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NO. 07-05-0327-CV
PETRO PRO, LTD., L&R ENERGY = CORPORATION,=20 NANCY WILSON BRISCOE, JUDITH BROCK SEITZ, AND CAROLYN ROGERS,=20 APPELLANTS
Before CAMPBELL and HANCOCK and PIRTLE, JJ. OPINION This appeal concerns a dispute between assignors, assignees, =
and=20
intervening royalty owners regarding the construction of two oil =
and gas=20
wellbore assignments, wherein the assignments expressly limited =
the=20
assigned interest to "rights in the wellbore" of a given well. =
Presenting=20
similar issues, Appellants, Petro Pro, Ltd. and L&R Energy=20
Corporation, and Intervenors, Nancy Wilson Briscoe, Judith Brock =
Seitz,=20
and Carolyn Rogers, appeal the denial of their respective motions =
for=20
summary judgment and the grant of summary judgment in favor of =
appellees,=20
Upland Resources, Inc., KCS Resources, Inc., Great Lakes Energy =
Partners,=20
L.L.C., and Steve Zemkoski. By their issues, Appellants and =
Intervenors=20
contend the trial court misconstrued the nature and scope of the =
assigned=20
interest. Appellants also appeal the denial of their motion to =
have funds=20
tendered into the court's registry. We reverse and render judgment =
declaring the rights of the parties as to those issues before the =
trial=20
court. Background Facts Original Oil and Gas Leases The two assignments in question pertain to rights in the = wellbore of=20 the King "F" No. 2 gas well, located on a 704-acre pooled gas unit = in=20 Roberts County. The material facts surrounding the well are not = disputed.=20 In September 1992 and 1993, Upland Resources, Inc. (hereinafter=20 individually referred to as "Upland Resources") entered into five = oil,=20 gas, and mineral leases involving separate tracts of land in = Roberts=20 County. In 1993, Medallion Production Company ("Medallion") = acquired the=20 leasehold and spud the King "F" No. 2 well on one of the leased = tracts=20 consisting of 500 acres. The tract covered multiple gas-producing=20 formations, including the Brown Dolomite formation, located at = depths of=20 approximately 3,400 to 3,600 feet, and the Cleveland formation, = located=20 approximately 6,500 to 6,600 feet beneath the surface. The King = "F" No. 2=20 well was completed as a gas well in the Cleveland formation and = produced=20 gas in paying quantities. Several months after the well was = completed,=20 Medallion pooled the 500-acre tract with 204 acres from an = adjacent tract=20 to create an irregular shaped, 704-acre gas unit. The leasehold = interest=20 in the 704-acre unit was subsequently acquired by KCS Medallion = Resources=20 ("KCS") and MB Operating Co., Inc. ("MB"). Eventually, the = leasehold area=20 situated horizontally outside the 704-acre unit and vertically = below 6,800=20 feet was released.
In 1998, for reasons undisclosed in the record, KCS and MB = decided that=20 the King "F" No. 2 well was no longer economically viable. = Consequently,=20 in November of that year, KCS and MB sold their interests in the = well at=20 an auction of oil and gas properties. The winning bidder, L&R = Energy=20 ("L&R"), received the interests from KCS and MB via the two=20 assignments in controversy. The assignments were identical in that = they=20 both conveyed the following: All of Seller's right, title and interest in and to the oil and = gas=20 leases described in Exhibit "A" attached hereto and made a part = hereof=20 ("Subject Leases") insofar and only insofar as said leases = cover=20 rights in the wellbore of the King "F" No. 2 Well. (Emphasis added). Pursuant to the express terms of the = assignments,=20 L&R's leasehold interest became effective on December 1, = 1998.
Several years after the assignments, operators in the area = began=20 drilling and completing gas wells in the shallower Brown Dolomite=20 formation. In May 2003, pursuant to a farmout agreement with KCS, = Upland=20 Resources entered the pooled gas unit and completed a horizontal = gas well=20 in the Brown Dolomite formation. The well, dubbed the Skeeterbee = No. 1,=20 traversed within 600 feet of the King "F" No. 2 well. By June = 2004, Upland=20 Resources had completed two more gas wells within the 704-acre = pooled gas=20 unit, the horizontal Skeeterbee No. 2 and the vertical Skeeterbee = No. 3.=20 Both those wells were completed in the Brown Dolomite formation. = Meanwhile, in April 2004, L&R assigned its interest in the = King "F"=20 No. 2 well to Petro Pro Ltd. (hereinafter individually referred to = as=20 "Petro Pro"). Concerned with Upland Resource's drilling = activities, Petro=20 Pro sent a letter to Upland Resources and KCS requesting that both = parties=20 clarify their respective interests in the pooled gas unit. Both = parties=20 promptly responded with letters stating their belief that Petro = Pro did=20 not acquire any leasehold interest outside the confines of the = King "F"=20 No. 2 wellbore. Petro Pro replied with a letter stating claims for = trespass and conversion and demanding that Appellees vacate the = leasehold=20 and cease production from the Skeeterbee wells.
