Woodson Oil Co. v. Pruett

• Decision Date: 01 June 1955
• Docket Number: No. 12843,12843
• Citation: 281 S.W.2d 159
• Court: Texas Court of Appeals
• Parties: WOODSON OIL COMPANY et al., Appellants, v. J. P. PRUETT et al., Appellees.

Page 159

281 S.W.2d 159

WOODSON OIL COMPANY et al., Appellants, v. J. P. PRUETT et al., Appellees.

No. 12843.

Court of Civil Appeals of Texas, San Antonio.

June 1, 1955.

Rehearing Denied July 13, 1955.

Keys, Russell, Keys & Watson, Corpus Christi, William E. Nicholas, Sinton, for appellants.

W. B. Moss, Sinton, Reese Wade, Beeville, for appellees.

W. O. MURRAY, Chief Justice.

This suit was instituted by J. P. Pruett and wife Nellie Pruett, J. W. Crouch and wife, Mary Crouch, Crouch Dairies, Inc., and Weldon Winsauer, against Woodson Oil Company, a corporation, Fred M. Manning, and some eleven other defendants, seeking, in the first count of their petition, to recover the title and possession of 575.86 acres of land lying and being situated in San Patricio County, Texas, and, in the second count, cancellation of an oil and gas lease upon the same 575.86 acres. The cause was submitted to a jury and judgment rendered in keeping with the findings of the jury, in effect, cancelling the oil and gas lease and awarding the title and possession of the land to plaintiffs, from which judgment Woodson Oil Company, Fred M. Manning, Martin Wunderlich, William G. Pollard and Point Corporation have prosecuted this appeal.

Appellants' first contention is that the court erred in overruling their plea in abatement based upon a misjoinder of parties plaintiff. We overrule this contention. It is true that the 575.86 acres were alleged to have been owned severally and not jointly by the appellees, but Rule 40(a), T.R.C.P., permits just such a joinder of parties plaintiff. There was an oil and gas lease covering the several tracts composing the 575.86 acres of land, and the several owners of these tracts were jointly seeking to cancel this oil and gas lease. Barbee v. Buckner, Tex.Civ.App., 265 S.W.2d 869, ref. n. r. e.; Doyle v. Stanolind Oil & Gas Co., 5 Cir., 123 F.2d 900.

Appellants next contend that the trial court erred in overruling their motion for judgment non obstante veredicto because appellees failed to rpove the location of the land upon the ground, or that it was located in San Patricio County, Texas. We are well aware of the rule that in a trespass to try title suit, where the location of the land on the ground is an issue and not admitted, it must be established by evidence by the plaintiff. 41-A Tex.Jur. 6529, Trespass to Try Title, § 132; Withers v. Republic Nat. Bank of Dallas, Tex.Civ.App., 248 S.W.2d 271; Tasher v. Foster Lumber Co., Tex.Civ.App., 205 S.W.2d 665. However, there seemed to be no issues here as to the location of the land. Appellees were claiming the right to the title and possession of the land, free from the oil and gas lease, while appellants were claiming a valid oil and gas lease on the land. The real controversy was whether appellees were entitled to have the lease cancelled. Various instruments were introduced in evidence by both appellees and appellants describing the land by metes and bounds, which could be located on the ground. Neither side indicated there was anything wrong with this description. Appellants had drilled two wells upon the land, and the location of one of the wells was shown upon Plaintiffs' Exhibit No. 9. This exhibit also shows a plat of the land, including an adjoining tract, and certain county roads. Appellants seem to contend that this exhibit was admitted only for limited purposes, but the record does not so show. Defendants' Exhibit No. 14 is a copy of the oil and gas lease introduced in evidence by appellants. It sets out a full and complete description of the 575.86 acres of land here involved. In some of the instruments the land is described as being about three miles north of the town of Mathis in San Patricio County, Texas; survey numbers and land script numbers are given. The witness Sao Villarreal, who re-worked one of the wells on the land for appellants, testified that the well was located on the J. P. Pruett land north of Mathis. This well was known as the Ross-Singleton No. 1. The evidence is sufficient to locate the land on the ground and as being in San Patricio County. The entire record shows that there was no issue between the parties as to the location of the land, and that its location was seemingly well known to all parties.

