                                                                      ACCEPTED
                                                                  04-14-00152-CV
                                                      FOURTH COURT OF APPEALS
                                                           SAN ANTONIO, TEXAS
                                                              9/3/2015 6:25:47 PM
                                                                   KEITH HOTTLE

                NO. 04-14-00152-CV
                                                                           CLERK



             IN THE COURT OF APPEALS
            FOURTH DISTRICT OF TEXAS              FILED IN
                SAN ANTONIO, TEXAS         4th COURT OF APPEALS
                                            SAN ANTONIO, TEXAS
                                           9/3/2015 6:25:47 PM
                                             KEITH E. HOTTLE
         LIGHTNING OIL COMPANY,   Appellant        Clerk


                        v.

          ANADARKO E&P ONSHORE LLC fka
        ANADARKO E&P COMPANY, LP, Appellee


      APPELLANT LIGHTNING OIL COMPANY’S
     MOTION FOR EN BANC RECONSIDERATION


                      BRUCE K. SPINDLER
                      State Bar No. 18947050
                      Email: bspindler@langleybanack.com
                      ROBINSON C. RAMSEY
                      State Bar No. 16523700
                      Email: rramsey@langleybanack.com
                      STEPHEN J. AHL
                      Email: sahl@langleybanack.com
                      LANGLEY & BANACK, INC.
                      Trinity Plaza II, Suite 900
                      745 East Mulberry Avenue
                      San Antonio, Texas 78212
                      Telephone: (210) 736-6600
                      Telecopier: (210) 735-6889

                      ATTORNEYS FOR APPELLANT
                      LIGHTNING OIL CO.

APPELLANT REQUESTS ORAL ARGUMENT
                                            TABLE OF CONTENTS



TABLE OF CONTENTS ................................................................................. 1
TABLE OF AUTHORITIES ........................................................................... 2
POINTS ......................................................................................................... 4
  I.       Lightning owns the hydrocarbon-containing strata; but regardless
           of who owns the strata, Lightning has the right to prevent Anadarko
           from drilling through these formations. ............................................................ 4
  II.      Lightning’s mineral estate is dominant over the surface estate, and
           Anadarko’s conduct interferes with Lightning’s development of its
           mineral lease. ..................................................................................................................... 4
  III.     Anadarko’s conduct in drilling through the hydrocarbon-containing
           formations on the Cutlass Lease constitutes a trespass on
           Lightning’s mineral estate.......................................................................................... 4
ARGUMENT.................................................................................................. 5
           I.         Lightning owns the hydrocarbon-containing strata; but
                      regardless of who owns the strata, Lightning has the right to
                      prevent Anadarko from drilling through these formations. ...... 5
                     A. Lightning owns the strata in which its minerals are
                        embedded because the minerals are part of the realty. ........... 5
                     B. Regardless of strata ownership, Lightning has the right to
                        prevent Anadarko from drilling through Lightning’s
                        minerals............................................................................................................ 10
           II.        Lightning’s mineral estate is dominant over the surface estate,
                      and Anadarko’s conduct interferes with Lightning’s
                      development of its mineral lease. ........................................................... 15
           III.       Anadarko trespassed on Lightning’s mineral estate.................... 21
PRAYER ...................................................................................................... 22
CERTIFICATE OF COMPLIANCE .............................................................. 23
CERTIFICATE OF SERVICE....................................................................... 24


