

Opinion filed October 14,
2010
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-09-00056-CV
                                                    __________
 
                  THOMAS
ED COLE AND ROY FRANKLIN COLE, 
                                 
Appellants and Cross-Appellees
 
                                                             V.
 
                  ANADARKO
PETROLEUM CORPORATION AND
                         PERMIAN
BASIN JOINT VENTURE, LLC,
                               
Appellees and Cross-Appellants

 
                                   On
Appeal from the 161st District Court
 
                                                             Ector
County, Texas
 
                                                  Trial
Court Cause No. B-117,955
 

 
                                                                  O
P I N I O N
 
            Thomas
Ed Cole and Roy Franklin Cole filed a motion for rehearing which is granted in
part.  We withdraw our opinion and judgment dated July 22, 2010, and substitute
our opinion and judgment dated October 14, 2010.
            This
suit arises out of a surface use dispute between the owners of the JY Ranch,
Thomas Ed Cole and Roy Franklin Cole (the Coles), and the operators of a
waterflood partially situated on that ranch.  The trial court granted multiple
motions for partial summary judgment and certified an interlocutory appeal.  We
affirm in part and reverse and remand in part.
I.  Background
Facts
            H.E.
and Rosa Lee Cummins executed an oil and gas lease in 1925 that covered 15
sections in Ector County.  William Horace “Buster” Cole acquired the Cummins’
interest in 1940.  Atlantic Richfield Company (ARCO) became the operator for
the 1925 Lease.  In 1966, it created the Goldsmith Cummins (Deep) Unit (GCDU)
to conduct a waterflood in the Clearfork Formation.  Some of the tracts covered
by the 1925 Lease were included within the GCDU. Buster and his wife Mary Cole ratified
the GCDU Unit Agreement in 1967.
            ARCO
constructed a central battery facility to service the unit on 2.25 acres of land
that is covered by the 1925 Lease and is within the GCDU’s boundaries.  Well
fluid from GCDU wells is pumped to this facility where oil is separated and
sold and water is reinjected.  In 1984, ARCO entered into a surface lease
agreement with Buster that added 1.18 acres to the central battery site for
pipe storage and an emergency storage tank.  In 1992, ARCO transferred its
interest to Anadarko Petroleum Corporation.
            The
1925 Lease gave Anadarko the right to construct and operate associated
equipment such as pipelines and power lines and included a damage schedule.  In
1995, Anadarko leased a .2778-acre tract of land in Section 33 that is within
the 1925 Lease but is outside the GCDU’s boundary for the construction of a
water injection plant to service a second waterflood project. The 1995 lease
was for a one-year term, and each succeeding year was automatically renewed for
an additional year until terminated in writing by Anadarko.  Buster was given
the right to cancel the lease for nonpayment of the annual $500 rental after thirty
days written notice of the default.
            Buster
passed away on October 1, 2000.  He was survived by his wife and five
children.   Roy and Thomas are two of Buster’s sons.  Buster’s will bequeathed
his property to the Cole Family Master Trust.  In 2001 and 2002, Roy and Thomas
acquired the surface estate of the JY Ranch from William C. Cole, the Cole
Family Master Trust, the Roy F. Cole 1995 Trust, and the Thomas Ed Cole 1995
Trust.  The JY Ranch consists of approximately 18½ sections in Ector County. 
Most of the ranch is covered by the 1925 Lease, but only the southeastern
portion is within the GCDU.
            Anadarko
made the 2002 and 2003 payments required by the 1995 Lease to Buster.  On
August 7, 2003, the Coles’ attorney notified Anadarko that they were Buster’s
successors and that they intended to cancel the lease in thirty days for
nonpayment of the 2002 and 2003 rentals. On August 18, Anadarko responded with
copies of documents evidencing that it had mailed the 2002 and 2003 payments by
certified mail and that the receipts had been signed by Mary Cole and William
C. Cole but acknowledged that the checks had not been cashed.  It asked the
Coles to return the 2002 and 2003 checks and to provide evidence of the
change of ownership.  Anadarko also asked for a certified copy of Buster’s death
certificate, his will, and certain probate documents.  The Coles’ attorney
replied on August 27 and indicated that he would request “any correspondence
from the Coles to Anadarko pertinent to these issues.”  On September 12, the
Coles notified Anadarko that the 1995 Lease had been cancelled for nonpayment.
            On
October 3, the Coles provided Anadarko with three special warranty deeds from
the Cole Family Master Trust and William C. Cole to themselves and requested
Anadarko to cease operations on the .2778-acre tract covered by the 1995 Lease. 
On November 6, Anadarko replied that the deeds were insufficient to document
the ownership transfer because there was no documentation from Buster to the
