On Motion for Rehearing..
Appellees contend that they have shown a probable right of recovery of an undivided one-half of the minerals in and under the lands in controversy, and that such interest is in danger of being lost, removed, or materially injured, and that, therefore, they are entitled to the appointment of a receiver to take over the management and control of the entire property and the operation of the oil wells drilled thereon by the lessees of the owner of the surface and, admittedly, the owner of one-half of such minerals.
In the motion for rehearing, complaint is made of this court’s opinion, wherein we discuss the provisions of the deed under which appellees claim the interest for which they bring suit. Appellees assert that what we have said is dictum. We propose to show that it is not only not dictum, but that our conclusions are pertinent and even necessary to a determination of the issue presented as to the right to a receiver.
It will not be contended that the right to have a receiver appointed in a court in Texas is not purely statutory. The very statute here invoked by appellees makes it plain that a receiver may be appointed only when the party applying for such shows a probable right to or interest in. the property, or fund, or the proceeds thereof, over which the suit is brought,. and that such property or fund is in danger of being lost, removed, or materially injured. Article 2293, R.C.S.
We held in the original opinion, and we here reiterate, that appellees did not show such a probable right of recovery as would warrant the character of receivership that was granted and ordered by the trial court.
Let us see if appellees’ interests are in such danger of being lost, removed, or materially injured as that a receiver, having complete management and control over the entire property and the production of oil therefrom, should have been appointed.
The record discloses that, after the trial court indicated his intention to appoint a receiver, appellants requested the trial court to limit the powers of the receiver to that of taking over and protecting the proceeds from the portion of the oil claimed by ap-pellees, and to provide for the impounding of such funds in some bank selected by the court, or, in the alternative, that the trial court require a bond conditioned in such manner that it would protect the appellees *1216with respect to the operation of the properties, and account for the proceeds from sale of oil produced.
This, to us, shows no disposition on the part of appellants to bring about a condition under which appellees’ property and funds are in danger of being lost, removed, or materially injured. On the other hand, this, to us, shows a desire upon appellants’ part to co-operate with the court in the protection and preservation of all of the property and funds claimed by appellees. Mr. Justice Neill, of the San Antonio Court of Civil Appeals, aptly said, in People’s Investment Co. v. Crawford et al., 45 S.W. 738, 740: “The power to appoint a receiver * * * will not be exercised, except upon a. very grave necessity, and upon a clear showing that the applicant’s rights imperatively demand the apointment, and that without it he has no adequate remedy, and is in danger of suffering irreparable loss.” Many authorities are cited.
Chief Justice Conner of this court, in Galvin v. McConnell et al., 53. Tex.Civ.App. 486, 117 S.W. 211, 213, said: “In all cases, as we understand the law, the remedy of a receivership is to be cautiously applied.” Mr. Chief Justice Conner has gone to his reward and his successors, without hesitation, reannounce the doctrine found in the opinion written by him almost' thirty years ago.
Chief Justice Fly, of the San Antonio Court of Civil Appeals, in Kokernot v. Roos, 189 S.W. 505, 508, said: “A ‘receiver’ is defined as an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite.”
The only property or fund about which these parties are litigating is a one-half interest in the oil and gas in and under the lands in controversy.
We reiterate: If the trial court is of opinion that a receiver should be appointed in this cause, such receiver should be given no authority other than’ to take charge of the proceeds of one-half of the oil and gas produced from the premises, after deducting such operating expenses as the facts may warrant.
Furthermore, appellees are asking that the doctrine of balancing of equities be wholly disregarded in this suit.
We see no substantial difference in the light of this record between the granting of an injunction restraining appellants from controlling and operating the properties in controversy, • and the appointment of a receiver to take over the control and operation of the same, to the exclusion of the undisputed rights of appellants. The result, of which we speak, appears, to all intents and purposes, practically the same.
Who has developed these oil-bearing properties? At whose expense has this been done? The answer is obvious. The appellants. Had they not. done so, there would be nothing over which appellees could litigate. The greater equities are with appellants, and their rights ’ should not be ignored.
Can it reasonably be said appellants should be denied the privilege of drilling other wells on the premises? And yet the appointment of a receiver to take complete management and control of the lands denies them such right. Even though the trial court should approve such further development, appellants would have no voice in the matter.
Should the trial court see fit to grant a receiver, having such limited authority as the equities demand, the right of appellants to further develop the property, during the pendency of such receivership, should not be denied but expressly preserved.
If the doctrine here announced by us appears “strange” to any party to this litigation, or to any attorney, our answer is that to us it is equitable and just, and amply supported by pronouncements heretofore made. Alworth v. Morris, Tex.Civ.App., 19 S.W.2d 212, opinion by Chief Justice Hickman; General Oil Co. v. Ferguson, Tex.Civ.App., 224 S.W. 261; West v. Herman, 47 Tex.Civ.App. 131, 104 S.W. 428, 432; Davis v. Hudgins, Tex.Civ.App., 225 S.W. 73; Hardy Oil Co. v. Burnham, 58 Tex.Civ.App. 285, 124 S.W. 221; Higgins Oil & Fuel Co. v. Snow, 5 Cir., 113 F. 433; Duncan v. Thompson, Tex.Civ.App., 25 S.W.2d 634; Turnbow v. Bishop, Tex.Civ.App., 71 S.W.2d 918; 36 Tex.Jur. par. 8, p. 25; same text, par. 28, p. 62, and par. 29, p. 64. •
Appellees complain because we said that, in our opinion, the language used in the deed, on which appellees bottom their right to recover one-half of all minerals found on and under the lands in controversy, is ambiguous. The complaint' is that we should say more and explain how and why the language is ambiguous.
*1217Webster’s Dictionary gives the meaning of “ambiguous” as “uncertain, doubtful of meaning.” It does not occur to us that any court, in construing language before it, need go further than declare the language ambiguous. Such expression has a definite and well understood meaning.
In Tom v. Roberson, Tex.Civ.App., 182 S.W. 698, 700, writ refused, the following was said: “An ambiguous contract is one capable of being understood in more senses than one; a contract obscure in meaning, through indefiniteness of expression, or having a double meaning.”
The language in the deed before us falls within the definition thus given. We do not know how to make our statement that the language is ambiguous more definite 'than has been done.
In view of what has been said, in connection with the motion for a rehearing, we wish to make plain the fact that every opinion delivered by any member of this court is the unanimous opinion of the court, unless a dissent is entered. And such opinion is not delivered until a full and complete consideration of the record is had by the entire membership of this court, after careful and painstaking consultation.
The motion for rehearing is overruled.