Railroad Commission of Texas 

Austin, Texas 

Dear Sirs: Opinion No. O-3181 

Re: ,Questions relating to the application of spacing rules and the 

subdivision rule as appIied to 

the Hawkins field. 

We have the letter of February 17. 1941, signed by Commissioners Sadler and Culberson. asking us thirteen questions with reference to the application of the spacing rules and the subdivision rule to 

the Hawkins field. In your letter you’first set forth the applicable rules 

as follows: 

‘On January 22, 1941. the Railroad Commission of 

Texas, after due notice and hearing, promulgated and adopted field rules for the Hawkins field, Wood County, Texas, 

which was discovered during the month of September, 1940. 

Rule 1 of the rules referred to provides as follows: 

“‘RULE 1. (A) No well shall be drilled 

hereafter fur oil and gas or either of them nearer than Nine Hundred Thirty-Three (933) feet 

to any other completed or drilling well on the 

same or adjoining tract or farm, and no well 

shall be drilled nearer than Four Hundred 

Sixty-Six (466) feet from any property line, 

lease line, or subdivision line; provided that, 

subject to the further provisions hereof, the 

commission, in order to prevent waste or to 

prevent the confiscation of property, will~grant 

exceptions to permit drilling within shorter 

distances than above prescr~ibed whenever the 

commission shall determine that such exceptions are necessary either to prevent waste or 

to prevent the confiscation of property. When 

exceptions to this rule are desired, application 

therefor shall be filed with the commission, 

fully stating the facts, which application shall 

be accompanied by a plat drawn to the scale of 

One inch equalling Four Hundred (400) feet, accurately showing to scale the property on which 
Railroad Commission of Texas, Page 2 (O-3181) 

permit is sought to drill a well under an 

exception to this rule, and accurately showing to scale all other completed, drilling 

and permitted wells on such property; and 

accurately showing to scale all adjacent 

surrounding properties and wells. Such 

application shall be verified by some person acquainted with the facts, stating that 

all facts therein stated are within the knowledge of the affiant true, and that the accompanying plat is accurately drawn to scale 

and correctly reflects all pertinent and required data. Such exceptions shall be granted only after at least ten days’ notice to all 

adjacent lessees, affected thereby, has been 

given, and after public hearing at which all 

interested parties may appear and be heard~, 

and after the commission has determined 

that an exception to this rule is necessary 

either to prevent waste or to protect the 

property belonging to applicants from confiscation. All pending applications shallbe 

amended to conform to this rule before, being acted upon. 

“‘(b) In applying this rule, the general order of the commission with relation to 

subdivision of properties shall be observed.’ 

“On May 29, 1934, the Railroad Commission of Texas duly 

entered its order which read as follows: 

“‘IT IS ORDERED BY the Railroad Commission of Texas that in applying Rule 37 (Spacing Rule) of statewide application and in applying every spacing rule with relation to spacing 

,.in every field in ,this state. no subdivision of 

property,made subsequent to the adoption of the 

original spaeing~,rule will be considered in determining whether or not any property is being 

confiscated within the terms of such spacing 

rule and no subdivision of property will be regarded in applying such spacing rule or in determining the matter of confiscation if such subdivision took place subsequent to the promulgation and adoption of the original spac~ing rule;’ 

“On January 3, 1940, the Railroad Commission entered an order 

which read as follows: 
. . 

.Railrcad Commission of Texas, Page 3 (O-3181) 

“‘IT IS HEREBY ,ORDERED by the Railroad Commission of Texas that in all orders, 

other than those dealing with strictly departmental affairs, hereinafter promulgated or 

adopted by the commission no motion for reheaiing shall be entertained unless same is 

filed within a period of Fifteen (15) days from 

the date of the promulgation and adoption of 

any such order by the commission. 

“‘All such motions shall be filed in writing by the applicant for a rehearing specifying 

in detail the grounds upon whic’h the rehearing 

is sought. In no event shall the commission consider any grounds not specified in such motion 

for rehearing in passing upon the merits of 

same.’ 

“All of the rules and orders hereinabove set out are now in 

force and effect.” 

In your letter you make separate statements and ask separate questions relating thereto. and we will follow this form in replying 

to your questions. 

I. 

“STATEMENT 

“Article 6036a of the Revised Civil Statutes now in 

effect provides in part as follows: 

“‘No rule, regulation or order shall be 

adopted by the commission under the provisions of this act or of Title 102 of the Revised 

Civil Statutes of Texas, 1925, as amended, dealing with the confiscation of oil and gas and the 

prevention of waste thereof, except after at Ieast 

10 days’ notice given in the manner and form prescribed by the commiss~ion * * *’ 

“Rule 1 of the spacing rules of the Hawkins field, hereinabove referred to provides in part: 

“When exceptions to this rule are desired. 

applrcation therefor shall be filed with the commission fully stating the facts * * * Such exceptions 
. . 

Railroad Commission of Texas, page 4 (O-3 181) 

shall be granted only after at least ten (10) 

days’ notice to all adjacent lessees affected 

thereby, has been given, and after public hearing at which all interested parties may appear 

and be heard and after the c,ommission has 

determined that an exception to this rule is 

necessary either to prevent waste or to protect the property belonging to applicant from 

confiscation.’ 

QUESTION NO. 1 

“Will you please advise whom the rule contemplates as adjacent lessees as would entitle them to notice of a hearing on an application to drill an oil or gas 

well in the Hawkins field?” 

The proper c,onstruction of the notice provisions of Rule 

37, as applied to other fields in this State, has been discussed in a few 

cases. In Magnolia Petroleum Company v. Edgar, 62 S.W.(Zd) 359, 361 

(writ refused) it was pointed out that Article 6036a. Vernon’s Annotated 

Civil Statutes. merely provides that notice shall be given “in the manner 

and form prescribed by Commission, ” and the court further observed: 

“The statute itself does not undertake to designate to whom such notice is to be given nor in what form. 