grantors, but it still forwarded two checks for $250 payable to Roy and Thomas
and requested documentation of the transfer from Buster to the coexecutors of
his estate.  The checks reflect that they were intended as the 2003 rental
payment.  The Coles returned the checks to Anadarko, complaining that payment
had been improperly conditioned upon a requirement that they procure Buster’s
probate documents.
            The
Coles filed suit against Anadarko in December 2003, alleging breach of contract
causes of action.  In 2007, Anadarko assigned its interest to Permian Basin
Joint Venture, LLC.  The Coles amended their petition and added Permian Basin
as a defendant and also added causes of action based upon allegations of
excessive and unauthorized surface use.  The parties filed multiple motions for
summary judgment.  The trial court granted a motion for partial summary
judgment filed by the Coles concerning the 1995 Lease, finding that Anadarko
breached this agreement by failing to make annual rental payments of $500 and
that the agreement terminated in 2003.  The trial court also granted a motion
for partial summary judgment filed by the Coles concerning Anadarko’s surface
use but denied the remaining motions.  Prior to trial, however, the trial court
reconsidered its surface use ruling and, instead, granted three partial summary
judgment motions filed by Permian Basin and Anadarko.  The trial court also
announced legal findings concerning the 1925 Lease, the 1966 Unit Agreement,
limitations, the Coles’ standing to bring property damage claims, and
Anadarko’s breach of the 1995 Lease.  Finally, the trial court certified an
interlocutory appeal pursuant to Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(d) (Vernon 2008).
II.  Issues
            The
Coles challenge the trial court’s order with four issues.  They contend in Issues
One and Two that the trial court erred when it construed Anadarko and Permian
Basin’s rights under the 1925 Lease and 1966 Unit Agreement and in Issues Three
and Four that the trial court erred in its construction or application of the
1967 Agreement.  Anadarko and Permian Basin filed a cross-appeal.  They contend
that the trial court erred by granting the Coles’ motion for summary judgment
on the 1995 Lease.
III.  Standard of Review
            We
apply the well-recognized standard of review for traditional summary
judgments.  Questions of law are reviewed de novo.  St. Paul Ins. Co. v.
Tex. Dep’t of Transp., 999 S.W.2d 881 (Tex. App.—Austin 1999, pet.
denied).  When cross-motions are filed and the trial court grants one and
denies the other, we review all issues presented and enter the judgment that
the trial court should have entered.  Bradley v. State ex rel. White,
990 S.W.2d 245, 247 (Tex. 1999).  To determine if a fact question exists, we
must consider whether reasonable and fair-minded jurors could differ in their
conclusions in light of all the evidence presented.  Goodyear Tire &
Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007).  We must consider all the
evidence in the light most favorable to the nonmovant, indulging all reasonable
inferences in favor of the nonmovant, and determine whether the movant proved
that there were no genuine issues of material fact and that it was entitled to
judgment as a matter of law.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d
546 (Tex. 1985).
IV.  The Coles’ Surface Use Claims
            The
Coles’ surface use claims are predicated upon allegations that Anadarko and
Permian Basin exceeded their rights under the 1925 Lease and the 1966 Unit
Agreement.  The trial court found that the Coles lacked standing to bring any
claim for property damage or unauthorized use that existed when they acquired
the JY Ranch.  Because standing is a prerequisite to the trial court’s
subject-matter jurisdiction, Bland Independent School District v. Blue,
34 S.W.3d 547, 553-54 (Tex. 2000), we must review this finding before
considering whether the 1925 Lease or 1966 Unit Agreement was violated.
            Whether
a court has subject-matter jurisdiction is a question of law and, therefore, is
reviewed de novo.  Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002).  Texas law is clear that a cause of action for
injury to real property is a personal right that belongs to the person who owns
the property at the time of the injury.  Senn v. Texaco, Inc., 55 S.W.3d
222, 225 (Tex. App.—Eastland 2001, pet. denied).  A subsequent purchaser can
acquire a property damage claim, but it must be specifically assigned.  See
Vann v. Bowie Sewerage Co., 90 S.W.2d 561, 563 (Tex. 1936) (deed did not
transfer the seller’s property damage claim; therefore, the purchaser lacked
standing).  The Coles make no claim that their deeds conveyed their father’s
causes of action for property damages.  Instead, they argue that they acquired
his claims as his heirs and successors.  The record does not corroborate this
contention.
            Buster’s
will devised his property to the Cole Family Master Trust.  The Coles then acquired
their interest from William C. Cole and three family trusts, including the