Finally, in September 2004, citing Upland Resources and KCS's =
refusal=20
to resolve the dispute, Petro Pro and L&R (hereinafter =
collectively=20
referred to as "Petro") filed the underlying suit against Upland, =
KCS, and=20
other interested parties, Great Lakes Energy Partners, L.L.C., and =
Steve=20
Zemkoski (hereinafter collectively referred to as "Upland") for =
trespass,=20
bad faith trespass, conversion, and money had and received. Petro =
claimed=20
they owned the exclusive right to produce gas from the entire =
704-acre=20
pooled gas unit, from the surface to a depth of 6,800 feet. Petro =
also=20
sought a declaratory judgment declaring the
On February 1, 2005, Upland filed a motion for summary judgment = contending that Petro's rights were limited to the right to = produce gas=20 from the Cleveland formation only and the right to "enhance" that=20 production. Upland further contended that Petro's rights were = restricted=20 to the physical confines of the King "F" No. 2 well only, without = the=20 right to deepen the well to other zones or horizons, or the right = to=20 perforate the wellbore casing for the purpose of producing any = other zone=20 or horizon lying between the surface and the presently producing = section=20 of the Cleveland formation. Subsequently, Intervenors filed a = motion for=20 partial summary judgment contending Petro had the right to produce = from=20 any formation subject to governmental regulations, which limited = the=20 horizontal extent of Petro's rights to forty acres surrounding the = King=20 "F" No. 2 wellbore. Finally, Petro filed their own motion for = summary=20 judgment restating their position that they were the exclusive = owners of=20 any portion of leasehold estate that could "reasonably be reached = and=20 produced" through the King "F" No. 2 wellbore.
Following hearings on the parties' competing motions for = summary=20 judgment, the trial court ruled that the King "F" No. 2 wellbore=20 assignments were unambiguous and granted Upland Resources's motion = for=20 summary judgment. The judgment = further=20 stated that "[j]udgment is entered in favor of [Upland = Resources]."=20 The court denied Petro and Intervenors' motions for summary = judgment and Petro's motion to have funds from production tendered = into=20 the court's registry. The trial court also severed and abated = Intervenors'=20 damage claims against Petro. As drafted, the trial =
court's judgment=20
does not set forth a declaration of the interest and rights =
conveyed by=20
the assignments. In a situation where all parties have moved for summary =
judgment and=20
one motion is granted and the others are denied, the appellate =
court=20
should review all parties summary judgment evidence and determine =
all=20
questions presented. Bradley v. State ex rel. White, 990 =
S.W.2d=20
245, 247 (Tex. 1999). See also Applicability of Canons of Contract=20 Construction The goal when construing an unambiguous agreement is to = determine and=20 give effect to the parties' intent as expressed within the "four = corners"=20 of the instrument. See Gulf Ins. Co. v. Burns Motors, = Inc., 22 S.W.3d 417, 423 (Tex. 2000); Luckel v. = White, 819=20 S.W.2d 459, 461-63 (Tex. 1991). Such intent is garnered from the = language=20 used in the writing when read as a whole. Cross Timbers Oil = Co. v.=20 Exxon Corp., 22 S.W.3d 24, 26 (Tex.App.-Amarillo 2000, no = pet.).=20 Stated differently, we must analyze the entire instrument to = understand=20 and harmonize all parts of the instrument so as to give effect to = all of=20 its provisions. Luckel, 819 S.W.2d at 462; Questa = Energy=20 Corp. v. Vantage Point Energy, Inc., 887 S.W.2d 217, 221=20 (Tex.App.-Amarillo 1994, writ denied). Construction of an = unambiguous=20 instrument is a question of law to be resolved by the court. = Luckel,=20 819 S.W.2d at 461. We afford the words contained in the = agreement=20 their plain, ordinary, and generally accepted meanings, unless the = instrument requires otherwise. E.g., Cross Timbers, 22 = S.W.3d at=20 27-28; Sun Operating Ltd. Partnership v. Holt, 984 S.W.2d = 277,=20 285 (Tex.App.-Amarillo 1998, pet. denied). By their brief, Petro contends that the absence of express =
limiting=20
language means that Upland intended to assign their leasehold =
interest in=20
the entire 704-acre pooled gas unit, including the right to extend =
one or=20
more horizontal drainholes from the King "F" No. 2 wellbore into =
other=20
productive areas of the lease. Similarly, Petro insists that the=20
conveyance of "[a]ll of Seller's right, title and interest" in the =
leases=20
gives them title to all the oil, gas, and minerals beneath the =
leasehold=20
regardless of where it is located. Petro contends that this =