This for the obvious reason that it would be impossible 

to designate specifically who are the interested parties.” 

In Rabbit Creek Oil Co. v. Shell Petroleum Corporation, 

66 SW. (2d) 737,739 the question was raised as to whether Rule 37 was 

valid. in that it provided merely for notice to “adjacent lessees,” and did 

not provide for notice to other adjacent owners. In holding the rule to be 

valid, the c~ourt said: 

” * * * But rule 37 is not unconstitutional because 

it failed to provide for notice to adjacent landowners. The 

rule deals with the practical matter of giving notice to the 

party most vitally interested in the drilling of a well as an 

exception to the rule. Exceptions are only necessary after 

the particular field has been proved. The adjacent lessees 

have the control and the respons~ibility of developing their 

respective leases. They are charged with the obligation of 

drilling offset wells. Their interest also requires them to 

procure all the oil possible under their leases, and the lessees’ interest in the oil is greater than that of the owner of 

the fee, who usually receives only one-eighth of the oil as 

royalty. Royalty interests are often sold by the owners of 
Railroad Commission of Texas, page 5 (O-3181) 

the fee to numerous ,purchasers, resident as well as nonres,ident. and to whom in many instances notice of an application and hearing for the permit could,not be given. 

If it should occur that an adjacent owner has developed or 

intends to develop his own land, then the commission can 

give him notice. The commission is required to permit 

the development of proven,fields in accordance with the 

conservation laws, and’as a pra~ctical proposition notice 

to the adjacent lessees in most cas,es should be and is sufficient.- 

Compare Humble Oil & Refining Company v. Railroad Commission, 68 SW. (2d) 622, 624 (affirmed, sub non, Brown v. Humble Oil &I 

Refining Company. 126 Tex. 296, 83 S.W.Tm)m, 87 S,m ) 106’9) in 

whic,h the court said: 

“While the statute (Vemon*s Ann. Civ. St. art. 6036a) 

does not undertake to define who are interested parties, it 

does provide that hearing must be held before the commission shall adopt a rule or regulation, after notice given in 

the manner and form prescribed by the commission itself. 

This we think clearly implies notice to those interested in 

or to be affected by the rule or regulation contemplated. 

***- 

From the foregoing authorities. we c,onclude that the words, 

“adjacent lessees,.” are generally to be given their ordinary meaning, that 

is, owners of oil and gas leases c~overing tracts of land adjoining or bordering on the tract of land on which the application for an exception is filed. 

The usual situation presented to the Commission will be one where all of 

the land in question has been leased for oil and gas purposes,, and in such 

cases the ‘lesseesa are the persons owning the working interest in each 

lease. If cases should arise in which an oil and gas lease has not been executed, the owner or owners of the land should be given notice. 

II. 

“STATEMENT 

“As lessee ‘A’ owns a lease of 160 acres 

the size and shape of which admits of development in accordance with the spacing regulations 

adopted for the field. Less,ee also owns all contiguous and adjacent leases to that of his 160- 

acre tract. 

“QUESTION NO; 2 

‘In view of the provisions of the spacing rule adopted 

for the field and that lessee owns the lbO-acr~e tract and all 
. . 

Railroad Commission of Texas, page’ 6 (O-3181) 

contiguous and adjacent leases, is it necessary when application for a permit to drill is filed by the owner of the 

160-acre tract for the commission to give notice to the 

owner of the 160-acre tract who is also the owner of the 

contiguous and adjacent leases of his intention to drill?” 

Although it is not explicitly so stated. we assume from your 

question that, while the tract in question could be developed without exceptions to Rule 37, a permit is applied for to drill a well as an exception to 

Rule 37 at a closer distance to a lease line or another well than is allowed 

by the rule. Under our answer to question No. 3. infra, if the well is to be 

drilled under the general provisions of the rule, a-not as an exception, 

no notice to adjacent lessees is required. 

Under the facts stated, where the applicant owns all contiguous and adjacent leases~, we see no necessity of giving notice to him, 

as adjacent lessee, that he, as applicant, has applied for a permit. Of 

course such applicant, in his capacity as applicant, should be notified of 

the time and place of the hearing on his application, but, in his capacity 

as an adjacent lessee, there is no necessity of giving him another notice 

to the same effect. 

III. 

“STATEMENT 

“Lessee owns a tract of 160 acres which is susceptible to development under the spacing rule applicable to 

the field and desires to drill a well which is not nearer than 

Nine Hundred Thirty-three (933) feet to any other completed 

or drilling well on the same or adjoining tract or farm and 

not nearer than Four Hundred Sixty-six (466) feet from any 

property line, lease line or subdivision line. 

“QUESTION NO. 3 

“Please advise ,whether under any spacing rule or 

the statutes of this state it is necessary for said lessee to 

obtain a permit from the commission authorizing the drilling of said well and whether, if such permit is necessary, 

any notices are required to be issued to any adjace’nt lessee 

or interested parties.” 

Under the facts stated, the well may be drilled under the 

general terms of Rule 37, and no permit to drill as an exception to Rule 

?7 need be obtained. See~Gulf land Co. v. Atlantic Refining Company, 

134 Tex. 59, 70, 131 S.W.Tm) 73. 80. in which the Supreme Court said. 

in construing Rule 37: 
. . 

Railr~oad Commission of Texas, page 7 (o-3181) 

“,* * * In order to accomplish orderly drilling, 

the Commission has s~imply promulgated a rule fixing 

minimum spacing distances at which wells may be 

drilled without application, notice or hearing. * + * w 

We also direct your attention to the Railroad Commission 

Statewide Rule No. 9, as amended effective January 1. 1940, which reads 

in part as follows: 

“* * * No permit to drill any well or wells for 

oil or gas shall be required by the Commission except 

for such wells as may be drilled unde~r exceptions to 

Rule 37 of statewide application or as exceptions under 

special field rules governing the drilling of any well or 

wells which have been or may hereafter be adopted by 

the Railroad Commission.” 

