Magnolia Petroleum v. Rd. Comm. , 105 S.W.2d 787 ( 1937 )

Again the writer finds it necessary to disagree with the interpretation of rule 37 by the majority of this court. From the date of the discovery of the East Texas Oil field in the fall of 1930, until September 2, 1931, drilling operations were controlled under the so-called state-wide rule 37, promulgated in 1919, which provided for regular locations and drilling of oil wells without a permit from the commission, at distances of 150 or more feet from property lines and of 300 or more feet from other wells; and further provided that the commission grant permits to drill wells at closer distances than prescribed by the rule, in order to protect vested rights and to prevent waste of oil and gas. Special rule 37, as amended on September 2, 1931, and each subsequent amendment thereto applicable to the East Texas Oil field, have provided for regular locations and drilling of wells without a permit from the commission at distances of 330 or more feet from property lines and of 660 or more feet from other wells; and each has provided that the commission grant permits to drill wells at closer distances than prescribed by the rule, "in order to prevent waste and to prevent confiscation of property." The majority view or court's interpretation of special rule 37 applicable to the East Texas Oil field has been and is now diametrically opposed to the interpretation continuously placed upon it by the commission who promulgated it and is charged with the duty of administering it. This conflict of interpretation and administration of the rule has led to much confusion and to a deluge of litigation; all of which should be brought to an end. As reiterated in the instant case, the court's interpretation of the rule in disagreement is as follows: "The spacing distances provided in Rule 37 necessarily implies a finding by the Commission that wells drilled at closer distances from each other than those prescribed by the rule, producing equally, will tend to create waste. If this were not so, the rule would be without basis to sustain it."

No language of the rule supports a fact finding that wells drilled closer than the distances prescribed by the rule will cause physical waste of oil or gas. The majority reason that since the rule provides for certain minimum spacing distances, wells drilled at closer distances will cause waste. In reasoning toward its holding, the court has assumed what it sought to prove by substituting its own interpretation of the rule as an actual fact finding that wells drilled at closer distances than the rule prescribes will cause physical waste of oil and gas, which finding is contrary to the facts found by the commission after many hearings on the very issue involved. Under the court's interpretation of the rule, an exception granted to prevent waste must always be stricken down if the authorized well is closer than 660 feet to another well, irrespective of factual proof showing that the well is necessary to prevent waste. Accordingly, the court pseudo administratively holds that no well can ever prevent waste, if it is less than 660 feet from another well; and, in consequence, the exception providing that wells may be drilled at closer distances than prescribed by the rule, "in order to prevent waste," has been effectively repealed by judicial legislation. This interpretation of the rule has been continuously made and applied by the majority view despite the settled law that where a statute carries a plain statement that the Legislature intends to allow an exception or exemption from the general rule laid down, such exception or exemption must be allowed; otherwise the entire act must fall, because the courts cannot know what has been excepted or exempted, and they cannot know what has been left inside the law unless they know what has been taken out of it. Cline v. Frink Dairy Co., 274 U.S. 445, 47 S. Ct. 681, 71 L. Ed. 1146.

The majority interpretation was first impliedly made in the Sun Oil Company Case, 68.S.W.2d 609, and Brown Case (Humble Oil Refining Co. v. Railroad Comm.) (Tex. Civ. App.) 68 S.W.2d 622, wherein the court say in substance that the commission is not authorized to promulgate a rule for minimum spacing distances of oil wells, and then by the same rule provide for exceptions thereto which would destroy the rule. Immediately after these cases were affirmed by the Supreme Court, [Bennett v. Sun Oil Co., 126 Tex. 269, 84 S.W.2d 693; Brown v. Humble Oil Refining Co.,126 Tex. 296, 83 S.W.2d 935, 87 S.W.2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393], the commission, by its order of August 26, 1935, took issue with the court's interpretation of the rule, declared that it had never interpreted nor intended the rule as a fact finding that wells drilled at closer distances than therein prescribed would cause physical waste of oil and gas; and further found as follows: "We find from the evidence the more wells that are drilled the greater will be the ultimate recovery of oil and gas from any given pool."

