On Motion for Rehearing. The majority of the Court on consideration of the respective motions by appellees and appellants is of the opinion that our judgment reversing and remanding this cause is erroneous and that the judgment of the trial court should be affirmed.
Appellants' sole and only claim herein was, they were, as a matter of law, entitled to 8/20ths of the proceeds of the royalty oil produced from wells 5 and 8 located on the 24-acre tract in question The factual basis of the claim was set forth in the stricken portion of their answer. This factual basis was insufficient to support the title asserted. It is clear from the evidence and pleading that facts were not omitted from the plea that could have made same sufficient. The basic claim to royalty is contained in the lease of appellants to the Anderson-Prichard Corporation. This lease contains these provisions:
"The rights of either party hereunder may be assigned in whole or in part and the provisions hereof shall extend to the heirs, successors and assigns, but no change or divisions in ownership of the land, rentals or royalties, however accomplished, shall operate to enlarge the obligations or diminish the rights of Lessee."
Further:
"After the discovery of oil, gas or other minerals in paying quantities on said premises, Lessee shall reasonably develop the acreage retained hereunder, but in discharging this obligation it shall in no event be required to drill more than one well per twenty (20) acres of the area retained hereunder and capable of producing oil, gas or other mineral in paying quantities."
Neither this lease nor appellants' conveyance of the twenty-four acres in question provided for any pooling of royalties from any of the wells to be drilled on either area. There is no complaint here that the area covered by the basic lease has not been developed by the lessee or its assigns in strict compliance with the terms thereof — no contention that there has been in any way a want of conformity to the rules and regulations of the Railroad Commission applicable to the Wade City oil fields. The contention is that as a result of the application of those rules an involuntary pooling of the royalty oil between appellants and the owners of the *Page 808 twenty-four acres subject to the lease has been accomplished.
It is thought to be fundamental that the rules and regulations of the Railroad Commission cannot have the result of effecting a change or transference of property rights. There is nothing in such rules as evidencing a purpose to effect any such change.
The contention of the appellants here does not differ in essence from the contention of McRae in the case of Japhet v. McRae, Tex.Com.App., 276 S.W. 669. There the contention was that the owners of the ten acres on which there was production were entitled to only 10/15ths of the royalty, the basic lease being on one tract of fifteen acres. The contention here, in the last analysis, is that appellees are entitled only to 24/225ths of the total royalty produced from the 225 acres covered by the basic lease. The basis of the claim here may in some respects differ, in that in Japhet v. McRae one of the theories was that the owners of the five-acre tract were tenants in common in interest in proportion to their acreage in the royalty reserved in the basic lease to the fifteen-acre tract. Here the only basis for a claim of title is the rules of the Railroad Commission. There the holder of the royalty interest in the five-acre tract had no way to compel drilling on that tract. Here the same situation might exist although there has been adequate development of the entire area.
Appellants assert no wrong doing on the part of their lessee nor on the part of appellees. The basic lease certainly gave the lessee the right to develop the land in accordance with the terms thereof. Under the evidence the wells as spaced and as producing seem adequate in all respects to protect appellants in the acreage in which they have a royalty interest. If there be any unequal production of oil so far as appellants are concerned, it results from their voluntary contract in the basic lease and their failure to guard against same in their conveyance of the twenty-four acres.
The most serious question in the case is the error of the court in sustaining the general demurrer. This was clear violation of Rule 90, Texas Rules of Civil Procedure. Even with paragraphs seven and eight stricken, enough remains in the answer to permit appellants to show that plaintiffs were without title to 8/20ths of the royalty oil produced from wells 5 and 8. At least the general denial was assumed throughout the trial to be sufficient for this purpose. In making the showing of want of title in appellees it was certainly competent for them to show they had title to the 8/20ths interest. We take it that under Rule 434, Rules of Civil Procedure, if it appears from the entire record that injury did not result from the erroneous ruling, that the judgment should be affirmed.
In this case we think the pleading, after paragraphs seven and eight were stricken, was sufficient to have permitted appellants to show all facts, the basis of their alleged right. In arriving at this conclusion we take into consideration the facts established by the undisputed evidence and accord absolute verity to the facts alleged in paragraphs seven and eight.
It is true that the general demurrer is no longer a part of our pleading. But we cannot conceive of how appellants were injured. There is presented a case of error without injury. Appellants could not have amended so as to make their plea good. Ryall v. Allen, 143 Ala. 222, 227,38 So. 851; De Leon v. Walters, 163 Ala. 499, 50 So. 934, 19 Ann.Cas. 914.
In regard to the two Alabama cases above cited it is to be noted that for a long time Alabama has had a code provision which abolishes the general demurrer in about the same terms as our Rule 90. Suppose a plaintiff should seek to recover for prenatal injuries. For such injuries there can be no recovery. Because the trial court sustained a general demurrer to the petition must the case be reversed?
Had the trial court ignored or overruled the exception, the result would have been the same. The Rules and Regulations of the Railroad Commission could not have preserved the title to the oil after it had by natural process left the lands in which appellants were interested.
It is ordered that the judgment reversing and remanding the cause be in all things set aside and judgment is ordered entered that the case be affirmed.
Justice SUTTON adheres to the views expressed in his concurring opinion on the original disposition of the case, but will further state his views by way of dissent herein. *Page 809