Master Trust.  The Coles testified that, in 1995, Buster created the Roy F.
Cole 1995 Trust and the Thomas Ed Cole 1995 Trust and then conveyed a
percentage ownership in the JY Ranch to them.  The Coles also testified that
Buster and the 1995 Trusts later conveyed the ranch to a limited partnership.  The
trust instruments and conveyance documents from these transactions are not in
the record.  How the family trusts reacquired the ranch is not clear.  However,
Anadarko does not challenge the Coles’ title, and we accept it as established. 
What is more significant is that the Coles offered no evidence that, in any of
these transactions, Buster assigned any property damage claim to the family
trusts, that the trusts assigned any claim to them, or that Buster’s property claims
were otherwise assigned to them.  The trial court, therefore, did not err by
finding that the Coles lacked standing for any property damages accruing prior
to their acquisition of the JY Ranch.[1]
            The
Coles do have standing to assert claims for damages accruing after their
purchase, and they complain of the scope and extent of the activities that have
taken place since their acquisition.[2] 
First, they complain that the trial court improperly found the ranch could be
used to benefit other lands.  Anadarko had the right to use as much of the
surface of the GCDU as was reasonably necessary to produce oil or gas from
wells located within that unit.  See Delhi Gas Pipeline Corp. v. Dixon,
737 S.W.2d 96, 98 (Tex. App.—Eastland 1987, writ denied) (mineral owner can
grant gas purchaser an easement to lay a pipeline to transport gas from a well
on a production unit with which his tract has been unitized to the purchaser’s
pipeline but cannot grant the right to transport other gas across the surface
owner’s land); see also TDC Engineering, Inc. v. Dunlap, 686 S.W.2d 346,
348 (Tex. App.—Eastland 1985, writ ref’d n.r.e.) (lease covering an undivided
one-sixteenth mineral interest in a 700-acre tract of land gave operator the
right to dispose of brine produced from any well in that tract in a disposal
well located on that tract).  
            The
Coles correctly note that in Robinson v. Robbins Pet. Corp., 501 S.W.2d
865, 867 (Tex. 1973), the court held that the operator could not use the
surface of an 80-acre tract to operate a waterflood that included acreage
outside the mineral lease covering this tract.  But in that case, the unit was
created after the surface owner obtained his title.  The court noted that the
surface owner obtained his title subject to a mineral lease and, therefore,
subject to the implied right to use his surface to produce minerals covered by
that lease.  Id. at 867-68.  But nothing in his chain of title subjected
his estate to the burden of supporting production beyond that lease, and he had
not otherwise consented to this greater burden.  Id. at 868.  Buster’s
ratification of the GCDU Unit Agreement in 1967 eliminates any question about
the propriety of the original unitization, and the Coles took their interest
subject to this ratification.  The trial court, therefore, did not err when it
found that Anadarko and Permian Basin were authorized to conduct all reasonably
necessary uses of the surface of the ranch within the GCDU’s boundary to
benefit or effectuate the purposes of the unit – regardless of whether the
production benefitted was from wells located on the ranch or the 1925 Lease.
            But Anadarko
does not have the right to lay a pipeline for the benefit of the unit on ranch
land outside the GCDU’s boundary absent condemnation proceedings or an easement. 
Delhi Gas, 737 S.W.2d at 98.  The Coles testified that, in 2005,
Anadarko installed one pipeline in Section 33 and another that crossed Sections
33 and 34 and tied into the central battery facility.  All of Section 33 is
covered by the 1925 Lease, and portions are within the GCDU’s boundary.[3]
 Installing a pipeline in Section 33, without more, is no evidence of a breach
of duty.  The Coles testified by affidavit that Anadarko failed to compensate
them as previously agreed for this pipeline, but neither identified what
agreement required compensation or what compensation was wrongfully withheld.  Thus,
to the extent the trial court’s summary judgment order disposed of this claim,
no error is shown.
            The
central battery pipeline crossing Sections 33 and 34 presents a different
situation.  While all of Section 34 is within the GCDU, most of Section 33 is
not.[4] 
Roy testified that this pipeline was at least partially located outside the
GCDU’s boundary.[5] 
We do not read the trial court’s summary judgment order as disposing of this
claim on standing or limitations grounds.  Because a portion of that pipeline
is outside the GCDU’s boundary, we also do not read the trial court’s
interpretation of the 1925 Lease and 1966 Unit Agreement as dispositive of this
claim.  If we are mistaken, the Coles presented sufficient summary judgment
evidence to create a fact question on whether Anadarko exceeded its rights under
the 1925 Lease and 1966 Unit Agreement to use the surface with its installation
of this pipeline.[6]
 
