The writer dissents from the majority view holding that appellant, Stanolind Oil Gas Company, is an "interested party affected" by the order granting the permit to drill the well in question and entitled to prosecute this proceeding under Sec. 8 of Art. 6049c, as amended by the Acts of the 42nd Legislature, 4th C.S., Chap. 2, Sec. 8, Vernon's Ann.Civ.St. art. 6049c, § 8. Stanolind was not the owner of the oil lease on the adjoining tract when the permit to drill the well was granted. Yount Lee Oil Company owned the lease on said adjacent tract of land. It had notice of the application of appellee Midas Oil Company to drill the oil well, and appeared and contested it; and after a full hearing the Commission granted the permit to drill the well on June 10, 1935. Yount Lee Oil Company did not appeal from the order granting the permit, but on July 31, 1935, assigned its lease to Wright Morrow, who on the same date assigned it to Stanolind, who on October 13, 1935, more than four months after the permit was granted, filed this proceeding seeking to set aside the order granting the permit to drill the oil well.
Apparently the trial court held that since Stanolind was not the owner of the adjoining oil lease when the permit was granted, it is not an "interested person affected" by the order within the meaning of that term as used in the statute giving such *Page 917 "interested person" the right to appeal therefrom. Such interpretation seems to be in accord with cases generally construing similar statutes, holding that an "interested party" or "interested person", as regards a judgment of a court or an order of an administrative board, is one who is interested at the time the judgment is rendered, or the order is made. Southern Surety Co. v. Arter, Tex.Com.App., 44 S.W.2d 913; Texas Motor Coaches v. R. R. Comm., Tex. Civ. App. 41 S.W.2d 1074. To the same effect have been the decisions construing who is an "interested party" under the Workmen's Compensation Law, which by analogy is similar to the above appeal statute in all respects. Allied Drug Prod. Co. v. Seale, Tex.Com.App., 49 S.W.2d 704, 705; Collier v. New Amsterdam Casualty Co., Tex. Civ. App. 84 S.W.2d 1087. Any other rule will lead to utter confusion because there could be no finality to the order, if subsequent purchasers have a right to appeal. Manifestly, the statutory right to appeal from an order granting the permit to drill an oil well is not an interest or covenant running with the land or an oil lease which will pass by mere assignment of the lease; but such a right is in the nature of a chose in action in favor of the owner of the land or oil lease at the time the Commission heard and determined the right to drill the oil well on the adjacent tract. And by no sort of notice to appellee or the Commission did Yount Lee Oil Company attempt to preserve any right it may have had as owner of the adjacent tract at the time the permit was granted; nor did it attempt to assign to its immediate successor Wright Morrow any right or chose in action it may have acquired as owner and protestant when the permit to drill the well was granted; and manifestly no such right passed to Stanolind, a remote successor in title.
It is also the view of the writer that the very statute (Sec. 8, supra), which authorizes "any interested person affected" by an order or rule of the Railroad Commission to appeal to a court of competent jurisdiction, shows that the Legislature intended to give the right of appeal to the "interested person affected" at the time the order appealed from was entered, because the Legislature provided for all possible haste in determining the matter, as follows: "Such suit shall be advanced for trial and be determined as expeditiously as possible."
The statute clearly states that it is the "interested" person affected by the order who is entitled to appeal, and not some person who may later become interested and affected by the order.
Sec. 11 of said Article 6049c also provides as follows: "After notice and hearing is had upon application for any such injunctive relief either party to said suit has the right of appeal from any judgment or order therein granting or refusing any injunction, whether temporary restraining order, temporary injunction, permanent injunction, or other character of injunctive relief, or from any order granting or overruling a motion to dissolve any such injunction. Said appeal shall at once be returnable to the appellate court and said action so appealed shall have precedence in said appellate court over all cases, proceedings, and causes of a different character therein pending. The provisions and requirements of Article 4662, Revised Civil Statutes of 1925, relating to temporary injunctions shall likewise apply to appeals from any order granting or refusing a temporary restraining order, or granting or overruling a motion to dissolve such temporary restaining order, under the provisions of this Act. In the Court of Civil Appeals such court shall immediately and at as early a date as possible decide the questions involved therein; and in the event any question or questions shall be certified to the Supreme Court, or writ of error thereto be requested or granted, it is here made the duty of the Supreme Court immediately to set down said cause for hearing and decide the cause at as early a date as possible, and such cause shall have precedence over all other causes, proceedings and causes of a different character in such court."
