recognized in Texas since it adopted the common law of England as it existed in 1840 ( Perry v. Smith , 231 S.W. 340 (Tex.Com.App. - 1921). The following early cases yield rules of law governing the doctrine in addition to those set out in the West Trilogy cases below. Rule No. 1 – Before the rules governing commingling may be applied, the Aggrieved Party seeking such application must prove and secure a fact finding that commingling by the Commingler did in fact occur. Mooers v. Richardson Petroleum Co., 204 S.W.2d 606, 608 (Tex. - 1947) Rule No. 2 – The commingling of goods/assets of like kind and nature of two or more persons, whether done intentionally, negligently or inadvertently, which makes the goods/assets of the parties become indistinguishable, places the burden of proof of determining the ownership share of each party on the Commingler . Sheldon Petroleum Co. v. Peirce , 546 S.W.2d 954 (Tex.Civ.App. — 1977); Mooers v. Richardson Petroleum Co., 204 S.W.2d 606 (Tex. - 1947) Rule No. 3 - Damages -The failure of the Commingler to carry its burden of proof and show the respective ownership shares of the commingled goods/assets results in the forfeiture of the value of the whole commingled mass claimed by the Commingler to the Aggrieved Party. Holloway Seed Co. v. City Nat. Bank , 47 S.W. 95 (Tex. - 1898); Farrow v. Farrow , 238 S.W.2d 255 (Tex.Civ.App. - 1951) Rule No. 4 – If the respective shares of the commingled parties in the confused mass of like goods/assets can be determined, no change of ownership in the goods/assets takes place. Farrow v. Farrow , 238 S.W.2d 255 (Tex.Civ.App. — 1951) Rule No. 5 – If the division of goods is impossible, but the parties’ aliquot shares of the commingled mass can be determined by valuing the commingled mass, then each party may claim its prorata share of the total value thereof. Belcher v. Cassidy Bros. Live-Stock Commission Co ., 62 S.W. 924 (Tex.Civ. App. - 1901)
c. Does not separately meter/measure the oil and gas production from the unauthorized well(s). d. The Commingler has the burden of proving the aliquot share of production attributable to the unauthorized well(s) or suffer the loss of the value of the entire amount of oil and/or gas as metered/ measured at its facilities. 5. Example E - Oil and/or gas production from a horizontal well involving two or more tracts, where: a. The producing zone from a horizontal well is physically located on a tract where one or more mineral/royalty owners under that tracts is either un-leased and/or not subject to an existing pooling designation; and b. All of the production from the horizontal well is produced into a common tank battery or sold to a common purchaser utilizing only one common metering device. c. The issue is how much of the production from the horizontal well is to be allocated to the tract under which the mineral/ royalty interest is un-leased/un-pooled. The operator of the well, after the preliminary
demonstration of the commingling of all production from the well, including production attributable to the Aggrieved Party, then bears the burden of proving the allocation of production to the tract at issue. This situation will not be addressed in this paper but has been addressed in a prior article by the author – Horizontal Wells and Commingling.
Early Law of Commingling:
The doctrine of confusion of goods (commingling) originated early in Texas jurisprudence. In fact, the doctrine of confusion of goods has been
Rule No. 6 – The evidence presented by the
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N a t i o n a l A s s o c i a t i o n o f D i v i s i o n O r d e r A n a l y s t s
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