
    MUNSEY et al. v. MARNET OIL & GAS CO.
    (No. 3701.)
    (Supreme Court of Texas.
    July 2, 1923.)
    Mines ami minerals <&wkey;>55(7) — Conveyances held to convey title not absolutely, but subject to be terminated by abandonment of operations.
    Two mineral grants or contracts, given in consideration of royalties which could not accrue save through mineral production, held to convey title to corporeal property not absolutely but for mining purposes only, which title was incapable of enduring after abandonment of the contracts or abandonment of operations for mineral discovery or production.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    
      Action by B. W. Munsey and otters against tbe Marnet Oil & Gas Company. .Tbe Court of Civil Appeals reversed judgment for plaintiffs and rendered judgment for defendant except on one issue (232 S. W. 867), and plaintiffs bring error.
    Reversed and remanded.
    Callieutt & Johnson, of Corsicana, for plaintiffs in error.
    W. J. McKie and Richard Mays, both of Corsicana, for defendant in error.
   GREENWOOD, J.

Mary B. Robbins, owner of 76.9 acres of' land in Navarro county, executed the following instrument, on November 2, 1898, to wit:

“Know all men by these presents: That I, Mary B. Robbins, of Kingston, Mass., the party of ' the first part, in consideration of the sum of $5.00 paid by W. H. Staley, of Pennsylvania, 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 do by these presents grant, bargain, sell, and convey, unto the said parties of the second part, their heirs, assigns, all of the oil, gas, and coal and other minerals in and under the following described land, together with the rights of ingress and egress at all times for the purpose of drilling, mining, and operating for minerals, and to conduct all operations and fay all pipe necessary for the production, mining, and transportation of the oil, gas, water, or other minerals, reserving, however, to the party of the first part the equal one-eighth 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 parties of the second part agree to pay the first party four cents per ton for every ton of the same that is mined and marketed, payable monthly. If gas or other minerals are found, second party agrees to —- first party one-tenth of the net produce each year, payable monthly for the product of each well, while the same is being used off the premises. Said land being of the following description, to wit: (Here follows description.) To have and to hold the above-described premises unto the said parties of the second part, their heirs and assigns, upon the following conditions: In case operation for either the drilling of a well for oil, mining, or other minerals is not begun and prosecuted with due diligence within thirty days from this date, then this grant shall immediately become null and void as to both parties.
“In case the parties of the second part should bore or discover either water, oil, or other minerals within the time above prescribed, then and in that event this lease, incumbrance, or conveyance shall be in full force for twenty years from the time of the discovery of said product, or as long as oil can be produced in paying quantities.
“Whenever sales are being made of the product produced on the land above described, a settlement therefor shall be made at the end of each quarter.
“This lease is not intended as a mere franchise, but is intended as a conveyance of the property above described for the purposes herein mentioned, and it is so understood by both parties to this contract.
“It is understood between the parties to this agreement that all conditions between the parties hereto shall extend to their heirs, executors, administrators, and assigns.
“And the said Staley hereby agrees to bore not less than six wells within one year from the making of this lease, provide^ paying wells can be found on said tract, and will also bore six wells during the next year thereafter, should paying wells justify such expenditures.
“It is further agreed that in ease the said Staley is unwilling to bore said wells, the said party of the first part shall have the right to bore same, provided there shall be preserved to each well then bored by said Staley a surrounding territory of «not less than seven acres of land.”

W. A. Polk and wife, M. J. Polk, owners of 83.3 acres of land in Navarro county, executed the following instrument, on August 10, 1898, to wit:

“Know all men by these presents: That W. A. Polk and M. J. Polk, of Navarro county, Tex., of the first part, in consideration of the sum of one dollar to said first party paid by T. • J. Carmody and E. P. Davis, the parties of the second part, the receipt of which is hereby acknowledged, and the further consideration hereinafter mentioned, have granted, bargained, sold, and conveyed, and do by these presents grant, sell, bargain, and convey, unto the said party of the second part, their successors and assigns, all oil, gas, and coal or 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 and operating for oil, gas, water, coal, and other minerals, and to conduct all operations and lay all their pipes necessary for the production and transportation of oil, gas, water, or other minerals, and to erect all buildings and machinery necessary to the'conduct of their business thereon, reserving however to the first party the one-eighth part of the oil, coal, and other minerals produced and saved from said premises, to be delivered in second party’s pipe line to the credit of first party, free of charges, said land being of the following description, to wit: (Here follows description.)
“To have and to hold the above-described premises unto the parties of the second* part, their successors and assigns and legal representatives on the following conditions:
“(1) If oil, gas, coal, or other minerals are found second party agrees to pay one-eighth part to first party While the same is being used off the premises.
“(2) Wherever first party shall request it, second parties shall bury all oil or gas lines and. pay damage done to growing crops by reason of burying and removing said lines.
“(3) No well shall be drilled nearer than 100 feet to the house or barn on said premises.
“(4) This lease shall become null and void at the end of thirty days from date unless second parties have completed boring the first well before that date, provided, however, that this lease may be kept in force by payment by said second parties until the above-mentioned well is completed by second parties.
“(5) The second parties shall have the right ■to use sufficient gas, oil, and water to run all necessary machinery on this lease and adjoining leases owned by them, and also the right to remove all their property at any time, including all piping, casing, tubing, jack rods, and other well appliances used in connection with the development herein contemplated.
“(6) It is understood between the parties to this agreement that all conditions between the parties hereto shall extend to their heirs, executors, and assigns.”