            The
Coles also point to evidence of activities that occurred at the central battery
facility, such as truck washing, parts and supply storage, and administrative
functions that they contend were done in support of production both within and
beyond the GCDU.  Anadarko cannot use the surface of the GCDU to support
activities outside the unit,[7]
but the mere fact that incidental non-unit activities have taken place does not
establish a cause of action absent evidence that these activities caused damage.[8] 
See Humble Oil Ref. Co. v. Williams, 420 S.W.2d 133, 134 (Tex. 1967)
(surface owner who seeks damages from the mineral lessee must prove negligence
or that more of the land was used than was reasonably necessary).  When the
surface owner claims the operator has exceeded its rights to use the surface,
damages have traditionally been measured by the value of the excessive acreage
used.  See Stradley v. Magnolia Pet. Co., 155 S.W.2d 649 (Tex. Civ.
App.—Amarillo 1941, writ ref’d) (operator used and occupied six acres more than
was reasonably necessary for its full enjoyment of the minerals under its tract
and, therefore, was responsible to the surface owner for the value of that
acreage).  
            There
was no evidence that Anadarko used more land for the central battery facility
subsequent to the Coles’ acquisition of the ranch.[9] 
Thomas testified that, since 1992 when Anadarko acquired its interests from
ARCO, he has noticed some sign changes and that some buildings were painted. 
However, he could not describe any additional acreage utilized by Anadarko.  Roy
testified that the central battery facility was there when he was a child and
that he did not recall it being enlarged in the last twenty years.  Because the
Coles produced no evidence of damage, the trial court did not err when it
granted summary judgment against the Coles’ claims for unauthorized activities
at the central battery facility.
            The
Coles’ issues are sustained in part and overruled in part.  The Coles
established a fact question on whether Anadarko laid a pipeline in 2005 in
support of the GCDU on lands outside the boundary of the unit and without their
permission.  To the extent the trial court’s summary judgment ruling disposed
of this claim, the court erred.  In all other respects, the trial court’s decision
granting Anadarko and Permian Basin’s partial summary judgment motions is
affirmed.
V.  1995 Surface Use Agreement
            The trial
court found that Anadarko failed to make the annual rental payments required by
the 1995 Lease and, consequently, that the 1995 Lease terminated on September 12,
2003.  Anadarko argues this ruling was in error because it made the 2002 and
2003 lease payments in accordance with the terms of the lease, because
equitable principles prohibit termination of the lease, and because a fact
question exists on whether it breached the agreement.  The Coles take issue
with each of these positions but argue that we need not address them because it
is undisputed that Anadarko failed to cure the 2002 payment default.
            The
record irrefutably establishes that Buster passed away in 2000; that the Coles
acquired the JY Ranch in 2001 and 2002; that Anadarko made the 2002 and 2003
lease payments to Buster; that, in 2003, the Coles demanded payment of both the
2002 and 2003 annual rentals; and that Anadarko tendered only the 2003 rental payment. 
The Coles rely upon Jackson v. United States Postal Service, 611 F. Supp.
456 (N.D. Tex. 1985), for the proposition that this results in termination of
the lease as a matter of law.  The Postal Service leased space in a commercial
building.  Jackson notified the Postal Service that he had acquired the
building and directed it to send all future rent payments to him.  The Postal
Service contacted the former owners to obtain verification and documentation of
the ownership change, but they did not respond.  The Postal Service suspended
rent payments pending resolution of the ownership question.  Jackson initiated
a forcible detainer proceeding.  The Postal Service then independently located
a copy of the deed to Jackson, but it still failed to tender back rent.  The
Federal District Court held that the Postal Service’s failure to tender back
rent, once it ascertained that Jackson had acquired the building, was a breach
of the lease agreement and that this breach entitled Jackson to possession of
the premises.  Id. at 460.  The Coles argue that a similar result should
follow here because, irrespective of how reasonable either side may have acted
originally, Anadarko has long since confirmed the Coles’ ownership but has yet
to tender payment for 2002.
            Anadarko
concedes that its field personnel were aware of Buster’s death;[10]
but, because the 2002 and 2003 rental checks sent to him were never returned or