IV. 

“STATEMENT 

“Lessee owns a lot in the unincorporated town of 

Hawkins, in the Hawkins field, same being of such size 

and shape as not to be susceptible to development without 

an exception to the spacing rule adopted for the field, and 

files application with the commission in accordance with 

the rule for a special permit to drill a well on such lot, 

after which notices are issued to all owners of adjacent 

leases and interested parties. Subsequent to the filing of 

such application and the issuance of notices to all adjacent lessees and intereste,d parties and before the hearing on such application, one or more of such adjacent lessees or interested parties conveys his or her interest in 

such adjacent leases to a party or parties not served with 

notice. 

“QUESTION NO. 4 

“Is the commission required to postpone the date 

of the hearing theretofore set in order that such additional adjacent lessees or interested parties may be notified 

of the application and hear~ing, or are such purchasers of 

the interest of the adjacent leases or interested parties 

charged with notice of the filing of the application and the 

time of hearing by reason of the notice served on the predecessor in title?” 

Where the interests of adjacent lessees were conveyed 

after the notice of the hearing had been given to such lessees, the grantees 

of such adjacent lessees would be charged with notice of the hearing on 
. . 

Railroad Commission of Texas,, page 8 (O-3181) 

the application, and it would not be necessary to issue notices to such 

grantees. In our opinion, the analogy of the common law doctrine of lis 

pendens would be applied, and the purchasers from the adjacent less= 

would be placed in the same position as purchasers pendente lite. Compare 28 Texas Jurisprudence 339. “Lis Pendens.” $24. 

V. 

“STATEMENT 

“Subsequent to the discovery of oil in the Hawkins 

field, a 400-acre tract was subdivided into twenty 20-acre 

tracts, each being susceptible to development under the 

spacing rule applicable to the field and without exception 

to same. A purchaser of one of the interior tracts filed 

an application to drill a well on same as an exception to 

Rule 37 in order to meet offsets and to prevent undue 

drainage, such well being applied for less than 466 feet 

from the property line. 

“QUESTION NO. 5 

“Please advise whether the owners of the leases 

contiguous to the original 400-acre tract are entitled to 

notice of the application and hearing as provided in said 

rule, or whether, such subdivision not being in contravention to the rule, notices are required to be given only 

to the owners of the leases adjoining or contiguous to the 

20-acre tract.” 

The 20-acre tract, not being of such shape or area as to require development by drilling of wells as exceptions to Rule 37 is not a subdivision in violation of the subdivision rule of May 29, 1934. It therefore 

may be treated as a separate tract in determining whether a well may be 

drilled on it as an exception to Rule 37 in order to prevent confiscation of 

property, See Gulf Land Company v. Atlantic Refining Company, 134 Tex. 

59, 71. 131 S.W. (2d) 73, 81, in which the Supreme Court said: 

” * * 8 The Rule of May 29th, supra, uses the 

term ‘subdivision’ in defining tracts 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 definition, because any tract of land segregated 

from a larger tract would constitute a subdivision. It is 

obvious that the term ‘subdivision.’ as used in the order 

or rule under discussion, has no such’general meaning. 

If such a meaning should be given the term. a partition 

or division of a lOOO-acre tract of land into two 500- 

acre trac’ts would c’onstitute a subdivision of the land 

under the rule. Manifestly, such a construction of the 
Railroad Commiss~ion of Texas, page 9 (0-3i81) 

rule would be absurd, because the tw-o 500-acre tracts 

would come under its ban against subdivision, while 

tracts of much smaller area which do not constitute 

subdivisions after the effective date of Rule 37 would 

not. As we construe the rule pertaining to ‘subdivision’ 

subsequent to the effective date of Rule 37, it means 

that where a tract of land is of such size and shape that 

it is necessary to obtain a permit as 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 May 29th, 

supra, if it was subdivided out of a large~r trac~t after 

Rule 37 became effective. Humble Oil & Refining Co. 

v. Railroad Commission (Tex.Civ:App., writ refused), 

94 S.W. (2d) 1197; Falvey v. Simms Oil Co. (Tex.Civ. 

App.). 92 S.W.(2d) 292.” 

Since the 20-acre tract is of such size and shape that it 

can be developed without obtaining an exception to the spac~ing rule. it is 

not a subdivision and may be treated as a separate tract. and notices need 

be issued only to the lessee of tracts adjacent to the 20-acre tract. 

VI. 

‘STATEMENT 

“Prior to the adoption of the spacing regulations in 

the Hawkins field and the discovery of oil. lesse~e obtained 

a lease on a 4-acre tract, same being a separate fee ownership. Subsequent thereto lessee assigned the West two acres 

of said tract to another party. Lessee, as the owner of the 

remaining two acres, applied for a permit to drill a well 

for oil as an exception to the spacing regulation on the ground 

that same was necessary to prevent the confiscation of his 

property by r~eason of the fact that other lessees had drilled 

wells on the property contiguous to his which were admittedly draining his oil. No well had been drilled on either of the 

Z-acre tracts at the time the application was filed nor at the 

time of the hearing thereof. The application was filed for a 

special permit authorizing lessee to drill a well on the two 

acres mentioned above and no mention was made in the application or in the notice issued thereon of the west 2 acres 

or of the 4 acres as a whole. 

-QUESTION NO. 6 

“(A) Was the application and notice of hearing on such 

application sufficient to authorize the commission to hear evidence on the issue of c,onfiscation and to grant the permit as 
. 

Railroad Commiss~ion of Texas, page 10 (O-3181) 

applied for on the 2-acre tract, provided~notices were 

issued to the owners of all leases adjacent and dontiguous to the original 4-acre tract and other interested 

parties, and provided the evidence at the hear,ing justified the commission in granting same to prevent the confiscati~on of the applicant’s property? 

