Untitled Texas Attorney General Opinion

~~+fcic:E 7xbxxExa .Ausms.T~~~s .\-rTI>uzY~- II~XX~_~I. Ansuat 13, 1949 Hon. Wm. J.~Uurray,~chaiman Railroad Commission of Texas Austin, Texas Opinion Ro. V-881 Re: The appllaabillty of the Voluntary Subdioieion Rule to the Submitted Facts. Dear Commlssloner may: Your letter requesting the opinion of the At- torney Qeneral on the above subject reads, in part, aa follows: .Aa Chairman of the Railroad Commls- sion of Texas, I-respectfully request an opinion frOm your Department that will en- able the Rallroad Commission to Uetermlne whetheror not twc tracts of land In the Qotiachalt fleld, ocllad County, Texw, con- stitate--voluntary subdivisions of property wlthln the purview of that part of the Co, ~iistilon's apaclng rules(usually referred to as Rule 37) which requires the Copplfselon to ignore such eubdlvlsiona when atitlng up- on applications to drill wells as exceptions to the spacing rule. This request is oc- casioned by thcappllcition of Beulah Rlnch- liffe for special permit to drill Yell lfo. 1-A on the Alice Luedicke lease containing .06 acre of land out of ~the Veesatche toun- site, A. Berq,Survey Gottschalt ‘Field, Oollad County, Texas tRnle 37, Cabe Ro. 37,559) and by the application of Beulah Ellnchliffe for special permit to drill Well Ho. 1-B on the Alice Luedicke lease contain- ing .ll acre of land out of the Weesatche townsite, A. Berry Survey; Gottschalt Field, Qollad County, Texas (Rule 37 Case Ro. 37,560). The facts are these: Hon. Um. J. Uurray, Page 2 (V-881) “One of the tractu of land in question, referred to in the record as the ‘saloon tract’ of .06 acre, has been a separate tract since January 31, 1934 when C. C. Luedlcke and wife, who 0uned.a traot of approximately 45.25 feet ln width conveyed the east 23.25 seekeof such tract do Oe 0. and HermanLua- Insofar as the record made beioro the Commikon shows, the conveyance x18 made in order that 0. a. and Reman Luedicke tight own the saloon or tavern located on the east 23.25 feet. “Through‘mesne conveymoee, title to the 23.25 foot strip became vested in Calvin Lue- dlcke on November 17 1944. Testimony before the Commission wan &at Calvin Luedlcke pur- chased the Btrlp in order that he right own and operate the Baloon or tavern looated there- on. ‘On March 13, 1948, Mrs. Alice Luedlcke, wldor of Calvin Luedlcke, executed an 011 and gas lease covering the 23.25 foot tract. This 011 and gas lease Is non owned by Reulah Hinchliffe. Insofar as the record made be- fore the Comlaelon shows, this Is the first and only lease executed on this tract. “The other tract of land in pueation, referred to in the record as the elau@ter- house tract’ of .I1 ame, MB ,mnstltuted a separate parcel Of land since January 8, 1946, when Calvin Luedlcke and rife, who then owned a tuo acre tract, conveyed all of said two acres to Wlllle C. Lude except a tract of 80 feet by 60 feet upon which a slaughterhouse has been operated for many years. It is this tract of 80 feet by 60 feet that constitutes the .ll acre tract known as the slaughter- house tract. “In so far as the record made before the Railroad Commlsslon shows, Willie C. Lude pu&%aBed all of the two acre tract except the -11 acre reserved by Calvin Luedicke and rife in order that Wlllle C. Lude and hi8 family right live in the house on the pur- chased tract while the children were going Hon. Um. J. Hurray, Page 3 (V-881) to' school in the town of Weesatihe. In so far a8 the record made before the Railroad COti88iOn shou8, Calvin Luedlcke+nd rife reserved the .ll acre because they derlred~ to continue to oun and operate the slaughter- house located thereon. "On March 13, 1948, ltc8. Alice Luedicke, wife of Calvin Luedlcke, executed an 011 and gas lease covering the .ll acre tract. 