¶1Albert T. Hughes, Jr., and Sidney M. Cook, both of Slireveport, La., for appellant.
¶2Pike Hall and Marion K. Smith, both of Shreveport, La., for appellees.
¶3Before HOLMES and McCORD, Circuit Judges, and MIZE, District Judge.
¶5The appellant, who was plaintiff below, appeals from a judgment partially in his favor, because the basis of an accounting under an oil lease awarded against the appellees was for an amount less than claimed by him. Involved here are mineral rights in approximately ten acres of land. The appellees, as to four acres thereof, are the holders of such rights under a lease from appellant, and, as to approximately six acres, are the holders under a lease from other parties. The latter lease provided for only the usual % royalty, but the appellant’s lease provided, in addition to the usual % royalty, for the payment of an overriding royalty of Vi6 of % as long as more than 3,000 barrels per month were produced under the lease, which was reduced to %2 when production fell below that figure, with'a further payment of $7,500 to be made only from oil produced out of another %.6 of the working interest.
¶6This controversy is with reference to the overriding royalty and oil payment claimed by appellant under his said lease from oil produced by appellees from a well on the fiacre tract. The theory upon which he recovered below was that the two tracts had been pooled for the purpose of obtaining a permit to drill under the conservation laws of Louisiana. The district court held that he should be paid his proportionate share of the stipulated royalty ■(}. e. Vio of Vs) provided for*4n the lease of the 6-acre tract. The appellant complains here only of the fact that the wrong lease was used wherein to determine the consideration to be paid to *611him. This contention presents the proposition that, in the absence of a modifying agreement, when separate tracts are pooled under conservation laws for purposes of oil development, each lessor is to be paid the consideration named in his lease, rather than that named in the lease of the particular tract on which the well is located.1
¶7Since the appellant did not enter into any pooling agreement with the owners of the 6-acre tract, upon which the permit to drill was granted and from which the oil was actually produced, the appellees deny that the 4 acres in appellant’s lease were pooled; but the court below found against appellees on this point.2 There is no question here of the power of the State of Louisiana, under its conservation laws, to pool separate interests without the consent of the owners. The appellees, of their own volition, pooled the two tracts for the purpose of producing oil, and the appellant acquiesces in such pooling by seeking payment under his lease on the basis that the same actually took place.
¶8In relation to royalties, overriding royalties, and oil payments, the authority of the conservation commissioner or of any lessee to pool or allocate acreage is subject to the terms of the contract of lease existing between the lessor and lessee. The appellant has never consented to a reduction of the amounts to he paid to him under his lease contract, and is entitled to an accounting upon the basis of tbe royalties and oil payments therein named. The permit to drill in this case was upon ten acres. The effect of what was done under the permit to drill for oil was to unite the two tracts and create the presumption that production from the well to be drilled would be drawn from a single pool, Vio of which would be supplied from appellant’s land.
¶9The judgment of the district court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion!