On Motions for Rehearing.
PER CURIAM.Earnest motions for rehearing have been filed by appellant Magnolia Petroleum Company and by appellee Railroad Commission of Texas. The commission has but one pleading in the record, its answer in which it squarely takes the position that Blankenship by paying the $1,000 penalty became entitled to produce oil and gas from his well just as though he had originally got a permit to drill it, and that the judgment of the district court of Gregg county requiring the issuance to him of a certificate of compliance was valid and binding. The commission filed nothing to the contrary in this court. It cannot by a motion for rehearing repudiate its pleadings and join in the contentions of the appellant Magnolia Petroleum Company. See Pullman Co. v. Bullard (C.C.A.) 44 F.(2d) 347.
But we have not held, as both motions assume, that the Gregg county judgment is conclusive, or that it correctly decided that payment of the penalty for drilling without a permit necessarily rendered Blankenship’s well a lawful one. Those are questions of Texas law which we have not found it necessary to decide. We say that the status of Blankenship’s well being at least doubtful, it is not for Magnolia, owning competing wells, to wholly stop its operation by permanent, injunction. Else other well owners could attempt the same thing, and even by a bill in Blankenship’s home state of Oklahoma, since injunction operates in *557personam. Conflicting results might easily be reached. The statutes of Texas referred to in our previous opinion expressly put the duty of enforcing as well as of making the rules and regulations upon the commission, and direct the Attorney General to enforce them by injunction or other appropriate remedy. In such enforcement proceedings as well as in the statutory quasi appeals to the court of Travis county from the making of rules and regulations, the commission represents the public and the result may establish status as against the world. See Magnolia Petroleum Co. v. Edgar (Tex.Civ.App.) 62 S.W.(2d) 359. Magnolia Petroleum Company is given no authority to enforce the commission’s rules and orders, but can only assert its own private rights. We hold that it has under the circumstances of this case, which include the commission’s refusal to question Blankenship’s right to operate his well, no equity to a permanent injunction, but that if its oil lands are being unduly drained by Blankenship’s well and by the other two wells on the same two-acre tract which before subdivision in 1933 was a unit of less than twenty acres, the legal and sufficient remedy is to obtain a proration adjustment order from the commission. When subsequent to the promulgation of rule 37 this small tract was subdivided by its owners for partition, we recognize that, although each owner acquired title to the oil under his subdivision, he had no absolute right to a well. The tract remained a single production unit to be handled under rule 37, which in terms applies to tracts held either by a single owner or by several owners. We suppose that if the commission denies to any subdivision of such tract its own well that it can make some just apportionment of the oil produced on those subdivisions which are allowed wells; it being implied, if not expressed, in the act of subdivision that owners not allowed a well are not wholly to lose their oil. Blankenship would have been in this situation, but he now has a well in fact, sunk at great expense and under color of court sanction. It is for the commission on a hearing for a proration order to say what production should be allowed to the whole two-acre tract as against Magnolia and other adjoiners, and within that tract what proportion if any of the production allowed to it should be awarded to Blankenship’s well as against the other two wells previously on the tract. If found material, the effect of the payment of the $1,000 penalty by Blankenship and the force of the judgment of the Gregg county court may be then considered. Nothing in the disposition we make of this case would prevent.
We are referred to several recent decisions of the Texas courts in which injunctions against sinking wells without proper permit were awarded or recognized as proper: Magnolia Petroleum Co. v. Railroad Commission (Tex.Civ.App.) 90 S.W.(2d) 659, affirmed and rendered by the Supreme Court 96 S.W.(2d) 273; Stanolind Oil & Gas Co. v. Railroad Commission (Tex.Civ. App.) 92 S.W.(2d) 1057; Empire Gas & Fuel Co. v. Railroad Commission (Tex. Civ.App.) 94 S.W.(2d) 1240. These were all suits in Travis county brought under the statute directly to set aside orders of the commission allowing or refusing permits to sink wells. They do not deal with completed wells, or with the private right of an adjoiner to stop the operation of such. Our view that the adjoiner ought in a case like this to have recourse to the commission rather than to have a permanent injunction is apparently approved in Stanolind Oil & Gas Co. v. Railroad Commission and W. L. Sartain, 96 ’S.W.(2d) 664, where our opinion is cited.
The motions for rehearing are denied.