interpretation=20
is consistent with the various canons of construction that pertain =
to=20
conveyances of real property, namely the canon to "construe in =
favor of=20
the grantee" and the canon of "conveyance of the greatest estate," =
which=20
they claim is embodied in =A7 5.001(a) of the Property Code. At the opposite extreme, Upland contends that the assignments = should be=20 construed in light of the facts as they existed at the time of = conveyance,=20 thereby restricting Petro's rights to the production of gas from = the=20 existing wellbore and the Cleveland formation only. While = Intervenors=20 agree that operations should be confined to the existing wellbore, = they=20 claim that Petro's rights should be construed in such a way that = they are=20 limited, in accordance with Railroad Commission well density = rules, to an=20 undetermined forty surface acres surrounding the wellbore. = Intervenors=20 further contend that the assignments should be construed so as to = allow=20 Petro the right to plug back the wellbore and recomplete the well = in the=20 Brown Dolomite formation. If, after application of the canons of contract construction, = an=20 agreement is susceptible of only one reasonable meaning, the = contract is=20 unambiguous. The construction of a written, unambiguous instrument = is a=20 question of law for the court. See OTC Petroleum = Corp. v.=20 Brock Exploration Corp., 835 S.W.2d 792, 794 = (Tex.App.-Amarillo 1992,=20 writ denied). In such instance, the courts will give effect to the = objective intention of the parties as expressed or as is apparent = in the=20 writing, since the parties generally intend every clause to have = some=20 effect and in some measure to evidence their agreement. = Id. Also,=20 extrinsic evidence of other assignments is irrelevant to the = parties'=20 intentions in the present case. See Neel v. Alpar Resources,=20 Inc., 797 S.W.2d 361, 363-66 (Tex.App.-Amarillo 1990, no = writ)=20 (explaining that an unambiguous instrument will be enforced as = written and=20 without consideration of other instruments). When construing agreements, an agreement which is worded in = such a=20 fashion that it can be given a certain or definite legal meaning = is not=20 ambiguous and will be enforced as written. HECI Exploration = Co. v.=20 Neel, 982 S.W.2d 881, 888-89 (Tex. 1998). Here, none of the = parties=20 allege that the assignments are ambiguous, and we agree that they = are not.=20 Therefore, we restrict our analysis to the plain language of the=20 assignments to determine the nature and scope of the assigned = interest.=20 See Yzaguirre v. KCS Resources, Inc., 53 S.W.3d 368, = 372-73 (Tex.=20 2001). Nature and Scope of the Assigned = Interest=20 As recited above, the assignment language describes the = assigned=20 interest as "[a]ll of Seller's right, title and interest in and to = the oil=20 and gas leases . . . insofar and only insofar as said leases cover = rights=20 in the wellbore of the King "F" No. 2 Well." While the parties = agree that=20 this language unambiguously assigns leasehold rights in the King = "F" No. 2=20 wellbore, their interpretations regarding the nature and extent of = the=20 estate conveyed differ greatly. An oil and gas lease conveys an interest in real property, as = does the=20 assignment of all or a portion thereof. Cherokee Water Co. v.=20 Forderhause, 641 S.W.2d 522, 525 (Tex. 1982); ExxonMobil = Corp. v.=20 Valence Operating Co., 174 S.W.3d 303 (Tex.App.-Houston=20 [1st Dist.] 2005, pet. denied). A lessee under an oil = and gas=20 lease owns a determinable fee in the oil and gas in place. = Cherokee=20 Water Co., 641 S.W.2d at 525. In this case, the estate = conveyed was=20 part of the leasehold estate created by the underlying oil and gas = leases.=20 Therefore, the assignments assigned to Petro a determinable fee = interest=20 in the oil and gas in place. Like the phrase "subject = to," the=20 phrase "insofar and only insofar" constitutes a limitation of the = grant.=20 See, e.g., Walker v. Foss, 930 S.W.2d 701, 707 = (Tex.App.-San=20 Antonio 1996, no writ) (stating that the principal function of = such a=20 limitation is protecting the grantor against a claimed breach of=20 warranty). It neither conveys an interest to the assignee, nor = does it=20 reserve or retain an interest in favor of the assignor. It merely = limits=20 the extent of the interest granted. Id. at 706-07. = Consequently,=20 it does not serve to limit the "rights" conveyed to Petro, nor = does it=20 reserve to Upland any exclusive rights. Therefore, the = assignee, in=20 this case Petro, received all of the rights appurtenant to the = estate=20 conveyed. So, what was the estate conveyed and what are the rights = appurtenant thereto?
To settle this dispute and define the estate conveyed, = we must=20 first determine the depth (vertical rights) and area (horizontal = rights)=20 covered by the assignments. See Lawrence P. Terrell, = Limited=20 Assignments-Who Gets What?, 35 Rocky Mtn. Min. L. Inst. 17, = =A7 17.02=20 (1989) (explaining that careful consideration of these two = elements is=20 essential to defining the interests transferred and retained). = See=20 also Kurt M. Peterson, Wellbores: Shedding Light on a=20 Transactional Black Hole, 48 Rocky Mtn. Min. L. Inst. 13,=20 =A713.08[3][d] (2002). This information, in turn, will = allow us to=20 define the extent of assignees' leasehold rights in the King "F" = No. 2=20 wellbore.
Regarding this issue, Upland contends that the "plain, = grammatical=20 meaning" of the words used in the assignments limits the assigned = interest=20 to the horizon that was open in the wellbore on the date of the=20 assignments. In other words, Upland claims Petro's rights are = strictly=20 limited to the Cleveland formation. But adopting this stance would = be=20 inserting language into the assignments that does not exist. = Furthermore,=20 it would require a determination of the facts, outside the four = corners of=20 the assignment, to ascertain the extent of the interest = transferred.=20 Contrary to Upland's contention, the assignments are completely = devoid of=20 language limiting Petro's leasehold interest to the Cleveland = formation.=20 Without such limiting language, we find no support for Upland's = contention=20 and agree with Petro and Intervenors' contention that the = assignment=20 language does not limit wellbore operations to a specific depth or = formation. Therefore, we hold that the vertical limit of the = assignments=20 is defined by the depth of the wellbore as assigned.
Similarly, there is a lack of support for Petro's claim that = they=20 acquired horizontal rights coextensive with the 704-acre pooled = gas unit=20 and Intervenors' claim that Petro acquired leasehold rights in = forty=20 surface acres surrounding the King "F" No. 2 wellbore. Just as the = assignment language does not restrict Petro's operations to a = specific=20 vertical producing interval, it also does not expressly or = impliedly=20 convey leasehold rights in any horizontal surface acreage. Cf. = David E. Pierce, An Analytical Approach to Drafting=20 Assignments, 44 Sw. L.J. 943, 955 (1990) (explaining = that,=20 presumably, the assignee is entitled to the production allocated = to the=20 [lease] well even though he owns none of the required leasehold = acreage).=20 On the issue of the horizontal extent of the estate conveyed,=20 Intervenors cite the language in the assignments stating that the = assigned=20 interests are "subject to . . . governmental regulations." Relying = on this=20 "governmental regulations clause," Intervenors contend that, = pursuant to=20 Railroad Commission Rule 38, when Petro acquired rights in the = King "F"=20 No. 2 wellbore, they also acquired rights in the minimum amount of = surface=20 acreage needed to obtain a plug back permit for recompletion in = the Brown=20 Dolomite formation. See 16 Tex. Admin. Code =A7=A7 3.5., = 3.38. (2007)=20 (Tex. R.R. Comm'n, Application To Drill, Deepen, Reenter, or Plug = Back;=20 Well Densities). We disagree. As Intervenors acknowledge, the Railroad Commission is a = regulatory=20 agency and lacks the authority to determine ownership of land or = property=20 rights. See, e.g., Amarillo Oil Co. v. Energy-Agri = Products,=20 Inc., 794 S.W.2d 20, 26 (Tex. 1990). The government = regulations=20 clause does not provide for additional leasehold rights contingent = upon=20 the assignee seeking to commence certain wellbore operations. = Simply put,=20 there is nothing in the assignments that suggests that, because = the=20 assigned interest is subject to governmental regulation, the = nature and=20 scope of the interest assigned may vary. For this reason, we find=20 Intervenors position to be inconsistent with the plain language of = the=20 assignments. Because the assignments are limited to "rights in the wellbore" = we must=20 determine what the parties intended by that term. The assignments = do not=20 describe the King "F" No. 2 wellbore or even define the term = "wellbore,"=20 therefore, we must turn to its generally accepted meaning. A = wellbore,=20 sometimes called a borehole, is the hole in the ground created by = the=20 process of drilling or boring a well. 8 Patrick H. Martin & = Bruce M.=20 Kramer, Williams & Meyers Oil and Gas Law, Manual of = Terms,=20 107, 1207 (9th ed. 1998). A well, meanwhile, is defined as the = "orifice in=20 the ground made by drilling, boring or any other manner, from = which any=20 petroleum or gas is obtained or obtainable . . . ." Id. = at 1205.=20 When read in context with the assignment language, these = definitions=20 indicate that Petro's leasehold rights extend horizontally only to = the=20 area of the hole identified as the King "F" No. 2 well = and, by=20 implication, such surface area adjacent thereto as is reasonably = necessary=20 to operate the well.