                                                                     1
                                 TABLE OF AUTHORITIES


Cases

Cain v. Fontana, 423 S.W.2d 134 (Tex. Civ. App.—San Antonio
  1967, writ ref’d n.r.e.) ............................................................................... 21
Chevron Oil Co. v. Howell, 407 S.W.2d 525 (Tex. Civ. App.—Dallas
  1966, writ ref’d n.r.e.) ................................................................................ 17
Coastal Oil & Gas Corp. v. Garza, 268 S.W.3d 1 (Tex. 2008) .................. 5, 8
Dunn–McCampbell Royalty Interest, Inc. v. Nat’l Park Serv.,
  630 F.3d 431 (5th Cir. 2011) ................................................................. 8, 18
Edwards Aquifer v. Day, 369 S.W.3d 814 (Tex. 2012) ........................ passim
Eliff v. Texon Drilling Co., 210 S.W.3d 558 (Tex. 1948) ............................. 10
Emeny v. United States, 412 F.2d 1319 (Ct. Cl. 1969) ...................... 13, 18, 19
Envtl. Processing Sys., L.C. v. FPL Farming Ltd.,
  457 S.W.3d 414 (Tex. 2015) ...................................................................... 21
Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377
  (Tex. 2012)........................................................................................... 14, 15
Geothermal Kinetics, Inc. v. Union Oil Co., 141 Cal. Rptr. 879
  (Cal. Ct. App. 1977) ................................................................................... 18
Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971) ................................. 5, 15
Harris v. Currie, 176 S.W.2d 302 (Tex. 1943) ............................................ 21
Lightning Oil Co. v. Anadarko E&P Onshore LLC,
  __ S.W.3d __, No. 04-14-00903-CV, 2015 WL 4933439
  (Tex. App.—San Antonio Aug. 19, 2015, no. pet. h.) ......................... passim
Mellon Mortgage Co. v. Holder, 5 S.W.3d 654 (Tex. 1999)........................ 22
Mitchell v. Baker Motel of Dallas, Inc., 528 S.W.2d 577
  (Tex. 1975) ................................................................................................ 16
Russell v. Am. Real Estate Corp., 89 S.W.3d 204
  (Tex. App.—Corpus Christi 2002, no pet.) ............................................... 12
Salazar v. Sanders, 440 S.W.3d 863
  (Tex. App.─El Paso 2013, pet. denied) ..................................................... 21
Springer Ranch v. Jones, 421 S.W.3d 273
  (Tex. App.─San Antonio 2013, no pet.). .............................................. 18, 19
Stephens County v. Mid-Kansas Oil & Gas Co.,
  254 S.W. 291 (Tex. 1923) ....................................................................... 7, 13
                                                       2
Tarrant County Water Control & Imp. Dist. No. One v. Haupt, Inc.,
 854 S.W.2d 909 (Tex. 1993) ................................................................ 15, 16
Texas Co. v. Daugherty, 176 S.W. 717 (Tex. 1917) ............................... passim
Rules

TEX. R. CIV. P. 166a ...................................................................................... 16




                                                      3
                            POINTS


I.     Lightning owns the hydrocarbon-containing strata;
       but regardless of who owns the strata, Lightning has
       the right to prevent Anadarko from drilling through
       these formations.

       A.   Lightning owns the strata in which its
            minerals are embedded because the minerals
            are part of the realty.

       B.   Regardless of strata ownership, Lightning has
            the right to prevent Anadarko from drilling
            through Lightning’s minerals.

II.    Lightning’s mineral estate is dominant over the
       surface estate, and Anadarko’s conduct interferes
       with Lightning’s development of its mineral lease.

III.   Anadarko’s conduct in drilling through the
       hydrocarbon-containing formations on the Cutlass
       Lease constitutes a trespass on Lightning’s mineral
       estate.




                                4
      The panel has misconstrued the Texas Supreme Court’s decision in

Coastal Oil & Gas Corp. v. Garza, 268 S.W.3d 1 (Tex. 2008), to arrive at a

ruling that is directly contrary to Texas Co. v. Daugherty, 176 S.W. 717

(Tex. 1917), a controlling Supreme Court case, which the panel’s opinion

did not mention at all, and which was reaffirmed on this very issue in

Edwards Aquifer v. Day, 369 S.W.3d 814, 829 (Tex. 2012).

      Not only did the panel ignore Texas Supreme Court precedent that oil

and gas in place are part of the realty, the panel’s opinion contravenes the

doctrine of dominant jurisdiction by elevating the surface estate over the

mineral estate. See Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex. 1971)

(holding that the mineral estate is dominant over the surface estate).

      Under these circumstances, the panel’s opinion merits en banc

reconsideration to addresses core issues that impact not only Texas

jurisprudence relating to oil and gas, but also the oil-and-gas industry itself.

                                ARGUMENT
I.    Lightning owns the hydrocarbon-containing strata; but
      regardless of who owns the strata, Lightning has the right to
      prevent Anadarko from drilling through these formations.

