## TEEATTORNEY GENERAL OF TEXAS

PRICE DANIEL Auwrmu ~~.TExAe ATTORNEY

GENERAL



### Hon. Wll1ia.mJ, JWray, Jr., Chairnmn Railroad Commi6sionof Team hatin 11, TeJras Opinion No. V-836



### Rot whorea traot of 65.65 

### aoipw3 IS segregated out of a 148.71 

### ao~e tract, 

### tawt the Comnisricin00x1~ rldor the orlglnol tmot to deterufae lðer tit0 r*grP*gakd traot ir etlt2md 

### &Q

anothu. wall 18 ‘aa **exorption to**  

### Rule 37r



### Youhuve reque6teU 

### mu?oplnlou with rmprrat to the taeuaaae 

### of a

### pemit a8anexoeptlon to ?h~J,e37* 

### on 

### the Luir of ee~tuia facts 

### subaWmd in frourrequart. la, brwlty, ue 8ummlse the toots 6a iol2ew81

li.P, Pouell hat made appl.ioatlvn to the hll6Ilf66b#l ?OF 8 6jWOilhl *FIllit t0 drill afifth

wel.2; u au l 

### xoeption to l@ale37 on his 65.65 

### aare knot sh%ohao&airu 2388 produatiw aore& TirrD@IWBIII~LOU do66Mb pant, a8 an 

### uroeptioa to the rpaalag mile, a asoond OFudditieiial~,~~11 ii Ineluding the m a4~11 #H well &n&y onthe product # puclra- aare6 

### will be 2u8mthan five aorea Sop each

**I ‘** **i** 

### onde~ this foamala of the 

### am-

$s%‘i fiStl8 ml2 or2the 23,04 

### gmxlwt$ve 

### aem could not b6~;rraead, It 16 **th8** 

### ap lioant,

**8 “** **Fa**

**heuewr, thrt**  **the Pane**  **2 tZet**  **of** 65. 5 

### aozw ir 6 6thdivLion of alrrg+r 148.71 6~6 tmdt; 

### and&we there em aftlJ rldmn wells on &heentlrr 148.71 

### acr8 &Wick, 

### ho ir entitled to anothm w&l onthe 65.65 

### acvo Waot under tbs doatrine o? the 0ontw-y

### kioa. William J, 

### Rurray, Jr. -,Page 2 (v-836) .~

care? ~4km65.65 

### lore traot woe**degrepted** 

### tramthe 148.71 awe traot **6yb66qU6nt**

### to th6

### prowlptian of’the or$g1n61 sploi 

### rule, andrliqr the dL$mvery of’pm&to Ylon. Theqwrtion 

### presented Is whetbrr, under the above faote, the Cwwtaaion 

### 10required to $rmt 

### a alt 

## l uthorleing the drilUn& of the fifth well on R”’ t e Pour11 65.65 aare tract under 

### u1e fhetrlfm 

### 0EtM m, oaae, .* ’ .



### On,Hag29, 1934, the Railroad Conualrel~nen-

,. tared the folfowlry order:2



### “R uo~aatmmsn

T the RaIlFord Cor**miarion** 

### oi **!!a66,** 

### tha 

### Znapplying Rule 37

-. 1 olia ?etraloum Cg.,130 9371 h 1Ql that where the’suidiv%ed portion I# entitled to a 1well in orae ta pro-’ . toot the vested rights o$.th?.ouners ~o.~eoorer their fair share of oil, a permit to drill’ a 

### well, on the W- & regated tract maybe sustained.. For.@ d&3cusslon @f he “Century Doctrine”, see 17T,.L.Xt.382 (note 1939);

. **2**



### .... -*

Hon.,william J. Murray, Jr. - Page 3 (v-836)
(spacing Rule) of statewide application and in applying every special rule with relation to spacing in every field in this State no subdivision of property madesubsequent to the adoption of the original spacing rule will be considered in determining whether or not any property Is being confiscated within the terms of such spatlng rule, and no subdivision of property will be regarded in applying such **spacing** rule or in determining the **matter** of a@kafiscatlon If such subdivision took place

. subsequent to the promulgation and adoption of the original spacing rule.” Under the “Rule of Ray 29” no subdlvlslon of property madesubsequent to the adoption of the original spacing rule will be considered in determining whether or not any property Is being confiscated within the terms of such spacing rule, and the Commission cannot grant a special permit for a well on a voluntary subdivided tract on the basis of confiscation. Gulf Land Co. v. Atlantic

134 Tex. 59, 131 S W2Q 73 (1939)

. This is subject to the ;oEtrlne of the Centur;y case, and a siecial permit issued by the Commission en a voluntarily subdivided ;tract maybe upheld If the original tract, **a8** it was ‘before the subdivlslon, is entitled to another well,to protect the landowner from drainage.