challenged, Anadarko contends that it was reasonable to believe that Buster’s
estate was still accepting those payments.   Anadarko relies upon Cartledge
v. Sinclair Refining Co., 280 S.W.2d 312 (Tex. Civ. App.—Austin 1955, no
writ), for the proposition that it was entitled to receive proper documentation
of the transfer of ownership before being required to make any payments to the
Coles.  We agree with the analysis of Cartledge.  Consequently, if we
ignore the fact that Anadarko was already paying the Coles surface damages and
was providing them with notice of Railroad Commission filings when it received their
demand for the 2002 and 2003 annual rentals, Anadarko would clearly be entitled
to confirmation of the Coles’ title before being obligated to make lease
payments to them.  However, unlike Cartledge where the lessee never
received confirmation of the ownership transfer, Anadarko obtained copies of
Buster’s probate documents on June 22, 2004.  The question, thus, is did these
documents impose any responsibility on Anadarko to pay the 2002 annual rental
to the Coles?
            The
trial court correctly found that it did.  When Anadarko obtained the probate
documents in 2004, there was no longer any question that the Coles were
entitled to the 2002 rental.  Even though Anadarko may have correctly tendered
the 2002 payment to Buster initially, because their check was never cashed and
because the Coles’ title was established, Anadarko breached the 1995 Lease when,
after receiving the probate documents, it failed to tender the 2002 rental to
the Coles or to at least place that money into the registry of the court.
            The
1995 Lease gives the lessor the right to terminate the agreement for nonpayment
after thirty days written notice.[11] 
Anadarko argues that equitable considerations preclude forfeiture because there
was no evidence of willful or culpable neglect, and it cites Sirtex Oil
Industries, Inc. v. Erigan, 403 S.W.2d 784 (Tex. 1966), in support of this
contention.  Sirtex involved a failure to pay a lease rental that the
lessee, who acquired its interest by assignment from another operator, was
innocently unaware of.  There are three important distinctions between that
case and ours.  First, the surface lease in Sirtex did not have the
unambiguous provision contained in the 1995 Lease allowing the lessor to
terminate the agreement for nonpayment after thirty days notice.  Second,
Sirtex was unaware of the lease until it received a letter from the surface
owners terminating the agreement and, thus, had no pre-termination opportunity
to comply.  Third, when Sirtex learned of the lease, it tendered the lease
rental into the registry of the court.[12] 
Anadarko was aware of the 1995 Lease and, even after it confirmed the Coles’
title, still failed to comply.  We may not amend or disregard the terms of the
lease.
            Anadarko
next argues that the Coles are estopped from terminating the 1995 Lease.  
Anadarko first contends that, because the Coles acted as though they would
provide the documentation necessary to confirm their title, they may not now
insist upon payment within thirty days of their original demand.  In our
analysis, we have focused upon Anadarko’s obligation after receipt of the
probate documentation in 2004.  That analysis renders this contention moot.  
            Anadarko
also contends that the Coles are estopped from termination of the lease because
they have accepted royalties derived from activities conducted pursuant to the
1995 Lease.   Equitable estoppel precludes one from asserting a right they
would otherwise have because of their act, conduct, or silence.  Forest
Springs Hosp. v. Ill. New Car & Truck Dealers Ass’n Employees Ins. Trust,
812 F. Supp. 729, 733 (S.D. Tex. 1993).  This is sometimes referred to as
estoppel by election, see, e.g., San Antonio Savings Ass’n v. Palmer,
780 S.W.2d 803, 809 (Tex. App.—San Antonio 1989, writ denied) (one cannot
accept the beneficial part of a transaction and repudiate the disadvantageous
part), or quasi-estoppel, see, e.g., Fasken Land & Minerals, Ltd. v.
Occidental Permian Ltd., 225 S.W.3d 577, 593-94 (Tex. App.—El Paso 2005, no
pet.) (party may not accept the benefits of a transaction and subsequently take
an inconsistent position to avoid corresponding obligations or effects).  
            Equitable
estoppel differs from traditional estoppel in that it does not require a
showing of a false representation or detrimental reliance.  Steubner Realty
19, Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex. App.—Houston
[14th Dist.] 1991, no writ).  Equitable estoppel applies when it would be
unconscionable to allow a person or party to maintain a position inconsistent
with one in which it acquiesced or from which it accepted a benefit.  Cambridge
