Opinion
No. 4081.
October 8, 1931.
Appeal from District Court, Gregg County; Reuben A. Hall, Judge.
Action by O. O. Hammonds and others against N.C. Walter and others. From an interlocutory order granting a temporary injunction until a trial of the suit on its merits, defendants appeal.
Affirmed.
The appeal is from an interlocutory order granting a temporary injunction until a trial of the suit on its merits. The nature of the suit is here briefly outlined. On August 26, 1929, J. C. Barrett, as owner of the land, duly executed and acknowledged a lease to J. A. Reynolds granting the right to prospect and bore wells for oil and gas with the right to seven-eighths of all the gas and oil discovered upon land of the B. W. Witcher survey in Gregg county described by metes and bounds and "containing 320 acres, more or less." The lease was duly registered. On September 15, 1930, J. A. Reynolds by writing assigned the lease to Mamie S. Hammonds, the appellee here, and this assignment was duly registered. Thereafter J. C. Barrett, as owner of the land, on April 18, 1931, by warranty deed duly registered, made conveyance to N.C. Walter of the title of the land described by metes and bounds and "containing 320 acres, more or less." The field notes as given in the deed to N.C. Walter and the field notes as given in the lease to J. A. Reynolds are seemingly identical. The beginning point as given in each instrument is "at the S.E. corner of Survey No. 277 of James McRea, a stake from which a pine bears N. 41 deg. W. 18 vrs. a red oak bears N. 38 deg. W. 8.4 vrs." The deed to N.C. Walter contains the following: "The said property being now under an oil and gas lease heretofore executed by J. C. Barrett dated the 26 day of August, A.D. 1929, filed for record September 11, 1930, recorded in Vol. 59, page 606 of the Deed Records of Gregg County, Texas, to J. A. Reynolds." N.C. Walter and the other appellant was shown to have a present interest in the land.
The real point of the litigation lay in the contention made by appellants that the field notes of the deed from J. C. Barrett to N.C. Walter by actual survey run out on the ground, not 320 acres, but 346 acres, making an excess of 26 acres. The appellee claims that her lease from J. C. Barrett describes and covers the identical land, with identical field notes set out in the deed from J. C. Barrett to N.C. Walter, and that the deed is made expressly subject to the lease existing in her favor.
It was claimed by appellee, as ground for injunction, that the appellants had contracted with J. C. McFarland to drill an oil well on her leased land and that he was preparing to do so. It was claimed by appellants that they were only negotiating for drilling the well, and it was to be drilled only upon a part of the 26-acre excess and not upon any other part of the land.
The petition sets out as ground for issuance of injunction that: "The defendants, or some of them, are about to enter upon said premises (the leased premises) and install machinery for the purpose of exploring for the minerals thereunder and to appropriate same to their own use and benefit, thereby depriving the plaintiffs of the value thereof. * * * Wherefore, plaintiffs pray for a writ of injunction against defendants and each of them * * * from entering upon said premises and installing any machinery for the purpose of exploring for the minerals thereunder, etc." After hearing the evidence, the judge entered an interlocutory order granting a temporary injunction.
O. F. Wencker, of Dallas, for appellants.
Scott, Casey, Hall McHaney, of Longview, for appellees.
The pertinent points presented by the appeal are that (1) there was no sufficient grounds for injunction set forth in the appellee's petition, and (2) the title and possession of the particular acreage in controversy was in the appellants and not in the appellee.
It is believed there is sufficiently alleged in the appellee's petition the existence and the nature of the right which is claimed to be entitled to protection by injunction. There was made to appear affirmatively in the appellee the right to prospect and bore wells for gas and oil on the land, with the right to a part of all the oil and gas discovered. The lease, creating the right, was upon the entire acreage within the field notes of the land, as set out in the written instrument. The defendants are "making claim to the leasehold rights to the land or a portion thereof covered by the plaintiff's lease." And there was averment of threatened substantial injury, "The defendants, or some of them, are about to enter upon said premises and install machinery for the purpose of exploring for the minerals thereunder and to appropriate the same to their own use and benefit." That is more in the nature of the statement of a fact than mere conjecture of threatened injury. The applicable rule is that "if such injury is threatened and impending to property rights an injunction will be granted." 32 C.J. p. 42.
As to whether the title and possession of the 26 acres claimed as excess acreage should be held to be in appellant and not appellee would be entirely dependent upon the evidence in the case. That question cannot be determined until a final hearing be had on the merits. If the 26 acres were within the lease of appellee, as seemingly is, she would be entitled to the exclusive right to explore the premises for oil and gas and any infringement of that right by active drilling would be an act prejudicial to her. In virtue of that lease the apparent right in and constructive possession of all the described acreage the field notes would actually include, would be regarded in appellee for the purpose of an interlocutory injunction. An interlocutory injunction is merely a provisional remedy granted before a hearing on the merits to preserve the subject in controversy in its then existing condition and, without determining any question of right, merely to prevent the doing of any act whereby the right in controversy may be injured or endangered. 32 C.J. p. 20.
The order is affirmed.