      A.    Lightning owns the strata in which its minerals are
            embedded because the minerals are part of the realty.
      According to the panel’s opinion, although Lightning owns the

minerals, it does not own the realty in which those minerals are embedded

                                       5
because they are not a part of the realty. Lightning Oil Co. v. Anadarko

E&P Onshore LLC, __ S.W.3d __, No. 04-14-00903-CV, 2015 WL

4933439, at *3−4 (Tex. App.—San Antonio Aug. 19, 2015, no. pet. h.). But

according to the Supreme Court of Texas, minerals in place “lie within the

strata of the earth, and necessarily are a part of the realty.” Daugherty, 176

S.W. at 719 (cited with approval and reaffirmed on this issue in Edwards

Aquifer Authority v. Day, 369 S.W.3d 814, 829 (Tex. 2012)). “[F]or the

purpose of ownership and conveyance of solid minerals, the earth may be

divided horizontally as well as vertically.” Daugherty, 176 S.W. at 719.

Therefore, “title to the surface may rest in one person and title to the

strata beneath the surface containing such minerals in another.”

(emphasis added). Id. Accordingly, if, as the panel concedes, Lightning

owns the minerals, it also necessarily owns the real-estate strata in which

those minerals are embedded. See id.

      The panel’s opinion states that “Stephens does not directly address

who owns the earth surrounding the minerals.” Lightning, 2015 WL

4933439, at *4. Actually, Stephens does address that issue by pointing out

that “oil and gas in place are minerals and realty, subject to ownership,

severance, and sale, while embedded in the sands and rocks beneath the

earth’s surface” and that “before oil is extracted it is part of the land.”

Stephens County v. Mid-Kansas Oil & Gas Co., 254 S.W. 291, 292 (Tex.

                                       6
1923) (cited with approval in Day, 369 S.W.3d at 828-29). Therefore, if, as

the Supreme Court of Texas has held, oil and gas in place are owned as part

of the land, it necessarily follows that Lightning owns the land in which the

oil and gas is ensconsced—at least until Lightning’s lease has expired—

because those minerals are part of that land. See Daugherty, 176 S.W. at

719 (holding that minerals in place “are a part of the realty while in place”).

      The panel also recites that “Stephens does not state that an oil and gas

lease automatically conveys to the lessee the exclusive right to control the

subterranean structures within the boundaries circumscribing the lease.”

Lightning, 2015 WL 4933439, at *4. But it does state that an oil-and-gas

lease transfers to the lessee ownership of any strata in which minerals exist.

See Stephens, 254 S.W. at 293 (recognizing that an oil-and-gas lease

“effect[s] a severance of the property in the strata of minerals from the

property in the remainder of the land; the mineral strata being as much

land as the nonmineral portion of the soil”). This is consistent with the

Texas Supreme Court’s holding that minerals in place “lie within the strata

of the earth, and necessarily are a part of the realty.” Daugherty, 176 S.W.

at 719.

      The panel cites Dunn–McCampbell Royalty Interest, Inc. v. Nat’l

Park Serv. in support of the assertion that “the conveyance of mineral

rights ownership does not convey the entirety of the subsurface.”

                                       7
Lightning, 2015 WL 4933439, at *5 (quoting 630 F.3d 431, 441 (5th Cir.

2011)). But even under the panel’s rationale, this conveyance would still

include that part of the subsurface that contains minerals. See Daugherty,

176 S.W. at 719. Nevertheless, Anadarko asserts that the ownership of

minerals does not include ownership of the strata in which they are located

in place. The crux of that claim, which this court has erroneously adopted,

relies on the following language from the Texas Supreme Court’s opinion in

Garza:

           While a mineral rights owner has a real interest in
           oil and gas in place, this right does not extend to
           specific oil and gas beneath the property; ownership
           must be considered with the law of capture, which is
           recognized as a property right as well. The minerals
           owner is entitled, not to the molecules actually
           residing below the surface, but to a fair chance to
           recover the oil and gas in or under his land, or their
           equivalents in kind. (emphasis added).

268 S.W.3d at 15.

     Anadarko and the commentators on which it relies assume that

Garza abrogated the law of ownership of minerals in place. But in Day,

four years following Garza, the Supreme Court specifically addressed this

misconception:

           Most recently, in Coastal Oil & Gas Corp. v. Garza
           Energy Trust, we observed that “the rule of capture
           determines title to [natural] gas that drains from
           property owned by one person onto property owned
           by another. It says nothing about the ownership of
           gas that has remained in place (emphasis added).
                                    8
Day, 369 S.W.3d at 829. 1 Therefore, the Supreme Court rejected the same

argument Anadarko makes here:

              Because a landowner is not entitled to any specific
              molecules of groundwater or even to any specific
              amount, the Authority [Edwards Aquifer] argues
              that the landowner has no interest that entitles him
              to exclude others from taking water below his
              property and therefore no ownership in place. The
              Lessee in Daugherty made essentially the same
              argument and we rejected it. (emphasis added).