Prod., Inc. v. Geodyne Nominee Corp., 292 S.W.3d 725, 732 (Tex.
App.—Amarillo 2009, pet. denied).  Texas courts have held that quasi-estoppel
can preclude the exercise of a contractual forfeiture provision.  See, e.g.,
Taub v. Houston Pipeline Co., 75 S.W.3d 606 (Tex. App.—Texarkana 2002, pet.
denied); see also Cambridge, 292 S.W.3d at 732 (mineral interest
owners could not repudiate a unit designation after accepting royalties
attributable to that unit).
            The
Coles acknowledged during their depositions that Anadarko spent considerable
money installing the water injection plant and its associated pipelines,
powerlines, tanks, and roads; that Anadarko used these facilities in a
secondary recovery operation; and that they have accepted royalties generated by
this operation.  They argue, however, that this is insufficient to estop
application of the lease forfeiture provision because Anadarko is commingling
two separate and distinct agreements.  The minerals on the JY Ranch have been
severed.  The 1995 Lease reflects an agreement between Anadarko and the surface
owner, and it entitles the surface owner to an annual rental in exchange for
the lessee’s use of the surface.  The 1925 Lease conveyed a fee simple
determinable interest to the minerals, and it reserved a possibility of
reverter and the right to receive royalty payments.  Natural Gas Pipeline
Co. of Am. v. Pool, 124 S.W.3d 188, 192 (Tex. 2003).  The Coles contend
that their actions have been in furtherance of their right as surface owners to
receive the annual rental and that, absent inconsistent actions in pursuit of
this right, estoppel does not apply.
            The
Coles are correct that the 1925 Lease and 1995 Lease are distinct agreements,
but they are also closely related.  Anadarko’s use of the .2778-acre tract for
a water injection facility benefited the Coles financially because of the
annual surface rental but also because a secondary recovery operation could
generate additional royalty.  Consequently, it seems implausible that, when
they originally advised Anadarko that the 1995 Lease had terminated and
requested that it cease operations and remove its equipment, the Coles hoped
Anadarko would immediately comply.  It is more plausible that they hoped their
leverage would lead to a new and more lucrative surface lease.  Even so, this
alone is insufficient to warrant imposition of estoppel.
Quasi-estoppel
requires an initial action and a subsequent inconsistent action.  Atkinson
Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex. App.—Corpus Christi 1994,
writ denied).  The subsequent action is estopped because of its relation
to the first.  For example, one may not accept the benefits of a transaction
and then adopt an inconsistent position to avoid corresponding obligations or
effects.  See, e.g., San Antonio Savings Assoc., 780 S.W.2d at 810
(estate beneficiaries could not keep funds advanced by savings and loan as part
of an estate plan and simultaneously argue that the plan was void); see also
Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 548 (Tex. App.—Austin
1999, pet. denied) (parties could not solicit approval to act as successor
operator under JOA and then contend that they were not bound by that JOA).
            Traditionally,
the doctrine has been applied in oil and gas cases when one party accepts the
benefits from an agreement and then argues that the agreement is invalid.  See,
e.g., Cambridge, 292 S.W.3d at 732 (mineral interest owners could not
accept royalties they received 
only because of
unit operations and then contend that the unit designation was invalid).[13] 
Anadarko contends that the Coles’ demand that it immediately cease operations
and remove its water injection equipment is inconsistent with their subsequent
decision to accept royalty payments that were, at least in part, generated by
the continued operation of that equipment.  The Coles, however, were entitled
to the royalty because of the 1925 Lease.  The amount of their royalty will
obviously be impacted by Anadarko’s surface operations, but their entitlement
to it is not.  The 1995 Lease entitled the Coles to an annual lease payment. 
There is no evidence that, after declaring the 1995 Lease terminated, the Coles
accepted a lease payment or any other benefit they accrued only because of the
continued viability of that lease.  We recognize the hardball nature of the
Coles’ position, but the fact that they continued to accept royalty payments
only acknowledges the continued validity of the 1925 Lease.  They are not
equitably estopped to declare the 1995 Lease terminated, and the trial court
correctly found that it was terminated on September 12, 2003.
VI.  Conclusion
            The
judgment of the trial court is affirmed in part and reversed and remanded in
part for further proceedings consistent with this opinion.
 