This specific finding of fact by the commission was called to the attention of this court in the cases of Railroad Comm. v. Marathon Oil Co., 89 S.W.2d 517, and Atlantic Oil Production Co. v. Railroad Comm.,85 S.W.2d 655; but the court dismissed the matter with the statement that while the finding cast grave doubts upon the value of the rule as a waste preventive measure, still the commission had not repealed it; and the court has continued to enforce it as formerly. See, also, Stanolind Oil Gas Co. v. Railroad Comm. (Tex. Civ. App.) 96 S.W.2d 664. By recitals in several subsequent orders interpreting and explaining its finding of August 26, 1935, the commission has continuously insisted that it has never interpreted any rule 37 as a finding of fact that wells drilled at closer distances than prescribed by the rule would cause waste of oil and gas. It has continuously found upon evidence adduced at its many hearings and from its actual experience, and through its experts continuously employed in the administration of the rule, that the closer wells are drilled the greater will be the ultimate recovery of oil and gas from the area so drilled, provided the wells produce equally; and closer spacing is accomplished through the application of the exceptions to the general rule to prevent waste, or to prevent confiscation, because oil and gas left in the ground which could be recovered by more densely drilling necessarily results in waste of the oil and gas not recovered; and in consequence also results in confiscation of property through failure to enforce the exception to the rule so as to recover the greatest amount of oil and gas under any given tract of land or area. Orders of August 26, 1935, and February 24, 1936, and other orders under the same docket number of the commission. All of these orders constitute findings of fact by the commission, which are binding upon this court. By its continuous interpretation of the rule, as above quoted, the court has refused to recognize any facts found by the commission contrary to that interpretation; but has continuously substituted its own fact-finding interpretation of the rule for the actual fact findings of the commission. Obviously, the court has thereby substituted its own administration of the rule for that of the commission. And if by court edict the commission is powerless to make findings of fact and to decide under what conditions underground waste of oil and gas may occur, and to enact, interpret, and enforce rules and regulations to prevent such waste, then the situation is hopeless, because a cursory review of what has happened is sufficient to show that courts are impotent to administer the rule. For instance, the sum total of all wells denied by the court under its interpretation of the rule is in the neighborhood of fifty. Many months were required by the trial courts and this court to determine these cases, not to mention the enormous expense of such litigation. Production of oil from several of these wells has been granted by the commission, on the ground of changed conditions arising after the permits were first granted and held invalid by this court; and appeals are now pending in this court as to the new order or permit to produce. On the other hand, the commission has continuously refused to accept the court's interpretation of its rule; and of the approximately 23,000 wells in the East Texas Oil field all but about 200 are now located at distances which are closer than the minimum distances prescribed by the rule. This has been accomplished through the allowance of wells to prevent confiscation of property, or to protect vested rights, or to prevent waste under the finding of the commission that the more wells drilled in any given area the more oil and gas will be ultimately recovered, provided the closer spacing is approximately uniform throughout the area or field. Maps and plats are now before us in the instant and other cases under submission, which show the drilling development of the entire East Texas Oil field, and show the spacing distances between the approximately 23,000 wells. They show that while in a few small areas throughout the field drilling has been denser than contiguous areas, due to fee ownership of small tracts of land and drilling to protect vested rights or to prevent confiscation, with a gradation of density of drilling outward from these tracts, and with development throughout the field under the finding of the commission that the more wells drilled the greater will be the ultimate recovery of oil and gas, until when viewed from its entire length and breadth the East Texas field is now drilled with approximately uniform spacing at closer distances than are prescribed by the rule. Thus the conflict of interpretation and administration between the commission and the court is clearly shown. Other facts and circumstances show this conflict, and show the incorrectness of the court's interpretation and administration of the rule; and that if the court's interpretation had been accepted by the commission and applied by it, immeasurable waste of oil and gas would have resulted in the East Texas field through failure to develop the field so as to recover the greatest amount of recoverable oil and gas. Some of these facts and circumstances will be discussed.

The majority interpret the rule to mean that wells drilled at closer distances to each other than 660 feet will tend to create waste. Several thousand of the wells in the East Texas field were drilled under the 150-300-foot spacing rule before the amendment providing for 330-660-foot spacing in 1931. So, by its interpretation of the 330-660-foot rule as above stated, the court makes the commission impliedly find that each well drilled under the first rule is since the amendment daily creating waste. It does not stand to reason that the commission would develop the field by drilling several thousand wells under the 150-300-foot spacing rule, and then, by amending that rule providing for wider spacing of wells, impliedly find that all wells drilled under the first rule would thereafter continuously create waste of oil and gas. Likewise, the court's interpretation of the rule is necessarily a finding that each of the almost 23,000 wells now drilled at closer distances than the minimum spacing distances prescribed by the present rule applicable to the East Texas Oil is continuously creating waste; and still nothing is done about it.

