Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Honorable Bascom Giles Commissioner,General Land Office ,' Austin, Texas Dear Sir: ./ You submitted to us co roii0ws: No. 20520. the drilling of a not commenced on ore one year from this ease shall terminate as to both es8 the lessee shall, on or be- year from this date, pay or e lessor or for lessor's credit redo National Bank at Laredo, Texas, ccessors,,whichbank and its succesy re the lessor's agent and shall con- tinue as the depository of any and all sums payahle under this lease, regardless of change of ownership in said land or in the oil and gas, or in the rentals to accrue thereunder, the sum of Six Hundred Fifteen Dollars ($615.00), which shall operate as rental and cover the privikege of'deferring the commenoementof Hon. Bascom Giles, Dage 2 drilling operations ior a period of one year. In like manner and upon like pay- lllent or tenders, the oommenoemadtof drilling operationsmay be further defer- red ror like periods suooessivelyduring the original term of this lease as fixed in the habendum clause hereof.* You sent us a photostatlocopy of a receipt dated May 22, 1939, signed by yourself acknowledgingreoeipt rrom D. D. Oil Company, Mission, Texas, of $307.50 rental on State lease No. 20580, 615 acres, Starr County. 2. A lease dated April 7, 1936, executed by Dr. M. J. Brooks, et al, and as agent for the State of Texas, lessor, to F. Davenport, lessee, covering 342 acres, more or less, in Starr County, Texap. The lease being designated as M. F. 20602. It provides for a primary term of five (5) years and contains among others, the tollowing provisionsa "It operations for drilling are not oommenoed on said land on or berore one year from this date, the lease shall then terminate as to both.parties,unless on or before such anniversary date Lessee shall pay or tender to.Lessor or to the credit of Lessor in Atlanta National Bank at At? lanta, Texas, (which bank and its suoces- sors are Lessor's agent and shall continue as depository for all rentals payable here- under regardless of ohan es in ownership of said land or the rentalsf the sum of Three gzi=;i Forty-ei@t and no/100 ($348.00) ($348.00) herein called rental); vahiohshall cover the privilege of deferring commencement of drilling operations ior a period of twelve (12) months. In like man- ner and upon like payments or tenders annu- ally the commencementof drilling 0 erations may be further deterred for suooessPve periods of twelve (12) months each during the primary term. The payment -ortender of, rentals may be made by the oheok or draft of hasee mailed or delivered to said bank on or before such date of payment." Said lease further provided: Hon. Basoom Giles,.Page3 "The rights of either party hereunder may be assigned in whole or in part and the provisionshereof shall extend to the heirs, suooessorsand assigns, but no change or di- vision in ownership of the land, rentals, or 'royalties,' however accomplished,shall oper- ate to-enlarge the obligationsor ~diminish the rights of Lessee. No sale or aaslgnment .byLessor shall be binding on Lessee until Lessee shall be furnished with a certified copy of recorded instrument,evidenoing same. In event of assignment of this lease as to a segregatedportion of said land, the rentads payable hereunder shall be,apportlonableas between the several leasehold owners ratably according to the surface area of each, and default in rental payment by one shall not affect the rights of other leasehold owners hereunder.w. Tou also burnished us two receipts executed by W.,lk MoDonald, who was Cammissionerof the General &md Office dur- ing the year 193S. One receipt was dated April 4, 1998, aok- nowledging receipt from D. D. 011 Company of $1$3.00 -rental, Seotion 920, Certificate1918, W. M. Pierce, StarrrCouhty, Iii2C6C2. The other reoelpt, by b¶r.McDonald, is dated h¶ay7, 193S, and acknowledgesreceipt from D. D. Oil Company of $11.00 balanoe rental,'Seotion'920,Starr County, L, 20602. 3. A lease dated'Juhe.13,1936, from F. Dav- enport, individuallyand as agent of the State of Texas, lessor, to D. D. Oil Company and Slick- : Ursohel Oil Compaq, lessee, oovering 146 aoces in the T. R. Wright Survey, Starr County, Texas, and being designated as M. F. 20350. 