
    [Civ. No. 12669.
    Second Appellate District, Division Two.
    December 31, 1940.]
    DORMAX OIL CO. (a Corporation) et al., Petitioners, v. R. D. BUSH, as State Oil and Gas Supervisor, etc., Respondent.
    
      Bush, Reynolds & Painter, Reynolds & Painter and Willard W. Wallace for Petitioners.
    Earl Warren, Attorney-General, and R. S. McLaughlin, Deputy Attorney-General, for Respondent.
    John C. Gillham, Finlayson, Bennett & Morrow and Frank G. Finlayson, as Amici Curiae, on Behalf of Respondent.
   McCOMB, J.

This is an original application for a writ of mandate to require respondent State Oil and Gas Supervisor to issue petitioner Dormax Oil Co. a permit to drill for oil on lots 83 and 84 of Licensed Surveyor’s Map recorded in Book 16, page 2, Records of Surveys of Los Angeles County (located in the Rosecrans Oil Field).

Petitioners allege in their application for a writ of mandate that petitioner Warden is the owner of the above-mentioned lots and that he has executed a lease in favor of petitioner Dormax Oil Co. for the purpose of drilling for oil and gas upon said property; that on February 21, 1940, petitioner Dormax Oil Co. filed with respondent a notice of intention to drill a well on said lots; that March 15, 1940, respondent disapproved said notice of intention to drill; that the property upon which petitioner desires to drill is located in the Rosecrans Oil Field, which has continued to produce oil since 3924 and was producing oil on August 14, 1931; and that the Public Resources Code does not apply to fields producing oil or gas on August 14, 1931 (sec. 3605, Public Resources Code).

Respondents first confront us with the proposition that the petition does not state facts sufficient to entitle petitioners to the relief which they seek.

This proposition is tenable. We must for the purpose of determining the sufficiency of the petition, accept the allegations therein as true. The petition alleges that the Rosecrans Oil Field, in which petitioners’ lots are located was an oil field drilling and producing oil on and prior to August 14, 1931. Therefore, petitioners were not required to obtain a permit from respondent before commencing the drilling of oil wells on their property. All that was necessary for them to do was to file a notice of intention to commence drilling together with the bond as required by sections 3203 and 3204 of the Public Resources Code. There is no provision in the Public Resources Code or otherwise authorizing respondent to issue a permit upon a state of facts such as is alleged in the petition. Therefore, under the well-established rule that a writ of mandate will not issue against an officer where the law does not specifically enjoin performance of the act which it is sought to compel him to perform (see. 1085, Code Civ. Proc.; City of Napa v. Rainey, 59 Cal. 275, 276; Davis v. Porter, 66 Cal. 658, 659 [6 Pac. 746] ; Albori v. Smith, 18 Cal. App. (2d) 615, 618 [65 Pac. (2d) 81]), petitioners have failed to allege facts sufficient to entitle them to the relief which they seek.

There is no merit in petitioners’ contention that they will be required to expend sums of money in drilling a well and may subsequently be met with litigation contesting their claim that the oil field in which they desire to drill was an oil field producing oil on or before August 14, 1931. This is merely one of the incidents which attaches to the privilege of living in a free country. Each citizen is continually called upon to determine at his peril the extent of the use which he can make of his own property, real and personal, without violating the law.

For the foregoing reasons the application for a writ of mandate is denied and the alternative writ of mandate heretofore issued is quashed.

Moore, P. J., and Wood, J., concurred.  