Consistent with the horizontal and vertical limitations of =
Petro's=20
interest, the assignments also conveyed all rights appurtenant to =
the=20
underlying oil and gas leases. One of those rights was the right =
to=20
develop the leased premises for the purpose of "exploring, =
drilling,=20
mining, operating for and producing oil, gas and other minerals." =
To that=20
extent, Petro's interest was not limited to production of gas from =
the=20
Cleveland formation. Therefore, subject to governmental =
regulations, the=20
assignments in question granted Petro the right to rework the King =
"F" No.=20
2 well so as to produce from any formation that might possibly be =
reached=20
from the existing wellbore. This right to develop, however, does =
not=20
extend beyond the present confines of the wellbore. In other =
words, Petro=20
does not have the right to extend the present well beyond its =
current=20
depth, nor does it have the right to drill horizontally beyond the =
confines of the existing wellbore. Another one of the rights assigned was the right to produce. = Subject to=20 the duties imposed by the lease (e.g., the duty to pay = the=20 original lessor a royalty for oil or gas taken, the duty to pay = for=20 damages occasioned by its operations, and the duty to restore the = surface=20 upon abandonment of the well), Petro has the exclusive right to = produce=20 oil and gas from the King "F" No. 2 well. Conversely, because the=20 assignments in question did not transfer Upland's determinable fee = interest in the oil and gas in place outside of the wellbore, = Petro does=20 not own an interest in the oil and gas in place outside the = confines of=20 the King "F" No. 2 well. For these reasons, completion of the = Skeeterbee=20 wells did not constitute a trespass onto property which Petro = owned. For=20 these same reasons, the production of gas from the Skeeterbee = wells did=20 not constitute conversion of property belonging to Petro. Because = Petro=20 does not have an ownership interest in the gas produced from the=20 Skeeterbee wells, Petro is not entitled to a portion of the = proceeds or to=20 an accounting. To the extent that the leases embodied other rights not = exclusive to=20 the possession and use of the wellbore in question (e.g., = the=20 right to extend the lease by the payment of shut-in royalties), = the=20 assignment created a co-tenancy with the other lessees, with each = party=20 sharing those incorporeal appurtenant rights. The practical effect of this construction is that Petro owns = the=20 exclusive right to produce any oil, gas, or other minerals that = may be=20 produced from the King "F" No. 2 wellbore, consistent = with the=20 terms and conditions of the original leases. Subject to = governmental=20 regulations, Petro also owns the right to develop the wellbore and = conduct=20 any operations within the wellbore that would facilitate or = enhance that=20 development and production, including the right to produce from = other=20 formations. Upland retained the exclusive right, subject to the = terms and=20 conditions of the original leases and any applicable governmental=20 regulations, to produce any oil, gas, or other minerals that may = be=20 extracted from the leased premises, other than through the = King=20 "F" No. 2 wellbore. Although this construction describes a = relatively=20 restrictive leasehold interest, it is consistent with the fact = that, from=20 an area standpoint, a wellbore assignment is the narrowest form of = oil and=20 gas assignment. Lawrence P. Terrell, Limited Assignments-Who = Gets=20 What?, 35 Rocky Mtn. Min. L. Inst. 17, =A7 17.02 (1989). Our learned colleague's dissenting opinion states, "Rather than =
concluding the parties intended to grant Petro the right to =
recomplete the=20
well to produce gas it does not own, we would construe =
the=20
assignments' language in a manner consistent with our state's=20
ownership-in-place theory." (emphasis added) While the =
concept of=20
producing oil and gas that one does not own may seem =
unfair, it=20
is hardly inconsistent with the ownership-in-place theory of =
mineral=20
ownership. To the contrary, it is entirely consistent with over a =
hundred=20
years of precedent pertaining to the corollary doctrine of the =
"rule of=20
capture."