'Phi8 011 and gaa lease is now owned by Beulah Rlnchllffe. In Bo far as the record made before the Railroad Comuis8ion BhOwB,the .ll acre tract me never under 011 and gaa lease untll~ IWe. dllce Luedlcke executed the lease jUBt referred to. *Oil was dlacovered In the Oottechalt Field on Hay, 13, 1948. In 1930, some 18 years before, 011 was dlscovered in the Slick Field loc~ated more than four mlle~s we8t of the Qottschalt Field. The Slick Field Is an entirely separate and distinct field from, the oottachalt Meld. "The Slick Field Is the only field of any consequence located anywhere near the Qottachalt Meld. Four IBOlated well8 have been drilled at points .2-l/4 mllee to 3-l/2 s&lea from the @ottschalt Field but these wells either failed to produce 011 or failed . to lead to the di8covery of an 011 field con- ~. talnlng more than one oil well. None of euch wells were drilled In the Gottechalt Field. "(1) Should determination of the issue of voluntary subdlvlslon be determined by reference to whether or not at the tiue of the fee traneactlon the tracts In question were reasonably thought to be productive of oil or gaet "(2) Should determlnatlon of the issue of voluntary subdivision be made by reference to the date of discovery of 011 in the 011 E;;ii71n which the tract8 In question are lo- Ron. Nm. J. Murray, Page 4 (V-881) "(3) Should determination of the Issue of voluntary BubdlVl8lon be made by reference to the date of di8OoVery of 011 In the area or territory In which the tracts In question are locatedt "(4) If question Ro. 3 should be an- swered In the afflmtlve, then what conetl- totes the @area' or @terrltorr!t “(5) If question lto. 3 should be an- swered in the afflrmatlve, then, under the facts of this ca8e, would the tract8 In ques- tion be VOluntary BUbdiVi8iOnBt" Your first question seeks advice on whether the Commleslon should conelder evidence showing a pUr- pose or connivance to circumvent Rule 37. This is manl- iest fr081 the langu%e "reasonably thought to be produc- tive of oil and gas. If the conveyance by fee wa8 made at a time when the land was reasbnably thought to be, or anticipated to be, productive of oil and gas, that would be some evidence that the owner segregated the land In order to'clrcumvent Rule 37. However, such fact would not be conclusive that the owner purporely Intended to avoid the rule. Our conclusion 18 that if there 18 Sub- stantial evidence Showing a purpose or connlVance to avoid the rule, no exception to Rule 37 8hould be al- lowed to prevent confiscation. Railroad Comm.v. llagnolla Petroleum Co., 130 Tex+ 1184, 109 S.Y.,2d 967 m) . ~The rule stated In Rumble Oil and Refining CO. v. Railroad Comuileslon, 68 S.W.2d bid> (T Cl P*#~ 933, error dlsm.), was quoted with appr% lz'the Magnoll~acase, supra, as follows: "It Is manifest, therefore, that, where a situation which would circumvent the rule Is created by voluntary act, acquiescence, or connivance of the parties after the rule has attached to the property, such sltUatlOn can- not be asserted as a valid ground iOr excep- tion to the rule. The parties, In that event, are relegated to their rights as they exlsted _ prior to the creation of such eltuation~* Your second, third, and fourth queetlons are so related that we shall dlecusa them together. The ques- tion of the consideration of the date of the discovery Hon. Wm. J. l&may, Page 5 (V-881) of 611 or gas has been before our courts on several dlf- ferent occasions. In Nash v. Shell Petroleum Corp., 120 S.W.2d 522, (Tex. Clv. ApP** 36 error dlBR.) the question was directly before the co&t a8 to whether the voluntary 8ubdlvlBlon rtlle applied to a 8ubdiriBiOn made subsequent to the promulgation of the original spacing rule In 1919. The facts in that case were that the tract was conveyed 'about a year before the discovery of oil In the East Texas Field." In holding that the subdlvlslon rule did not apply, the court stated: %ule 37 as originally passed provided iOr eXCePtIOn *to protect vested rights',... The quoted wording has been changed to read 'to prevent conflecatlon of property'.... We conclude that the two expressions were used eynonymously.... one of the main proposes of this exception waB to protect the vested right of capture of owners of tracts 80 small or of 8Ueh lrrtg~lar shape as to preclude develop- ment under the general rule.... Raving made the exception, we have reached the conclusion that It did not have the power to llmlt It to 8ubdlvl8lons antidating the rule.... "The voluntary 8ubdlvlslon rule, creat- ed by court construction, waa essential to the preservation of the spacing rule and the rtated exception. Ulthout lt.