The commission found by its order of August 26, 1935, and by its subsequent orders under its same docket number, interpreting and explaining the meaning of rule 37 as applied to the East Texas Oil field, that the more wells drilled in conformity with approximate uniformity and producing equally or ratably, the greater will be the ultimate recovery of oil and gas from any given tract of land, area, or field; and that by such density of drilling waste will be prevented by not leaving large quantities of oil and gas in the ground. Obviously, these specific findings of fact should be given more weight by the court than its mere interpretation of the rule as an implied finding of fact by the commission that wells drilled at closer distances than the minimum distances prescribed in the rule will tend to create waste of oil and gas. These orders also constitute interpretation of rule 37 from time to time by the commission who promulgated it, amended it, and have accordingly continuously administered it. These departmental findings of fact and its interpretation and application of the rule it promulgated and is charged with the duty of enforcing should prevail, and particularly so since vast property rights have been accrued under the commission's interpretation and application of the rule, Magnolia Petroleum Co. et al., Relators, v. New Process Production Co. et al., Respondents (Tex.Sup.) 104 S.W.2d 1106, decided April 28, 1937. Both the commission and the Attorney General have been continuously before us insisting that the majority interpretation and application of the rule is incorrect. These officials take the same oath of office as do the judges. They are manifestly in the better position to know the facts upon which rule 37 is predicated than are the judges; and such fact finding is the function of the commission and not of the court. The departmental interpretation and application of the rule should also prevail under the settled rule that where the language of a statute, or a regulatory rule having force and effect of a statute, is vague, indefinite, or ambiguous, great weight is given to the departmental interpretation and application of the statute or rule. McCallum v. Associated Retail Credit Men (Tex.Com.App.) 41 S.W.2d 45. In the Sun Oil and Brown Cases, supra, the Supreme Court stated that the exceptions to prevent waste and to protect vested rights were vague and indefinite, but not to such an extent as would render the rule unconstitutional for that reason. And it may here be noted that the Supreme Court has never interpreted rule 37 as excluding from its operation the exception to prevent waste, but in each of the following cases has expressly referred to the fact that it provided for such exception: The Sun Oil Case, supra, Stewart Case, infra, and Brown Case, supra; Magnolia Petroleum Co. v. Railroad Comm. (Tex.Sup.) 96 S.W.2d 273.

If the findings of fact contained in the aforementioned orders of the commission are not binding on the courts without further proof, then the evidence adduced in this and several other cases now under submission in this court abundantly supports the findings of the commission that the more wells drilled in conformity with its stated rule the greater will be the ultimate recovery of oil from any field or pool; and that density of drilling prevents waste and confiscation by not leaving large quantities of oil and gas in the ground. This evidence is summarized in several able briefs filed by the Attorney General in said cases, substantially as follows:

