Waddell v. Empire Drilling Co.

• Decision Date: 18 May 1962
• Docket Number: No. 3688,3688
• Citation: 358 S.W.2d 221
• Parties: Doyce Ray WADDELL et al., Appellants, v. EMPIRE DRILLING COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 221

358 S.W.2d 221

Doyce Ray WADDELL et al., Appellants, v. EMPIRE DRILLING COMPANY et al., Appellees.

No. 3688.

Court of Civil Appeals of Texas, Eastland.

May 18, 1962.

Rehearing Denied June 15, 1962.

Garland Casebier, Frank Ashby, Midland, for appellants.

Pat Beene, County Atty., Bonham, Perkins, Bezoni, Kirwan & McWhorter, Midland, for appellees.

COLLINGS, Justice.

Doyce Ray Waddell and Jimmy Carroll Waddell brought suit against Empire Drilling Company and Milhoan Drilling Company to recover the value of water alleged to have been taken by defendants from ponds on plaintiffs' land. The defendant drilling companies impleaded Frank Miller and Don Cox, tenants under a grazing lease from plaintiffs, as third party defendants. Defendants alleged that said third party defendants had represented they were the owners of the land from which the water was taken and had the right to sell said water; that defendants agreed to and did purchase from Cox and Miller water from said land for the purpose of drilling certain oil wells. Milhoan Drilling Company alleged that after it had purchased from said third party defendants water needed to drill one oil well, it needed additional water to drill another well; that it learned that Miller and Cox were tenants of plaintiffs and that plaintiffs were claiming that their tenants had no right to sell water from ponds on said land; that defendant Milhoan Drilling Company, thereupon, entered into a written agreement with Frank Miller that it would purchase from him water from said land to drill another specified oil well and would pay therefor the sum of $2,000.00, but if it should be determined that Miller did not have the right to sell such water, then he would refund the money received by him or pay it to the party or parties who were the rightful owners of the water and did have the right to sell same. The defendant drilling companies asserted that if there was any liability on their part to plaintiffs for taking such water then Miller and Cox should be held liable for the damages and required to pay same. Miller and Cox answered by general denial.

The trial was before a jury and based upon its answers to special issues finding the value of the water used in drilling the oil wells, judgment was entered for plaintiffs Doyce Ray Waddell and Jimmy Carroll Waddell against the defendant Empire Drilling Company for the sum of $946.00 and against Milhoan Drilling Company for the sum of $1,892.00. It was also decreed that the defendant drilling companies take nothing against the third party defendants Miller and Cox. This portion of the judgment was apparently based partly upon findings of the jury which were taken to mean that the amounts paid to Miller and Cox by the drilling companies were for damages to their grass lease. Plaintiffs, Doyce Ray Waddell and James Carroll Waddell and defendants, Empire Drilling Company and Milhoan Drilling Company have appealed.

Appellants Doyce Ray Waddell and Jimmy Carroll Waddell present points in which it is urged that the court erred in overruling their motion for an instructed verdict, erred in overruling their motion for judgment non obstante veredicto, and erred in refusing to render judgment in their favor against Empire Drilling Company for $2,000.00 and against Milhoan Drilling Company for $4,000.00. These points are overruled.

The Waddells first contend that the prior judgment and opinion in Cause No. 3516 on the docket of this court, 356 S.W.2d 500, styled Waddell et al., relators v. Williams et al, respondents, involves the same matters here under consideration and is 'the law of the case' and that the Waddells are, therefore, entitled to judgment against the drilling companies in the said sums of $2,000.00 and $4,000.00. We cannot agree with this contention. There is a material difference in the issues involved in this record and those involved in Cause No. 3516. In both cases it is undisputed that the Waddells are owners of the land involved which was mostly grazing land but included some cultivated land; that the Waddells executed a lease to Miller and Cox which provided that the grazing land should be used 'for grazing purposes only'; that the term of the lease was for two years beginning January 1, 1957, and that the lessees had previously held a five year lease on the land. It is also undisputed that both drilling companies took water from the leased land for the purpose of drilling oil wells and that the Empire Drilling Company, which drilled one oil well, paid Miller and Cox $2,000.00 and Milhoan Drilling Company, which drilled two oil, wells, paid them $4,000.00. The Waddells' suit against the drilling companies was to recover the value of the water so taken from the land. The drilling companies make no contention that the Waddells were not entitled to recover from them the value of the water taken. In Cause No. 3516 the only issue was whether the court should enter a judgment, and there was no dispute as to the...