COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CHESAPEAKE EXPLORATION, L.L.C., 

CHESAPEAKE OPERATING, INC., 

ANADARKO PETROLEUM 

CORPORATION, and SWEPI, L.P.,

 Appellants,

v.

ENERGEN RESOURCES 

CORPORATION, KAISER FRANCIS 

OIL COMPANY, PRIDE ENERGY 

COMPANY, CROWN OIL PARTNERS, 

IV, L.P., CRUMP ENERGY PARTNERS, 

L.L.C., DALTON H. COBB, JR., 

MICHAEL B. COBB, BILL 

HIGHTTOWER, and HIGHTOWER 

EXPLORATION, L.L.C.,

 Appellees.

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No. 08-13-00266-CV

Appeal from the

143rd Judicial District Court

of Ward County, Texas 

(TC# 12-01-22742-CVW) 

O P I N I O N

This case involves the construction of two oil and gas leases executed in 1976 (hereinafter, 

“the 1976 leases”) and their effect on a 640-acre section of land covered by the leases—Section 25. 

Section 25 was pooled with an adjacent section of land not covered by the 1976 leases—Section 

18—to form two pooled gas units. One of the pooled units continues to produce to this day, but 

the other ceased producing completely in 1988 when its well was plugged and abandoned. That 

particular well was completed in March 1979, and its operator designated all of Section 25 as the 
2

well’s proration unit in paperwork filed with the Texas Railroad Commission (hereinafter, 

“RRC”). Approximately two months thereafter, continuous development ended on the leased 

premises. The leases provide that when continuous development ends, the lease terminates as to 

all acreage except for:

[E]ach proration unit established under . . . [the] rules and regulations [of the RRC

. . .] upon which there exists (either on the above described land or on lands pooled 

or unitized therewith) a well capable of producing oil and/or gas in commercial 

quantities . . . .

The issue is whether, under the above-quoted “retained acreage” clause, the 1976 leases remain in 

effect as to all of Section 25, as urged by Plaintiffs-Appellees1(hereinafter “Energen”), or only as 

to an 80-acre portion of Section 25, as urged by Defendants-Appellants 2(hereinafter, 

“Chesapeake”). On cross-motions for summary judgment, the trial court ruled in favor of 

Energen and against Chesapeake. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The 1976 leases cover acreage located in Ward County, Texas, including the 

aforementioned Section 25 of Block 1, W&NW Ry. Co. Survey. Each lease contains a “pooling”

clause, which states in pertinent part:

5. Lessee is hereby granted the right to pool or unitize this lease, the land covered 

by it or any part thereof with any other land, lease, leases, mineral estates or parts 

thereof for the production of oil, gas, or any other minerals. . . . Drilling 

operations and production on any part of the pooled acreage shall be treated as if 

such drilling operations were upon or such production was from the land described 

in this lease whether the well or wells be located on the land covered by this lease or 

 

1 Appellees are Energen Resources Corporation, Kaiser Francis Oil Company, Pride Energy Company, Crown Oil 

Partners, IV, L.P., Crump Energy Partners, L.L.C., Dalton H. Cobb, Jr., Michael B. Cobb, Bill Hightower, and 

Hightower Exploration, L.L.C. We refer to Appellees collectively as Energen, for we see nothing that requires us to 

distinguish among them.

2 Appellants are Chesapeake Exploration, L.L.C., Chesapeake Operating, Inc., Anadarko Petroleum Corp., and 

SWEPI, L.P. We refer to Appellants collectively as Chesapeake because, again, we see nothing that requires us to 

distinguish among them.
3

not. The entire acreage pooled into a unit shall be treated for all purposes ... as if it 

were included in this lease.

Pursuant to this provision, an 80-acre portion of Section 25 was pooled with a 560-acre 

portion of Section 18 to form a 640-acre pooled gas unit named the Cadenhead No. 1 Pooled Gas 

Unit. This pooled unit’s well, the Cadenhead No. 1 Well, was drilled and completed on the 

560-acre portion of Section 18 in 1978, and it has continually produced gas in commercial 

quantities since then. The next year, the Cadenhead No. 2 Well was completed on Section 25. 

This well was included in a 640-acre pooled gas unit named the Cadenhead No. 2 Pooled Gas Unit, 

which consisted of 560 acres from Section 25 and 80 acres from Section 18. As mentioned 

earlier, the designated proration unit for the Cadenhead No. 2 Well included all of Section 25. 

