I respectfully dissent.
It seems to me to be too simple to hold that the Supreme Court in Harrington has laid to rest all questions pertaining to applications to redrill slanted oil wells regardless of the facts and circumstances relevant to such applications.
The facts and circumstances present here were not, nor were similar facts and circumstances, before the Supreme Court in Harrington and, in my opinion, such case is not controlling here.
It is quite true that the Commission cannot adjudicate titles or fix boundaries to land or make binding construction of contracts. It is equally true that the Commission cannot ignore or close its eyes to these matters. It must appraise them in its administrative capacity in order to perform its statutory duties.
In Cheesman v. Amerada Petroleum Corporation, 227 S.W.2d 829, n. w. h., this Court in passing on the weight of an objection to the issuance of a permit to drill a *408well for oil based on a pooling agreement had this to say:
“Amerada, pointing out that lessor Akarda is not a party to this suit, questions our authority to determine the validity of the pooling agreement in its lease.
It must be remembered that the Commission granted the permit which Amerada attacked by filing suit in the court below. The permit carried a prima facie presumption of validity. 31a Tex.Jur., p. 630. The burden was on Amerada to overcome this presumption. It attempted to do so, in part, by fully alleging and relying upon the validity and effect of the pooling agreement.
* * *
We realize that the Commission cannot adjudicate the validity of this agreement any more than it can adjudicate title, but we believe it has the same power to appraise objections made to the issuance of a permit as it has to appraise the title upon which an application for a permit is based. The rule as to title is that the applicant must make a ‘ * * * reasonably satisfactory showing of a good-faith claim of ownership * * Magnolia Petroleum Co. v. Railroad Commission, 141 Tex. 96, 170 S.W.2d 189, 191.
Applying the principle of this rule to this case we are convinced that a ‘reasonably satisfactory showing of a good-faith’ objection to the application is not made when the objection is founded upon what we consider to be a void agreement.”
It is my opinion that the Commission had a similar duty here with reference to the 1948 judgment and the 1963 agreement referred to in the majority opinion.
That the Commission did not perform this duty is shown by the following quotation from its brief herein:
“L & G ENTITLED TO PERMITS AS A MATTER OF LAW
It is the position of the Commission that as a result of the Harrington case, the Commission had no alternative but to grant L & G the right to redrill and straighten the deviated wells.”
If the Commission had evaluated the evidence, I believe it could have found that these instruments precluded appellees from presenting a reasonably good faith application for redrilling these wells.
In its appearance before the Commission on December 13, 16 and 17, 1963, the attorney for L & G stated to the Commission :
“Pursuant to the settlement reached with Amerada Petroleum corporation, L & G Oil Company hereby abandons its applications as to wells 2, 5, 6, 7 and 8 and requests authority to plug such wells.”
At the April 16, 1964, hearing before the Commission on the application of L & G to plug back and redrill these five wells John C. Robbins, Jr. and Dorothy Robbins Sage, appellees herein, appeared through their attorney and protested the application of L & G on the ground that it was in violation of the December 5, 1963, agreement.
I believe the parties are entitled to have the Commission pass on the good faith validity of the application of L & G to re-drill these five wells. I would reverse and render this cause setting aside the order granting authority to redrill these five wells but without prejudice to the rehearing of such application by the Commission in accordance with the views here expressed.
No point is made here as to the manner in which this case was tried but in my opinion it is triable under the substantial evidence rule and not under rules applicable to summary judgments.