“(B) The location applied for on the East 2-acre 

tract is admittedly necessar’y to prevent drainage of oil 

from the entire 4-acre lease by reason of the density of 

drilling in the close proximity to the location applied for, 

and the owner of the West 2-acre tract did not protest 

the application. May the commission on such application 

to drill a well on the East two acres, issue a permit to 

drill a well at a location different from that applied for 

and on the West two acres and at a place where protection will not be afforded against drainage from wells on 

adjacent leases ?” 

. 

(A) Under the facts stated. the assignment of the lease on 

2 acres out of the 4-acre tract constituted a subdivision under the provisions of the Railroad Commission’s rule of May 29. 1934. A subdivision 

by an oil and gas lease is held to be within such rule regardless of when 

it was made. Sun Oil Co. v. Railroad Commission, 68 S.W. (2d) 609. affirmed 126 T-39 84 SW (2d) 693 Shell Petroleum Corporation v. Railroad Commission: 133 S,W. (2d) 19d. And an assignment of an oil and gas 

lease on a portion of the leased premises would come within the same rule 

and would constitute a subdivision. Compare Humble Oil & Re fining Company v. Railroad Commission, 68 SW. (2d) 625. Each of the L-acre tracts 

would be too small to be developed separately except by wells granted as 

exceptions to Rule 37, since under the statewide rule prior to January 25. 

1940, the minimum area was 2.07 acres, and under the statewide rule in 

force thereafter and the special rule for the Hawkins field promulgated 

January 22, 1941, the minimum area is 20 acres. Being subdivisions, 

neither tract as such, would be entitled to a permit to prevent confiscation. In Gulf Land Co. v. Atlantic Refining Co,, 134 Tex. 59, 71. 131 SW. 

(2d) 73. 81, the court said: 

u * * * An examination of the order or rule of 

May 29, 1934, hereinafter referred to as the Rule of 

May 29th. will show that subdivisions of land, as such, 

which have or hereafter may come into existence after 

Rule 37 becameeffective are not protected at all against 

confiscation. When Rule 37 and the Rule of May 29th are 

read together. it is evident that exception permits may be 

issued to protect such tracts from waste; but such excePtion permits cannot be issued to protect such tracts, as 

such, from confiscation. * * *” 
Railroad Commission of Texas, page 11 (O-3181) 

Furthermore, since the 2-acre tract is a subdivision, the 

Railroad Commission could validly grant the permit only on the basis of 

the Z-acre tract when considered as a part of the 4-acre tract. from which 

it was subdivided. Railroad Commission v. Magnolia Petroleum Co., 130 

Tex. 484, 109 S.W.7m) 967 . 

Your question assumes that the application was made for 

a permit to drill a well on the 2-acre tract, considered as a separate tract, 

and that the notice so stated. In our opinion the notice would not be sufficient to justify the granting of a permit to drill a well on the 2-acre tract, 

considered as a part of the 4-acre tract. Persons receiving the notice 

would be entitled to rely on the notice as stating the matter to be considered by the Commission. A notice that a hear.ing was to be held on whether a permit should be granted to drill a well on the 2-acre tract considered as a separate unit would not apprise the person receiving the notice 

that the Commission was going to consider the matter of granting a permit to drill a well on the 2-acre tract considered as a part of the 4-acre 

tract. The issues, on the question of confiscation. would be substantially 

different if the 2-acre tract were considered as a part of the 4-acre tract 

instead of as a separate tract. 

It is well settled that the notice issued by the Railroad Commission must give fair notice of the matter to be passed on by the Railroad Commission, and conversely, that the order must c~ome fairly within 

the terms of the notice. State v. Blue Diamond Oil Corp.. 76 S.W. (2d)852. 

(B) Under the facts assumed in your question the application is for a permit to drill a well on the east 2-acre tract, considered as 

a separate tract. to prevent confiscation. Clearly it would be unreasonable and arbitrary for the Railroad Commission on such application to 

grant the permit on an entirely different tract, and such order would not 

be valid. 

VII. 

“Oil was discovered in the Hawkins field during 

the month of September, 1940. In 1937 ‘A’ owned a tract 

of land of approximately 40 acres, his home being on five 

acres thereof. In 1937, prior to the discovery of oil in 

said fields, he executed a lease on all of the 40 acres, except the five acres upon which his home was located. Said 

lease is now at this time in force and effect and ‘A’ desi~res 

to drill a well on the five acres which he has not leased and 

makes application therefor. 
Railroad Commission of Texas, page 12 (O-3181) 

“QUESTION NO. 7 

“Is “A’ entitled to a permit to drill one well on 

said 5-acre tract as a matter of law to prevent the confiscation of the property, there being no well on same 

at the time of the filing of the application as an exception to the spacing rule in effect in the field?” 

In 1937, the statewide Rule 37, providing for spacing distances of 150 feet from property lines and 300 feet from other producing 

wells, was in effect. The area covered by a regular location under this 

spacing pattern is 2.07 acres. The 5 acres retained by “A” would therefore be sufficient to justify the drilling of a well. under the spacing rule 

then in effect. without obtaining a special per,mit. unless by reason of its 

shape a well could not be drflled on the tract without being less than I50 

feet from one or more property lines. The spacing rule in effect at the 

time of the subdivision controls in determining whether a special permit 

is required. Humble Oil and R,efining Company vs. Railroad Commission, 

94 SW. (2d) 1197 (writ refused). Gulf Land Company v. Atlantic Refining 

Company, 134 Tex. 59, 131 S.W. (2d) 73. If the 5-acre tract is of such 

shape that a well can be drilled on it more than 150 feet fr~om the nearest 

property line and more than 300 feet from the nearest producing well. then 

“A” is entitled to drill one well on his 5-acre tract as a matter of law to 

prevent confiscation of property. 

