210 S.W.2d 558 (Tex. 1948)
In 1936 the petitioners, Mrs. Mabel Elliff, Frank Elliff, and Charles C. Elliff, owned the surface and royalty interests in 3054.9 acres of land in Nueces County.1 This land included a producing well known as Elliff No. 1.2 They owned the entire mineral estate under the west 1500 acres and an undivided one-half interest under the east 1554.9 acres.3 Both tracts were subject to oil and gas leases that gave them a one-eighth royalty on the west tract and a one-sixteenth royalty on the east tract.4 These lands overlay approximately fifty percent of a large underground reservoir of gas and distillate.5 The remainder lay under adjoining land owned by Mrs. Clara Driscoll.6
Prior to November 1936 the respondents, Texon Drilling Company, the two Texon Royalty Companies, and John L. Sullivan, were drilling an offset well called Driscoll-Sevier No. 2 located 466 feet east of petitioners' boundary line.7 When the well reached approximately 6838 feet that month it blew out, caught fire, and cratered.8 The cratering process gradually enlarged until it destroyed Elliff No. 1, which also blew out, cratered, and burned for several years.9 Two water wells on petitioners' land likewise blew out, and the surface and cattle on the land were damaged.10 The blowout released huge quantities of gas, distillate, and some oil from the common reservoir.11
The petitioners sued the respondents for damages.12 At the June 1946 trial the jury found that respondents had been negligent in failing to use drilling mud of sufficient weight and that this negligence proximately caused the blowout.13 The jury awarded $4,620 for surface damage to sixty acres, $1,350 for the loss of twenty-seven head of cattle, $78,580.46 for gas, and $69,967.73 for distillate.14 The mineral figures were based on petitioners' fractional royalty interests and court-fixed unit values.15 The trial court rendered judgment for petitioners in the total amount of $154,518.19. The Court of Civil Appeals reversed and remanded.16 The Supreme Court of Texas granted review.17
Whether the Court of Civil Appeals had authority to review the trial court's measure of damages when no assignment on that issue had been presented to it?18
An appellate court lacks authority to pass upon the propriety of a trial court's measure of damages when no assignment on that issue was presented to it.19
No. Although an objection to the measure of damages was raised in the trial court, no such assignment was presented to the Court of Civil Appeals. The Court of Civil Appeals therefore lacked authority to review the trial court's measure of damages. This omission meant the intermediate appellate court could not consider the issue on the record before it, and the Supreme Court proceeded to decide the case solely on the law-of-capture question.20
The Court of Civil Appeals lacked authority to review the trial court's measure of damages.21
Whether the law of capture absolves respondents of liability for the negligent waste or destruction of gas and distillate drained from beneath petitioners' lands?22
No. The jury found that respondents were negligent in failing to use drilling mud of sufficient weight in drilling their well, and that such negligence was the proximate cause of the well blowing out. This negligent conduct caused huge quantities of gas and distillate to be blown into the air from the common reservoir underlying the petitioners' 3054.9 acres. Although the law of capture permits appropriation of migrating minerals through reasonable operations, it does not absolve liability for negligent waste, as the respondents had a common law duty to exercise ordinary care to avoid injury to the petitioners' property.25
The law of capture does not absolve the respondents of liability for the negligent waste or destruction of the gas and distillate drained from beneath the petitioners' lands.26