These statutory provisions argue strongly in favor of the contention that the person or party affected was intended to mean the person or party whose interest in the adjacent land or oil lease existed at the time the rule or order complained of was made by the Commission. These statutes require immediate action by both the trial and appellate courts in the determination of the issues raised by such appeal. Manifestly, the legislature did not intend that some future person or party who might subsequent to the order become affected by the rule or order should have a right to then appeal from it. Such a construction would lead to unreasonable delay in the contest of such matters and would greatly jeopardize the interest of the holder of the permit to drill the well, and would render hazardous any *Page 918 expenditure of money in the drilling of the well.
It is also the view of the writer that if the statute be construed as being broad enough to cover and make subsequent purchasers of an adjacent oil lease an "interested person affected" by a prior order granting a permit to drill an oil well, then under the undisputed facts appellant, Stanolind Oil Gas Company, is guilty of laches in not instituting its statutory right to contest the permit to drill the well at an earlier date.
Yount Lee Oil Company owned the adjacent lease to the tract on which the order granted the permit to drill the well at the time it was granted. It was given notice, and a hearing before the Railroad Commission was had, at which it contested the permit to drill the well on appellee's tract of land. The Yount Lee took no appeal from the order granting the permit; nor did it give notice to the Midas that it intended to contest its permit to drill the well. Some 50 days later Yount Lee sold and transferred the lease to Wright Morrow, who, on the same date, in turn sold and transferred the lease to Stanolind. There was no assignment of any chose in action in favor of Yount Lee Oil Company by virtue of the fact that it had appeared before the Board and contested the application for the permit; and although the order granting the permit was made June 10, 1935, the Stanolind Oil Gas Company, who claimed the right to contest it as the successor to the title of the Yount Lee Oil Company and Wright Morrow, did not file its petition in the District Court of Travis County until October 19, 1935, more than four months after the order granting Midas Oil Company permission to drill the well, and after the Midas Oil Company had spent large sums of money drilling the well and equipping the same; and after it had been operated under order of the Commission for sometime.
The majority recognize the harshness of their rule in declaring that the subsequent purchaser, Stanolind Oil Gas Company, was entitled to prosecute this appeal as an interested party; but stated that the same was a matter for the legislature rather than the courts. It is true that usually what is a reasonable time is a question of fact; but where the facts are conceded as in the instant case, the question of reasonable time becomes one of law for the court to determine. In determining this question the courts should take notice, and they have taken judicial notice in many cases, that oil is fugitive in its nature; that wells on one tract drain oil from other wells, or from underneath adjacent tracts of land; and have held that negligent delay in bringing an action by one who is affected, or who has some sort of unknown interest, is largely measured by the exigencies of the situation of the parties, the nature and character of the property furnishing the subject matter of the suit or proceeding. It is a matter of common knowledge which courts have universally recognized that in dealing with oil and gas property it requires large expenditures of money to discover and reduce the same to possession; that such property is also fugitive in its nature and subject to drainage under the laws of gravity; and also subject to great fluctuation in value. Such was the holding of this court in Murphy v. Johnson, Tex. Civ. App. 54 S.W.2d 158, writ dis. See also 17 Tex.Jur. 23S, and cases there cited. In the Murphy Case this court held that where one sought to establish a secret trust in lands which were productive of oil that he must act with reasonable diligence; and that such a claim or demand, or cause of action became and was stale by reason of any unconscionable delay or neglect in asserting such claim or demand. That a much longer time might be allowed in which to assert some right in regard to real estate whose value is fixed and on which no outlay is made for improvements and but little change in its value takes place, then as to property which is known to be productive of oil and known to be subject to drainage, and known to require large expenditures of money to discover and reduce same to possession. In such case the holder of such a right cannot stand by and permit large expenditures of money to be made and not assert his right. It is true that these principles were laid down with regard to a trust or interest in the land itself; but they should apply to right of one under this appeal statute to control the action of another with regard to the use of his own land with even greater force than when the matter relates to an interest in the land itself. Such is an equitable principle as old as the equitable law itself, and since appellant seeks the equitable relief of injunction to enjoin the drilling of the well in question, equity should deny that relief, since Stanolind and its predecessors stood by more than 4 months without protest or notice to appellee or the Commission, and permitted appellee to expend large sums of money in drilling the well in question. *Page 919