rehearing">

ON MOTION FOR REHEARING

The State asserts that we erred in sustaining appellants’ Point Twenty-four and holding that the word “operated” used in Special Issue No. 4 should have been defined for the reason that the record does not show that appellants properly preserved such Point in that they failed to submit a definition of such word and they requested submission of a similar issue using the same word, “operated,” without defining it.

We will not explore these reasons for altering our opinion because even though Special Issue No. 4 stands unscathed it will not support a judgment for the penalties assessed by the jury in answering such issue.

The State contends otherwise, saying, “ * * * this Court erred in failing to render judgment based on the undoubted operation of the well for the 3,650 days it was operated unplugged. * * * This was the basis for the Trial Court’s judgment.”

This is an incorrect ■ appraisal of the trial court’s basis for judgment. That basis was, as clearly shown by his remarks copied in our opinion, that the well was “unplugged” for 3,650 days, not that it was “operated unplú'gged.” The court also stated that “it,” not plugging the well, violated Rule 37 for 3,650 days. Rule 37 merely states, in this respect, that a well drilled in violation of it “shall be plugged.” *437It does not provide that a well shall not operate unplugged.

By no stretch of the imagination could the assumption made by the court in Special Issue No. 4 that the well was operated 3,650 days be tortured into an assumption that the well was merely in an unplugged state for 3,650 days. It is, of course, undisputed that the well was unplugged for this period of time, but if the State wished the jury to assess a penalty for this violation, it should have requested submission of an appropriate issue. Furthermore, it is the duty of the trial court to submit controlling issues made by the pleadings and evidence. Rule 279 T.R.C.P. We apprehend none will deny this was a controlling issue.

The State’s motion and all appellants’ motions for rehearing are overruled.

We have not heretofore adjudged costs in this case, and we called upon all parties to make suggestions relative thereto. After considering the suggestions made, we adjudicate costs as follows:

Trial Court Costs

As no judgment against appellant Baton for any amount has been rendered the assessment of such costs against him will abide the event.

Appellants Harrington, Allgood and Lutes are each assessed one-third of one-fourth of such costs. Assessment of the remainder of such costs will abide the event.

Costs of Appeal

Appellants Harrington, Allgood and Lutes are each assessed one-third of one-fourth of such costs.

Three-fourths of such costs aré assessed against the State of Texas'. '

No appellate costs are.adjudged against Mr. Baton.

Motions overruled.

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How this case has been treated — in progress