$he spacing rule would have been unenforceable as to anyone who desired to circumvent It, It8 basis, and Viiy basle, is to prevent circumvention and there- by10 preserve and make effectual the spacing . The several applications of the volun- tary Bubdlvlalon rule have been predicated up- on this basil, -- prevention of circumvention of the spacing rule.... In no case, where the question was expressly raised, has It been judicially determined that the volrmtary sub- division rule has been applied on the sole ground that the 8ubdlvl8lon post-dated the original promulgation of Rule 37. That rule as originally promulgated did not expressly so provide, nor do we believe it8 necessary lmpllcatlon calls for such construction. To so construe it would6 as we have already stat- ed, be WWeaBOnable. Ron. Wm. J. Nurray, Page 6 (V-88I) In Rrown v. Rumble 011 and Reflnlna Co., 126 Tex. 296, 83 S Y 24 935 (1935) the Supreme Court held that the 8ubdi;l~lon rule 18 a~pllcable to 8ubdlvirionB “where Rule 37 Is in force la a certain territory.’ This would Indicate by lmplloatlcn that Rule 37 did not apply to certain other territory, presumably that which Is not a proven oil field. This 18 further dlSCUB8edon page 8 hereof. In Shell Petroleum Corp. v. Railroad Commlsalon, 116 S.W.2d 439 (Tex. Clv. App., 1938 dl 1 th ere was a subdlvl8lon (a partition among'h~~~~ aft:; i919, but before the discovery of 011. Thcourt, In holding that the permit be granted, wrote: 'The undisputed evidence showed that at the time of the . . . partition . . . . the ter- ritory surrounding the land partitioned was not known nor anticipated to be productive of oil or gas.... 'Neither rule 37 of the 8o-called atate- wide application a8 promulgated by the Rall- road Comuission in 1919, nor any amendment thereto, nor any epeclai ruIe 37 ha8 an a pllcatlon to territory not kaown -3s nor an clpated to be productive of oil or gas; and the Nie lnhlbltl~ VOlUntary 8UbdiVi8iOn Of lands which could have been developed a8 a whole In order to oircumvent the provlslons of rule 37 has no lDPlloatlon to BubdlvlBlon8 of 'lands prior to the dlecorery of Oil and gas In the territory where the lends are lo- 08 e . . . . (Underecoring IS added through- outhls opinion.) The latest case bearing upon this qUeStiOn 18 Wencker v. Railroad Commlaalon of Texas; 149 S.ii.2d 1009, (Tex. Clv. ADD.. . In that case there was a sub- division of am&ii &act after 1919 but before the dis- covery of oil. The Railroad Commlsslon denied a permit on the emall tract. The court held that the Commlsslon erred, and that the applicant was entitled to the permit. The first question before the court wa8: "1. Did the segregation of the V.8-acre Slaughter tract from the Slaughter l-acre tract, by warranty deed conveying the fee title to the State for highway purposes In Hon. Wm. J. Murray, Page 7 (V-881) 1933, nearly eight years prior to the dia- covery of oil or gas In the Hawkins field, Gotutltute a voluntary 8egregatlon In viola- tion of the State-wide Rule 37 then appll- cable to the area?" The court held: *It Is not controverted that the State acquired the fee title to the approximately 5-l/2-acre tract for highway purpose8 in 1933, nearly eight year8 prior to the discovery of oil In that area or territory. Nor is there any contention that the sale of the lend for hlghwq purposes was. made In order to clrcum- vent the provision8 of any oil well spacing rule then In existence. In con8equence, Ques- tion '1' lust be aneuered In the negative under the several deCiSiOn8 holding that the %oluntary 8ubdlvislon1 Nle LB announced by the Courts and as later protilgated b the CoEQi8BiOn by its rule Of My 29, 193f , IS not applicable