Id. at 830.

      Here, as in Daugherty, Lightning’s oil-and-gas lease does not

constitute a “mere demise of the premises for a given period, as in the case

of an ordinary leasehold,” nor does it “amount simply to a grant of the right

to prospect upon the land for oil or gas and reduce those substances to

possession and ownership.” 176 S.W. at 718. Instead, it deals with “the oil,

gas, and other minerals ‘in and under’ the land as property, in the ground,

capable of ownership and subject to be[ing] conveyed.” Id. To rule in

Anadarko’s favor, this court would have to (and did) ignore Texas Supreme

Court precedent relating to ownership of minerals in place.




      1 All internal quotations and citations omitted throughout this motion unless
otherwise noted.
                                        9
     B.    Regardless of strata ownership, Lightning has the right
           to prevent Anadarko from drilling through Lightning’s
           minerals.
     Even hypothetically accepting the assertion that Lightning does not

own this mineral-estate strata, it nevertheless has the right to the exclusive

use and possession of any strata in which minerals are located. Day

confirmed that the right of an oil-and-gas owner to prevent the drilling of a

well on an adjacent tract that was bottomed (not producing) in an oil-and-

gas formation under his own property. The Supreme Court stated that the

landowner had the right to exclude others, not only from producing the

groundwater (which it earlier equated to oil-and-gas rights), but from the

groundwater itself:

           Furthermore, we later held that a landowner is
           entitled to prohibit a well from being drilled on
           other property but bottomed in an oil and gas
           formation under his own—a slant or deviated well.
           Thus, a landowner has a right to exclude others
           from groundwater beneath his property, but one
           that cannot be used to prevent ordinary drainage
           (emphasis added).

Day, 369 S.W.3d at 830 (quoting Eliff v. Texon Drilling Co., 210 S.W.3d

558, 561 (Tex. 1948)).

     In discussing the rights available to a landowner to exclude others

from their real-property interest, Day reiterated:

           In Elliff, we restated the law regarding ownership of
           oil and gas in place: In our state the landowner is
           regarded as having absolute title in severalty to the
                                     10
           oil and gas in place beneath his land. The only
           qualification of that rule of ownership is that it must
           be considered in connection with the law of capture
           and is subject to police regulations. The oil and gas
           beneath the soil are considered a part of the realty.
           Each owner of land owns separately, distinctly and
           exclusively all of the oil and gas under his land and
           is accorded the usual remedies against the
           trespassers…. (emphasis added).

Day, 369 S.W.3d at 831-832.

     In rejecting Lightning’s reliance on Day, the panel stated, “Day did

not address the central question here: Who owns the earth in which a

mineral estate may be contained?” Lightning, 2015 WL 4933439, at *3.

But Daugherty, which Day cited, did address that question—and the

answer is: the mineral estate owner. 176 S.W. at 719. (“[T]itle to the surface

may rest in one person and title to the strata beneath the surface

containing such minerals in another.”). (emphasis added). Regardless,

even ignoring this Texas Supreme Court precedent and adopting the panel’s

perspective, the central question would not be whether Lightning owns that

earth, but whether Anadarko is interfering with Lightning’s minerals, which

are entrenched in that earth.     Lightning’s summary-judgment evidence

clearly establishes interference. CR 50−55; 95−99.

      Day reaffirms the precept that ownership of minerals in place

includes ownership of the subsurface strata that surrounds the minerals. In

essence, the panel’s opinion has redefined “strata” to exclude the part of the

                                     11
land that contains minerals. But even under the panel’s theory, the only

strata, if any, over which the surface owner would retain control would be

that part of the strata that does not contain minerals. Anadarko’s proposed

wells go through strata where minerals are in place—minerals that

Lightning, not the surface owner, controls. As a result, when Anadarko

pierces that part of the earth, it necessarily displaces the minerals, because

they are embedded in the “surrounding earth,” thereby making it

impossible to travel through the strata without also going through and

taking Lightning’s minerals. See CR 50−55, 95−99; Supp. CR 337, 418; 2nd

Supp. CR 409.

