(dissenting).
This case was originally filed by the Lone Star Gas Company as a Bill in Interpleader to determine to whom certain royalty payments on gas produced from lands in Hamilton County should be paid.
Appellant Kuklies and wife own a 210 acre tract; Appellant Julius Reinert and wife own a 280 acre tract; Appellee Otto Reinert and wife own a 195 acre tract. The lands of each of these 3 owners is adjacent to the land of at least one of the other 2 owners.
Each landowner executed a separate oil and gas lease on the acreage of his particular land as above noted, adequately describing same.
The leases from Otto Reinert and wife, dated 15 June 1944, and from Julius Reinert and wife, dated 8 December 1942, were to Rudolph Grossenbacher; the lease from Kuklies and wife, dated 8 February 1944 was to L. E. Sumner.
Kuklies and wife on 8 April 1944 transferred to L. E. Sumner one-half of the royalty produced from their land.
On 17 March 1945 Sumner transferred his lease to Grossenbacher.
Grossenbacher transferred the Julius Reinert lease to W. H. Read by instrument dated 12 December 1942 and was by Read transferred back to Grossenbacher by instrument dated 25 March 1945.
Grossenbacher assigned all three leases to H. W. Snowden on 5 November 1945.
Otto Reinert and wife, Julius Reinert and wife, Kuklies and wife, L. E. Sumner, as Lessors, and Grossenbacher as Lessee, joined in the execution of an instrument *446denominated “Gas Division Order and Operating Agreement” which recited that it was entered into on 8 February 1944. The instrument was acknowledged by L. E. Sumner on 2 April 1945 ; by Kuklies and wife-on 8 February 1944; by Julius Reinert and'wife on 26 July 1945; and by Otto-Reiner-t and wife on 20 and 23 April 1945, respectively.
This instrument which I will hereafter refer to as the “pooling agreement” re- ' cites among other things:
“Whereas Lessors own in severalty the tracts of land opposite their names and Lessee is the owner of the oil and gas leases covering all of said tracts of land, towit:
Name Description Acres
Walter Kuklies & Wife Waller & Barnes Survey 210 and L. E. Sumner
Otto & Dora Reinert Same land in deed 1 January 1924, Henry Reinert to Otto Reinert, Vol. 93, p. 23 Deed Records 195
Julius Reinert & Wife Part James Montgomery & Wm. R. Barnes Surveys 230
“The above land being situated in Hamilton County, State of Texas and containing a total of-acres to be hereinafter collectively designated as the ‘Consolidated area’.”
(The instrument further recites that for the purpose of oil and gas production the lands are pooled and that royalties accruing' from gas produced anywhere in the consolidated area will be divided among and paid to Lessors in the proportion which the acreage owned by each respectively in the consolidated area bears to the total acreage of the consolidated area).
A well was drilled on the Otto Reinert 195 acres in latter 1945 and completed as a gas well.
Lone Star Gas Company, purchaser of the gas, filed its Interpleader to find out to whom to pay the royalties.
Appellees, Otto Reinert and wife, answered and filed a cross action which was in Trespass to Try Title for the specific 195 acre tract. The case was tried before a jury. Based on the verdict of the jury the court rendered judgment, the pertinent provisions of which on this appeal are:
1) Otto Reinert and wife are entitled to the title and possession of all minerals in and under the 195 acre tract (subject to mineral leases outstanding).
2) The instrument called Gas Division Order and Operating Agreement is insufficient in law to create a unit or pooling agreement.
Motions for new trial were overruled and •appellants appeal.
Appellants seek to reverse the trial court on Five Points. These may be summarized to the effect that Appellants contend that the Gas Division Order and Operating Agreement is a valid pooling agreement and should be enforced. Appellants cite many cases to the effect that pooling agreements are valid and will be enforced as such in proper cases. With the above I agree, but point out that the problem in this appeal is not “can it be done”, but, “was it done”.
