Sun Oil Co. v. Whitaker, B--234
| Decision Date | 31 January 1968 |
| Docket Number | No. B--234,B--234 |
| Citation | 424 S.W.2d 216 |
| Parties | SUN OIL COMPANY, Petitioner, v. Earnest WHITAKER et al., Respondents. |
| Court | Texas Supreme Court |
Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Midland, Charles F. Heidrick and E. M. Cage, Dallas, for petitioner.
Allison, Mann & Allison, Earl R. Allison and Dwight R. Mann, Levelland, Nelson, McCleskey & Harriger, George W. McCleskey, and Don Graf, Lubbock, for respondents.
This is an appeal from a judgment of the trial court denying Sun Oil Company's prayer for a temporary injunction, which judgment was affirmed by the court of civil appeals. 412 S.W.2d 680. We affirm.
Earnest Whitaker is the owner of the surface estate and Sun Oil Company is the owner of a mineral leasehold estate in a 267-acre tract of land in Hockley County. Sun acquired its lease on the property on April 5, 1946, from L.D. Gann and his wife, then the owners of the fee title subject to an outstanding non-participating one-sixteenth free royalty in the west one-half of the tract. The land was conveyed by Gann and his wife to Whitaker on January 2, 1948. The conveyance to Whitaker was subject to Sun's lease, and the deed expressly excepted and reserved all minerals that might be produced from the land to the Ganns, their heirs and assigns.
Sun's lease has been kept alive beyond the primary term of five years by production from eight oil wells which are producing from the San Andres formation. When production from its oil wells decreased because of diminishing pressure in the San Andres formation, Sun sought and obtained permission from the Railroad Commission to take fresh water from the Ogallala formation and inject it into the San Andres in furtherance of a pressure maintenance program. Whitaker and his son-in-law, Doyle Henderson, are using water from the Ogallala formation for cultivating the land as an irrigated farm.
Sun instituted this action to enjoin Whitaker and Henderson from interfering with entry upon the land of its employees and contractors for the purpose of drilling its water wells into the Ogallala formation and using water from that source in its water injection pressure maintenance program. The defendants filed an answer to Sun's petition, and Whitaker filed a counterclaim in which he seeks an injunction to prevent Sun and its employees and contractors from using any of the fresh subterranean water underlying the land for reinjection, secondary recovery and repressuring purposes. The principal defense pleaded to Sun's action and the principal ground pleaded in the counterclaim as a basis for affirmative relief is that Sun's lease does not confer a legal right to use water as Sun proposes. An additional pleaded defense and ground for affirmative relief is that use by Sun of fresh water from the Ogallala formation for injection into the San Andres oil bearing formation would be 'waste' of water as defined in and prohibited by Article 7880--3c. 1
High Plains Underground Water Conservation District No. 1, in which the land is situated, filed a plea in intervention in the case and seeks (1) a declaratory judgment that use of the Ogallala water as contemplated by Sun would constitute 'waste' of water as that term is defined by Article 7880--3c A(6), and (2) an injunction to prevent Sun from violating Article 7880--3c and the rules and regulations of the water district. Sun filed a motion to strike the plea in intervention, a plea of privilege to the suit thereby instituted against it, and a motion to sever the water district's cause of action from Sun's cause of action against the original defendants and to docket the water district's cause of action as a separate suit. The trial court overruled the motion to strike. There is no showing in the clerk's transcript that action has been taken on the plea of privilege or the motion to sever.
A hearing was held on Sun's prayer for a temporary injunction. All parties joined in a written agreement that in the temporary injunction proceeding no issue was to be joined and no arguments were to be made in the trial or appellate courts by any party 'concerning or relative to 'waste' or 'escape' of underground water from one underground water reservoir to any other reservoir as mentioned, provided or defined in Article 7880--3c A(6)(c) or said Article 7880--3c D(4)(c),' or 'concerning or relative to the clause 'for any other purpose' as mentioned or provided in said Article 7880--3c D(3).' The parties thus sought to eliminate all issues raised by the water district's pleading and one of the defenses raised by Whitaker's answer from the case in this preliminary proceeding, and to narrow the issue to the rights conferred on Sun and Whitaker by their respective title documents. Only the latter issue was tried by the trial court, as is clearly indicated by the findings of fact and conclusions of law, and only that issue was considered and decided by the court of civil appeals.
Sun's lease grants and leases the 267-acre tract to Sun 'for the purposes of investigating, exploring, prospecting, drilling and mining for and producing oil, gas and all other minerals, laying pipe lines, building tanks, power stations, telephone lines and other structures and means thereon to produce, save, take care of, treat, store, transport and manufacture said minerals, and housing its employees * * *.' The lease also provides: 'Lessee shall have free use of oil, gas, coal, wood and Water from said land except water from Lessor's wells for all operations hereunder * * *.' 2 The judgments of the trial court and court of civil appeals are based primarily upon a conclusion by the trial court that the parties to the lease did not intend that Sun should have free use of water from the Ogallala source for a water flooding pressure maintenance program when such use...
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