Each lease also contains a provision requiring termination if the leased premises are not 

continuously developed as set forth in the leases’ “continuous development” clauses. Those 

clauses provide in relevant part:

[12]D. Lessee shall continuously develop the above described land by 

commencing operations for the drilling of a well on or before the expiration of the 

primary term of this lease and thereafter shall allow not more than sixty (60) days to 

elapse between the completion or abandonment of one well and the commencement 

of the next until the above described land is drilled to the density necessary to 

obtain the maximum allowable per well under the rules and regulations of the 

Railroad Commission of Texas (or other governmental authority having 

jurisdiction), or this lease shall terminate as to all of the above described land . . . .

As indicated earlier, after the Cadenhead No. 2 Well was completed in March 1979, no additional 

wells were drilled on the leased premises. The Cadenhead No. 2 well was subsequently plugged 

back and recompleted in a shallower field in 1984. Four years later, it was abandoned.

Through subsequent transactions not relevant to this appeal, Energen and Chesapeake 

acquired their respective interests in Section 25. In 2011, Energen drilled a well on the 560-acre 
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portion of Section 25 that had been pooled with the 80-acre portion of Section 18 and obtained a 

permit to drill another well. Chesapeake too obtained a permit to drill a well on the 560-acre

portion of Section 25. Each party requested that the other cease operations. Neither did, and the 

present action ensued.

In the trial court, both parties agreed with the principle that production anywhere on the 

pooled premises is sufficient to maintain the entire lease unless the lease provides otherwise. 

They disagreed, however, on whether the retained acreage clause in each lease provided otherwise. 

Chesapeake argued the retained acreage clause provided otherwise because it applied “equally to 

‘all’ of the lands under lease, even if pooling has occurred and even as to pooled lands.” 

According to Chesapeake, the clause expressly provides for continuous and automatic termination, 

i.e., “rolling” termination, of proration units as they cease to produce. Thus, when the proration 

unit for the Cadenhead No. 2 Well ceased to exist in 1988, the 1976 leases terminated as to the 

560-acre portion of Section 25 on which that well had been drilled, irrespective of continued 

production from the Cadenhead No. 1 Pooled Gas Unit.

Energen urged a different construction. According to Energen, the retained acreage 

clause did not provide for “rolling” termination because the clause operated once and only 

once—when continuous development ceased. Under Energen’s interpretation, all acreage 

included in a designated proration unit was retained if a well capable of producing in commercial 

quantities existed on the leased premises or on acreage pooled with the leased premises when 

continuous development ended. Thus, “[b]ecause the Cadenhead No. 2 Well was then capable of 

producing in commercial quantities, the lease was preserved as to its designated proration unit, all 

of Section 25, a portion of which had previously been pooled with Section 18.”
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In essence, both parties agreed the retained acreage applied, but disagreed on its scope and 

temporal application.

THE RETAINED ACREAGE CLAUSE DOE NOT PROVIDE FOR

“ROLLING” TERMINATION

In one issue, Chesapeake argues the trial court erred in concluding the 1976 leases did not 

require “rolling” termination of non-producing proration units “to maintain the lease[s] in effect 

throughout the secondary term—not just at the moment that continuous development ends.” In so 

arguing, Chesapeake takes the position that the proration unit designated for the Cadenhead No. 2 

Well was retained only while the well was producing, and when it ceased to produce in 1988, the 

proration unit reverted to the lessors and was no longer subject to the 1976 leases. We disagree.

Standard of Review

The trial court’s summary judgment concerns the construction of an unambiguous oil and 

gas lease.3 The standard of review is therefore de novo. See Tex. Mun. Power Agency v. Pub. 

Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007)(reviewing grant of summary judgment de 

novo); Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex. 2002)(reviewing

lease-construction questions de novo).

Applicable Law

The primary duty of the court in interpreting an oil and gas lease is to ascertain the parties’

intent as expressed within the four corners of the lease. Luckel v. White, 819 S.W.2d 459, 461 

(Tex. 1991). In seeking to ascertain the parties’ intent, the court must attempt to harmonize all 

parts of the lease, even if different parts of the lease appear contradictory or inconsistent. Id. at 

461-62. Construing the lease to give effect to all of its provisions honors the parties’ intent that 

 

3 The parties agree the lease is not ambiguous, and we do not hold otherwise. The parties also agree the resolution of 

this appeal hinges on the law, not on disputed facts.
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every clause has some effect and in some measure evidences their agreement. Luckel, 819 

S.W.2d at 462. Accordingly, the court should not strike down any part of the lease, unless there is 

an irreconcilable conflict wherein one part of the lease destroys in effect another part thereof. Id.

Discussion

When read in harmony with other portions of the leases, the retained acreage clauses do not 

provide for “rolling” termination of non-producing proration units as argued by Chesapeake. 