The question here is whether appellees Otto Reinert and wife are entitled to all of the royalty from the gas well, or are appellants entitled to share in the royalty on an acreage basis as provided in the “pooling agreement”. To answer, it must be determined if the “pooling agreement” is valid. The validity of the “pooling agreement” depends on whether or not the' consolidated area consisting of 635 acres is sufficiently described in the pooling agreement itself, or by reference to other in- - struments, as to be made certain.
*447The description in the pooling agreement itself is .inadequate. Can it be made certain then by reference to the leases recited as belonging to Grossenbacher? The “pooling agreement” recites that “lessee (Grossenbacher) is the owner of oil ¡and gas leases covering all of said tracts of land.”
Upon examination of the dates of the various instruments in evidence, wé find that if 8 February 1944, the daté given in the “pooling agreement” is the correct date of execution (and there is no proof of any other date except the date of acknowledgments), at which time the recitals in it are to be taken as true, we see that Grossen-bacher at that time owned no leases from either Julius Reinert, Otto Reinert, or Kuklies. If the date when the parties acknowledged, is taken as the true date of the instrument, we find that only the Kuklies acknowledged on its date, 8 February 1944, and on that date Grossenbacher did not own the Kuklies lease.
Hence the recital “Lessee is owner of the oil and gas leases covering all of said tracts of land” is not true and can add nothing to the definiteness of the description because Grossenbacher owned none of the leases on 8 February 1944, the date of the “pooling agreement”; he . did not acquire the Otto Reinert lease until IS June 1944; he did not own the Kuklies lease; Mr. Sumner owned it. He did not own the Julius Reinert lease; Mr. Read owned it.
Appellant contends the description of the land is made definite by the description of the land given in the leases, but to find out what lease was meant we would have to go beyond the instrument itself. We would have to have parol testimony that while Kuklies lease was to Sumner, it was intended that Sumner would transfer it to Grossenbacher, and that this lease was the lease that was intended to be mentioned in the pooling agreement.
Then we would have to have parol testimony that the lease from Julius Reinert and wife had been transferred to Read, but that it was the intention of Grossenbacher to have Read reassign it to him.
I do not believe that these leases can be looked to, to make definite the descriptions of the various lands sought to be covered by the “pooling agreement.”
Even were it possible to utilize the various leases in evidence to attempt to make certain the land sought to be pooled, these still fail to make certain which 230 acres of Julius Reinert’s 280 acre tract was intended to be pooled. Appellant contends that there is sufficient description of the 230 acres, for the requirement is, that the pooled area must be contiguous acreage, and that, it therefore, would be the 230 acres of the 280 acre tract which was contiguous to the remaining acreage in the consolidated area.
I do not agree with appellants’ contention.
Then, there is no way to know that Otto Reinert would have been entitled to lü%35 of the royalty, had the well been drilled on Julius Reinert’s land. There is no way to know if a well on Julius Reinert’s land were on or off the 230 acres, sought to be pooled. Appellants’ case does not stand up under the test of mutuality.
The law is well settled in Texas that Oil and Gas in place under land are regarded as real estate and that conveyances of same are subject to the same rules governing the conveyance of real estate. Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703. It is likewise well settled that the description of the land must be so definite and certain upon the face of the instrument itself, or by other writing referred to, that the land can be identified with reasonable certainty. Norris v. Hunt, 51 Tex. 609; Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848, citing numerous authorities. It is further the law that while the deed itself need not contain all the identifying descriptive matter — if other descriptive matter be brought into the deed, the reference to them must be made with certainty, and nothing cam. be left to doubtful inference. Davis v. Kirby Lumber Co., Tex.Civ.App., 158 S.W.2d 888, W/E Ref.Want Merit.'
Applying the rules laid down, it is my conclusion that the lands sought to be pooled are not described in the pooling *448agreement itself, or by other writings referred to therein, so that they can .be identified with reasonable certainty. It follows that the ‘ÍGas Division Order and Operating Agreement” is insufficient in law to create a valid pooling agreement. It is my conviction that the judgment of the trial court should-be affirmed. .....