Witherspoon v. Staley

• Decision Date: 01 July 1911
• Citation: 138 S.W. 1191
• Parties: WITHERSPOON v. STALEY et al.
• Court: Texas Court of Appeals

138 S.W. 1191

WITHERSPOON v. STALEY et al.

Court of Civil Appeals of Texas. Dallas.

July 1, 1911.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Action by C. L. Witherspoon against W. H. Staley and others. From an order dissolving a temporary injunction, plaintiff appeals. Affirmed.

W. J. McKie, for appellant. R. S. Neblett and Richard Mays, for appellees.

RAINEY, C. J.

This is an injunction suit brought by appellant to restrain appellee from entering upon a certain tract of land and developing or searching for oil or gas thereon, as per a contract entered into between appellee and one Dr. Frank Hines, on the 30th day of September, 1910. A temporary injunction was granted by the district judge and which was afterwards dissolved, and from the dissolution this appeal was taken. The controversy arises over the validity and existence of a written contract entered into between Dr. Hines and appellee, as follows:

"The State of Texas, County of Navarro— Know all men by these presents: That I, Frank Hines, of Corsicana, Navarro County, Texas, the party of the first part, in consideration of the sum of $25.00 paid by W. H. Staley, party of the second part, the receipt of which is hereby acknowledged, and the further consideration hereinafter mentioned, have granted, bargained, sold and conveyed, and by these presents grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns, all of the oil, gas and coal and other minerals in and under the following described land, together with the right of ingress and egress, at all times, for the purpose of drilling, mining and operating for minerals and to conduct all operations and to lay all pipe necessary for the production, mining and transportation of oil, gas, water, coal or other minerals with the right to use sufficient water, gas, or oil to operate said property and shall have the right to remove all machinery, fixtures and improvements placed thereon at any time, reserving, however, to the party of the first part the equal one-eighth (1/8) of all oil produced and saved upon said premises, to be delivered in the pipe line to the credit of the party of the first part free of charge. If coal is found the party of the second part agrees to pay the first party four cents per ton for every ton of the same that is mined and marketed, payable quarterly; if gas or other minerals are found, second party agrees to pay the first party one hundred ($100.00) dollars for the product each year, payable quarterly, for the product of each well, while the same is being used off the premises, and party of the first part by furnishing his own pipe and connections shall have sufficient gas free of cost for use in one dwelling house on the premises so long as the gas is utilized off the premises, but at his own risk.

"Whenever first party shall request it, second party shall bury all oil and gas lines and pay all damage to growing crops by reason of burying and removing the same. No well shall be drilled within 300 feet from any building now on said premises without the consent of the first party; said land being of the following description, to wit, 245 acres more or less, out of the Jno. McNeal survey, and being the same land conveyed to me by A. W. Merrill, which said deed is recorded in Book 110, page 590, of the Deed Records of Navarro county, Texas, to which reference is here made for a more particular description of said land, containing 245 acres, more or less. To have and to hold the above-described premises for the term of five years from the date hereof, and as long thereafter as oil, gas or other minerals are found in paying quantities thereon. In case operations for either the drilling of a well for oil, gas, mining or other minerals is not commenced and prosecuted with due diligence within 60 days from this date, then this grant shall immediately become null and void as to both parties; provided that second party may prevent such forfeiture from year to year by paying to the first party the sum of $25.00 every 60 days until such well is commenced, or until shipments from such mines have begun, which payments can be made at the First National Bank of Corsicana, Texas, or payable direct to party of the first part, and it is agreed that the drilling of a well shall operate as a full liquidation of a rental under this provision during the remainder of the term of this lease. In case the parties of the second part should bore and discover either water, oil, or other minerals, then in that event, this grant, encumbrance or conveyance shall be in full force and effect for five years from the time of discovery of said product and as much longer as oil, water, gas or other minerals can be produced in paying quantities thereon. Whenever sales are being made of the product produced on the land above described, a settlement thereof shall be made at the end of each quarter. This grant is not...