Wisconsin-Texas Oil Co. v. Clutter

• Decision Date: 09 January 1924
• Docket Number: (No. 7055.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 258 S.W. 265
• Parties: WISCONSIN-TEXAS OIL CO. et al. v. CLUTTER.
• Court: Texas Court of Appeals

258 S.W. 265

WISCONSIN-TEXAS OIL CO. et al. v. CLUTTER.

(No. 7055.)^*

Court of Civil Appeals of Texas. San Antonio.

January 9, 1924.

Rehearing Denied February 6, 1924.

Error from District Court, Bexar County; Robert W. B. Terrell, Judge.

Action by Joe Clutter against the Wisconsin-Texas Oil Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Mason Williams, Kennon & Kennon, and King & Roark, all of San Antonio, and Willet M. Spooner and Leo Mann, both of Milwaukee, Wis., for plaintiffs in error.

Terrell, Davis, Huff & McMillan, of San Antonio, for defendant in error.

COBBS, J.

The main issue tried in this case was abandonment. The facts are practically the same as those introduced on a former trial of this case, reported in (Tex. Civ. App.) 233 S. W. 323, and now may be looked to, both for a statement of the issues and of the facts, for in the main they are the same as here.

Very just complaint is made at the manner in which the plaintiffs in error have briefed this case. The complaint is:

"Counsel for plaintiffs in error submit their case upon 23 different propositions of law, presumably based upon 29 different assignments of error, without, however, in any manner, indicating the assignment or assignments to which any proposition may be germane or pertinent."

And defendant in error, in support of such motion, cites rule No. 30, of the Court of Civil Appeals, and Equipment Co. v. Luse (Tex. Civ. App.) 250 S. W. 1106.

While it may be admitted that the rule for good briefing has not been followed, and for that reason greater labor has been imposed upon this court, we have concluded to retain this case to be disposed of on its merits, as there is really but one question that need be considered after all, which involves only facts.

After hearing the evidence the court submitted only one issue, and that, together with the answer of the jury, is as follows:

"Question No. 1. Did George B. Mechem, or his assigns the Wisconsin-Texas Oil Company and the Wisconsin-Texas Gas Company, prior to January 14, 1920, abandon the oil and gas lease in controversy? Answer `Yes' or `No.'

"You are instructed in connection with Question No. 1 that abandonment is a question of intention, and the duty rests upon you in answering this question to ascertain what the intention of the defendants was in this case up to the time of the filing of this suit, to wit: January 14, 1920. The intention to abandon may be shown by all the facts and circumstances in the case. The intention not to abandon may likewise be determined by all the facts and circumstances in the case. The burden of proof is upon the plaintiff to establish the affirmative of question No. 1, by a preponderance of all the evidence."

"To question No. 1 we answer: Yes."

Upon this finding the trial court entered judgment in favor of the defendant in error.

This cause was reversed by this court (233 S. W. 323) and remanded for a new trial, because we did not believe under the facts the trial court was justified in taking the case from the jury to instruct a verdict. The facts have been greatly and materially strengthened, and they conclusively support the findings of the jury, and they are too lengthy and voluminous to set out in detail.

The lease in controversy provided for a mineral lease and was to run for five years, "or as long thereafter as oil, gas or other mineral is produced from said leased premises." It contained no specific clause of forfeiture. So the real consideration for the lease was the development of the property.

It cannot be successfully maintained in such cases, where there were no forfeiture rights, that the lessor is without some remedy, either in equity for specific performance of the contract and damages, or at his election, in the alternative, upon sufficient grounds to have a cancellation of the contract in its entirety upon the ground of abandonment.

Abandonment is dependent upon the acts of the party; it is a question of intention to be ascertained and determined by the jury as to what that intention was up to the time of filing the suit. We think the charge of the court submitted a correct definition of abandonment to the jury.

That intention to abandon the lease, or what is equivalent thereto, may be established just as any other fact may be, by positive testimony or by circumstantial evidence, such as the removal of machinery, quitting the premises, ceasing to work, and any other circumstance of value tending to show an intention to ultimately relinquish all rights and interest in the leased premises. The question being one of fact, much latitude is given to the jury, and they were entitled to weigh carefully every circumstance the court allowed to go to them, in reaching their verdict.

Upon the verdict of the jury there was no error in the judgment entered by the trial court fully canceling the lease and restoring the lessor to the full possession of the leased premises, even though plaintiff in error had pleaded for a specific performance of the terms of the contract. Having abandoned the contract, plaintiff in error was in pari delicto and without remedy. It could not abandon a contract and at the same time perform it, for the rights which it held were terminated and surrendered, and the lessor became reinvested in the title and entitled to the possession of and the full enjoyment of the estate. Texas Co. v. Davis (Tex. Sup.) 254 S. W. 307.

The estate that a lessee acquires to secure production of minerals is not in fee nor absolute, because it may be lost, and is determinable by abandonment, on the part of the lessee, of mineral development.

When plaintiff in error abandoned this contract, as found by the jury, defendant in error was entitled to a judgment canceling the entire lease upon the entire tract, and it was not necessary to specially plead his right to cancel the lease upon that part of the land where the two completed wells were situated, even though the two wells were completed prior to the abandonment.

When a lease contract provides for specific development for, say, a well for every ten acres, such provision cannot be construed as providing a basis for the division of the estate, for abandonment may...