(dissenting).
I do not concur in that part of the opinion of the majority wherein they hold that Duval County Ranch Company, hereinafter referred to as Duval, should not be permitted to retain the Vie royalty paid to it by The Texas Company and should not be paid a ¾6 royalty of production from the land in dispute in the future. I think the judgment of the trial court was correct and should have been affirmed in this respect. (1) There was no properly assigned error as to this matter. (2) There likewise was no fundamental error, and (3) there was no reversible error assigned, fundamental or otherwise.
I will discuss these propositions in the order set out above. It is true The Texas Company, by its “Eight and Ninth Points”, attempted to raise the • contention that Du-val should not be permitted to retain the ¾8 royalty paid to it by The Texas Company: In making this assignment The Texas Company. does not discharge the burden placed upon it by Rule 434, T. R. C. P., of showing that it has probably been prejudiced by the alleged error. Thompson v. Janes, Tex.Civ.App., 245 S.W.2d 718, affirmed, Tex.Sup., 251 S.W.2d 953; Benson v. Weaver, Tex.Civ.App., 250 S.W.2d 770; Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191. The Texas Company was found to be an innocent trespasser upon the land and entitled to receive credit for the money it had been out in developing and producing oil from the 4,000 acres involved. It showed it had received a gross sum of $2,760,476.61 for the oil produced at an expense of $2,093,679.86, thus leaving a difference of $666,787.86, which was the principal amount of the judgment here entered 'by the trial court. The State of Texas did not question this expense account but agreed to its correctness. Included in the expense account of The Texas Company was the sum of $162,-225.95, paid by it to Duval as a ½6 royalty upon the oil produced.' Thus The Texas Company received full credit for this sum and is in no position to say that it should have received more. The Texas Company, being the trespasser who removed the oil, is primarily liable to the State for the value of the oil taken. If it be ultimately shown that The Texas Company paid a greater sum to Duval than it should have, it could be called upon to pay such excess to the State, so The Texas Company can only be injured by a retrial as to this sum and not be helped. It therefore has not shown prejudicial error.
This brings us to a consideration of fundamental error. The majority have held, in substance, that in spite of the fact that the State agreed to this item as a proper part of the cost of production of oil' from the land and did not contest the right of Duval to keep the sum, nevertheless, it is fundamental error to allow Duval to keep the money without proving, by competent evidence, that the surface of the land was damaged to that extent. The State has made no such contention, and by not assigning this matter as error the State has waived any such alleged error. Rule 374, T.R.C.P. The State, when it voluntarily becomes a suitor in one of its courts, is governed by the same laws and the same rules of procedure and practice as any other suitor.
In Fristoe v. Blum, 92 Tex. 76, 45 S.W. 998, 999, Mr. Justice Brown, speaking fqr the Supreme Court, said:
“It is well settled that so long as the state is engaged in making or enforcing laws, or in the discharge of any other governmental function, it is to be regarded as a sovereign, and has prerogatives- which do not appertain to the individual citizen; but when it' becomes a suitor in its own courts, or a party to a contract with a citizen, the *467same law applies to it as under like conditions. governs the contracts of an individual.”
In Producers’ Oil Co. v. State, Tex.Civ. App., 213 S.W. 349, 352, the Court said:
“A careful examination of the case in no way supports the contention that the state, in its litigation with its citizens, is intrenched in a more advantageous position in regard to applying the general rule in respect to the burden of proof; 'by the same rules of evidence and rales of procedure the state is found, just as any other citizen. It has no special immunities and privileges when litigating with the citizen.”
In Arkansas State Highway Commission v. McNeil, 262 S.W.2d 129, 130, the Supreme Court of Arkansas said:
“Of course it is true that when the State, voluntarily undertakes litigation and submits itself to the jurisdiction of the courts, it must be treated as other litigants and must be bound by the actions of its attorneys.”
Prior to the adoption of Rule 374, T. R. C. P., when Art. 1837, Vernon’s Ann. Civ. Stats., was in effect, this Court could consider unassigned error, or error which was apparent upon the face .of the record, but since the adoption of Rule 374, supra, all error is waived unless assigned. There are rare exceptions to this rule, none of which exist in this case.
It would be a harsh rule indeed which would reverse the judgment of Duval, cast it in the cost of this appeal and force it to the expense of another trial, simply because the attorney for the State agreed to the item rather than requiring proof thereof, and concerning which judgment the State even at this time is in no way complaining.
Lastly, the grounds for reversal by the majority do not show reversible error of any kind assigned, fundamental or otherwise.
The Legislature of this State, by the enactment of -the Relinquishment Act, Acts 36th Leg., 2d C.S.1919, Ch. 81, pp. 249-254, Arts. 5367-5382, Vernon’s Ann.Civ.Stats., declared as the public policy of this State that, as a matter of right and justice, the surface owner of minerally classified lands was entitled to a Vi6 of the value of all oil and gas produced from such lands. It was upon this theory that the Act was upheld by the Supreme Court in Greene v. Robison, 117 Tex. 516, 8 S.W.2d 655. The attorney for, the State, in agreeing that Duval was entitled to retain the Vie royalty paid to it by The Texas Company, was only following the public policy- of this State as declared by the Legislature.
There is another reason why the State is not entitled to deny to Duval the right to retain this Vie royalty. . The State was entitled to recover from the innocent trespasser the value of the oil and gas taken from the land, less the cost of development and production. ■ The State has a judgment for this amount and it ‘is entitled-' to no more. It has agreed with The Texas Company that the Vie royalty paid by it to Duval was a proper expense and gave The Texas Company full credit for this item. ¡ The State cannot turn around in the same case and contend that it was an improper item and recover the amount from Duval. The State is entitled to but one satisfaction of its claim against The Texas Company. When it allowed this payment by The Texas Company to Duval as a proper expense of production, its claim against The Texas Company was satisfied to that extent, and it cannot then demand another satisfaction of the same item from Duval.
For the above reasons, I respectfully enter my dissent from that part of the majority opinion which reverses the judgment of the trial court as to Duval.