      Lightning has the right to exclude any drilling that will interfere with

its operations or rights to produce its mineral estate. Anadarko cannot drill

through the earth where Lightning’s minerals are located without also

drilling through those minerals, thereby interfering with Lightning’s

operations and production efforts. CR 50−55, Supp. CR 332−33. As a

result, Anadarko’s actions constitute a trespass. Russell v. Am. Real Estate

Corp., 89 S.W.3d 204, 208 (Tex. App.—Corpus Christi 2002, no pet.)

(“Every unauthorized entry is a trespass even if no damage is done.

Trespass requires only proof of interference with the right of possession.”).

      This is not an esoteric argument about mere nominal interference or

trespass: Anadarko’s planned wells will, at a minimum, prevent Lightning

                                     12
from being able to drill wells in the target Eagle Ford formation due to the

danger presented by Anadarko’s trespassing as well as interfering by

drilling its wells. CR 419; 1st Supp. CR 331; 2nd Supp. CR 410.

      The “subterranean structures that harbor Lightning’s oil and gas” are

hydrocarbon-containing strata, stacked between other strata without

hydrocarbons. Therefore cutting through that stack penetrates all of the

strata, including those bearing hydrocarbons. Lightning, 2015 WL

4933439, at *1. Unlike the litigant in Emeny v. United States, Lightning is

not trying to store offsite materials in an otherwise vacant “subterranean

structure.” Instead, it is protecting its own onsite minerals, which are part

of “the earth,” or strata, that Anadarko intends to traverse. 412 F.2d 1319,

1323 (Ct. Cl. 1969); see also Day, 369 S.W.3d at 828−29 (recognizing that

oil and gas in place are part of the realty).

      Furthermore, even if, as the panel’s opinion asserts, “the surface

owner controls ‘the matrix of the underlying earth,’” that control can be

transferred by sale or lease. Lightning, 2015 WL 4933439, at *1; Stephens,

254 S.W. at 293 (recognizing that once “the underlying strata have been

severed from the surface by sale,” the surface owner is no longer “an owner

downward to the centre”). Such a transfer occurred here before the current

surface owner acquired its interest, and that severance was recognized

when Lightning acquired the mineral estate from a third party. CR 95−99.

                                       13
     Lightning’s acquisition of the mineral estate gave it the right to

exploit the minerals, including the exclusive right to use the mineral-

bearing pore space and rock without interference from the surface owner or

anyone else. Lightning’s affidavits confirm that Anadarko’s drilling

operations will penetrate hydrocarbon-containing formations and interfere

with Lightning’s ownership of the hydrocarbon estate, and that recoverable

hydrocarbons on the Cutlass Lease will be wasted by Anadarko’s drilling

operations. CR 50−55, 95−99; 1st Supp. CR 329-30, 332, 416-18; 2nd Supp.

CR 407, 409.

     As the panel’s opinion acknowledges, under the mineral lease

Lightning has not only “the right of exploring for, developing, operating,

producing, … marketing, treating and transporting oil and gas” from the

leased premises, but also the right of “owning” these minerals. Lightning,

2015 WL 4933439, at *1. That ownership includes the right to prevent non-

owners like Anadarko from traversing that part of the earth in which those

minerals are embedded and displacing the minerals from their original

position without the owner’s permission. See Day, 369 S.W.3d at 831-832;

Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 383 (Tex. 2012)

(recognizing that the rights of ownership include “the right to exclusive

possession” and “the right to manage use by others”).



                                    14
II.   Lightning’s mineral estate is dominant over the surface
      estate, and Anadarko’s conduct interferes with Lightning’s
      development of its mineral lease.

      According to the panel, “[t]he central question in this appeal is the

nature of Lightning’s interest,” and whether “its mineral estate includes the

right to exclude others from the estate.” Lightning, 2015 WL 4933439, at

*3. But that is not the question at all because Texas real-property law holds

that ownership includes the right to exclude others. Evanston, 370 S.W.3d

at 383. The question is not the nature of Lightning’s interest, but whether

that interest is dominant over or subservient to Anadarko’s interest. The

answer is: Lightning’s mineral estate is dominant, and there is no Texas

case law that would support a contrary conclusion.