'Thelease is for a primary term of five (5) years and'has the following provisionr *If operationsfor drilling are not commenced on said land on or before one year from this date the lease shall then terminate as to both parties, unless on or before such anniversarydate Lessee shall pay or tender to Lessor or to the credit of Lessor in First State Bank dc Trust Company 'ofMission, Texas (which bahk and its suooessors~are,Lassor~s agent and shell'continueES .thedepository Sor all 1 Hon..P~soom~Gilea,Fa@ 4 rehtals.payablehereunder regardless of ehanges'inownership of said land or the rentals) the sum of One Wdred Forty-Sir and No/l00 Dollars (#146.00), (herein call- ed rental), which shall oover the privilege of deferring eommenoementof drilling opera- tions for a period of twelve (12) months. In like manner and upon like payments or tenders annually the oommenoementof dr1l.l~ ing operationsmay be further deferred for suooesslveperiods or twelve (12) months eaoh during the arimary term. The payment or tender of rental may be made by the oheck. or draft of Lessee mailed or delivered to . said bank on or before such date of payment.? You furnishedua a photostatic copy of a receipt executed by yourself aoknowledgingrsaelpt frcunthe I?..& Oil Company oP$73.Ob rental on State Lease No, 2035O, 146. .,~: MT -. ’ acres, Starr County, dated June 14, 1939. Iiioouneationwith said leases and reaa$p$~~ybu,ask ua hr questfons. As. we understand your request'.yo$di)s%ra . an answer to the last three only,531the event re~ah&wer?$+. fir& question in the.negative.' Since we anWer.y&i&:ffi:s$...,~ question in the affirmative,we will only set it .out'he$?& and prooeed to answer it. "(1) Did the aforesaid leases expire ipso~. .' facto when the lessee fafled to pay the rentals' due the State of Texas on the.date due and pay- able under the terms of said leases'l" You stated in your letter that 'thelandown& par- U& of the rental under said leases.was - paid to them in due . ,The RelinquishmentAct and particularlythat portion a of same'as incorporatedin Artiole 5368. Revised Oivil Statutes of 1925, authorizes the owner of th 3&a3 to ereeute an oil d -se upon such terms aiWcondi&fs as s&h owner may d%& best, subject only to the provisions of.the Act. Artiole 5368. Revised Civil Statut~esof 1925; pro? @des as follows: The owner of sal+.iand is hereby t&h& riced to.sell or lease to any p.B‘SPqn, firm err oerporation'theoil.and $a8 that may be'the,reon Hon. Basoom Giles, Rage 5 or therein upon such terms and conditionsas such owner may deem best, subject only to the provisionshereof, and he may have a second lien thereon to secure the payment of any sum due him. All leases and sales so made shell be assignable. No oil or gas rights shall be sold or leased here- under for less than ten cents per acre per year plus royalty,and the lessee or purchaser shall in every case pay the State ten cents per aore per year of sales and rentals;'andin case oS production shall pay the State the undivided one-sixteenthOS the value of the oil and gas deserved herein, and like amounts to the owner of the s0i1.~ We find nothing in'the statute which preventsthe owner from executingwhat is commonly known as an Qnless .leasen with provisionssimilar to those pointed out above in the leases submittedto us Sor examination. That being true, .tidthe terms of the above leases specifioallyprodding that - they would terminateat the end.oS the first year or any year during their primary term on failure to drill or pay rental on the.date provided,and the receipts submitted showingthat such rental payments were not made in time, all OS theabove leases ipso Saoto terminated.-The first lease listed above, being No. 20580, terminated on May'8, 1939;.the second lease .llsted above, being No. 20602, terminated on April 7;1938, and.the third lease listed above,.beingNo. 20350, terminated on June 13, 1938, for Sailure to pay the delay rental8 on or before the dates therein provided. or oourse; we are assuming in all instancesthat operations for the drilling of a well for oil and gas were not commenced on the land oovered by any of said.leaseson or before the dates above mentioned,and t.hatall OS said leases had.been assigned to D. D. Oil Company. It is well settled that in construi& and detetin- lng the right8 of the parties under an oil end gas lease as nrovided Sor in the RelinauishfnentAot the'oontract‘itself and .& statu&s relating theGet must be.co&rued together. See Rmnire Gas and Fuel Co. v. State, 47 8. Wi (2) 265, Supreme Court of Texas. There being no.provisions in the statutepre- venting the type of leases in question 'inso far as the delay rental feature is concerned, then we must'give full eSfeOt to Hon. Bascom Giles, Page 6 theexpressed language in the lease oontract.We could cite and discuss many authoritiesholding that the failure to pay delay rentals under,an'"unless lease" by the time provided in the lease caused the lease to terminate,drilling opera- tions not having been begun. In the aase of Gulf Produotion Company. et al., vs. ContlnenMl~Oil Company et1 a . eo de of Texas; opinion deliveredby Chief Justice Cureton on Nov. 1, 1939, and not yet reported; the court removed all doubt as to the righta of the parties with respeot to delay rentals in an "unless lease" by the following language: "The lease here inv'olvedis an 'unlesslease,?, and Imposed no obligationon Joiner, Trustee, to either drill or pay; and upon his failure to .eitherdrill, pay, or make the deposit in the named bank, no liability of any kind arose in Sa- vor of the Turners against'him;nothing was due thereunder;there was nothing for Turner to ool- leot; and nothing oould be reoovered. 