..’ All 

### of the 

### caees applying the rule of the Centu d case appaar to

’be based on **a** finding of.voluntary au slon within the meaning of the Rule. Although we

### havebeen unable to find a definite expression by the courts that the doatrlne of the Centure case Is applicable only where there 10 a voluntary subdivision, webelieve such 1s true, because if the tract is not a voluntary subdlvlslon.wI.thln the

“Rule of May29, ” the Commission could, upon a proper flndlng, grant a permit for.a well on the segregated tract under the~conflscatlon exception to Rule 37, The question arlaea ‘only when’the Commission cannot grant the exception because of,the ap llcation of 

### the ‘Rule of Ray 29.” 31A T’ex; :Jur. 689, II$07.

,.’ It is therefore material to determine If the segregation of the 65'.65 acre 

### Powell tract from 

### the 148.71 acre Caddie Fisher tract is a voluntary subdivision within the “Rule of Ray 29.” Under the submitted facts, the POWeLlHon. William J. Murray, Jr, - Page 4 

### (v-836)

tract was segregated subsequent to the date of the original spacing rule, and after the discovery of the production. Also, at the time of the subdivlaion the regular spacing pattern for the East Texan Field was 

### 660 ’-330 ’

. The term “subd1v1e1on” as used in the “Rule of May29” was construed by the Supreme Court in Gulf Land Co, v. Atlantic Refining COY,supra, as follows

n

. The Rule of May29th, supra, uses tks’term lsubdivlsionl in defining traote of land that have no protection from confiscation. The Commission has not seen fit to define ‘such term and ordinarily it would not require, a deflnit$og,:)because any tract of land segregated from a larger tract would constitute a subdivision. It is **obviour** that the term Isubdlvlslont 81) used In the order or rule under discussion, has no such general meaning. If such a meaning should be given the, term, a partition 0~ ‘

.‘Y”* ‘..I:. division of a 1,000 acre tract of land into two 500 acre tracts would constitute a subdivision of the land under the rule. Manifestly, ‘such a construction of the rule would be absurd,,bacause the two 500-acre tracts would come under its law against subdivision, while tracts of muchsmaller area which do not constitute subdivisions after the effective date of Rule 

### 37 would not. As we construe the rule pertaining to reubdlvlsionl subsequent to the effective date of Rule 

### 37, It means that where a tract of land ir of such size and shape that It is nectirsary to obtain **a** permit aa a special exception to the spacing provision of Rule 

### 37 before a well can be drilled thereon, such a tract will be regarded as a subdivision within the meaning of the Rule of May29th, supra, if it was subdivided out of a larger tract after Rule 

### 37became effective, HumbleOil &Refining Co. v, Railroad Commission **(Tex,** Civ. APP., writ ref.), 94 S,W.2d 1197; Falvey v. Simms011 Co. (Tex, Clv. App~,), 92 S.W.28 292.”._ .--

Ron. William J. Murray - Page 5 (V-836)

The Powell tract of 65.65 acres is generally in a rectangular shape with an average width of 1389’ and an average length of 1900 ’ and Is of sufficient size and shape that a well codd have been drilled thereon without the necessity of a special exception to the spacing provisions of Rule 37. The 65.65 acre tract would, therefore, not **be**a voluntary subdivision within the “Rule of May29th”, and the doctrine of the Centure case doe8 not apply;

As to the’particular facts of this case, however, two arguments might be urged to remove this case from the above rule:

1. That the 65.65 acre tract is an edge lease along the eastern side of the East Texas Field and the four previous wells now on the tract were all drilled as exceptions to the spacing rule; therefore, under the Gul Land case definition, the 65.65 acre tract 1s a & subdivision since the special permits granted on the first four iells are presumed to be necessary.

In answer to this, webelieve that the four prior wells were drilled as exceptions to Rule 37 In order that such wells could be drilled 81)near known production as possible, and not because of the size OS rhape of the segregated tract.

2. That the C&f Lanf2;t;; f;ft;iti;;e;; ~~~~~j, oable only to productive acres and if the productive acres are of such a size m 8hape that a special exception to the spacing provisions la required before a well could be drilled thereon, the traot is a voluntary subdivision within the “Rule oi’ i?ay 29th.”

The above argument Is not applicable to the facts of this case, andwe render no opinion thereto, since the record reveals no facts which would lead us to believe that considering the Powell tract as a 23.04 acre tract, that It Is “a tract of land , , , of euch size and shape that it Is necessary to obtain a permit aa a special exception to the spacing re#ulatlon of Rule 37 before a well can be drilled thereon.Ron. William J. Murray - Page **6. (V-836)** 

JEWrbt 

## i2Jmaix Under the facts stated, a **65.65** acre tract is not a voluntary eubdlvision within the Commleslenis Rule of May29, 1934, and the Cornmiaaion need not look to the original **148.71** aorea, aa It waaprior to aegregation, in determining whether another well should be granted on the **65.65** acrea aa an exception to,Rule **37.** Yours **very truly**  ATTORREY

‘ORR

BY

APPROVED
&u.2d’ ATTORNEY

**0ENERAL** .-. __

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