Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. * * *' We also notice the decision in Humble Oil & Refining Company v. L & G Oil Company, Tex.Civ.App., 259 S.W.2d 933, wr. ref. n. r. e., where action of the Commission was invoked under Rule 54. In that case the Court of Civil Appeals held that notice was not necessary to the owner of the mineral estate under a 1-acre tract where the Railroad Commission, under certain conditions as provided in Rule 54 granted a permit to the owner of the surface estate of that 1-acre tract to drill on that tract and directionally deviate the well from its normal course so as to reach the productive horizon embraced within the adjoining mineral estate that belonged to the owner of the surface of the 1-acre tract.
Delhi-Taylor contends that the Commission would have no authority to authorize a trespass onto its land; that the Commission does not have the power to make lawful an unlawful trespass; that no administrative discretion is involved because the Commission would have no discretion to authorize the trespass; that is has no power to transfer property rights in gas (the gas itself) from one person to another; that the law of capture could not be extended by the Commission to 'capture by trespass'; that this is not a question of how a well should be completed but where it is completed. It contends that the theory of 'primary jurisdiction' in the Commission is not applicable here because the Legislature has not attempted to delegate that power, exclusive or concurrent, to the Commission; and that the question here is one of law. Humble Oil and Refining Co. v. L. G. Oil Co., Tex.Civ.App. 1953, 259 S.W.2d 933, 939 (writ refused, N.R.E.), involved a construction of the Commission's rule regarding permits for the directional drilling of a well. The rule required a hearing but did not provide for notice to adjoining landowners.
Reg. 2, Basic Rules of the Priorities System, 18 Fed.Reg. 1684 (1953), as adopted by the B.D.S.A., 18 Fed.Reg. 6503 (1953). Although Regulation 2 was initially promulgated under the National Production Authority (NPA), the B.D.S.A.'s predecessor in the Commerce Department, Exec. Order No. 10161, 15 Fed.Reg. 6105 (1953), the provision was specifically continued in force when B.D.S.A. was created. 18 Fed.Reg. 6503, 6505 (1953).
We have yet to address the question, although at least two courts of appeals have, albeit under slightly different circumstances. SeeChevron Oil Co. v. Howell , 407 S.W.2d 525, 526–28 (Tex. Civ. App.—Dallas 1966, writ ref'd n.r.e.) (holding that the permission of the surface owner was not sufficient to afford Chevron the right to drill through the subsurface, absent permission of the mineral owner and when the surface was leased to another party who was also non-consenting); Humble Oil & Ref. Co. v. L & G Oil Co. , 259 S.W.2d 933, 934–38 (Tex. Civ. App.—Austin 1953, writ ref'd n.r.e.) (denying a challenge to the Railroad Commission's authority to grant a deviated-well permit to allow a mineral lessee, that leased the minerals under a railroad right-of-way but also could not access those minerals from the right-of-way, to drill a well from the surface estate it owned despite objection from the subjacent mineral owner). We begin by addressing the trespass cause of action.
Gregg v. Delhi-Taylor Oil Corp., supra. See also: Humble Oil and Refining Co. v. L. & G. Oil Co., Tex.Civ.App., (1953), 259 S.W.2d 933, wr. ref., n. r. e. '* * * (4) To require wells to be drilled and operated in such manner as to prevent injury to adjoining property.'
This complaint is moot with regard to Tyra's complaint about well number twelve because, as we shall explain below, Tyra's complaint sounds in contract, not tort. Because the 1956 agreement was still in effect and well number twelve was in use at the time Tyra bought the property, he bought the land subject to the 1956 agreement. SeeHumble Oil RefiningCo. v. L. G. Oil Co., 259 S.W.2d 933, 938 (Tex.Civ.App.-Austin 1953, writ ref'd n.r.e.) (The owner of the surface estate has possession subject to the use of the surface by the lessee for the purpose of the mineral grant.). Therefore, he is bound by its terms.
In 19 Tex.Law Review, at page 82, Hon. Earl A. Brown, Jr., said that recognition of the implied covenant of a lessee to use reasonable care in developing his lease was not an innovation in the field of implied covenants but merely a statement of an existing contractual duty. See Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863; Thompson v. Northern Pump Company, Tex.Civ.App., 355 S.W.2d 846, (ref. n.r.e.); Humble Oil Refining Co. v. L. G. Oil Company, Tex.Civ.App., 259 S.W.2d 933; Parker v. Texas Company, Tex.Civ.App., 326 S.W.2d 579 (ref. n.r.e.). There was not only some evidence but, in our opinion, ample evidence to support the jury findings, particularly that defendant's location of its well was an unreasonable use of plaintiffs" land and that such location was made by the defendant wilfully and deliberately and in utter disregard of plaintiffs" property rights.
The effect of these statutes is to give to the Railroad Commission of this State primary jurisdiction over the methods of drilling, completing and operating oil and gas wells, and this primary jurisdiction must be exhausted before resort can be had to the courts. Railroad Commission of Texas v. Gulf Production Co., 134 Tex. 122, 132 S.W.2d 254; Peterson v. Grayce Oil Company, Tex.Civ.App., 37 S.W.2d 367, affirmed Grayce Oil Company v. Peterson, 128 Tex. 550, 98 S.W.2d 781; Humble Oil Refining Co. v. L. G. Oil Company, Tex.Civ.App., 259 S.W.2d 933; Kavanaugh v. Underwriters Life Insurance Company, Tex.Civ.App., 231 S.W.2d 753; Texas New Orleans Railroad Co. v. Houston Belt Terminal Ry. Co., Tex.Civ.App., 227 S.W.2d 610; Corzelius v. Railroad Commission, Tex.Civ.App., 182 S.W.2d 412; Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576. The provisions of Article 6023, supra, among other things give to the Railroad Commission primary jurisdiction over all persons engaged in drilling, operating or producing natural gas, as well as over all oil or gas wells in Texas.
" The second case was Humble Oil Refining Company v. L. G. Oil Co., Tex.Civ.App., 259 S.W.2d 933, er. ref., N.R.E. It is apparent that unless the deed from Henry J. Wallace et al. to H. J. Cobb et al. dated January Sec. 4, 1941, conveyed the undivided 1/4th mineral interest they owned in the highway strip, the title remained in them.
These same cases hold that the rights of the mineral estate must be reasonably exercised with due regard to the rights of the surface owner, and the converse is also true. The surface owner is subject to the use in favor of the owner of the mineral estate, but can make such use of the land as is consistent with the exercise of the right to drill for and produce oil and gas therefrom. 31-A, Tex.Jur. 207, sec. 126; Humble Oil Refining Co. v. L. G. Oil Co., Tex.Civ.App., 259 S.W.2d 933; Robinson Drilling Co., Inc. v. Moses, Tex.Civ.App., 256 S.W.2d 650. Under such a mineral estate the owner thereof, in the absence of an agreement otherwise, has the right to use as much of the surface of the land leased, and in such manner, as is reasonably necessary to effectuate the purpose of the lease.