The Southwestern Historical Quarterly, Volume 44, July 1940 - April, 1941 Page: 306
546 p. : ill., maps ; 24 cm.View a full description of this periodical.
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Southwestern Historical Quarterly
oil and gas fields were largely matters of guess-work. In
evolving applicable legal rules, the courts groped for analo-
gies in settled rules of law applicable to other forms of property.
The fact that oil and gas are contained within the land evoked
the analogy of solid minerals, such as coal, where the doctrine
of ownership in place is well established. The further facts
that oil and gas are not fixed in their location, but are fluid,
and therefore "fugitive" or "vagrant" when pressure is applied
to them, called to mind the analogies of subterranean waters
and wild animals, where complete ownership does not vest until
the property is reduced to possession. Finally, the courts of
this State have settled upon a sort of compromise, which rec-
ognizes the right of ownership of oil and gas in place, but at
the same time recognizes the so-called rule of capture, or the
right of any landowner to keep as his own any oil which may
be produced from a well on his land, no matter where this oil
may have come from. These two logically inconsistent but
practically defensible rules have been restated by the Supreme
Court in the case of Brown v. Humble Oil & Refining Co.,"
as follows:
The rule in Texas recognizes the ownership of oil
and gas in place, and gives to the lessee a determinable
fee therein. [Cases cited.]
Owing to the peculiar characteristics of oil and gas,
the foregoing rule of ownership of oil and gas in place
should be considered in connection with the law of
capture. This rule gives the right to produce all of the
oil and gas that will flow out of the well on one's land;
and this is a property right. And it is limited only
by the physical possibility of the adjoining landowner
diminishing the oil and gas under one's land by the
exercise of the same right of capture.
While the first oil well was brought in in Texas as early as
1866,14 oil did not become of any substantial commercial impor-
tance in this State until the end of the nineteenth century.
The discovery and development of the Corsicana and the Spindle
Top fields, together with the haphazard and wasteful method
of their development and production, emphasized in the public
mind the necessity of passing conservation measures for the
3126 Tex. 296, 305; 83 S. W. (2d) 935, 940.
14At Oil Spring in Nacogdoches County. See C. A. Warner, Texas Oil
and Gas Since 1548, 5.306
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 44, July 1940 - April, 1941, periodical, 1941; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth146052/m1/343/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Texas State Historical Association.