31 Tex. Jur. 7W, sec. 134, Davis v. Bussy, 298 SW. 656 writ P' refuEed)fWeiss v. Claborn, 219 S.W. 254, 587 twrit refused); Stovall v. Texas Co., 262 S.W: 152, 153 (wi@& refused); McLaughlin v. Brook, 225 S.W,,575, 577; Jones v. Murphy, 253 S.W. 634; Summers on Oil & Gas (Perm. ea.), 701 2, Sea. 339 wThe t&of Texas Jurisprudenoeoited (sea. l&$1,-ln part reads: *'Its is clear from the wordin of the *unless" clause that lt'does not operate to L pose any duty . upon the lessee either to drill or to nay delay ren- tals; the matter Is entirely optional with him, and thelessor cannot oompel him to drill nor oblige him to pay any rentals.! 31 Tex. Jur., P. 744, sea. 134. (Italics Oars.) 11** * *The result or the failure of Joiner, Trustee, to al&her begin a well, pay the speoified.amount of money, or make the named deposit bg.April 7, 1928, was to ~ facto terminate the lease, and the Turners became-vested with the entire es- tate without the necessity of re-entry, declara- c, tlon, or legal aotion. 31 Tex. Jur., pp. 744, 745 Hon. Rascom Giles, Page 7 746 sec. 134; Waggoner Estate v. Sigler Oil co., 118 Tex. 509, 19 S.W. (2d) 27; Humble Oil & Ref. Co. v. Davis, 296 S.W. 285, 287 Corn.App.); Mitchell v. Simms 63 S.W. 1?$*371 373 (Tex Corn.App )* Weiis v. Cla- born, 214 S.W. S84'(writ ref;sAd);Wi,lsonv. Gass, 289 S.W. 141, 142 (writ refused);Mor- rissey v. Ambrugey, 292 S.W. 255, 256 (writ refused); Thornton on Oil & Gas &h ea.), vol..l, seo. 124; Summers on Oil and Gas (Perm.'ed.),vol. 2, pp.217, 218, sec. 337; EmFire Baa k.Fuel Co. v. Sannders, 22 Fed. (2d) 733, 735 (writ of certioraridismisses), 278 U.S. 581. "The *unless*provisions~orthe lease, there- fore, are obviously a iimitation on the grant; since ra limitation determines an estate upon the happening of the event Itself without the neces- ~~~~e~~~"~~~a~~~~~~~r~~~~~~~~~~~~, (Perm. ed.), vol. 2, seo. 337, p. 215; Waggoner Estate v. Sigler Oil Co., 118 Tex. ,509,519, 520;. Humble Oil & Ref. Co. v. Davis, 296 S.W. 285, 287; Caruthers v. Leonard, 254 S.W.~ 779, 782, Morrissey v. Amburgey, 292 S.W. 255, 256 (wkit refused); au- thorities supra." Artiole 5372 0r the Wevised civil Statutes or 1925 provides in part: *If any person, rim or corporationoperat- ing under tnls law anal1 rail or refuse to makd the payment of zn$ sum within thirty days after it becomes due * the rights acquired under the permit or lease shall be subjeot to forfel- ture by the Commissioner*,etc. The above quoted provisions of Article 5372 has re- ference only to sums which become due and for which there Is a liabillty.onthe part of the landowner or lessee to pay. Under the terms of the lease oontraots in question the ren- tal never.becamedue in the ordinary sense of the word in that the payment thereof could not be enforced. The lessees had to make the payment8 in proper time to keep the leases alive for another year, but they were not required to keep the leases alive. That being true, Article 5372 had no applicationto the rental provided in the above leases. Certainly the leases 545 Hon. Basoom Giles, Page 8 did not remain alive until thirty days after the rental payment date, the rental hot having been paid In time and until the Lana Commissionerdecided to forfeit the leases for failure to pay same in spite of the plain provisions in the leases to the contrary. The lessees could not se- cure this valuable right without paying a consideration therefor or being obligated in any way. There would be no mutuality between the parties to the extension. Mr. Summers in his most reoent edition on oil and gas discusses this question as follows: sRemediesof the Lessor for'Failure of the Lessee to Drill or Pay Where the *Unless*Drlll- ing Clause is used wWhen the 'unless'drilling clause is used, the lessee'doesnot convenant to drill% pay. The olsuse relative to the drilling of wells within a stated time, or the periodic payment of money, Is used, not for the purpose of fixing a duty upon the lessee to drill,or pay, but to' state a limitationupon which the'lease termi- nates If these acts are not performed. Conse- quently, if the lessee fails to drill within the stipulatedtime, the lessor cannot recover in an action for rent, or recover in an action for damaaes for failure to drill. for the obvious reason that there is no duty'upon which to found such action.