If, however, the 5-acre tract is of such irregular shape 

that a well on it cannot be drilled except at less than 150 feet to the nearest property line or less than 300 feet to the nearest producing well, then 

the 5-acre tract is a subdivision within the meaning of the rule of May 29, 

1934. Gulf Land Co, v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.(2d) 

73. In such a case, the Railroad Commission would have to consider the 

small tract as a part of the larger tract from which it was subdivided, in 

order to determine whether the lessee of this tract is entitled to a special 

permit in order to prevent confiscation of property. Humble Oil and Refining Co, v. Potter 143 SW. (2d) 135; Shell Petroleum Corporation Y. 

Railroad Commission, 133 Saw. (2d) 194. Under the facts assumed, “A” 

would not be entitled as a matter of law to a well on his 5-acre tract in 

order to prevent confiscation, but he would be entitled to such well if the 

facts show that the original 40-acre tract is entitled to such well. Railroad Commission v. Magnolia Petroleum Co.,, 130 Tex. 484, 109 S&w 

967; Atlantic Refining Co. v. Buckley, 146 SW. (2d) 1082 (writ dismissed). 

VIII. 

‘“STATEMENT 

“In 1920 ‘A’ and ‘B’ purchased a lo-acre tract 

of land in the Hawkins field and each held an undivided 

one-half interest therein until approximately 1935, which 

was prior to the discovery of oil in the Hawkins field. 

During the year 1935, ‘A’ and ‘B’ orally agreed to partition such IO-acre tract and did orally partition same and 

thereafter each exercised complete dominion over the 

. 
. . 

Railr.oad Commission of Texas, page 13 (O-3181) 

part set aside to each of them. No deed of conveyance 

or written agreement of partition was ever executed or 

recorded of doing same, but the fact of partition as set 

out above was established without dispute at the hearing 

on application for a permit to dr.ill wells on each of said 

tracts filed by the owners thereof; 

‘QUE,STION NO. 8 

“May an oral partition be effected and established 

as set out above and, if so, is the commission required 

as a matter of law to grant at least one permit on each 

5-acre tract on the application of the owners thereof in 

order to prevent c’onfiscation of property?” 

Under the facts stated, the oral partition together with the 

actual division of possession and dominion over the property, was legally 

effective to acc.omplish a partition as the parties intended, and, since the 

partition took place prior to the discovery of oil, the partition would not 

be a subdivision within the contemplation of the rule of May 29, 1934. 

Therefore, “A” and “33” would each be entitled to a permit as a matter 

of law on his 5-acre tract in order to prevent confiscation of property. 

Shell Petroleum Corporation v. Railroad Commission, 116 S.W.(Zd) 439 

writ dismissed). 

M. 

‘STATEMENT 

“‘A’ owns and has owned for many years prior to 

the discovery of oil in the Hawkins field, two lots in the 

unincorporated town of Hawkins in said field. Said lots 

are separated by a public street or road dedicated as 

such many yea’rs prior to the discovery of oil in the field. 

The two lots owned by ‘A’ face each other across said 

street or road. Said road or street is 100 feet wide. ‘A’ 

owns no other property in the unincorporated town of Hawkins except the two lots mentioned above. 

“QUESTION 9 

“Is ‘A’ entitled as a matter of law to drill at least 

one well on each of said lots in order to prevent the confiscation of his property?A 

‘Aw is not entitled as a matter of law to drill at least one 

well on each of his lots in order to prevent the confiscation of his property. The dedication of a street does not operate to pass the fee title to 
Railroad Commission of Texas, page 14 (O-3 181) 

the public authority, but merely creates an easement in favor of the public. O’Neal v. City of Sherman. 77Tex. 182, 14 SW. 31; 14 Tex. Jur. 722. 

A conveyance of a lot bordering on a street or alley ordinarily passes title to the center of the street or alley. subject to the public’s easement, 

unless a contrar,y intention is expressed in plain and unequivocal terms. 

Cantley Y. Gulf Production Co., 135 Tex. 339, 143 S,W. (2d) 912; 60x v. 

Campbell. 135 Tex. 428 143 S-W. (2d) 361. Exceptional cases maye 

where the erantor did n’ot own any interest in the land covered bv the road 

or street, and in such cases. of cburse. the purchaser of the 10t~would not 

by such conveyance acquire any title in the land covered by the street or 

,road. Day v. Chambers. 62 Tex. 190. In the usual situation, however, 

‘A”. in the case assumed by your question. would be the owner of the minerals under the street or road, as well as under the two lots bordering on 

it. Since the two lots and the street together constitute one continuous 

tract, so far as the ownership of the minerals is c~oncerned, the street and 

the two lots must be c,onsidered together in determining whether “A” is 

entitled to a permit to drill a well to prevent the confiscation of his property. Compare Railroad Commission v. Wood, 95 SW. (2d) 1328 (writ 

refused); Humble Oil & Refining Company v. Railroad Commission, 99 

SW. (2d) 1052, (writ refused). 

X. 

“STATEMENT 

“The commission’s statewide 20-acre spacing rule 

became effective January 25, 1940. Subsequent to that date 

and prior to the discovery of oil in the Hawkins field and the 

adoption of field rules for the Hawkins field, “A’ as the owner in fee of a IO-acre tract in said field, executed a lease 

to “B’ on four acres out of such tract. 

‘“QUESTION NO. 10 

“(A) May the commission grant ‘B’S application for 

a permit to drill a well on his 4-acre tract in order to prevent confiscation of property? 