where a tract of land Is sub- divided by mere fee conveyance from a larger tract prior to the discovery of oil In the area or territory where the land Is sltuat- cd., Ba8ed upon the above decisionr, it 18 OCROpin- Ion that the voluntary 8ubdivl8ion rule has no appllca- tion to subdlvl8lon8 of land by fee title conveyances for purposes other thaii development for 011 and (a8 prlor.t.0 the dl8covery of oil or gas In the moll field,' 'kea,' or gterrltorym where the lands are located. Particularly concern@g your third question, we conclude that while the courts have used the word8 *area= or 'terrltory*'we believe it evident that they mean an "area" or l territory' " proven to be productive of oil or ga8.” The word8 are not word8 of art and have no 8i@- flcanee except in connection with what they are used. In this Instance thex were used In connection with the issue of appllcablllty of the voluntary eubdlvlslon rule who8e purpose Is to prevent clrcluventlon of the rpaclng rule. The purpore of the 8paolng Nle Is to prevent warte of oil and gas. Accordingly, .area" or n terrltory8 when se used must mean an 'area' or %errltorj productive of 011 or gas. The word8 are not capable of exact deflnltlon. They are relative and will depend on the fact8 and clr- cum8tances of Individual ca8e8. In that regard, the Hon. Wm. J-Murray, Page 8 (v-881) courts have uniformly held that the Commlsslon is to pass upon Issues of fact. In Brown v. Rumble 011 & Refining Co., 126 Tex. 296, 83 S.W.2d 935 (19351 I 1 dl d the Court held that the rule ~~~t"~~b~lvl~~~~~ea~pliea "where rule 37 Is In force In a certain terrltorg.* As used, the words "certain territory" could only mean a territory productive of oil or gas. In Shell Petroleum Corporation v. Railroad Commlsslon, It was held the sub- aprior to the discovery of oil and gas In the territory where the lands are lo- cated.' Writing on the Jktlon fol;' Rehearing In the Shell Case above, Justice Baugh stated that he agreed that the subdlvlslon rule "should not and does not ap- ply to Instances where one In good.fi+lth acquires fee title to gland In : It iB comnon ]oloWledRe that a ry" Is proven to be productive of 011 or gas only by tk &i&g-In of a discovery well. What territory is "proven" and which la "reasonably productive of oil or gas. Is a question of fact depending on the circumstances of each case. It may be argued that certain language In Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131m 26 73 (1939) I 1ays down the proposition that no eub- dlvl~lon of land-made aubseqtient to 1919 can be con- ridered under any clrcunstances In granting an exception to Rule 37 to prevent conf.lscatlon. We would not be In accord with that argument. In that case the Commlsslon granted a permit to drill a well on a 2.35acre tract which had been senrenated from a 6.88-acre tract. The segregation was tide-after the discovery of oil In Rast Texas where the land WaB located. The Co8wilasfon grant- ed the permit as an exception to the rule on the ground that It would prevent the confiscation of property. The Supreme MU&i said: "An examlnatlon of the order or rule of Ray 29, 1934, hereinafter referred to as the rule of May 29th. will show that subdlvl8lons of land, as such, which have or hereafter may come into existence after rule 37 became ef- fective, are not protected at all against confiscation. Whenrule 37 and the rule of May 29th are read together, It Is evident that exception permits may be Issued to pro- tect such tracts from waste; but such exception Eon. Wm. J. Murray, Page 9 (V-881) permits cannot be Issued to protect such tracts, as such, from conflacatlon.R The court then quoted a rectlon from the rule of May 29th and~sald: ?To our minds, language could not be made plainer, or more all-1nc1ua1ve." F~llowlng that statement, the court said on page 83 of the oplnlont 'Under such a record, there Is no pos- sible escape from the conclusion that, a8 a matter of law, the Commission violated Its rule of May 29th In granting this well permit to prevent a confiscation