On Defendant in- Error’s Motion for Rehearing.
This case was submitted without oral argument. It was stated at the outset of defendants’ (plaintiffs in error’s) brief that plaintiff had accepted his portion of the equipment in Walker County on July 7, *2671937, though he removed only a portion of it from the location at that time. It is too clear to require citation of authority that, if this were true, defendants would not be liable for wrongfully withholding possession of equipment from plaintiff after the time plaintiff had accepted possession thereof, though they might be liable for damages for breach of their obligation to deliver possession to plaintiff on the Bender Lease. Plaintiff (defendant in error) did not challenge this clear-cut and decisive statement, at least directly. We now find that plaintiff did not accept all of his equipment on July 7, 1937, because one Markle had removed a portion of such equipment from the location of the well in Walker County. Plaintiff did on that day, however, accept all of his equipment except the portion which had been removed by Markle. He filed a complaint against Markle in Walker County, accusing him of the theft of the portion of the equipment which he, plaintiff, had not removed on July 7, 1937. Thereafter, and before he brought this suit, plaintiff recovered all of the equipment which Markle had removed except three items and a portion of the derrick. By advice of counsel plaintiff kept such retaken 'portion of his equipment in Walker County as evidence in connection with the prosecution of Markle; that is, plaintiff held such retaken equipment in Walker County subject to his own orders and control. Plaintiff seems to have acquired possession of the equipment which Markle had removed in broken lots at different times. But, with the exception of the three items and portion of derrick aforesaid, he had taken possession of all of his equipment which had been removed by Markle, in Walker County, before the trial of this case. While it does not appear at what times plaintiff took possession of his various items of equipment after July 7, 1937, and before the trial of this cause, it is too clear to require citation of authority that he had no right to recover damages from defendants for the wrongful detention of the various items of his equipment from his possession for the period of time after the same had been retaken into his possession. It appears from plaintiff’s own testimony that all of his equipment, which had been rémoved by Markle, had been recovered into plaintiff’s possession prior to the trial, except three items and a portion of the derrick. It was therefore clearly error for the court below to render a judgment which had the effect of awarding plaintiff damages for the wrongful detention of equipment belonging to plaintiff for the time during which such equipment had been recovered into plaintiff’s possession.
It has now become clear to us that the trial court tried the branch of this case relating to item 2 on the wrong theory. The theory upon which the trial court apparently proceeded is that plaintiff had the right to have his equipment returned to the Bender Lease unless he waived such right; and that in order for defendants to take advantage of this waiver, they must plead and prove it. Undoubtedly the proof did show that plaintiff had the right to have his equipment returned to the Bender Lease. And the retaking of the possession of his equipment by plaintiff in Walker County does not necessarily show any waiver of damages for the breach of defendants’ obligation to return the same to the Bender Lease. However, plaintiff’s cause of action in regard to the branch of his case which we Have designated as item 2, is an action in the nature of detinue. And plaintiff cannot recover for the wrongful detention of his property during the time that he had taken repossession of it. How long a period of time this was with respect to each item does not appear. But the burden was on the plaintiff to plead and prove the time the various items were wrongfully detained, in order to recover damages for the wrongful detention.
As this branch of the case was tried on the wrong theory, and as plaintiff prevailed in the court below, and as the evidence shows that plaintiff is undoubtedly entitled to recover damages for the time that the various items of equipment were wrongfully detained from plaintiff’s possession, this branch of the case must be remanded for a new trial. Waldo v. Galveston, H. & S. A. R. Co., Tex.Com.App., 50 S.W.2d 274, 276.