‘“(B) May the commission grant ‘B’s’ application to 

drill a well on his 4-acre tract in order to prevent physical 

waste ?* 

(A) The Railroad Commission may not grant “‘B”s” application for a permit to drill on his 4-acre tract, considered as a separate 

tract, in order to prevent confiscation of property. As we have already 

pointed out in answer to your 6th question, a subdivision by an oil and 

gas lease falls within the rule of May 29, 1934. even though such lease is 

made before the discovery of oil. Sun Oil Company v. Railroad Commission, 68 S.W. (2d) 609. affirmed, 126 Tex. 269, 84 S. W. (2d) 693~ O- Shell 
. . 

Railroad Commission of Texas, page 15 (O-3181) 

Petroleum Corporation v. Railroad Commission, 133 SW. (2d) 194. It 

follows that “B’s” 4-acre tract must be considered with the tract from 

which it was subdivided in determining whether l B” is entitled to drill 

a well on it in order to prevent confiscation of property. Humble Oil & 

Refining Company v. Potter, 143 SW. (2d) 135; Shell Petroleum Corporation v. Railroad Commission, 133 S.W. (2d) 194. 

(B) The question of subdivision relates only to the issue of 

confiscation, and the fact that such subdivision has taken place does not 

prevent the granting of a permit to ‘B” on his 4-acre tract in order to 

prevent waste. In Gulf land Co. v. Atlantic Refining Company, 134 Tex. 

59, 76, 131 S.W. (2d) 73, 83, the Supreme Court said: 

” 

. . . As we interpret Rule 37 and the Rule of 

May 29th, the fact that a tract.of land is a subdivision 

within the meaning of the rule last mentioned is no impediment to the granting of a well permit thereon as an 

exception under Rule 37 to prevent waste. In other words, 

the rule pertaining to subdivisions has no application to 

well permits granted to prevent waste . . . -” 

XI. 

“STATEMENT 

‘The commission’s statewide 20-acre spacing rule 

became effective January 25. 1940. Subsequent to such date 

and prior to the discovery of oil in the Hawkins field and the 

adoption of the special rules applicable to said field. ‘A’ as 

the owner of a 4-acre tract, exec,ut.ed a lease on two acres 

to one person and on two acres to another person, and each 

has applied f~or a permit to drill on his respective 2-acre 

tract. 

“QUESTION NO. 11 

“(A) Can the commission grant to each of said applicants a special permit authorizing the drilling of a well 

on each respective tract in order to prevent confiscation 

of property? 

“(B) Can the commission grant to each of said applicants special permit authorizing the drilling of a well 

on each respective tract in order to prevent physical waste ?R 

(A) Under our answer to subdivision MA” under question 

No. 10, supra, we have pointed out that a subdivision by oil and gas lease 

comes within the provisions of the rule of May 29, 1934, regardless of 
Railroad Commission of Texas, page 16 (o-3181) 

whether it was before or after the discovery of oil. Sun Oil Company v. 

Railroad Commission, 68 SW. (2d) 1609, affirmed. 126 T ~ Lb9 84 S W 

2d 693 Sh 11 P 

{2d{ 194; S’ 

etroleum Corporation v. Railroad Commi%on, ;33 S.“W, 

mce each of the 2-acre leases would constrtute a subdivision 

within the meaning of the rule, neither of the applicants would be entitled 

to the well of his 2-acre tract considered as a separate tract to prevent 

confiscation of property. Gulf Land Co. v. Atlantic Refining Co.., 134 Tex. 

59, 131 S.W. (2d) 73. 

(B) As we have pointed out in answering subdivision “B” 

of question No. 10, the question of subdivision does not affect the authority of the Railroad Commission to grant a special permit to prevent waste. 

Gulf Land Company v. Atlantic Refining Co., 134 Tex. 59. 131 S.W. (2d) 73. 

Ther,efore, rf the Commrssron fmds upon substantial evidence that waste 

will be prevented by the drilling of a well on each tract, it may grant a 

special permit to each applicant. 

‘XII. 

“STATEMENT 

“The commission’s statewide spacing rule became 

effective January 25. 1940. Prior to the discovery of oil 

in the Hawkins field and the promulgation of the special 

rules applicable to the field, ‘A’ as the owner of a separate 

fee ownership of a lo-acre tract executed a lease on four 

acres of same to ‘B’. 

‘QUESTION NO. 12 

“Should it be held by you, in answer to the previous 

questions that ‘B’ as the lessee of such 4-acre tract is not 

entitled to a special permit authorizing the drilling of a well 

on such 4-acre tract in order to prevent confiscation of 

property and/or physical waste, please advise whether, if 

the commission should refuse a permit to drill on such 4- 

acre tract on the application “B’ and “B’ surrenders his 

lease to the fee owner, the fee owner would then be entitled to make application for and receive the permit to drilLm 

As we have already stated, the Commission would not be 

prevented by the fact of subdivision from granting a special permit to 

“BR to drill a well on the 4-acre tr.act in order to prevent waste, but it 

would be prevented from granting a special permit to ““Bm to drill upon 

the 4-acre tract, considered as a separate tract in order to prevent confiscation of property. If “B’ surrenders his lease to the fee owner’, and 

the IO-acre tract is not itself a subdivision from a larger tract, the fee 

owner would be entitled to one well on his IO-acre tract in order to prevent confiscation of property. Dailey v. Railroad Commission, 133 SW. 

(2d) 219 (writ refused); Nash v. Shell Petr,oleum C orp00 LO S.W, (2d) 522 

(wr,it dismissed). 
Railroad Commission of Texas, page 17 (O-3181) 

XIII. 

“STATEMENT 

“The Cemetery Association within the town of 

Hawkins owns a 2-acre burial plot, having acquired same 

long prior to the adoption of the original statewide spacing rule in 1919. One and one&half acres of the 2-acre 

tract is used for burial purposes and is separated by a 

fence from the other one-half-acre and has been so separated for a number of years. The one-half-acre portion 

d the 2-acre tract has never been used for* burial purposes. 

