On Motion for Rehearing. By a lengthy motion and several carefully prepared supporting briefs and arguments, appellees insist we erred in concluding that any cause of action authorizing cancellation of the lease in suit as a whole against all defendants and presented by the pleadings on the previous appeal of this cause was before the trial court by either issue of fact or pleading on the second trial, when the pleas of misjoinder of parties and causes of action were sustained, contending that "the facts, on which this court's former opinion rests, were facts pleaded. The facts, on which this appeal rests, were those proved. They must be found in allegations and admissions in the pleadings, or in the trial court's findings of fact, as there is no statement of facts."
The petition on the former appeal alleged that Bailey and his assignees failed to fully develop the lands for oil, gas, and minerals, in compliance with the implied covenants of the lease contract to do so, and that defendants, appellees in that case, had abandoned the lease. It also alleged the drilling of four wells and their respective negligent handling and abandonment. The amended pleading upon which this appeal is based alleged the same facts, with the exception of the omission of any allegation in reference to the drilling of four wells. That is, the petition alleges fully the consideration for the lease contract as being in the main the full development of the leased premises for oil, gas and minerals, and also alleges the failure of Bailey, or any one for him, or any of his assignees, to promptly and reasonably comply with the purposes and conditions of the lease contract in that respect; and that they had abandoned the same.
Now appellees insist that the above allegations of failure to develop are mere conclusions of the pleader, and that if held to be sufficient appellant simply failed to prove them, as shown by the trial court's findings of fact, there being no statement of facts brought up with the record.
We think there can be no question but that the language of the petition, though asserting ultimately a conclusion, is based upon a simple statement of facts. Nor is there any merit for the contention that appellees are precluded by the trial court's findings of fact and conclusion of law filed herein. Findings of fact 1 to 5, both inclusive, relate to the status of the parties to the suit; the execution of the lease; the transfer of segregated portions of the lease to appellees; their possession by virtue of the transfer; that they neither singly nor in groups claim other than by virtue of their respective assignments or transfers; that they were not guilty of the trespasses because of omission claimed by appellants. And findings 6 and 7, upon which appellees seem to rely principally, are as follows:
"Sixth. Neither of said defendants has acted together, with each other, nor with any other defendant, in trespassing on said lands, or in doing or omitting to do any act complained of by plaintiff; but each of said defendants has claimed, and is now claiming, the right of possession for the purpose of developing the oil and gas therein, under their respective transfers, from said Bailey, to the segregated portions so claimed by them, either individually, or as cotenants, as aforesaid.
"Seventh. Prior to the commencement of this suit, four wells had been drilling on the lands described in the lease, each of which wells, at the time it was brought in, produced oil and gas, the oil, at said time, ranging from 20 to 40 barrels per well."
The court's conclusion of law is set out in full in our original opinion herein, and will not be here restated. It might be noted here that the conclusion of law is not based particularly upon any of the above findings of fact, and in our judgment is unsupported by any pleadings in the case. It is rather an interpretation of the lease contract by the court to the effect that it permitted assignments of segregated portions of the leased premises, and that when so assigned the assignee or assignees thereof might take possession and develop their respective portions without regard to whether the lease as a whole had been or was being developed; which issue was not raised by any pleadings in the case so far as we are able to ascertain. Neither of the appellees herein contend by pleadings that he had or was developing a segregated portion of the lease. The sole issue raised by appellants' pleadings was whether any of the appellees had complied with the general provisions of Bailey's contract to diligently develop the lease as a whole for oil, gas, *Page 118 and minerals. Bailey had contracted to do so, and his contract bound each of his assignees of a segregated portion to do so. Adjudication of the issue of Bailey's right to assign segregated portions of the lease was not involved under appellants' pleadings, and is not an issue either in law or in fact in the case; but the case pleaded is that of failure to develop the lease as a whole by all of the defendants, appellees here, and abandonment of the lease as a whole by all of them. If any of the appellees have developed any portion of the lease to such an extent that it constitutes development of the lease as a whole, then such may be pleaded as a defense to this suit, but such issue was not raised by any pleading by any appellee; and for this reason we held in our original opinion that the trial court's findings of fact and conclusion of law wholly ignore and do not adjudicate the cause of action alleged by appellants.
For the reasons stated, the motion for rehearing is overruled.
Overruled.