v. Railroad Commission, 68 S.W.(2d) 625, this day decided, and deem it unnecessary to discuss at length the contentions made by appellants. The salient facts involved in this case pertinent to our inquiry here are substantially as follows:

The entire strip of land here involved is approximately 1,234 feet long, running north and south, is 104 feet wide at its north end and 37 feet wide at its south end, and contains approximately 1.8 acres. In 1905 Edmon Smith and wife acquired title by deed to 53 1/3 acres adjoining this strip on the east. Soon thereafter they inclosed both tracts under the same fence, claimed and used same, and acquired title to said strip by limitation. On April 19, 1929, they leased the 53 1/3 acres to N. M. Wilson, who assigned that lease on April 20, 1929, to the Sun Oil Company. A limitation title to said strip, subject to outstanding mineral rights and leases, was awarded to Edmon Smith by decree of the district court of Gregg county on June 5, 1933. Prior to said decree, however, and subsequent to the date of the Sun Oil Company lease on the 53 1/3-acre tract, Edmon Smith and wife had leased for oil said strip to others and had conveyed also a part of the minerals thereunder. These interests were, through transactions not necessary to enumerate here, acquired by C. S. Hart and appellee, Maurice Stewart, prior to May 25, 1933, on which date Hart filed a friendly suit for partition of the leasehold estate only in this 1.8-acre strip. A partition decree was entered in that case as to the leasehold estate only on August 19, 1933, setting apart to appellee, Stewart, the north two-thirds of said strip, his area amounting to approximately 1.2 acres, and to Hart the south one-third thereof, being six-tenths of an acre. The application for a permit upon which this suit arose was for a well on this north two-thirds of said strip, and was dated August 17, 1933, two days prior to the partition decree, and...