The Cemetery Association prior to the discovery of oil in 

the Hawkins field executed an oil and gas lease on the en-, 

tire Iwo acres. The owner of the oil and gas lease then 

applied for a permit to drill a well on the unused portion 

of the cemetery as an exception to the spacing rules in 

the Hawkins field. No wells are now located either on the 

one and one-half-acre portion of the tract or the one-halfacre portion of the tract. 

“QUESTION NO. 13 

“(A) In the absence of any protest on the part of 

the families or relatives of people who are buried in the 

cemetery, may the c,ommission. in order to prevent confiscation of property or physical waste, grant a permit to 

drill a well as an exception to the spacing rule on the unused portion of the entire cemetery lot. 

“(B) Over the protest on the part of the families 

or relatives of people who are buried in the cemetery, may 

the commission, in order to prevent confiscation of property or physical waste, grant a permit to drill a well as an 

exception to the spacing rule on the unused portion of the 

entire cemetery lot? * 

For convenience, we shall answer subdivision (B) before 

answering subdivision (A). 

(B) From the facts stated, we assume that the entire 2- 

acre tract was acquired by the Cemetery Association for burial purposes, 

but that only one and one-half acres of this tract is actually occupied by 

graves. the remaining one-half acre being reserved for such use when it 

may be needed at some future time. Based on this assumption, it is our 

opinion that if the families or relatives of persons who are buried in the 

cemetery pr~otest, the Cemetery Association would have no lawful authority to permit the use of any part of the cemetery for uses other than burials. In Oakland Cemetery Company v. Peoples Cemetery Association, 93 

Tex. 569, 5 14~, 5 I S.W. 27, 28, the Supreme Court said: 
Railroad Commission of Texas, page 18 (O-3181) 

“After the dedication of the land. then legal title 

remained in the~c’orporation only for the purpose of conveying the lots to those who desired to use them for the 

purpose of burying the dead. No power is given by the 

statute to such corporations to c,onvey the property for 

any other purpose, and the, fact that the lots and ‘subdivi- ” 

sions are made ‘unchangeable and that the power to convey is restricted to the conveyance of ‘any lot or lots * * * 

for purposes of sepulture’ operates as a limitation upon 

the power of the corporation to convey the land to “a lot 

or lots’ and for the uses named. Upon dedications the doeminion of the corporation over the land as owner in fee 

simple was surrendered and the corporation became in 

effect a trustee to Sell and convey’the ,lots for the purposes 

specified and to carry out the purposes enumerated in the 

statute, with the right to appropriate the pr~oceeds of the 

sale to itself in payment of the land’.” ‘~ 

,‘~ 

InHouston Or1 Co.,vi, Williams:; 57 S.Wa (2~d) 380, 384, 

(writ refused) the court sard: ,” 

I 

o e ‘- It appears to be the rule that,.where.‘property hasbeen actually ippiopriated either as a private family burying ground or was a publi cemetery, it cannot in 

either instance,be inherited’or’conveyed’as~other property’ 

is done so as to interfere with the use and purposes to which 

it has been devoted. Peterson v. Stoltz (Tex.Civ.App.) 269 

SW. 113; Stewart v. Ga,rrettr’119:.Ga:386:,~ 46.S.E. ,427, 64 

L.R. R. A. 99,‘,100 Am,St.Rep.’ 1,79; Hines ,v; State; 126.Tenna 

1, 149 S.W. 1058, 1059, 42 L.R.A. (N.S.) 1138, and other cases. 

Quoting, as very aptly stated, fi~bm the Hines Case, supra: 

‘When once dedicated to.bur’ial.purposeS, and interments have 

there been made;the then cAvnir holds ,the’ ti,tle, to some extent in tiust for,the’benefit of those entitled to burial in it, 

and the heir at iaw,‘devisee, or; vendee takes. the property 

subject to this trust.‘m 

: ,: I 

The relatives of persons buried innthe cemetery would be 

entitled to raise objections to the use of the cemeter,y for purposes ‘other 

than as a place of burial. In ‘Barker ~v ’ D 7-I azel;Fain Oil Co;; 2,19 SW. 874, 

879 (writ refused) tbe’court said: 

” * D e They have, as we think, a r’ight to protect 

the graves of ‘their ‘dead;, not only ,as against~the’~origina1 

donor and the trustees of ;the Pleasant Grove Church, but 

also as against all persons so long as the graveyard maintains its lawful existence., ,‘* ‘O 2’ ” 

The right of the’family and relatives of persons buried ‘in 

a cemetery to object to the drilling of an oil well in the cemetery extends 
’ ‘Railroad Commission of Texas, page 19 (O-3181) 

to all of the cemetery. and not merely to the part of the cemetery that is 

actually occupied by graves. In Cochran v. Hill, 255 S. W. 768, 770, the 

c,ourt said: 

“We believe this equity power extends to the protection of the entire lot owned’by the Cemetery Association, irrespective of whether there are any graves in any 

certain part of it or not. Those who have loved ones buried 

there are entitled to have the hallowed spots protected from 

the heedless search for hidden wealth and from the rapacious 

hands who would~convert its sacred confines into a place of 

money getting.” 

In White v. Williams, 57 S.W. (2d) 395, 386, the court said: 

“* * * therefore the only question to ba determined 

on this appeal is whether under the facts,, in this case Mrs. 

White was entitled to apply to a court of ‘equity for a restraining order to prevent the drilling of an oil well on this 

plot of ground. We think she had such right. This was the 

effect of the holding in the case of Barker et al v. HaeelFain Oil Co., et al. (Tex.Civ.App.) 219 SW. 874, 875, and 

that this right extends to the whole plot of ground and not 

just to that portion of the same where inter’ments had already been made, Cochran et al v. Hill et al. (Tex.Civ. 

App.) 255 SW. 768.” 