Plaintiffs in error have acquired the title of Mary B. Robbins to the tract of 76.9 acres and the title of W. A. Polk and wife to the tract of 83.3 acres. Defendant in error holds the interests and rights granted to Staley, Carmody, and Davis by the instruments here-inbefore copied, unless terminated or lost.

The wells expressly mentioned in both leases were sunk by the respective lessees within the times stipulated and produced oil in paying quantities.

In 1913, this suit was instituted by plaintiffs in error, to cancel the instruments above set out, on the ground that the grantees and their assigns, including defendant in error, had abandoned their contracts and refused to perform their obligations to the grantors and their assigns, and had abandoned! all operations for minerals. Plaintiffs in error also sought to recover damages.

A jury trial resulted in a verdict and judgment for plaintiffs in error. On appeal, the judgment of the trial court was reversed and the cause was remanded on insufficiency of the evidence to support the jury’s verdict. On rehearing, judgment was rendered by the Court of Civil Appeals against plaintiffs in error, save on their causes of action for damages. 232 S. W. 867.

The petition for writ' of error complains of the judgment of-the Court of Civil Appeals, on rehearing, because: First, abandonment had divested defendant in error and its vendors of any right, title, or interest in the lands sued for, and would entitle plaintiffs in error to a decree removing the cloud from their title cast by the claim of defendant in error; and, second, there was evidence to take the issue of abandonment to the jury, so as to preclude determination of the issue as one of law by the Court of Civil Appeals. On the other hand, it is strongly argued in b.ehalf of defendant in error that Staley and Carmody & Davis and their assigns became invested with a perfect legal title and an absolute fee-simple title to the minerals which could not be destroyed save by written conveyance or by judgment.

On a previous appeal, the Dallas Court of Civil Appeals decided that the instruments executed by Mary B. Robbins and by Polk and wife evidenced sales of the minerals in place, and that the grants were absolute, for the purposes contemplated by the parties, for the period of 20 years or as long as oil in paying quantities could be produced, after the express conditions subsequent as to successful drilling were complied with. The court flatly rejected the view that the grantees could have or enjoy any estate in the minerals or land after all mineral operations were abandoned, saying:

“The only consideration moving to the grantors in the leases, other than the one-eighth interest in the oil which might be produced and saved, was $5. Without going to the extent of holding that such sum would in no case constitute a sufficient consideration, it is, we believe, correct in this case to say that obviously the parties to the grant, in view of its provisions, did not regard such sum the real consideration for the grant, but, on the contrary, indulged the hope and expectation that oil in paying quantities would be found beneath the surface of the land, and, when so found, the one-eighth portion thereof reserved by the grantors when delivered in the pipe line to the credit of the grantees in order that it might be marketed was to constitute the real consideration for the grants. Such being the purpose and intention of the parties, it was the duty of the grantees to continuously operate the wells in the manner contemplated by t'he undertaking; and if it cannot be said that the duty to continuously develop and produce the lands’ mineral resources in a reasonably diligent manner, after discovery thereof in paying quantities, is not expressly provided for by the terms of the grant, then such duty unquestionably arises by implication. Such implication arises upon the provisions in the leases reserving to the grantees the right of ingress and egress over the surface land, the right to lay pipes for both production and transportation of all minerals when discovered and produced, and the duty imposed upon grantees to deliver to grantors in a pipe line their share of oil and to pay for same quarterly. These provisions suggest without discussion the intention of the parties, and what they contemplated. Clearly, it cannot he said that such provisions contemplate the operation of the wells at the will of the grantees, any more than that the right to operate by grantees could be divested at the will of grantors. Fisher v. Crescent Oil Co., supra, in our opinion presents a correct discussion of the mutual obligations of the parties under such contracts or leases after the discovery of oil in paying quantities.” Munsey v. Marnet Oil & Gas Co., 199 S. W. 689.