Appellants next contend that the trial court erred in permitting appellees to read in evidence their 'Exhibit 2.' This exhibit was a warranty deed from James H. Ross and wife, Anna B. Ross, and Wiley W. Singleton and wife, Lenora E. Singleton, to J. W. Crouch and wife, Mary E. Crouch, of a part of the land here involved, dated November 10, 1948, and recorded in Vol. 147, pp. 410, Deed Records of San Patricio County, Texas.

Appellees agve due notice of their intention, under the provisions of Art. 3726, Vernon's Ann.Civ.Stats, of introducing this instrument in evidence by reading it from the record. This notice gave the nature of the instrument, the names of the parties, its date, the volume in which it was recorded, but got the digits transposed in giving the page. The notice stated, page 140, while the correct number of the page was 410. In view of the fact that one of the purposes of Art. 3726, supra, is to give the opposing party notice of the instrument to be offered in evidence, so as to enable such opposing party to file affidavits of forgery, if he sees fit to do so, we are of the opinion that the notice given was sufficient to comply with the intention and purpose of Art. 3726, supra. In any event, no objection was offered to the instrument when it was read in evidence. Appellants offered an explanation of their failure to object at the proper time. The trial judge heard this explanation and refused to strike the instrument. This was a matter addressed to the trial court's discretion. Newberry v. Campbell, Tex.Civ.App., 142 S.W.2d 318.

Appellants further contend that before an instrument can be read in evidence from the County Clerk's records, it must be shown that the land lies in the county where the trial is taking place and in the same county where the instrument offered is recorded. This is undoubtedly true, but, as above stated, the evidence is sufficient to show that the land here involved was located in San Patricio County.

With reference to appellees' second court in their petition the jury found, in effect, that the Ross-Singleton well ceased to produce gas in any quantity on December 14, 1952, and that such cessation of production continued for sixty consecutive days from November 20, 1952. Appellants contend that there is no evidence, or the evidence is insufficient, to support these findings.

The oil and gas lease here involved was executed on November 14, 1947, and provided for a primary term of five years. It covered the four tracts described in appellees' petition. The lease was executed by J. H. Ross and wife, and W. W. Singleton and wife, when they owned the land. Two wells had been drilled upon the land, one, which was never completed as a producing well, was located upon that part of the land which now belongs to Weldon Winsauer, and the other, known as the Ross-Singleton No. 1, was located upon that part of the land which now belongs to J. P. Pruett and wife. This well was completed as a gas well and was in production for a time. When this suit was filed the primary term had expired and the continuance of the lease depended upon production from this well, as there were no other producing wells on the lease. In this connection, the lease contained the following provisions:

'Subject to the other provisions herein contained, this lease shall be for a term of five (5) years from this date (called 'primary term') and as long thereafter as oil, gas or other mineral is produced from said land hereunder, or drilling or re-working operations are conducted thereon.'

'If at the expiration of the primary term, Lessee is conducting operations for drilling a new well or re-working an old well, or if after the expiration of the primary term, production on this lease shall cease, this lease nevertheless shall continue as long as said operations continue or additional operations are had, which additional operations shall be deemed to be had where not more than Sixty (60) days elapse between abandonment of operations on one well and commencement of operations on another well, and if production is discovered this lease shall continue as long as additional operations are had.'

It is undisputed that there were no re-working operations, or additional drilling operations, had on the lease between November 20, 1952, and May 1, 1953. The jury found that production from the Ross-Singleton Well ceased on December 14, 1952, and that such cessation of production continued for sixty consecutive days thereafter. Based upon these findings the trial court rendered judgment in effect cancelling the lease, and if these findings of the jury are supported by sufficient evidence the judgment should be affirmed.

In attempting to prove that production had ceased for more than sixty days from Ross-Singleton Well, No. 1, appellees put on a number of lay witnesses who testified that prior to November 21, 1952, they had viewed the well and determined that it was producing gas by finding water in the slush pit, sweat on the pipe leading from the well, a roaring sound in the pipe and the gauge showing...