ABSTRACT
The courts are the third in the triumvirate of legal institutions that influence the course of unitization in Texas. Indeed, it is difficult to imagine a law more hostile to unitization than the judge-made rule of capture. This rule allows one landowner to drain oil and gas from underneath an adjoining landowner's tract without liability. The adjoining landowner's only recourse is to drill an offset well to drain back the oil and gas. The rule creates an enormous incentive to drill wells, many of which are unnecessary from a conservation standpoint, and encourages a landowner to deplete the reservoir as rapidly as possible. Nor is the rule much of a guarantor that each landowner will receive the value of the oil and gas in place beneath his tract. But when the courts announced the rule in the early 1900s, the science of petroleum engineering and geology was only nascent, and the concept of unitization was unknown. In this context, the rule of capture was a rational response of judges to cases alleging drainage.