In the case of Fisher v. Crescent Oil Co. (Tex. Civ. App.) 178 S. W. 906, a conveyance was executed, for a cash consideration and promised royalties, of minerals in place, with appurtenant rights, for the purpose of drilling-for and producing the minerals, for 25 years and as much longer as minerals could be.produced in paying quantities, conditioned that the conveyance should be void in case operations for drilling for oil, gas, or other minerals were not commenced and prose-exited with due diligence on or before a fixed date. It was held, in the lamented Chief Justice Huff’s carefully considered opinion, that while the lessee ■ acquired a vested es: tate in the minerals and land, of indefinite duration, yet there was inseparable from such estate a continuing duty to mine and operate the land for minerals, which was utterly inconsistent with abandonment of the mining enterprise.

The last appeal herein was to the Texar-kana Court of Civil Appeals, where both the Robbins and Polk conveyances were held not to be conveyances of minerals in place or of other corporeal property, but were held to be grants of mere incorporeal rights and therefore subject to abandonment. The is■sue of abandonment was further determined against plaintiffs in error, as though there had been no evidence to warrant the submission of the issue to the jury. ■

In our opinion, both contracts or grants passed title to corporeal property, not absolutely, but for mining purposes only, and title of such nature as to be incapable of enduring after abandonment of the contracts or abandonment of operations for mineral discovery and production. Stephens County v. Mid-Kansas Oil & Gas Co., 112 Tex. -, 254 S. W. 290; Texas Co. v. Davis, 112 Tex. -, 254 S. W. 304; Robinson v. Jacobs, 112 Tex. —, 254 S. W. 309. Furthermore, the evidence was such as to preclude the Court of Civil Appeals from determining as a matter of law that there had been no abandonment.

Both conveyances grant, bargain, sell, and convey the minerals as they lie in the land —for the single purpose of drilling and mining operations. Every specified additional right granted is to enable the grantees to prosecute mining operations. The prime inducement to execute the conveyances is promised royalties which could never accrue save through mineral production. While the conveyance by Mary B. Robbins was to continue in force for 20 years after the discovery of oil or as long thereafter as oil could be produced in páying quantities, it was distinctly specified, as if to draw the distinction between this conveyance and one passing an absolute, unqualified legal title for any term, that this conveyance was always to be understood as having been made for the purposes set forth on its face; that is, mineral exploration and development. The grant by Polk and wife containing no words otherwise defining its term, it would seem clear that, under the interpretation most liberal to the grantees, it could last no longer than the period of minferal production, This latter grant is also particular to save the right of the grantee to remove at any time all things necessary to effectuate the sole purpose of the grant. It is inconceivable that any grantor expected his property to be bound after this right of removal ha'd been exercised, with-dut expectation of return to the premises. Notwithstanding the expressions in the opinion in National Oil & Pipe Line Co. v. Teel, 95 .Tex. 586, 68 S. W. 979, we are not prepared to affirm that the consideration recited in the conveyance by Polk and wife would not support their grant. By its terms the grant was void unless the grantee had completed a test well within 30 days. Viewing the two instruments from beginning to end, whatevei-'estate or right was acquired under either of them terminated with the mining operations contracted for. We do not mean that any necessary or reasonable or temporary cessation of mining operations would terminate the grants. But deliberate intent to abandon the mining contracts is utterly inconsistent with any right to longer hold that which necessarily hampers the opposite contracting parties or their successors in title.

Expressions may be found in the opinions of this court treating implied mining obligations in oil leases as conditions subsequent, such as Benavides v. Hunt, 79 Tex. 394, 15 S. W. 396. And the court denied a writ of error in J. M. Guffey Petroleum Co. v. Oliver (Tex. Civ. App.) 79 S. W. 884, where similar expressions were used. To the same effect are portions of the opinion in Fisher v. Crescent Oil Co., supra, approved on the first appeal, in this ease. 199 S. W. 687. But we find nothing from this court to give support to the theory that one can repudiate his drilling obligations and still hold the estate which is granted for the sole purpose of securing performance of such obligations. The doctrine seems to have scant support in the American decisions.

Our discussion of the Questions presented, in the above-cited cases of Stephens County v. Mid-Kansas Oil & Gas Co., Texas Co. v. Davis, and Robinson v. Jacobs, makes it unnecessary to extend this opinion.

The case having been disposed of under rules of law other than those here announced, and the judgment of the trial court having been reversed on a ruling of the Court of Civil Appeals as to the insufficiency of the facts, and not being satisfied that the case is not capable of further development, it is ordered that the judgments of the district court and of the Court of Civil Appeals be reversed, and that the ease be remanded to the district court for a new trial in accordance with this opinion. 
      <&wkey;For other cases see same topic and KHT-NuMBEJR in all Key-Numbered Digests and Indexes
     