Instead, the language of the 1976 leases confirms that production anywhere on Section 25, or land 

pooled with it, is sufficient to maintain the leases as to the entirety of Section 25.

The habendum clauses in both leases provide for continuation beyond the primary term “as 

long . . . as oil, gas, or other mineral is produced from said land or land with which said land is 

pooled.” Under Texas law, a habendum clause referring to “said land” extends the lease as to all 

the leased property while production of oil or gas occurs anywhere on the property during the 

second term. Ridge Oil Co., Inc. v. Guinn Invs., Inc., 148 S.W.3d 143, 149 (Tex. 2004). Thus, 

“in the absence of anything in the lease to indicate a contrary intent, production on one tract will 

operate to perpetuate the lease as to all tracts described therein and covered thereby.” Matthews v. 

Sun Oil Co., 425 S.W.2d 330, 333 (Tex. 1968).

Concordant with this general principle, the lease’s pooling clauses provide that: “Drilling 

operations and production on any part of the pooled acreage shall be treated as if such drilling 

operations were upon or such production was from the land described in this lease whether the well 

or wells be located on the land covered by this lease or not.” Accorded its plain, grammatical 

meaning, this clause ensures that production anywhere on a pooled unit maintains the lease in

effect as to all lands covered by the lease, both within and outside the unit, unless the lease 
7

expressly provides otherwise. Key Operating & Equip., Inc. v. Hegar, 435 S.W.3d 794, 798

(Tex. 2014); Scott v. Pure Oil Co., 194 F.2d 393, 395 (5th Cir. 1952); Texaco, Inc. v. Lettermann, 

343 S.W.2d 726, 733 (Tex.Civ.App.--Amarillo 1961, writ ref’d n.r.e.).

As indicated earlier, Chesapeake and Energen disagree on whether operations conducted 

within the pooled gas units serve to maintain the 1976 leases as to the entirety of Section 25. 

However, they agree the answer to their dispute lies in the proper interpretation of the retained 

acreage clauses, which control the termination of the leases after cessation of continuous 

development. “Retained acreage clauses were originally drafted to prevent the lessee from losing 

those portions of a lease that had productive wells located thereon if the rest of the lease terminated

. . . [but] . . . [t]he term has expanded its meaning to include clauses that require the release of all 

acreage that, at the end of the primary term, is not within a drilling, spacing, or proration unit.” 

Bruce M. Kramer, Oil and Gas Leases and Pooling: A Look Back and A Peek Ahead, 45 TEX.

TECH L.REV. 877, 881 n.28 (2013).

Here, the leases’ retained acreage clauses, in conjunction with the continuous development 

clauses, provide that the lessee’s failure to continuously develop the leased premises terminates 

the leases as to all unproductive acreage except for:

[E]ach proration unit established under . . . [the] rules and regulations [of the RRC

. . .] upon which there exists (either on the above described land or on lands pooled 

or unitized therewith) a well capable of producing oil and/or gas in commercial 

quantities . . . .

When a lease terminates “is always a question of resolving the intention of the parties from the 

entire instrument.” Thompson, 94 S.W.3d at 554. “However, we will not hold the lease’s 

language to impose a special limitation on the grant unless the language is so clear, precise, and 

unequivocal that we can reasonably give it no other meaning.” Thompson, 94 S.W.3d at 554.
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The plain, grammatical language of the retained acreage clause does not expressly provide 

for rolling termination of proration units as they cease to exist. Instead, the plain, grammatical 

language shows that the parties intended the leases to continue as to each designated proration unit 

if the unit had a well capable of producing gas in commercial quantities when continuous 

development ceased. That the parties chose to maintain the lease as to each proration unit when 

continuous drilling stopped based on the ability of that unit’s well to produce gas, rather than 

actual production, indicates they did not intend the retained acreage clause to be triggered any time 

actual production stops. To conclude otherwise would promote uncertainty about the continued 

existence of a lease. Moreover, adopting the construction urged by Chesapeake imposes an 

unnecessary limitation on the kind and character of the estate the parties chose to convey, i.e., an 

expansive one maintained by production from any part of pooled lands unless limited by language 

so clear, precise, and unequivocal that no other conclusion could be reached. That type of 

language is absent from the retained acreage clauses.

Chesapeake contends that the retained acreage clauses must be read to modify the 

habendum clauses to require “rolling” termination of non-producing proration units, as designated 

by the Texas Railroad Commission, such that production from a pooled unit will not maintain the 

leases as to proration units that ceased to exist. It makes two arguments in support of this 

construction, one of which finds no support in the leases, and the other of which finds no support in 

Texas case law.