 
                                                                                    RICK
STRANGE
                                                                                    JUSTICE
 
October 14, 2010
Panel consists of:  McCall, J.,
Strange, J., and Boyd, S.J.[14]




                [1]This holding makes it unnecessary to address the Coles’
argument that Anadarko’s use of the ranch for the central battery site was not
authorized by the 1966 Unit Agreement or a 1967 Easement Agreement.
 


                [2]The trial court found that the Coles’ claims for trespass
and trespass to try title with respect to the construction, operation, and use
of the central battery site were barred by limitations.  Our holding on
standing makes it unnecessary to address this ruling.  We do not read the trial
court’s order to dispose of any claims accruing subsequent to the Coles’
acquisition of the ranch on the basis of limitations.


                [3]Specifically, the 1966 Unit Agreement refers to tracts
27 through 29, which are described as the E/2 NW/4; W/2 NW/4; and W/2 SW/4 of
Section 33, Block 45, T-1-N, T&P RR Co. Survey.
 


                [4]The Unit Agreement refers to tracts 20 through 25,
which are described as the NE/4 NE/4; SW/4 NE/4; S/2 NW/4; NW/4 NW/4; NW/4 NE/4;
NE/4 NW/4; SE/4 NE/4; NE/4 SE/4; SE/4 SE/4; W/2 SE/4; SW/4 of Section 34, Block
45, T-1-N, T&P RR Co. Survey.
 


                [5]A map attached to the Coles’ brief indicates that the
pipeline crossed the SW/4 of Section 33, which is not part of the GCDU.
 


                [6]The trial court found that a 1967 Easement Agreement
was valid and that the Coles breached it by not executing a tendered easement
instrument.  That easement was for the central battery site.  The Coles’ brief
refers to a pipeline from the Laren Lease to the JY Ranch in its discussion of
the 1967 Easement Agreement, but we do not read the trial court’s order to
address whether that agreement authorized Anadarko to lay a particular pipeline
and express no opinion either.
 


[7]Robinson, 501
S.W.2d at 867 (operator cannot use the surface of one lease to benefit
production from another lease).
 


                [8]The Coles asserted that Anadarko breached the 1966 Unit
Agreement and subsequent surface use agreements by conducting activities in
support of non-unit production on acreage covered by the GCDU. They prayed for
cancellation of the agreements, for recovery of possession of Sections 33 and
34, and for contractual damages. They also requested injunctive relief - but
this was predicated upon the contention that Anadarko had no right to be on the
JY Ranch.  The Coles do not complain on appeal that the trial court erred by
not terminating the 1966 Unit Agreement.  Because the 1925 Lease and 1966 Unit
Agreement are still in force, Anadarko and Permian Basin have some right to use
the surface.  It is, therefore, unnecessary for us to address the Coles’
injunctive relief claims.  We express no opinion on any other potential
injunctive relief claim they might assert.  We also express no opinion on
whether a surface owner, confronted with activities in support of production
off the lease or unit covering his surface but that do not result in more
acreage being used, is entitled to injunctive relief barring that additional
activity, a declaratory judgment on the extent of the operator’s authority, contractual
damages, or nominal damages.  Our analysis is limited to the traditional
measure of damages in surface use disputes:  the value of the excessive acreage
used.  For this, the Coles offered no evidence that the additional activities
resulted in additional acreage being used.
 


