Id. Bradley v. Avery, 746 S.W.2d 341, 344, 345 (Tex. App.โAustin 1988, no writ) (explaining the difference between ratification and revivor). Id.; see also Westbrook v. Atlantic Richfield Co., 502 S.W.2d 551, 556 (Tex. 1973).
The burden is upon a lessee to prove that a cessation of production fell within the temporary cessation doctrine. Bradley v. Avery, 746 S.W.2d 341, 343 (Tex.App.-Austin 1988, no writ). Furthermore, no analysis of whether production was in paying quantities is necessary if the evidence establishes no production at all.
Natural had the burden of proof to establish that the reason for the cessation of production was the equivalent of a sudden stoppage of the well or some mechanical breakdown or "the like." Bradley v. Avery, 746 S.W.2d 341, 343 (Tex.App. โ Austin 1988, no writ). Although there were other shorter instances of non-production at different times, Plaintiffs sought cancellation only for cessations in excess of sixty days, and findings were neither requested nor made with respect to shorter periods.
The burden then shifts to the lessee to prove that the cessation was excused by the TCOP doctrine. Cobb v. Natural Gas Pipeline Co. of Am., 897 F.2d 1307, 1310-11 (5th Cir. 1990); Bradley v. Avery, 746 S.W.2d 341, 343 (Tex.App.-Austin 1988, no writ); 1 Smith Weaver, Texas Law of Oil and Gas ยง 4.4(b) (1994). We have applied a two-pronged test for determining whether a cessation of production falls under the TCOP doctrine and thus is legally excused from the automatic termination rule.
The burden then shifts to the lessee to prove that the cessation was excused by the TCOP doctrine. Cobb v. Natural Gas Pipeline Co. of Am., 897 F.2d 1307, 1310-11 (5th Cir. 1990); Bradley v. Avery, 746 S.W.2d 341, 343 (Tex.App.-Austin 1988, no writ); 1 Smith Weaver, Texas Law of Oil and Gas 4.4(b) (1994). We have applied a two-pronged test for determining whether a cessation of production falls under the TCOP doctrine and thus is legally excused from the automatic termination rule.
Cannon v. Sun-Key Oil Co., Inc., 117 S.W.3d 416, 419 (Tex.App.-Eastland 2003, pet. denied).Bradley v. Avery, 746 S.W.2d 341, 344 (Tex.App.-Austin 1988, no writ).Id. (citing 2 HOWARD R. WILLIAMS CHARLES J. MEYERS, OIL AND GAS LAW, ยง 340.04, at 256 (1986)).
The burden is on the lessee to prove that the cessation in production fell within the temporary cessation doctrine. Bradley v. Avery, 746 S.W.2d 341, 343 (Tex.App.-Austin 1988, no writ). B. Analysis 1. Legal and factual sufficiency of the evidence
Detriment is required when the document cited as reviving another lacks an express grant. Natural Gas Pipeline Co. v. Pool, No. 07-99-0428-CV, slip op. at 11, 2000 LEXIS 6902 at 11; Exploracion De La Estrella, 858 S.W.2d at 554; Bradley v. Avery 746 S.W.2d 341, 344 (Tex.App.-Austin 1988, no writ). The division order before us contains no such words of grant.
The burden was upon appellants to prove that the cessation of production fell within that doctrine. Bradley v. Avery, 746 S.W.2d 341, 343 (Tex.App.-Austin 1988, no writ). Appellants contend that due to the lapse of somewhere between 14 years (assuming the leases terminated at the most recent cessation in 1984) and 57 years (assuming the leases terminated at the earliest cessation in 1941) since the leases experienced cessations in production, they are unable to locate documents and witnesses to defend against the claims of appellees.
Westbrook v. Atlantic Richfield Company, 502 S.W.2d 551 (Tex. 1973); Loeffler v. King, 149 Tex. 626, 236 S.W.2d 772 (1951); McVey v. Hill, 691 S.W.2d 67, 71 (Tex.App. โ Austin 1985, writ ref'd n.r.e.); George T. Bond, Note, Revival and Ratification of Leases โ Synonyms or Antonyms?, 26 Baylor L.Rev. 455 (1974). In Bradley v. Avery, 746 S.W.2d 341 (Tex.App. โ Austin 1988, no writ), the court, citing 4 Williams and Meyers, Oil and Gas Law, ยง 709 (1986), suggested that, in the absence of an express grant, a terminated oil and gas lease may be revived by the mere execution of division orders only if detrimental reliance is found on the part of the lessee. The division orders were on forms provided by Permian (the crude oil purchaser), were dated February 7, 1990, and were signed after the cessation of production. Mrs. Birdwell and Mrs. McGlaun stated that they executed the division orders to recover monies held in suspense by the purchaser for prior production in 1987 and 1988.