of property. AS already shown, this Dermlt Is on a tract of 2.35 abrea of-land. -This 2.35 acre tract wa8 constituted a subdivision after Rule 37 became effective In this oil field, and a8 to this an. It Is significant to note also that the court cited with approval the rule which we have quoted hweto- fore frOm Railroad COEUUiBBlOnv. Magnolia Pet. CO., Bupra. After a careful examination and study of the Gulf Land Companycase, we are convinced that the rule8 fl therein announced were applicable to the fact8 then ~e?O~~ the court (subdlvlslon after discovery of oil) and do not conflict with the rule which we have cited from the cases of Shell Pet. Corp. v. Railroad Commission; Nash 8. Shell Pet. Corp.; Shell Pet. Corp. v. Railroad Commleslon of Texas; and Yencker v. Railroad Caaai8slon of Texas. ‘ptie wencker cade was decided after the eeclelonin the Oulf Land Companycase. The Wencker decision, by citing %he three previous Court of Civil Appeals decisions In all of which writ of error was di8ni88ed, drew into line authprlty for the rule that where a tract of land Is sub- dlvlrled for purpose8 other than the development of oil and gas prior to the discovery of oil In the area or ter- ritory where the lands are located, euch eltuatlon does not create a violation of Rule 37 80 as to prevent the granting of a permit to prevent confiscation. The facts In the Oulf Land case and the facts In all four of the Court of Cl 11 Appeals cases cited are different. In the Ml? Land czse the 2.35 acre tract was subdivided after oil was dlsc&ered and after Rule 7 became effe&ive as to that field and as to that land. th th the aubdivislone were made Ee df8~ov~~yc%%l. ?'t&s*$;t difference ingulshes the cases. LaWcase did not have Eon. Wm. J. Murray, Page 10 (V-881) any of the questions preaentcd in those four cases or by your questions. Consequently, the rules announced In that case should not be Interpreted as laying dam such an inilexlble rule that any subdivision made subsequent to 1919 is an absolute bar to the granting OS an trctp- tlon to Rule 37 to prevent conflsaatlon. To do so, we believe, would place an unreasonable aonstruotlon upon that opinion and would also be out of harmony with the languaie used by Rr. Justice Sharp in the cake of Brown t. Rumble oil and~Rt?inlng Co , 126 Ttx. 296 r . . 935 m>l, wherein it~sald at page 945% "Ro ln?ltxlble rule can be announced, but ii an exception be necessary to meet the ends o? justice, the application for such a permit is to be addressed to the co~~~&~slon, whose orders are subject to review by the courts. " Your fifth queetion asks whether "under the facts o? this cast, would the tracts In question be vol- untary subdivisions?* We'feel that this question pre- sents a ouestion of fact uhich should be dettrsnintd by the Cod&Ion. kksequentlg, we do not pass upon this question. As stated in Rroun v. Rumble Oil i%ndRe?ining "All questions of fact art prlmarllJ for the %&.%~'to determlne." SURMARY ~. 1. In determining the Issue of volun- tary subdivision, the Railroad Commlssion should consider whether or not at the time of the fee transaction the tracts in question were in proven territory or in an area reason- ably thought to be productive of 011 and gas. I? the tracts in question were reasonably thought to be productive of 011 or gas, that would be evidence, though not conclusive evl- dence, of a purpose, acquiescence, or con- nivance to circumvent rule 37, And i? such ultimate fact Is aumorted br substantial evidence, then a denial of the permit should be upheld. Railroad Commlsslon v. Ragnolla Petroleum Co., 130 Tex. m, 1OmW. . 26 9b7 /ii 2. The voluntary subdlvlslon rule does not apply where tracts of land are segregated Eon. Wq. J. Murray, Page 11 (V-881) by fee title conveyancefor purposes other than the development of 011 or gas, provided that at the time of swh eegregatlon the land was not louattd in a proven 011 or gas field. Yours very truly ATTORRRY QRRRRAL OF TEXAS ,==4~- Charles B. crenshar Assistant CEC:db E&ST ASSISTAliTATTORRRY QEBE&ILL