      Anadarko’s assertion that Briscoe Ranch, as the surface-estate owner,

can control the “subterranean structure” to the detriment of Lightning, as

the mineral-estate owner, is contrary to the doctrine of mineral ownership

in Texas, which recognizes that the mineral estate is dominant over the

surface estate. Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex. 1971). To

give the surface owner unconditional dominion over the mineral-bearing

“subterranean structures’’ would change Texas oil-and-gas law by making

the surface estate dominant over the mineral estate. Id.; Tarrant County

Water Control & Imp. Dist. No. One v. Haupt, Inc., 854 S.W.2d 909, 911

(Tex. 1993) (holding that “the mineral estate is the dominant estate”).

                                     15
     As a general rule, the mineral owner’s exclusive right to use the

mineral-bearing pore space and rock is subject to the accommodation

doctrine, which provides that “[a]lthough the mineral estate is the

dominant estate, the rights implied in favor of the mineral estate are to be

exercised with due regard for the rights of the surface owner.” Tarrant

County Water Control and Imp. Dist. No. One v. Haupt, Inc., 854 S.W.2d

909, 911 (Tex. 1993). But under Anadarko’s initial five-well-pad proposal

(the first of 13 pads planned by Anadarko), Lightning would not merely be

accommodating the surface owner; instead, the surface use would, in effect,

be condemning at least one of Lightning’s wells without compensating

Lightning for that loss. Supp. CR 414-419.

     The evidence confirms that Anadarko’s wells will: (1) interfere with

Lightning’s development of its mineral estate, including but not limited to

the Cutlass A-5 well; (2) result in Lightning’s inability to retrieve all the

hydrocarbons underlying the Cutlass Lease; and (3) prevent Lightning from

drilling its A-5 well. Supp. CR 414-419. In the alternative, at a minimum, a

material fact question exists as to whether Anadarko’s actions constitute

interference with Lightning’s operations, thereby precluding a summary

judgment. See TEX. R. CIV. P. 166a(c); Mitchell v. Baker Motel of Dallas,

Inc., 528 S.W.2d 577, 578 (Tex. 1975) (holding that where the summary-

judgment evidence “does not establish as a matter of law that there is no

                                     16
genuine issue of fact as to one or more of the essential elements of [a] cause

of action … it will not support a summary judgment”).

     The panel attempts to distinguish Chevron Oil Co. v. Howell by

asserting that the surface owner there did not give permission for a third

party to drill, whereas the surface owner here “gave Anadarko its

permission.” Lightning, 2015 WL 4933439, at *5 (citing 407 S.W.2d 525,

526 (Tex. Civ. App.—Dallas 1966, writ ref’d n.r.e.)). Although the panel’s

opinion concedes that Howell precluded a third party’s “drilling through

one mineral estate to reach another without [the surface and mineral estate

owners’] permission,” the panel asserts that Howell “did not expressly

consider whether only the surface estate owner’s permission would have

been sufficient.” Id. But that claim is contrary to Howell’s rationale that

neither the surface owner nor the mineral owner had granted permission.

407 S.W.2d at 526. The consent of both was required because two separate

procedures were involved: the surface-owner’s consent was necessary “to

come onto the surface lease to start drilling its oil well,” and the mineral-

owner’s consent was needed “to penetrate the subsurface oil, gas and

mineral lease.” 407 S.W.2d 526.

      In Springer Ranch v. Jones, this court recognized that “the physical

structures and subsurface substances that the surface estate and mineral

estate owners possess are inherently intertwined, at least with respect to

                                     17
hydrocarbons.” 421 S.W.3d 273, 284 (Tex. App.─San Antonio 2013, no

pet.). Springer tempered that recognition with the observation that “if

there are no minerals beneath the surface, the mineral estate owner owns

the legal fiction of an estate that is nothing.” Id. (citing Dunn–McCampbell,

630 F.3d at 441). Here, however, it is undisputed that there are minerals

beneath the surface. CR 50−55, 95−99; 1st Supp. CR 329-30, 332, 416-18;

2nd Supp. CR 407, 409. Therefore, these hydrocarbons are real, not

fictional, and are intertwined with the subsurface strata.