The same holding is found in Smallwood v. Midfield Oil Company, 89 SW. (2d) 1086, 1090, (writ dismissed) where the court sard: 

” * 8 * The dedication of Mt. &Aoriah Cemetery 

had been effected by actual interment and inclosure many 

years prior to the Martin deed. Such dedication extended 

to all that portion of the ground thus set apart for the graveyard, whether actually occupied by graves or not. * * * * 

See also Smith v. Merrill. 81 F. (2d) 609. and Rairr’road Commis~sion v. Wood, 95 S;W. (Ld) 13~8 (writ refused). Zn,each of these cases, 

a cemetery was involved and an order of the Railroad Commission refusing to grant a permit to drill an oil well was sustained. However, each 

case was decided on points which did not involve the right to drill an oil‘ 

well in a cemetery. 

(A) Althou.gh the, law has not been settled,by any court decision, we are of the opinion that where the Cemetery A,ssociation by its 

proper officers hasexecuted aia oil and gas..,lease and all owners of lots 

in the cemetery and a11 of the~,familiea and, re:lativ+s ~pf persons buried in 

the cemetery consentto the drilling ofa well on a .portion of the. cemetery snot actually used f.or graves, the Railroad,,Gommission would be 
Railroad Commission of Texas; Rage ‘26 (O-3181)” 

, 

,C? .I ,.i 

authorized to grant a permit to. drill! a, we.11 on ,such, portion of the cemetery. 

Article 922a,‘Vernon’s Annotated Civil, Statutes, provides 

as folIows: 

“After such property is so dedicated to cemetery purposes, neither the dedication nor the title of a 

plot owner shall ever be affected by the dissolution of 

the association or bynon-user ,on its part, or by alienations of the property. or by any encumbrances thereon, 

or by forced sale under execution or otherwise, and such 

dedication shall ,not be,deemed or, held invalid as violating any existing laws against perpetuities or the suspension of the power of alienation of title to or use of prop- 

. 

erty. but such dedicatron is hereby expressly permitted, 

and shall be and shall~be deemed to be in~respect for the 

dead, a provision for the disposition of the bodies of deceased persons, and a ,duty to, and for the benefit of, the 

general public, and said property shall be held and used 

exclusively for cemetery purposes unless and until the 

dedication shall be, removed by an order and decree of 

the District Court of the county in which the same is situated, in a proceeding brought therefor by the governing 

body of the city, if said cemetery is within, or within five 

(5) miles’from the city limits of, any city or more than 

twenty-five thousand (25,090) inhabitants according to the 

last preceding Federal Census.,, or.by the District Attorney, if said cemetery is not within, or within five (5) 

miles of the city limits of,. a city of, more than twentyfive thousand (25,OOO),inhabilnnts~, according to the last ‘i 

preceding FedeiaJ Census..or by. the owne,r of property 

so situated that its value is a,ffected, by said cemetery, 

upon notice and proof s,atisfactory ,to the Court that all 

bodies have been re~moved therefrom, or that no interments were made therein, or that,the same is no longer 

used or reguired for interment purposes. or until the 

maintenance of said cemeter,y is enjoined or abated as 

a nuisance’,as he~reinafter provided for. After. such~dedication and as long as said property shall remain,dedicated 

to cemetery purposes, no railroads, street, road, alley, 

pipe line, pole line, telephone, telegraph, or electric line, 

or other public utility o.r thoroughfare; whatsoeve’r shall 

ever be laid out through, over , or across any part thereof, 

without the consent~of, the directors. offthe cemetery association owning or .pperating.the same, or ofnot:less than 

two-thirds (2/3.) of the, owners of burial, plots therein. bnd 

all of such property, .includingroads;;alLeys;and walks 

therein, shall be exempt from public improvement assessments and all public taxation. and shall not be liable to be 
Railroad Commission of Texas, page 21 (O-3181) 

sold on execution or applied in payment of debts due from 

individual owners of burial plots therein. (Acts 1934, 43rd 

Leg., 2nd C-S., p. 146, ch. 66, § 1.)~” 

It will be noted that this statute provides in part that the 

dedication of property for cemetery purposes shall not be affected “by 

alienations of the property”, but it is further provided that for certain 

specified purposes, rights of way may be granted across part of the premises by the consent of the directors or of two-thirds of the owners of 

burial plots therein. Article 923a. Vernon’s Annotated Civil Statutes, also 

provides that a vested right of interment may be waived. While these statutes do not relate to the spec,ific problem here involved, they do indicate a 

policy that rights in a cemetery or a part thereof may be waived or abandoned. Compare Meadows v. Edwards. 116 S.W. (2d) 831. 834 (writ refused), in which the court said, with reference to a private cemetery: 

“These undisputed facts and circumstances coming in the main from appellees, show in our opinion, conclusively that only that part of this tract of land inclosed 

by the fence as it has existed since 1931 is impressed with 

and devoted to a cemetery. Houston Oil Co. of Tex. v. Williams, Tex.Civ.App.. 57 S.W.(2d) 380, writ refused. And 

the oil and gas leases given by these appellees and their 

joint owners covering this tract of land, so long as operations 

thereunder were confined to the land outside the inclosed cemetery and no desecration thereof occurred, were not illegal, 

immoral, or against any phase of our public policy . . e R 

We believes, therefore. that public policy would not prohibit 

an agreement which in effect constituted an abandonment by all interested 

parties of their rights to insist that a certain portion of the premises be 

used for cemetery purposes, where the portion of the premises so abandoned are not actually occupied by graves or sepulchers. We further believe that the Railroad Commission would be authorized to require the applicant to make proof that all persons owning burial plots and all of the 

families and relatives of pers’ons buried in the cemetery had been given 

adequate notice and had failed to protest or had consented to the granting 

of such permit. 

APPROVED MAR 24, 1941 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

/s/ Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

By /s/ James P. Hart 

James P. Hart 

Assistant 

JPH:EP/cm APPROVED OPINION 

COMMITTEE 

By /s/ BWB 

Chairman