                [9]The Coles raised the continuing tort doctrine in
response to Anadarko’s limitations argument.  Our standing holding effectively
moots Anadarko’s limitations argument.  But we note that the mere continuation
of activities begun before the Coles’ acquisition of the ranch, absent evidence
of damage, is not a continuing tort because the injury to the land is permanent;
therefore, the continuing tort doctrine is inapplicable.  See Mitchell
Energy Corp. v. Bartlett, 958 S.W.2d 430, 443 (Tex. App.—Fort Worth 1997,
pet. denied).


                [10]Michael Coder, Anadarko’s Division Land Supervisor,
attended Buster’s funeral.  Coder began dealing with the Coles as surface
owners in December 2002, and starting in 2003, he paid them for surface damages
to the ranch.  Anadarko discounts these payments, contending that none were for
the property covered by the 1995 Lease.  However, on April 2, 2003, Coder
forwarded a check for surface damages caused by two spills or leaks.  The
attached release indicated that one of the spills 
FOOTNOTE NO. 10 CONTINUED:
 
was in Section 34.  This section is covered by the 1995 Lease. 
Moreover, Anadarko gave the Coles notice, as surface owners, of an H-1 and four
H-1A applications it filed with the Texas Railroad Commission.  Two of the H-1A
applications were for wells on the same section as the water injection plant
described in the 1995 Lease.
 


                [11]The lease provides:
 
                As rental while this agreement is in
force, Lessee shall pay to Lessor the sum of Five Hundred Dollars ($500.00) per
year, annually in advance by mailing its check or draft to Lessor at Lessor’s
address as above stated.  This agreement may be cancelled for nonpayment of
rental only after thirty days written notice of default and such default
continuing for such thirty day period.
 


                [12]Anadarko also cites Caranas v. Jones, 437 S.W.2d
905 (Tex. Civ. App.—Dallas 1969, writ ref’d n.r.e.), for the proposition that
equitable considerations will preclude a forfeiture even if the lease has a
specific termination provision.  In that case, the dispute involved the
lessee’s obligation to pay ad valorem taxes.  The court found that forfeiture
was inequitable because the lessee’s obligation was unliquidated at the time of
the lessor’s demand.  In this case, however, when the lessee’s tax obligation
was liquidated, it tendered the amount owed into the registry of the court. 
When Anadarko’s obligation to the Coles was confirmed, it did not.


                [13]See
also Young v. Amoco Prod. Co., 610 F. Supp. 1479, 1488 (E.D. Tex. 1985), aff’d,
786 F.2d 1161 (5th Cir. 1986) (plaintiffs were estopped to contend that leases
had expired when they continued to accept royalties); Reeder v. Wood County
Energy L.L.C., No. 12-08-00175-CV, 2010 WL 2776081 at *5 (Tex. App.—Tyler
July 14, 2010, n.p.h.) (party could not accept the benefits of being the unit
operator and then claim it was not bound by unit JOA); Mulvey v. Mobil
Producing Tex. & N.M. Inc., 147 S.W.3d 594, 608 (Tex. App.—Corpus
Christi 2004, pet. denied) (party was estopped from contesting validity of
farmout when it benefitted financially from that agreement); Taub, 75
S.W.3d at 624 (as a general rule, equitable estoppel has been invoked by
mineral producers as an affirmative defense when there has been a claimed
violation of the mineral lease, such as a failure to engage in a required
activity, which would result in cancellation of the lease, but the lessors
continue to receive payments or other benefits under the lease); Duncan Land
& Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 330 (Tex. App.—Fort
Worth 1998, pet. denied) (party estopped from arguing that farmout agreement
had terminated due to lack of production in paying quantities when it received
royalties during the shut-in period and waited until after the shut-in had been
released and gas sweeteners had been added to the well before initiating its
action); Clark v. Perez, 679 S.W.2d 710 (Tex. App.—San Antonio 1984, no
writ) (one cannot repudiate an instrument while simultaneously retaining the
payments received under that instrument); Masterson v. Amarillo Oil Co.,
253 S.W. 908, 914-15 (Tex. Civ. App.—Amarillo 1923, writ dism’d) (the lessor
may, by permitting the expenditure of large sums of money in development and by
the acceptance of royalties, waive the right to declare a forfeiture).
 


                [14]John T. Boyd, Retired Chief Justice, Court of Appeals,
7th District of Texas at Amarillo, sitting by assignment.


