                                   NO. 07-05-0023-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                  MARCH 27, 2006
                          ______________________________

                      D.B. STEPHENS and SHEILA STEPHENS,

                                                               Appellants

                                             v.

                 FINLEY RESOURCES, INC. and JAMES D. FINLEY,

                                                      Appellees
                        _________________________________

             FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;

                   NO. 8043; HON. KELLY G. MOORE, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., REAVIS and CAMPBELL, JJ.

       D.B. and Sheila Stephens (Stephens) appeal from a final judgment entered in favor

of Finley Resources, Inc., and James D. Finley (Finley). The suit initiated by the Stephens

against Finley sought recovery for salt water injected into an oil well located on Stephens’

land. Finley purported to inject the water via implied rights granted him as the lessee of

a mineral lease encompassing the well. Finley was not the original lessee, however. Nor

were the Stephens the original lessors. Both acquired their interests long after the mineral

lease was executed in 1945. Furthermore, the predecessors in interest of the Stephens
and Finley executed another agreement, in 1984, authorizing the lessee to inject salt water

garnered from wells off the lease into the well on the lease in exchange for a rental

payment of $3600 per year. Shortly after succeeding as lessee, Finley cancelled the

agreement, yet continued the practice of injecting water into the well. It is the interplay

between the original lease and the salt water injection agreement that formed the crux of

the two issues before us. Through both, the Stephens argue that irrespective of whatever

implied rights Finley may have had to inject water into the well, those were supplanted by

the later salt water agreement. So, when Finley cancelled it, the company allegedly lost

the right to inject water into the well or remained obligated to reimburse them for water so

injected. And, since the trial court effectively held otherwise in granting Finley’s summary

judgment, it erred. We overrule the issues and affirm.

        Under the original lease, the lessee was granted the right to investigate, explore,

prospect, drill, operate and produce minerals as well as lay pipe, store oil, build tanks,

power stations, telephone lines and other structures and do those things “to produce, save,

take care of, treat, store and transport said minerals and other products manufactured

therefrom . . . .” Additionally, the lessee was granted the right to use “water from said land,

except water from lessor’s wells, for all operations . . . including repressuring, pressure

maintenance and recycling . . . .” Next, and assuming that the lease does not expressly

provide otherwise, a lessee has an implied right to dispose of salt water produced in

conjunction with performing its contractual obligations and may do so by injecting it into an

oil and gas well on the leased premises.1 TDC Engineering, Inc. v. Dunlap, 686 S.W.2d

        1
         Though this rule may be inapplicable if there exists alternative reasonable methods by which the
water can be disposed, see TDC Engineering, Inc. v. Dunlap, 686 S.W .2d 346, 348-49 (Tex. App.–Eastland
1985, writ ref’d n.r.e.), no one broaches that matter here.

                                                   2
346, 348-49 (Tex. App.–Eastland 1985, writ ref’d n.r.e.); see Brown v. Lundell, 344 S.W.2d

863, 869 (Tex. 1961) (stating that a lessee has the “right to use so much of the land as was

reasonably necessary in the production of oil and since the production of oil necessarily

involved its separation from the salt water, [the lessee] would have had the right, ordinarily

under the implied terms of the lease to use the land for that purpose . . . .”). Given both

provisions of the lease mentioned above (especially that allowing the use of water from the

leased premises for purposes of operating or pressurizing the field), the absence of any

lease provision otherwise barring the lessee from injecting salt water into the ground, and

the holdings in TDC and Brown, the lessee at bar had a right to dispose, through injection,

water acquired from the leased lands.2 Furthermore, we reject the contention that the

collateral agreement executed in 1984 affected this right.

       The 1984 document referred to the lessee’s “desire” to use the oil well to “dispose

of oil, salt water, and/or other fluids produced from wells into said well.” (Emphasis added).

So too did it grant the lessee “the right and privilege . . . to recondition, rework, and

recomplete [sic] said well for the purpose of using same to disopose [sic] of oil, salt water

and/or other fluids produced from wells into said well” and to “inject oil, salt water and/or

fluids into said well from any well whether owned by Lessee or by others not parties to this

Agreement . . . .” (Emphasis added). Yet, nowhere in the agreement did the parties

expressly state that the agreement was intended to negate or otherwise limit rights

accorded the lessee under the mineral lease. Nor was the pre-existing oil and gas lease

specifically mentioned in the 1984 agreement. Similarly omitted from it was reference to



       2
           No one argues that Finley was injecting salt water obtained from wells off the leased premises.

                                                      3
that provision in the mineral lease authorizing the lessee to use water “from said land . . .

for all operations . . . including repressuring, pressure maintenance and recycling.”

Moreover, from the plain meaning of the unambiguous wording we italicized above, it is

clear that the parties intended to expand the lessee’s authority to inject water under the

1984 accord. No longer was the water restricted to that taken “from said land.” The 1984

agreement permitted injection of water obtained from “any well,” irrespective of who owned

the well from which the water was obtained. In other words, the well in question could be

used as a disposal point by the lessee for salt water derived from wells located off the

leased property. The mineral lease did not expressly address that issue. And, once the

1984 agreement ended, via Finley’s cancellation of it, the greater right the lessee enjoyed

terminated as well. No longer could it use the well as a disposal for salt water obtained off-

premises.

       We further recognize that reading the agreement as somehow terminating the

lessee’s implied and expressed rights under the mineral lease deviates from applicable

rules of contract interpretation. Admittedly, the phrase “any well” contained in the 1984

accord can be construed as including the wells on the land encompassed by the mineral

lease. Yet, we cannot ignore the circumstances existent at the time the agreement was

signed. See Colorado Interstate Gas Co., 47 S.W.3d 1, 7 (Tex. App.–Amarillo 2000, pet.

denied) (stating that when interpreting a contract, the circumstances existent at the time

it was executed may be considered). They include the pre-existing mineral lease, the

expressed rights and limitations it afforded with regard to the use of water, its utter lack of

mention in the 1984 contract, and the absence of any language in the latter contract

purporting to negate the right to use water for re-pressurization of the field on the premises

                                              4
afforded under the mineral lease. Comparing these circumstances with the wording of the

1984 agreement, we cannot but conclude that the agreement purported to expand the

rights of the lessee, at least with regard to the disposition of salt water on the property.

And, when that agreement ended, so too did the lessee’s expanded rights. See Duff v.

DuBose, 27 S.W.2d 122, 124 (Tex. Comm’n App. 1930, judgm’t affirmed).

       Finally, the authority cited by the Stephens to the contrary is inapposite. Union

Producing Co. v. Allen, 297 S.W.2d 867 (Tex. Civ. App.–Beaumont 1957, no writ) and the

others dealt with whether a relinquishment of the “right” to complain about actions of a

lessee was adequate consideration to render an agreement enforceable. Here, the dispute

involves the effect, if any, of a later contract upon implied and expressed rights granted

under a pre-existing contract that remained enforceable. As can be seen, the issues differ.

       Accordingly, we overrule the Stephens’ issues and affirm the final summary

judgment of the trial court.



                                                 Brian Quinn
                                                 Chief Justice




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