(concurring).
I agree that the judgment should be affirmed. My reasons are stated below.
Appellants’ evidence establishes that ap-pellees had a prior lease (with different lessors) on the 20 acres here involved, and that appellees had drilled a producing well on said land. It is the claim of appellants that this lease had expired because oil and/or gas were not being produced in paying quantities, causing said lease to be automatically cancelled and of no force and effect. Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 137 A.L.R. 1032. Appellants assert that as a consequence of such cancellation of appellees’ lease, appellants’ top lease became the dominant leasehold estate.
Regardless of whether this be construed as a strict trespass to try title suit, a suit to remove cloud from appellants’ title, or a combination of both, there is no evidence in the record before us to establish that any of the terms of appellees’ lease had been violated, or that said lease had expired. A copy of this lease is not in the record on appeal, and a summary of certain of its terms in the statement of facts does not include any provision reciting that the lease would expire after the primary term if production obtained during the primary term ceases thereafter to produce in paying quantities (the provision relied on in their brief by appellants).
Appellants offered evidence in the trial court to prove that oil and gas were not being produced from appellees’ well in paying quantities. Appellees’ objections to this offered testimony were sustained on the ground that there was no proof of a chain of title in appellants from the sovereign, or from a common source. Thus, this line of evidence is in the record only on a bill of exceptions. Appellants do not complain by any point of error that the trial court erred in excluding this offered testimony. Hence, the question of the correctness of the trial court’s ruling is not before us. We can consider only the evidence that was admitted by the trial court in determining the question of reversible error. On the basis of the record on appeal, I find no reversible error.