Since the majority of the court on motion for rehearing has receded from the original disposition of this case, the writer deems it advisable to revise the former statement of his views and add thereto a reference to the case of Marrs et al. v. R. R. Commission of Texas, Tex.Sup.,177 S.W.2d 941.
The writer is not particularly interested in the matter of the demurrers, because they work no especially harmful results.
The exact point over which the disagreement arises is, as laid down by the majority opinion, the owner of royalty under a less acreage than that allocated to a well by the Railroad Commission may by reason of his ownership of the less acreage receive all the royalty brought to the surface through such well though some of it is drained from the other allotted acreage belonging to one who is powerless to protect his ownership of the royalty by bringing it to the surface himself.
The exact situation in the instant case is: The Commission, under its spacing rules, allocates one well to every twenty acres. Theoretically each well will produce all the oil under each twenty acres. The producer, who has the exclusive right to develop and produce the oil, has located his well upon twelve acres owned by one set of royalty owners. The royalty under the other eight acres is owned by others. The contribution is in the nature of an involuntary one because of the spacing rules.
It occurs to this writer the royalty ownership is undivided as much so as if the parties owned undivided interests in the same proportions under the entire twenty acres. The ownership is not in the well but in the land. The royalty is produced through the well but from the land. None of the royalty owners own any interest in the well. The producers get the 7/8ths by virtue of their ownership and produce the royalty for the rightful owner or owners. The owners of the twelve acres do not claim the royalty produced through the well from the twenty acres by virtue of ownership of the well or of all the royalty, but because of the location of the well upon their particular twelve acres.
This writer regards the basis of the claims made here by the appellants on a parity with the rights asserted by the royalty owners in the Marrs case, supra, and all the reasons assigned for the vindication of those rights applicable here. The language found at page 204 in that opinion is particularly applicable. A royalty *Page 810 owner situated as these appellants, and there are countless numbers of them, will have his holdings rendered worthless by the application of the rule generally. It is clearly the taking of one man's property and the giving of it to another.