The commission has never interpreted nor intended any rule 37 as a fact finding that wells drilled at closer distances to each other than the minimum distances prescribed will tend to cause physical waste of oil or gas. Such rules merely fix arbitrary patterns or distances for regular locations and drilling of wells without permits from the commission, with exceptions to develop the field, tract of land, or area downward, under the control and permits of the commission so as to ultimately recover the greatest amount of oil and gas possible. It has been practically demonstrated, as well as scientifically proved, that the closer wells are drilled, or the more wells that are drilled, the greater will be the ultimate recovery of oil and gas, although the profit from their operation and production will decline proportionately because of increased drilling costs and expenses, which relate to economic development and with which neither the oil and gas conservation statutes nor the regulatory rules in aid thereof authorize the commission to deal; but its task is confined solely to the prevention of physical, waste of oil and gas through orderly development and proration. To be added to the finding that the more wells that are drilled the greater will be the ultimate recovery of oil and gas, is the proviso that the wells be drilled substantially or approximately at uniform distances, and that they produce equally or ratably, based on the potential or producing ability of each well. This substantial or approximate uniformity of spacing and production, operating in pari materia, prevents waste by permitting the greatest utilization of the reservoir pressure and other factors leading to the greatest ultimate production of oil and gas from the given reservoir or pool. In fields like the East Texas field, having their primary source of reservoir energy derived from a hydrostatic head or water pressure, the uniformity of spacing and production greatly promote and effectuate the orderly and uniform encroachment of the water, for the purpose of maintaining and utilizing to the greatest practical extent the pressure which it furnishes and its flushing action in cleansing the oil sands of the oil and gas. It seems to be conceded by the petroleum engineers that the drainage power or force of an oil well is greatest at its base, and that its effective drainage influence lessens as the distance from the base of the well is increased. They all agree that it requires or exhausts more reservoir energy to force oil 660 feet to a well than 100 feet to a well; besides large quantities of oil as well as reservoir pressure are lost in crevices, lakes, and other variants in going the greater distances to wells. Data and maps showing the effect of well spacing in the East Texas field are before us. They reflect that as the ultimate production of a well decreases as the result of a closer spacing of wells, the ultimate recovery per acre increases. The bottom-hole pressure decreased rapidly during the first two years under wider spacing of wells in the East Texas field. In July, 1933, when some 10,000 wells had been drilled, the bottom-hole pressure in the East Texas field was 1,201 pounds per square inch. Since July, 1933, to the date of the trial of some of the cases before us, with approximately 23,000 wells drilled, there has been produced approximately three-quarters of a billion barrels of oil, and bottom-hole pressure is still 1,147 pounds, thus showing a decline of only 54 pounds. The evidence is not disputed that the decline of reservoir pressure in the East Texas field has steadily diminished per million barrel production as the number of wells has been increased under the controlled development of closer spacing, as interpreted and authorized by the commission. Under the rule of wider spacing of wells first applied to the field, engineers estimated that the ultimate recovery would have been one billion barrels of oil. With conservation of the reservoir pressure by density of drilling, more than 1,000,000,000 barrels have been recovered, and the engineers now estimate that 4,000,000,000 barrels of oil will ultimately be recovered from the East Texas field under the closer drilling rule. Thus it is shown that immeasurable waste would have resulted if the commission had accepted and applied the wider spacing of wells under the court's interpretation of the rule, caused by leaving large quantities of oil in the ground.

The able opinions of Chief Justice McCLENDON and Associate Justice BAUGH reflect the inherent nature of courts to define accurately all rules or standards of conduct; but standardized rules do not fit administrative matters. Rules governing administrative matters must be flexible to accomplish the desired purpose. The so-called oil and gas conservation statutes and the regulatory rules in aid thereof represent the first attempt of this state to control the production and market demand of any commodity of trade or commerce through the exercise of its police power; and necessarily many novel and difficult legal problems have arisen concerning this experimental adventure. The courts have sustained these statutes, and particularly rule 37, solely upon the ground that they tend to prevent physical waste of oil and gas. The enforcement of these statutes and rules is necessarily administrative; and as has often been held by this court, it is the peculiar function of the commission to determine from the facts and its rules and regulations whether a permit should be granted to drill an oil well as an exception to rule 37, in order to prevent confiscation of property or to prevent waste. The same rule applies to the exception for closer drilling to prevent waste of oil and gas.

This is in accord with the often-repeated rule that any order of the commission as to any matter within its jurisdiction shall be accepted under statutory provision as prima facie evidence of its validity. This means that when the order is challenged the court will presume it to be valid and will sustain it, unless the evidence clearly shows it to be unreasonable and unjust. The mere fact that the order in question may be unwise will not warrant a court in striking it down, so long as it is based on any substantial evidence. Falvey v. Simms Oil Co. (Tex. Civ. App.)92 S.W.2d 292.

So, under the facts of the instant case, the commission was authorized to grant the permit to drill the well in question under the exceptions to the rule to prevent waste or to prevent confiscation, and under its settled finding and policy to more densely drill the entire East Texas field in order to obtain the greatest ultimate recovery of oil and gas; and because recoverable oil left in the ground will result not only in waste, but also confiscation by failure to permit denser drilling for it.

The writer is also unable to agree with the holdings of the majority that the permit was invalid because the 1.6-acre tract on which the well was authorized had been voluntarily subdivided from a 41.7-acre or larger tract after the effective date of the spacing rule; and that the 1.6-acre tract, if considered as a part of the original tract, was not entitled to the well (1) because the "well was not so applied for nor was it so granted"; and (2) because the permit could not be granted on the 1.6-acre tract as a part of the 41.7-acre tract, unless the lessee of the larger tract joined in the application and agreed not to drill offset wells.