In summary, we find that the =
trial=20
court erred in rendering its declaration of the rights of the =
parties. To=20
that extent, Intervenor's sole issue and Petro's issues one though =
three=20
are subsumed within the disposition of Petro's fourth issue, which =
is=20
sustained in part (as to the granting of summary judgment in favor =
of=20
Upland's construction of the assignments) and overruled in part =
(as to the=20
denying of Petro's Motion for Partial Summary Judgment and =
Intervenor's=20
First Amended Motion for Partial Summary Judgment in favor of =
their=20
respective construction of the assignments). Because we =
also find=20
that Petro did not have title to the oil and gas in place outside =
of the=20
King "F" No. 2 wellbore, we conclude that they would not be =
entitled to an=20
accounting of future production from the Skeeterbee wells. We reverse the judgment of =
the trial=20
court and render judgment declaring that the wellbore =
assignments=20
in question transfer to the assignee an estate that extends to the =
physical limits of the wellbore, together with all of the =
appurtenant=20
rights incident to the underlying lease. Patrick A. Pirtle Justice Campbell, J., concurring and dissenting.=20 1. Although, ultimately, we seek to declare = the=20 ownership interests and rights of the parties, we are constrained = to=20 declare only those interests and rights that were at issue before = the=20 trial court. The rights and duties set forth herein should not be=20 construed as an exhaustive list of all of the rights and duties = arising=20 from the contract between the parties. Any attempt to set forth = all of the=20 rights and duties arising from the oil and gas leases at issue = would be=20 both foolish and advisory. Judicial authority does not embrace the = giving=20 of advisory opinions. Firemen's Ins. Co. of Newark, N.J. v.=20 Burch, 442 S.W.2d 331, 333 (Tex. 1968).=20 2. The judgment merely recites that the = assignments in=20 question are "unambiguous" and "grant[s] Defendant's motion for = summary=20 judgment and den[ies] Plaintiff's motion for summary judgment and=20 Intervenors' motion for summary judgment . . . ."=20 3. The canon of conveyance of the greatest = estate=20 provides that the instrument should be construed to confer to the = grantee=20 the largest estate that the terms of the instrument will permit. = See=20 generally Bruce M. Kramer, The Sisyphean Task of = Interpreting=20 Mineral Deeds and Leases: An Encyclopedia of Canons of = Construction,=20 24 Tex. Tech L. Rev. 1, 117-24. Section 5.001(a) states that "[a]n = estate=20 in land . . . is a fee simple unless the estate is limited by = express=20 words or unless a lesser estate is conveyed or devised by = construction or=20 operation of law." Tex. Prop. Code Ann. =A7 5.001(a) (Vernon = 2004). See=20 also Ladd v. DuBose, 344 S.W.2d 476, 480 (Tex.App.-Amarillo = 1961, no=20 writ), citing Waters v. Ellis, 158 Tex. 342, 312 S.W.2d = 231, 234=20 (1958).=20 4. The Texas Supreme Court adopted the = common-law rule=20 of capture in 1904 in the case of Houston & Texas Central = Railway=20 Co. v. East, 98 Tex. 146, 81 S.W. 279 (1904).=20 5. High Plains Nat. Gas Co. v. Railroad = Com'n of=20 Tex., 467 S.W.2d 532 (Tex.Civ.App.-Austin, 1971, writ = ref'd=20 n.r.e.); Carter v. Carter, 5 Tex. 93, 1849 WL 4064 (Tex. = 1849).=20 6. We express no opinion as to whether or = not Petro=20 may be entitled to an accounting of past production based upon any = claim=20 of damages which might have resulted from any tortious = interference with=20 their right of production for the reason that no such claims have = been=20 made. |