      Emeny v. United States, on which Springer relied, is also “readily

distinguishable” because it “deals only with the ownership of a geologic

formation having value as a storage facility, and not an extractable

commercially valuable resource.” Geothermal Kinetics, Inc. v. Union Oil

Co., 141 Cal. Rptr. 879, 882 (Cal. Ct. App. 1977) (citing 412 F.2d 1319, 1323

(Ct. Cl. 1969)). Furthermore, Emeny involved the proposed storage of

others’ minerals, not the mineral estate owner’s. 412 F.2d at 1323.

      “[U]nlike Villarreal,” says the panel, “there is no evidence that

Anadarko conducted a seismographic survey of Lightning’s mineral estate.’’

Lightning, 2015 WL 4933439, at *4. But even without a seismographic

survey Anadarko will gather information about Lightning’s mineral estate

as Anadarko drills through the several oil-and-gas-producing horizons

between the surface and the point at which Anadarko’s wells cross the lease

                                     18
line into its mineral estate under the Chaparral WMA. CR 50−55, 95−99;

1st Supp. CR 331-32, 418; 2nd Supp. CR 408-09. Furthermore, Anadarko’s

drilling through those horizons will necessarily result in incidental takings

of Lightning’s minerals. CR 50−55, 95−99; 1st Supp. CR 331−32, 418; 2nd

Supp. CR 408−09.

      It is undisputed that Anadarko’s well bore will contact hydrocarbons

on the Cutlass Lease in the Olmos, San Miguel, Wilcox, and Austin Chalk

formations and that these hydrocarbons will be reflected in mud-logging by

Anadarko when they are brought to the surface. 1st Supp CR 332.

Furthermore, Anadarko’s present five-well plan will prevent Lightning from

drilling its Cutlass A-5 well, which will result in its being unable to produce

recoverable hydrocarbons in the Cutlass Lease. CR 687-693.

      The panel’s opinion asserts that “ownership of the hydrocarbons does

not give the mineral owner ownership of the earth surrounding those

substances.” Lightning, 2015 WL 4933439, at *5 (quoting Springer Ranch,

421 S.W.3d at 282) (citing Emeny, 412 F.2d at 1323). But even

hypothetically accepting that theory, the mineral-estate owner would still

have an exclusive right or easement in the surface owner’s earth

surrounding those substances during the lease term. That would include

the right to enjoin operations that would interfere with Lightning’s efforts

to produce the minerals in place. Day, 369 S.W.3d at 831−32.

                                      19
     In its analysis of Humble v. West, the panel recites that “the Wests—

who retained the now-severed mineral estate—no longer owned the

underground reservoir because ‘the surface of the leased lands remaining

as the property of the [surface estate owners] included the geological

structures beneath the surface.’” Lightning, 2015 WL 4933439, at *5. But

West did not retain the mineral estate; it owned only a non-corporeal

royalty interest. 508 S.W.2d at 815. Therefore, any reference to Humble’s

owning the geological structures beneath the earth was as the owner of both

the surface and mineral estates, not just the surface estate, as the panel’s

opinion mis-presumes. Lightning, 2015 WL 4933439, at *5. Unlike the

Wests, Lightning owns the corporeal mineral estate.

     If, as here, property is “in the ground,” it cannot reasonably be argued

that the owner of that property does not have exclusive access to that

ground. Instead, “[f]or the purpose of making the exploration and

producing all the oil, gas, and other minerals that might be within the

ground, and the erection of all structures necessary thereto, as well as their

storing and transportation, the possession of the land itself is likewise

granted …” Daugherty, 176 S.W. at 718. Therefore, even if Briscoe could

give permission to drill through the earth under its surface, Anadarko does

not have the right to drill through Lightning’s minerals. The panel’s opinion

purports to erase that right by discarding the doctrine of the dominant

                                     20
mineral estate as well as the mineral-interest owner’s exclusive right to the

strata in which the minerals are present.

III. Anadarko trespassed on Lightning’s mineral estate.

     The panel correctly recites that “a trespass is ‘an unauthorized entry

upon the land of another.’” Lightning, 2015 WL 4933439, at *3 (quoting

Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 424

(Tex. 2015)). Lightning’s mineral estate is an interest in land. Harris v.