No rule of the commission required the lessee of the larger tract to join the lessee of the smaller tract in its application for the permit. The lessee of the larger tract was notified of the hearing on the permit and was present and protested; but it has not appealed from the order granting the permit. The matter of whether it will apply for offsets is not in the record; but even so, such is a matter for the commission and not for the courts to determine in the first instance. The commission and the Attorney General are here insisting that the commission's order granting the permit can be and should be sustained on the ground that the 1.6-acre tract, considered as a part of the larger tract, was entitled to the well not only to prevent confiscation of property, but also to prevent waste of oil and gas. The evidence above detailed would sustain a finding of the commission that the well was necessary both to prevent confiscation of property and to prevent waste of oil and gas under the 1.6-acre tract considered as a part of the larger tract. And it is not material whether the application for the permit or the order of the commission granting it specifically authorized the permit for the well on the 1.6-acre tract as a part of the original tract.

This court has held that where parties voluntarily subdivide their lands in an effort to circumvent the spacing rule in question, they are relegated to their rights as they existed prior to the creation of such situation. Humble Oil Refining Co. v. Railroad Comm. (Tex. Civ. App.)68 S.W.2d 625. See, also, Magnolia Petroleum Co. v. Blankenship (C.C.A.)85 F.2d 553. This court has also held that the conservation statutes provide that every rule, regulation, or order of the commission shall be deemed prima facie valid; and that if an order granting a permit to drill an oil well can be sustained on any ground other than the ground recited in the order itself, the courts must uphold the permit. Smith v. Stewart (Tex. Civ. App.) 68 S.W.2d 627; Sun Oil Co. v. Railroad Comm. (Tex. Civ. App.) 68 S.W.2d 609, and many other cases.

Moreover, the review by the courts of an order of the commission granting a permit to drill an oil well under an exception to rule 37 is by statutory enactment a proceeding in the nature of a trial de novo. The appeal or court review is not for the purpose of again trying the administrative matters before the commission; but the court review is for the purpose of determining whether the commission has stayed within the conservation statutes and the regulatory rules in aid thereof in making its order granting the permit, and whether there is substantial evidence to sustain the order. The evidence adduced on the trial de novo must, of, course, be limited to matters arising prior to or at the time of the hearing of the application for the permit; but is not confined to evidence adduced on the hearing for the permit. And in this character of proceeding the courts are not concerned with either the form of the application for the permit, or the order of the commission granting it, but look only to the substance of the order to ascertain if it is authorized by the statutes or rules in aid thereof, and to determine whether there exists' any substantial facts sustaining the permit under one or the other exceptions to rule 37 authorizing the drilling of oil wells at closer distances than the minimum distance prescribed by the rule.

The cases are legion and uniform in holding that the procedure before administrative boards or commissions is informal and not confined by technical rules; that generally speaking, no strictness of pleadings is required and pleadings are not to be tested by technical rules governing judicial procedure, because of the impelling necessity that administrative proceedings be informal and liberal in order that substantial justice may be done, and that the purposes of the administration may be accomplished. The courts also hold that administrative bodies have the power to frame their orders as the substantial justice of the case may require, irrespective of the relief sought by the pleadings; and that an alleged insufficiency of pleadings before an administrative board or commission is immaterial where no prejudice to a party has resulted.

Applying the aforementioned rules to the facts of the instant case, the permit to drill the well on the 1.6-acre tract, considered as a part of the larger tract, can and should be sustained by this court. It has been repeatedly held that the oil and gas conservation statutes confer the power on the commission to make rules and regulations necessary to carry out the purpose of the statutes. Rule 37 does not itself prescribe the form of an application to drill an oil well as an exception thereto, "in order to prevent waste and to prevent confiscation of property." The commission has under its rule-making power prescribed a form of application for such a permit, and for notice and hearing thereon. It is designated "Form 1 Application," and the same form is used for obtaining a permit either under the exception to prevent waste or to prevent confiscation. It requires that certain information shall be given in the application. If that information were given in the instant case, which must be assumed under the statutory provision that every order of the commission shall be deemed prima facie valid, then sufficient facts were presented in the application to authorize the commission to grant the permit to drill the well on the 1.6-acre tract, considered as a part of the larger tract, and in order to prevent waste or to prevent confiscation of property. The case was also tried de novo on the pleadings and sufficient proof that as of the time the permit was granted, the well was authorized on the 1.6-acre tract considered as a part of the larger tract, in order to prevent confiscation and to prevent waste of oil and gas.

