Terry v. Texas Co.

• Decision Date: 04 December 1920
• Docket Number: (No. 9406.)
• Parties: TERRY et al. v. TEXAS CO.
• Court: Texas Court of Appeals

228 S.W. 1019

TERRY et al. v. TEXAS CO.

(No. 9406.)

Court of Civil Appeals of Texas. Fort Worth.

December 4, 1920.

Rehearing Denied January 22, 1921.

Appeal from District Court, Eastland County; Joe Burkett, Judge.

Action by B. F. Terry and others against the Texas Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Sayles & Sayles, of Abilene, for appellants.

A. B. Flanary, of Dallas, and T. J. Lawhon, of Houston, for appellee.

BUCK, J.

This is an appeal from a judgment of the district court of Eastland county for the defendant, the Texas Company, denying plaintiffs, B. F. Terry, J. M. Radford, and Mac. Sayles, a cancellation of two certain oil and gas leases on land in Eastland county. The lease contained the following provision:

"This is not to have any validity or effect, unless lessee or his assigns commence to drill a test well for oil within eight (8) months from this date within a radius of two (2) miles of Rising Star, Texas."

The lease was dated March 6, 1918. It was alleged in plaintiffs' petition that defendant had failed to commence to drill a test well for oil within the prescribed limits prior to eight months after the date of the leases, and that therefore they were entitled to a cancellation of the leases.

The plaintiff Terry testified: That the test well was on the H. O. Hagan tract, and that the timbers for the erection of the derrick were put on the ground some time in October, 1918, and that he thought it was the first part of October. That the defendant thereafter put the machinery, including the boiler, on the ground. There is no evidence tending to show that the defendant failed to prosecute the work of preparing to drill and of drilling with due diligence after it began. The log of the well shows that the defendant commenced rigging up for the well November 5th, and commenced drilling November 14, 1918.

In Thornton's Law Relating to Oil and Gas, p. 165, § 115, a quotation from the case of Fleming Oil & Gas Co. v. South Penn. Oil Co., 37 W. Va. 645, 17 S. E. 203, is given with approval, which reads as follows:

"Can it be said that, in order to commence operations for a test well, the drill must actually begin to penetrate the rock? I do not so understand the meaning of the expression construed in connection with the facts presented by the record. In many places, in order to sink a well, it is necessary that some sort of wooden or metallic casing be provided for the purpose of excluding the soil and clay which must be passed through before the rock is reached; and it would hardly be contended that the purchase and provision of the necessary material for such casing or cribbing was not an important step towards putting down the well. Webster defines the word `operation' as `an effect brought about in accordance with a definite plan'; and, in giving the interpretation ordinarily ascribed to the words `to commence operations' — that is, applying to the words their common acceptation — I would understand the expression to mean the performance of some act which has a tendency to produce an intended result. For instance, if a man had determined to erect a brick house, and, in pursuance of that design, had quarried the rock on his own land to be used in the cellar walls and foundation, and had burned a kiln of brick on the same premises, for the purpose of constructing the walls and chimneys, it surely could not be said that he had not `commenced operations' for the...