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WESLEY KOTHMAN ET AL v. L. E. BOLEY ET AL (12/11/57)

decided: December 11, 1957.

WESLEY KOTHMAN ET AL
v.
L. E. BOLEY ET AL



Error to the Court of Civil Appeals for the Second District, in an appeal from Jack County.

COUNSEL

Hardwicke, Haddaway & Alex Pope, Jr., and Robert E. Hardwicke, Jr., all of Fort Worth, for petitioners.

COUNSEL

Grindstaff, Zellers & Hutcheson and Austin E. Zellers, all of Weatherford, for respondents.

Mr. Justice Walker delivered the opinion of the Court.

Author: Walker

[ 1 Tex. Sup. J. Page 57]

    L. E. Boley et al., respondents, brought this suit against Wesley Kothman et al., petitioners, to cancel five oil and gas leases covering land in Jack County on the ground that petitioners had not complied with the following lease provision: "Unless a well is commenced within sixty (60) days from this date the lease shall terminate, and when commenced, said well to be drilled to the Ellenburger lime unless oil and/or gas is encountered at a lesser depth."

The five leases, which are dated August 3, 1954, were executed by respondents as lessors to Kothman as lessee, and the latter assigned interests therein to the other petitioners. Each lease covers a separate tract of land. The provision quoted above is contained in the instrument which covers a tract of 164 acres designated as Block 22, Henderson County School Land Survey. All of the other leases stipulate that "unless a well is commenced within sixty days from this date on Block 22 then this lease shall terminate as to both parties."

The only issues submitted or requested relate to the question of whether respondents are estopped to assert that the leases have terminated under the provisions mentioned above.

[ 1 Tex. Sup. J. Page 58]

    These were answered by the jury favorably to respondents. There was no exception to the charge. On the basis of the jury verdict and the undisputed evidence, the district court entered judgment canceling the five leases. A majority of the Court of Civil Appeals concluded that petitioners had not commenced a well on Block 22 within the sixty-day period and affirmed the judgment of the trial court. 301 S.W.2d 235. It is our opinion that the leases are in full force and effect. There is no dispute as to any of the material facts. Three wells had previously been drilled on Block 22 and all were abandoned as dry holes several years before the leases now in controversy were executed. These old wells are referred to by the parties as the north, south and middle wells. The condition of the south well is not material and will not be described. When the north and middle wells were abandoned, the former operators plugged the bottom of each with concrete and filled the remainder of the holes to the surface with mud, rocks and other materials. About ninety feet of surface pipe was left in the north well, but there was none in the middle well. No casing was set in either well, and their sides caved in at various depths. This was the condition of the two old wells when respondents leased to Kothman.

On August 9, 1954, petitioners moved a small rig to the surface location of the south well. Four days later the rig was moved to the site of the north well but was dismissed after reaching a depth of about 160 feet. Petitioners then had Marine Production Company move a large rotary rig to the surface location of the north well, and this rig began operating on August 17th. After reaching 3,000 feet, the original depth of the old north well, it began cutting an entirely new hole and drilled an additional 400 feet to a total depth of 3,400 feet. Casing was set and perforated at 3,000 feet, and after swabbing and other operations a well capable of producing gas in commercial quantities was completed on September 16th. This was more than two weeks before the end of the 60-day period.

The large rig was then moved to the site of the old middle well, which had previously been drilled as a five-inch hole to a depth of over 6,000 feet. Petitioners there cut a five and one-half inch hole to a depth of 3,100 feet and completed a second well capable of producing gas in paying quantities. The opening of the hole for this second well was ...


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