So the question of whether the Century Refining Company's 1.6-acre tract constituted a subdivision in violation of rule 37 is unimportant; and likewise, it is unimportant whether the application of Century Refining Company for the permit to drill the well specified that the 1.6-acre tract should be drilled as a part of the larger acreage. It contained all the information necessary for such permit. On the trial de novo, the trial court, looking through form to substance for the purpose of disposing of the matters involved on their substantial merits, did so consider the 1.6-acre Century Refining Company's tract; and upon this consideration upheld the order of the Railroad Commission herein under attack as being necessary in order to prevent confiscation of property of the 1.6-acre tract considered as a part of the larger acreage.

The commission in defense of its order pleaded that its permit for the well should be sustained upon the ground that it was necessary to prevent waste and confiscation of the oil under the 1.6-acre tract considered as a part of the 41.7-acre tract. It would, therefore, be a supererogatory act to remand the case to the commission merely to permit an amended application for the well on the ground that as a part of the larger tract it was entitled to the well. Thus a fetish would be made of form; and such procedure would give one litigant an extreme advantage over another, which courts of equity should not permit.

The commission's order is amply sustained by the evidence which discloses without contradiction that the combined acreage does not have an opportunity to produce and recover the recoverable oil underlying the tract because of the greater density of drilling of the adjacent tracts, including that of the Magnolia Petroleum Company, as of the time the permit was granted.

The writer also disagrees with the majority in reversing and remanding this cause with instructions to the trial court to cause the well to be plugged in accordance with the opinion of this court. Neither the pleadings nor proof alleged any ground for plugging the well, or that the failure to plug the well would cause any physical waste of oil or gas, or any reasonable danger thereof. The exclusive jurisdiction to administer the oil and gas conservation statutes and the regulatory rules in aid thereof is vested in the Railroad Commission, and it has been so consistently announced and repeated by the numerous cases decided by this and other courts. Article 6029, R.S. (as amended by Acts 1935, c. 76, § 4 [Vernon's Ann.Civ.St. art. 6029]), requires that the Railroad Commission shall make and enforce such rules and regulations for the conservation of crude petroleum oil and natural gas, and for the purpose of preventing waste thereof. Among other provisions, the commission is required for the purpose of preventing such waste to cause dry or abandoned wells to be plugged; and while the commission's rule provides that wells drilled in violation of the rules of the commission and without a special permit obtained in the manner prescribed by the rule shall be plugged, it is manifest that such rule must be construed and considered in the light of that statute, which only provides for the plugging of dry and abandoned wells in aid of the prevention of waste of oil and gas. Manifestly, the commission's rule for plugging wells is not mandatory and cannot be enforced merely as a penalty or punishment against one who has drilled a well in violation of some rule or regulation of the commission. In the instant case, the well was drilled upon the permit of the commission. It is clear that the matter of plugging the well is an administrative matter which has been delegated to the Railroad Commission by the Legislature, both with respect to a determination of whether it is necessary for a given well to be plugged in order to prevent the danger of waste of oil and gas, as well as the mechanical details connected with the plugging operation. In the exercise of its administrative discretion concerning the necessity or lack of necessity requiring the plugging of any oil and gas well for the purpose of preventing waste or the danger of waste of oil and gas, the commission must function reasonably and with discretion, and not capriciously nor arbitrarily. In which event, the commission's act is subject to judicial review by the court as provided by article 6049c, § 8, Vernon's Annotated Civil Statutes.

Due to changing conditions, a well not authorized to-day may be authorized tomorrow. Magnolia Petroleum Co. et al., Relators, v. New Process Production Co. et al., Respondents (Tex.Sup.) 104 S.W.2d 1106, decided April 28, 1937. The development of an oil field does not stand still, and a thing that is not right today, may be right tomorrow, and for that reason the commission may as effectively seal a well and prohibit its operation as against the time that conditions so change that it may become necessary to operate the well; and certainly where a well has been drilled under a permit of the commission, even though it has been contested in court, the driller should not be punished by destroying his investment in the well drilled; but the well should be sealed and operation of it prevented until such time as the changed condition might authorize its operation. Neither the statute nor the rule with regard to plugging a well would authorize or require the harsh remedy sought by appellant and applied by the court in this case.

The writer respectfully disagrees with the decision of the majority in this case; and is of the view that the order or permit in question should be sustained and the judgment of the trial court affirmed.