Plaintiff strenuously contends that we erred in our former opinion, reducing the judgment of the trial court $3,600, on account of the branch of the case which we have designated as item 3. In the branch of his case which we have designated as item 3, plaintiff seeks to recover the actual value of the Bender Lease, which was lost because of the failure to comply with the drilling obligations. In order to show the actual value of the Bender Lease, as distinguished from market value — it being shown it had no market *268value — plaintiff’s testimony shows vaguely that such lease might have some amount and value of oil production. Indeed, to have actual value as an oil property, the lease must produce oil in paying quantities. But for evidentiary purposes it is not necessary to prove that oil would actually be produced from the lease in paying quantities — this could be done only by actually drilling, but the probable production in paying quantities must, at all events, be shown. Texas Pac. Coal & Oil Co. v. Barker et al., 117 Tex. 418, 6 S.W.2d 1031, 60 A.L.R. 936. “The amount and value of oil or gas production, obtained or obtainable through reasonable diligence, must be definitely alleged, and must be proven with reasonable certainty before damages may be allowed for breach of an express or implied covenant to continue the production of oil or gas, whether such damages result from failure to produce oil or gas or from loss of same by drainage,” said the Supreme Court. 117 Tex. at page 429, 6 S.W.2d at page 1034, 60 A.L.R. 936. As plaintiff is seeking to recover for the actual value of the Bender Lease, which is valuable, of course, only for oil purposes, it would be necessary for plaintiff, in showing its actual value, to definitely allege and prove with reasonable certainty the amount and value of oil or gas production that was obtainable from the Bender Lease through reasonable diligence. This, we believe, plaintiff has wholly failed to do in this case. He testified that its value-was at least $3,600.00 to him, because from the formation he believed oil could be produced, and he desired to drill deeper, and he could use the bottom of the hole which it had cost $3,600 to drill, as a starting point to drill deeper. Such testimony completely fails to prove with reasonable certainty the amount and value of oil or gas production that was obtainable from the Bender Lease. Plaintiff contends, however, that his testimony that the lease was worth at least the cost of drilling the hole did not militate against or destroy the other evidence which, as plaintiff contends, was independently sufficient to sustain the jury’s finding; and that plaintiff’s opinion of value based upon the cost of the well was a fact to be considered by the jury in weighing his opinion, based on the physical facts, that the lease was worth $3,600, because it would probably produce oil. As indicated, in order for plaintiff to show the actual value of the Bender Lease he must show its value for oil and gas production under the rule of the Barker case. But placing aside the rule in the Barker case, we do not believe that plain-, tiff’s testimony is to be construed as meaning that the Bender Lease would produce at least $3,600 to the operator in oil or gas. Nor did the jury so construe such testimony. It found (Special Issue No. 4), that the highest actual value to plaintiff of the Bender Lease, etc., was the sum of $3,600. It is clear that they understood plaintiff’s theory, and adopted it, that the lease was worth $3,600, because further exploration could be started at the bottom of the hole that had cost that much to drill, and that this element of value existed independent of whether oil was discovered or not. However that may be, we cannot cast aside the rule of the -Barker case. And plaintiff makes no contention, we believe, that he either definitely pled or proved with reasonable certainty the amount and value of oil or gas production obtainable from the Bender Lease through reasonable diligence. And as we have no doubt that the rule laid down in the Barker case is controlling, we decline to certify this point to the Supreme Court as being novel — as plaintiff has moved to have done.
So much of the trial court’s judgment as awards plaintiff Item No. 1 damages in the sum of $2,050 is correct, and, as, on original hearing, is affirmed; the court erred, however, in awarding plaintiff judgment for damages in any sum on account of the loss of the Bender Lease, and in this respect the trial court’s judgment is reversed and here rendered for appellant. The cause, however, is remanded for a new trial on the issue of damages sustained by plaintiff for the wrongful detention of so much of plaintiff’s equipment not taken by him on July 7, 1937, or for the conversion of any part thereof, if any; and the trial court is instructed to try the issue of damages, if any, sustained by plaintiff by reason of defendants’ failure to redeliver any of plaintiff’s property on the Bender Lease, or at his home.
Defendant in error’s motion for rehearing granted; former judgment set aside; judgment of trial court affirmed in part, reversed and rendered in part and in part reversed and remanded.