I agree with much that has been said in the original opinion, but, upon further consideration of this case, I have reached the conclusion that appellants are not in a position to question the validity of the deed given by the trustees of Pleasant Grove Church upon the ground that said trustees sold the land for $20,000 in stock of the Hazel-Fain Oil Company, when according to the minutes of the conference they were only authorized to sell for cash or moneyed consideration.
The court was amply sustained by the evidence in his presumable conclusion that the drilling of several other wells near to this lot had already ruined it, at least temporarily for cemetery purposes. R. C. Fain testified: That the Albers well was as close to the cemetery fence as a derrick could be built, about 3 or 4 feet. This is a producing well. Just across the section line, running north and south, is Ballentine's two producing wells. Right across from the Albers well is the Leon Oil Company's producing well. Approximately 10 feet of the west line of the cemetery is another producing well. Just across from the last-named well, north, is the Root, Hupp Duff well. Other wells are in the near vicinity of the lot in controversy. That the tombstones were in the same condition, as to being sprayed with oil before the Hazel-Fain deed was made as they were at the date of the trial. He further testified, without contradiction:
"I think I know of one or two marble stones that are not covered. All of the others are covered with oil cloth or boxes made for them. All of that cemetery is saturated with oil. I don't think you could take a spray and go there and grease it any worse."
There was other evidence in the statement of facts to the effect that the lot has become unfit for a cemetery. T. Y. Butler, witness for appellants, testified, in regard to the condition of the cemetery:
"That place is now really unfit for a cemetery, but the dead there now are there, and we can't help it. The oil has already bespattered the whole business, all over it. The cemetery is not ruined by the oil that is already *Page 881 on it, but it is badly injured. If there was a more suitable location where they were not drilling an oil well, I would prefer to bury my dead in that new cemetery, if I didn't al ready have any buried in the old cemetery."
It is further in evidence: That an 8-foot board fence separates the 110 feet sold to the Hazel-Fain Oil Company from the rest of the cemetery lot, and Mr. Fain testified that there would not be more waste from the oil when it is first discovered, except to open the well to get the bit in and out. That if he was permitted to drill on this strip, and should discover oil, there would be little probability of oil spraying on those tombstones. There might be some little oil blown by the wind, but it could not grease anything worse than it is already greased. That if he were permitted to drill, and was requested so to do, he would cover any tombstone in the cemetery which was not covered at that time.
This evidence supports the conclusion that must be imputed to the trial court that no further damage to the cemetery lot and tombstones and graves therein would result from permitting this well to be drilled, and that various other wells in the vicinity of the cemetery had already ruined the lot for cemetery purposes.
If the evidence is sufficient to support that conclusion by the trial Judge, then plaintiff's grounds for injunction would fail. They are not concerned, nor does their pleadings raise the issue about whether the trustees were authorized under the action of the quarterly conference in selling the land for stock in the Hazel-Fain Oil-Company. This is a collateral attack, at most, upon that transaction and the deed that was passed as a result of the decision reached at the quarterly conference. The plaintiffs were not privies to or interested in that transaction, and were not in a position to question the validity of the deed. Since the disposition of the case in our former opinion is based upon the presumption that plaintiffs below would have the right to question the validity of the deed, it follows that our former judgment was erroneous. Therefore, in the opinion of the writer, the judgment of the trial court should have been in all things affirmed.