Chesapeake first argues that “[t]he parties’ use of a specific regulatory term

—[RRC-designated] proration unit—to define the extent to which the 1976 leases would be 

maintained after continuous development” signals their intent “that the leases would only be 
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maintained as to lands within proration units for so long as such proration units existed.” 

Chesapeake thus asserts that because “[p]roration units are designed on a well-by-well basis and 

only exist for so long as the well for which the proration unit is designated produces[,]” the 

proration unit for the Cadenhead Well No. 2 ceased to exist when it was plugged.

But this construction is belied by the plain, express language of the retained acreage 

clauses. The language in these clauses makes clear that: (1) proration units, as recognized by the 

state agency having regulatory jurisdiction over oil and gas development, are the portions of the 

leased premises maintained after continuous development ceases; and (2) each proration unit is 

maintained, not by the existence on the unit of a producing well, but by the existence on the unit of 

a well capable of producing in paying quantities. The use of the specific regulatory term in the 

retained acreage clause merely serves to identify with reasonable certainty the property that 

remains under lease when continuous development ceases. In other words, the term 

“RRC-designated proration unit” functions as a mere descriptor in the clause, not as a normative 

one in the sense that it prescribes what ought to be the outcome based on the application of RRC 

regulations. If the parties to the 1976 leases had wished to provide for continual relinquishment 

of non-producing proration units, so that a proration unit would no longer be subject to the lease 

once production had ceased on that particular unit, they could have done so by including such 

language. But they did not, and it is not within our purview to rewrite the leases and alter the 

parties’ contract. See Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 162 (Tex. 2003)

(“But we may neither rewrite the parties’ contract nor add to its language.”).

Chesapeake also argues that the parties to the 1976 leases could not have intended for 

production on a single unit to maintain the entire lease indefinitely after continuous development 
10

ceased. Although this argument has some equitable appeal, it is refuted by language of the lease, 

as demonstrated above. Moreover, maintaining the leases during the secondary term to acreage 

outside of producing proration units but within a pooled unit would not be novel. “The primary 

legal consequence of pooling is that ‘production and operations anywhere on the pooled unit are 

treated as if they have taken place on each tract within the unit.’” Hegar, 435 S.W.3d at 798. 

Additionally, production from the pooled gas unit provides the lessors with an economic benefit in 

the form of royalty income. Granted, the lessors could have achieved an additional economic 

benefit by expressly stating that production on each proration unit is required to maintain the leases 

as to each of those units during the secondary term. However, they failed to do so. Absent proof 

of fraud or mutual mistake, neither of which was pled by the parties, we are not at liberty to rewrite 

the economic bargain struck by the parties to the 1976 leases. See Eagle Life Ins. Co. v. G.I.C. 

Ins. Co., 697 S.W.2d 648, 651 (Tex.App.--San Antonio 1985, writ ref’d n.r.e.)(“Courts are not at 

liberty to rewrite the contract between the parties without pleading and proof of fraud or mutual 

mistake.”). Accordingly, we decline Chesapeake’s invitation to construe the retained acreage 

clauses—decades after the fact—as expressly stating “that the leases would only be maintained as 

to lands within proration units for so long as such proration units existed” in the absence of clear, 

precise, and unequivocal language to that effect. See Lettermann, 343 S.W.2d at 732 (“[I]n the 

absence of clear language to the contrary, pooling clauses should not be construed in a narrow or 

limited sense.”).

Chesapeake next argues that “Texas case law directly on point confirms that the 1976 

leases terminated as to the disputed acreage.” In support of this argument, Chesapeake relies 

chiefly on Nafco Oil & Gas, Inc. v. Tartan Res. Corp., 522 S.W.2d 703 (Tex.Civ.App.--Corpus 
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Christi 1975, writ ref’d n.r.e). According to Chesapeake, Nafco stands for the proposition that 

“even where a retained acreage provision is silent as to whether a lease terminates as to a retained 

tract once the retained tract’s well stops producing later in the life of the lease, the fee simple 

determinable nature of an oil and gas leases requires courts to imply such an intent . . . .” But 

