Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co.

ON MOTION FOR REHEARING

REYNOLDS, Chief Justice.

Raw Hide Oil & Gas, Inc. and Raw Hide Production Company, Inc. have filed a motion for rehearing, requesting a reconsideration of determinations made in our original opinion. Our reconsideration of the contentions expressed in the motion does not persuade us to change our original judgment of affirmance. Neither are we persuaded to write further upon the reconsideration other than to address Raw Hide’s perception of our erroneous reliance upon authority cited in our opinion.

As previously noted, Raw Hide’s second-point contention is that the trial judge gave an improper definition of the term “oil” in connection with special issue number seven. The definition, Raw Hide contends, is too restrictive because it required the jury to determine that oil was “producible under normal operating conditions.”

Enroute to overruling the contention, we said in the 25th paragraph of our opinion, “In Dorchester [Dorchester Gas Prod. Co. v. Harlow Corp., 743 S.W.2d 243 (Tex.App.—Amarillo 1987, writ requested) ], a similar instruction survived attack. Id. at 257. In effect we have already concluded that a similar instruction was material.” Raw Hide notes that at page 257 of the Dorches-ter opinion there is a discussion of the definition of casinghead gas that was given in that case, and submits that the Dorches-ter opinion does not support the definition of oil, a different substance, that was used in this case.

It is apparent from Raw Hide’s perception of our reference that we could have employed more specific language of communication. Nevertheless, the language we used was not an intended reference to the Dorchester definition of casinghead gas; rather, it was a reference to that earlier part of the page where it is recorded that the Dorchester jury, implicitly deliberating with a similar definition of oil, determined that the formation from which the wells were producing “is not productive of native oil under normal operating conditions.” But aside from that, and more pertinent, we immediately followed the referential language with an explanation why the challenged definition was relevant to the issue, a sufficient basis for overruling Raw Hide’s second-point contention.

The motion for rehearing is overruled.