Currie, 176 S.W.2d 302, 305 (Tex. 1943).       Therefore, Anadarko is not

authorized to pass through Lightning’s minerals without Lightning’s

permission. See Salazar v. Sanders, 440 S.W.3d 863, 876 (Tex. App.─El

Paso 2013, pet. denied).

     In the panel’s view, Lightning does not own the earth in which the

minerals are embedded. Lightning, 2015 WL 4933439, at *3. But Lightning

does not need to own this mineral-bearing earth to prevent Anadarko from

trespassing. It is enough that Lightning has “a legal right to exclude others

from the property.” See Lightning, 2015 WL 4933439, at *3 (citing Envtl.,

457 S.W.3d at 424, and Cain v. Fontana, 423 S.W.2d 134, 137 (Tex. Civ.

App.—San Antonio 1967, writ ref’d n.r.e.)). Therefore, regardless of the

distinction that the panel makes between the minerals and the earth in

which they are embedded, Lightning has the right to prevent Anadarko



                                     21
from going through that earth because Anadarko cannot do so without

trespassing through Lightning’s minerals, which are encased in that land.

         “Anadarko has [not] bottomed or opened a well within the Cutlass

Lease,” says the panel. Lightning, 2015 WL 4933439, at *4. But Anadarko

does not have to bottom or open a well to interfere with Lightning’s

activities in the strata that hold the minerals Lightning owns by virtue of

the lease. Anadarko’s drilling path will take it through not just any strata of

earth, but strata in which Lightning’s minerals are embedded. See CR

50−55, 95−99; 1st Supp. CR 330, 332, 416; 2nd Supp. CR 407, 409. In

drilling through these mineral-bound formations, Anadarko will necessarily

displace hydrocarbons and will waste minerals that are a part of this strata

as Anadarko goes through Lightning’s land without Lightning’s permission.

CR 50−55, 95−99; 1st Supp. CR 330, 417; 2nd Supp. CR 411. That is a

trespass. See Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 671 (Tex.

1999).

                                  PRAYER

      For these reasons, Lightning asks this court to:

           • grant this motion for en banc reconsideration;

           • withdraw the court’s original opinion;

           • issue a new opinion reversing the trial court’s judgment
             and rendering judgment in favor of Lightning;


                                      22
        • in the alternative, issue a new opinion reversing the trial
          court’s judgment and remanding this case for trial; and

        • grant Lightning all other relief to which it is entitled.


                                   Respectfully submitted,

                                   /s/ Bruce K. Spindler
                                   BRUCE K. SPINDLER
                                   State Bar No. 18947050
                                   Email: bspindler@langleybanack.com
                                   ROBINSON C. RAMSEY
                                   State Bar No. 16523700
                                   Email: rramsey@langleybanack.com
                                   JOHN W. PETRY
                                   State Bar No. 15854000
                                   Email: jpetry@langleybanack.com
                                   STEPHEN J. AHL
                                   Email: sahl@langleybanack.com
                                   LANGLEY & BANACK, INC.
                                   Trinity Plaza II, Suite 900
                                   745 East Mulberry Avenue
                                   San Antonio, Texas 78212
                                   Telephone: (210) 736-6600
                                   Telecopier: (210) 735-6889

                                   ATTORNEYS FOR APPELLANT
                                   LIGHTNING OIL CO.

                  CERTIFICATE OF COMPLIANCE

       Appellant Lightning Oil Company certifies that the number of words
in this motion, including its headings, footnotes, and quotations, is: 4194.

                                   /s/ Bruce K. Spindler
                                   BRUCE K. SPINDLER




                                     23
                     CERTIFICATE OF SERVICE

     I certify that a true and correct copy of the foregoing document has
been sent to counsel listed below on September 3, 2015:

David Palmer
MOSES, PALMER & HOWELL, LLP
309 W. 7th Street, Suite 815
Fort Worth, TX 76102
Email: dpalmer@mph-law.com
Telephone: 817.255.9100
Telecopier: 817.255.9199

Donato D. Ramos
LAW OFFICES OF DONATO D. RAMOS, LLP
6721 McPherson Road
P. O. Box 452009
Laredo, Texas 78045
donatoramosjr@ddrlex.com
mrodriguez@ddrlex.com
Telephone: 956.722.9909
Telecopier: 956.727-5884


                                 /s/ Bruce K. Spindler
                                 BRUCE K. SPINDLER




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