Chesapeake’s reliance on Nafco is misplaced. Although Nafco is distinguishable, the court’s 

opinion in that case actually supports our conclusion. In Nafco, the court held that the habendum 

clause, as modified by the retained acreage clause, operated independently upon each tract and that 

production on one 160-acre tract would not maintain the lease as to another 160-acre tract on 

which production had ceased. 522 S.W.2d at 707-08. The retained acreage clause there 

provided that upon the lessee’s failure to comply with the continuous drilling program, the lease 

terminated as to the entire premises except as to “the gas and gas rights . . . in 160 acres . . . around 

each well theretofore completed as a gas well, down to and including the sand from which such 

well produced gas.” Id. at 705. When continuous drilling ceased in 1954, four wells were 

producing oil. Id. at 705. The two oil wells at issue ceased producing in 1968. Id. Relying on 

the habendum clause, the appellants argued that continued production from an oil well was 

sufficient to maintain the lease as to the oil wells even though those wells were not located on the 

same 160-acre tract of land on which the producing well was located. Id. at 705-06. The court 

disagreed, concluding that, “[i]n light of the provisions of this lease discussed above, it is evident 

that the well must be producing oil, or gas, at the date that lessee ceases permanent drilling 

operations required in paragraph 6, as amended, and the mineral (oil or gas) produced as of that 

date determines the acreage and mineral rights therein which said well will hold under the lease.” 

Id. at 708 [Emphasis added].
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Nafco is distinguishable in that there is no indication the lease in that case contained a 

pooling clause. Nafco is also distinguishable because the retained acreage clause there expressly 

required actual production on each 160-acre tract when continuous development ceased. But 

significantly, the Nafco court did not construe the retained acreage clause there to mean it operated 

continuously over the life of the lease. Rather, as the italicized language quoted above 

demonstrates, the Nafco court construed that clause to mean it operate once and only once—“at the 

date that lessee ceases permanent drilling operations . . . .” That interpretation comports with 

ours.

Like Nafco, the court’s opinion in Humphrey v. Seale, 716 S.W.2d 620 (Tex.App.--Corpus 

Christi 1986, no writ), supports our conclusion. In Seale, the court held that, in the absence of 

language in the retained acreage clause calling for a continual relinquishment on non-producing 

lease acreage, the general rule provides that production anywhere on the leased premises maintains 

the lease. 716 S.W.2d at 622. The retained acreage clause there provided that upon the lessee’s 

failure to comply with the continuous drilling program, the lease terminated as to the entire 

premises except as to “forty (40) acres designated as a well block around such producing well, and 

said well block designation shall be filed of record immediately after said block has been 

designated by Lessee . . . .” Id. at 621. When appellant acquired his interest in the leased 

premises in April 1982, two of the wells in dispute were no longer producing, but the other 

disputed well continued to produce until appellant ceased operations on it when he filed suit. Id. 

The appellees took “the position that 40 acres was retained around the well only while a well 

produced, and upon the cessation of production of a particular well, the 40 acres surrounding that 

well reverted to the landowner and was no longer subject to the . . . [l]ease.” Seale, 716 S.W.2d at
13

621 The court disagreed, concluding:

[The retained acreage clause] does not require the lessee to relinquish additional 

acreage from the lease after the initial release is accomplished ‘within 180 days of 

the first oil well.’ As all three of the 40-acre tracts are under the same lease and 

lease terms, production on one will keep the lease in effect for all.

Seale, 716 S.W.2d at 622 [Emphasis added].

The retained acreage clause in Seale, like the one in Nafco, is not identical to the ones here. 

However, that difference is immaterial because the Seale court, like the Nafco court, did not 

construe the retained acreage clause there to mean it operated continuously over the life of the 

lease. Rather, as the italicized language quoted above demonstrates, the Seale court construed 

that clause to mean it operates once and only once—when the initial release of acreage occurred 

after continuous drilling ceased.

Chesapeake argues Seale does not support our conclusion because termination of the lease 

under the retained acreage clause there “was not automatic but rather required an affirmative 

action by the lessee,” and thus, it was not surprising that “the [c]ourt declined to imply a 

continuing release obligation that would effectuate ‘rolling’ lease termination.” But that was not 

the reason why the Seale court declined to construe the retained acreage clause in that case to mean 

it operated continuously over the life of the lease. Rather, the court declined to construe the 

clause in that manner because the clause did not provide for rolling termination in clear, precise, 

and unequivocal language. As the court was quick to note, “[i]f the parties to the lease had wished 

to provide for a continual relinquishment of nonproducing acreage, so that a 40-acre tract would no 

longer be subject to the lease once production had ceased on that particular 40-acre tract, it would 

have been simple to include such language.” Seale, 716 S.W.2d 622.

For the foregoing reasons, Chesapeake has not shown the trial court erred in concluding 
14

that the 1976 leases failed to provide for rolling termination of non-producing proration units.

CONCLUSION

The trial court’s order granting Energen’s motion for summary judgment is affirmed.

October 1, 2014

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

Rivera, J. (Not Participating)