* Summers' Oil & Gas, Vol. 2, p. 494, Section 452. See also W. T. Waggoner Estate vs. Sigler Oil Com- 19 S.W. (2d) 27 b S . Ct. of Texas; Humble Oil k RE: Aing Co. v. Davia'etyalUP296S.W..295 Corn.App..Seo.B'. : fit ulr Production Co. et Al, vs. Continktal Oil Co., et' al.. sunra. The provision of Article 5368 that in every lease the state shall be paid a minimum Of ten oents Per acre Per year rental Is complied with in the above leasein so far s the year in uired about, being the year be&iwing May 8, 1 939, in the fP rst lease; the year beginning April 7, 1938, in the seoond lease, and the year beginning June 13, 1939, in the third lease, for eaoh lease, provides not only that a rental of which the state is to get more than ten cents per acre is to be paid but that it must be paid in advance, Hon. Basoom Giles, Page 9 in order gor the lease to be in effect for the year. The lessees were not liable for this rental but as we have pointed out they lost their leases by not paying it in, time and the leases were not in erreat at any time unless the state had received its rental in advance; thus the provisionsor Article 6368, supra were rollowed. It ~111 be noted that in conneationwith the dls- dussion or the second lease above, being the M. J. Brooks Lease No. 20602, that one-half of the rental therein pro- vlded ia $174.00, being the portion to which the state is entitled, that the anniversarydate or the lease, being the date on or before which the rental had,to be paid in order to keep the lease alive for another year, was April 7, 1938, and that'$163,00was paid before the anniversarydate',to- wit, on April 4, 1938, but the balanoe of $11.00 was not paid until after the anniversarydate, to.-wit,on May 7, 1938. The lessee not having tendered or paid on or before April 7, 1938, all of the rental.providedin the lease, the lease Ipso raato terminated by Its own terms, assuming that. the lease on April 4, 1938,'was owned by the same party or parties. This presents a similar situationwhloh was be fore the El Pay W;; 0;~Czi1 Appeals Sor decision in the ease or YOUIM 222 S.W. 691, wherein the lessee laoked $&96 pa&g ali'of the delay rentals provided for in the lease, the Court used the iolloviinglanguage: "It wfll be noted the lessee assumed no-ob- ligation ta oommenoe a well in twelve (12) months rrom the date or the contract nor did he agree to pay a rental If suoh a well was not oanmenoed. It was wholly optional with him. In this oonneo- tion it will be noted also that by the express terms of the contract ii such well was not oommenaed in twelve (12) months'or the rental paid, the lease was terminatedas to both parties. *,* * The oom- menoement 0r a well or payment or rental was a oon- dition precedent to a continuanoeor*esn*gion,or lessee's privilege after that date. We are of the'opinion that under the aontract in question where all the rights and privileges granted by the instrument as to all of the land described therein wer.evested..inone person, the optional right to ay rental was Indivisibleand that suoh an dndlvsdual would have n0 right to pay rental upon a part or the land,only..* * * And the failure to pay the'whole stiplated amount terminatedthe entire oontraot.* Hon. Bascom Giles, Page 10 This question was involvedvinK;;;ect;ya;ith a surfaoe lease In the oase of MoCray . 9, .< 130 S.W. (2) $58. The lease had the following provision: 'It is further provided that If said rental becomes delinquentfor as much as three (3) months then and in that event this lease shall beoome null and void and shall revert immediatelyto the parties of the first part gogether with all im- provements thereon laoated." SudRe Graves. who wrote the opinion for the Court of Civil Appe&s of Gaiveston, in dieouksingthe above pro- vision in the lease used.the following language: Vinae this lease contained the recited au- tomatic rorfeiture dlause upon derault in payment of rental no eleation to deolare it rorfeltad was required of appellee. * * *" Y'he relied upon tender must have been of the rull amount due from the appellant to the ap- pellees at the date thereor 'tohave been valid as such, which was not the aase in any or the three instanoes.w. For the reasons disonaaed herein, it is the opinion of this department that eaoh of the leases in question ipso raoto expired when the lessees failed to pay the rental In full on or before the date speclried in the lease, and that Article 5372, supra, hever had any applioationto.the rentals in qudstion under the facts presented. Yours very truly ATTORNEy GENXZALOFTEX@ BY DDM:jm APPI?CVEDD.=7, 1939