holding that mineral lessee’s surface rights are “implied by law in all conveyances of the mineral estate and, absent an express limitation thereon, are not to be altered by evidence that the parties to a particular instrument of conveyance did not intend the legal consequences of the grant”
How later courts described this case
- holding that mineral lessee’s surface rights are “implied by law in all conveyances of the mineral estate and, absent an express limitation thereon, are not to be altered by evidence that the parties to a particular instrument of conveyance did not intend the legal consequences of the grant”
- stating that accommodation doctrine articulated in Getty Oil is “limited to situations in which there are reasonable alternative methods that may be employed by the lessee on the leased premises to accomplish the purposes of the lease.”
- recognizing that the use easement is not limited by fixed boundaries but rather its purpose and use
- “The rights implied from the grant are implied by, law in all conveyances of the mineral estate and, absent an express limitation thereon, are not to be altered by evidence that the parties to a particular instrument of conveyance did not intend the legal consequences of the grant.”
Written by the judges who cited it.
The opinion
ON REHEARING
PER CURIAM.
Justice Walker was on the bench at the time this cause was argued on February 17, 1971, but thereafter voluntarily recused himself from the case and did not participate in the decision of this court. During the consideration of the cause on rehearing the court was evenly divided. The court is therefore required to determine whether Justice Walker is disqualified from serving in this case.
Justice Walker and eleven of his cousins are undivided owners of about three hundred acres of mineral classified land in Reeves County which was under lease to Sun Oil Company. The family executed the lease in 1961, and it was later assigned to Sun. On April 19, 1971, after the submission of this cause, Sun initiated negotiations with the owners concerning the execution of a new lease which would commence after the expiration of the old lease on October 18, 1971. Thereafter Forest Oil Corporation, the owner of a lease of adjoining acreage, also began negotiations to obtain a lease on the same lands. The General Land Office, in line with its policy not to approve a lease on mineral classified lands while there is an existing lease on the land, refused to consider any new lease executed prior to termination of the existing lease. During June, 1971, the surface owners, Sun, Forest Oil Corporation and the Commissioner of the General Land Office, executed, as an amendment to the existing lease, a unitization agreement covering the land owned by the members of Justice Walker’s family and the adjoining land held under lease by Forest Oil Corporation. The consideration for the execution of the new agreement was a bonus and royalty, both of which were equally divided and paid to the surface owners of the land held under lease by Sun and to the Commissioner of the General Land Office. Because of these transactions, Justice Walker determined that he would recuse himself from this case.
Justice Walker has engaged in no other transaction with Sun, owns no stock or other interest in that company, holds no private interest in the subject matter of the dispute in this suit, and knows of no other reason for which he might be disqualified.
The court, in making this decision, has done so without Justice Walker’s participation, in line with the practice employed in State v. Valmont Plantations, Tex. Civ. App., 346 S.W.2d 853 at 885 , opinion adopted by Supreme Court, 163 Tex. 381 , 355 S.W.2d 502 (1962), and Love v. Wilcox, 119 Tex. 256 , 28 S.W.2d 515 (1930).
Article V, Section 11, of the Texas Constitution provides that no judge shall sit in any case “wherein he may be interested . .” See also Art. 15, Vern.Ann. Tex.Stats. It is a settled principle of law that the interest which disqualifies a judge is that interest, however small, which rests upon a direct pecuniary or personal interest in the result of the case presented to the judge or court. Hidalgo County Water Improvement Dist. No. 2 v. Blalock, 157 Tex. 206 , 301 S.W.2d 593 (1957); City of Oak Cliff v. State ex rel. Gill, 97 Tex. 391 , 79 S.W. 1068 (1904); Hubbard v. Hamilton County, 113 Tex. 547 , 261 S.W. 990 (1924). Justice Walker at no time has held such an interest in the case before us.
A judge’s sense of propriety is often good reason for a judge to recuse himself voluntarily as Justice Walker did. In a situation such as is here presented, however, there are other considerations. We held in Hidalgo County Water Control and Improvement Dist. No. 1 v. Boysen, 354 S.W.2d 420, 423 (Tex.Civ.App.1962, writ ref’d), that “ . . . the Constitution does not contemplate that judicial machín- *824 ery shall stop.” See also Hidalgo & Cameron Counties Water Control etc. v. Starley, 373 S.W.2d 731 (Tex.1964); Hidalgo County Water Improvement Dist. No. 2 v. Blalock, 157 Tex. 206 , 301 S.W.2d 593 (1957).
We hold that Justice Walker is qualified to participate in the decision of this cause on rehearing and, further, that it is his duty to serve. Love v. Wilcox, supra.