TIDE WATER ASSOCIATED OIL CO. v. SUPERIOR COURT IN & FOR COUNTY OF LOS ANGELES.*
PACIFIC LIGHTING GAS SUPPLY CO. v. SUPERIOR COURT IN & FOR COUNTY OF LOS ANGELES.
BEAL et al. v. SUPERIOR COURT IN & FOR COUNTY OF LOS ANGELES.
Petitioners demand a peremptory writ restraining the Superior Court of Los Angeles County from taking any further steps based upon the allegations of a cross-complaint filed by Porter Sesnon and others in proceeding number 617733 now pending in respondent court, other than to dismiss such pleading.
Proceeding number 617733 was filed by the Attorney General pursuant to the order of the Director of Natural Resources to enjoin the unreasonable waste of gas from the Sesnon Zone of the Aliso Canyon Oil Field in Los Angeles County. The Director's order followed a hearing on the complaint of certain operators in the oil field. He determined that there was probable cause for such complaint and ordered the Supervisor (State Oil and Gas) to hold a hearing. At a time fixed by him, the Honorable R. D. Bush, Supervisor of Oil and Gas, Department of Natural Resources, determined that there existed an unreasonable waste of gas in the Sesnon Pool of the Aliso Canyon Field; that 3,450,000 cubic feet of gas was excessively and wastefully produced from specified wells between July 1951 and April 1953; that production of gas from any well in the Sesnon Zone at a rate in excess of 4500 cubic feet to each barrel of oil is unreasonable, and while such gas is used for the generation of light, heat and power, there is other natural gas in sufficient quantities available for those uses. Thereupon, the Supervisor ordered all operators of wells producing gas from the Sesnon Zone at a rate in excess of 4500 cubic feet to each barrel of oil, to cease such excessive production. On appeal of the Supervisor's order, the District Oil and Gas Commissioners also found the production of gas from the Sesnon Zone to exceed 4500 cubic feet for each barrel of oil and that such production is clearly an unreasonable waste, and adopted the findings and order of the Supervisor as a final order with slight modifications.
On discovering noncompliance with such order, the Director of Natural Resources caused proceeding number 617733 to be instituted and a preliminary injunction was issued based upon count 1 of the complaint which is predicated upon section 3312, Public Resources Code.** It alleged that certain operators were ‘producing gas in quantities grossly in excess of the pool average gas-oil ratio and in quantities unreasonably wasteful.’ That such excessive production creates a rapid depletion of reservoir pressure which allows the gas held in solution in the oil to escape, thereby reducing mobility, increasing viscosity, requiring increased amounts of energy to recover the oil; causing a rapid depletion of gas available for moving the oil, with the result that large quantities of oil remain in the oil sands to be forever economically unrecoverable. It alleged that by reason of the wanton, excessive and unreasonable production of gas, approximately 5,000,000 barrels of oil have been lost to date and if such production continues, in excess of 12,000,000 barrels of oil otherwise recoverable will be lost.
All the operators in the Sesnon Zone were served with process and all answered. But the Sesnon group included a cross-complaint by which it alleged much statistical data with reference to the Aliso Canyon Oil Field, complaint to and action by the Supervisor of Oil and Gas, and the various steps until the filing of the complaint by the Attorney General. It alleged abuses of the Sesnon Pool by certain defendants in that the latter disregarded the order of the Supervisor and damaged the Sesnon group in the sum of $5,000,000 by producing from the waster wells at gas-oil ratios exceeding those specified in the Supervisor's order, and that such wasteful production will cause in excess of 15,000,000 barrels of oil, worth $37,500,000, to remain in the reservoir. It alleged that the operation of such waster wells, if not enjoined, will be an ‘obstruction to the free use of property of the people of the State and every owner and operator of a portion of the Sesnon Pool and every well therein which is not a waster.’ It prayed for a permanent injunction against every defendant, except the Sesnon group, from producing gas in unreasonably wasteful quantities or at gas-oil ratios in excess of 4500 cubic feet of gas for each barrel of oil produced from the same well at the same time and demanded $5,000,000 damages against every cross-defendant other than Standard and Tide Water, and $15,000,000 against Tide Water.
The cross-defendants demurred and moved to strike the cross-complaint on the ground that the proceeding 617733 was commenced pursuant to sections 3302 and 3310 of the Public Resources Code. The demurrer was overruled and the motion was denied.
There is no authority for filing a cross-complaint in such proceeding. Article 5 of Division 3, Chapter 1, of the Public Resources Code, sections 3300–3313, relates to ‘Unreasonable Waste of Gas'. While section 3300 denounces the unreasonable waste of gas as unlawful, sections 3302 et seq., set forth the procedure for its enforcement. Upon the complaint of any operator in an oil field to the Director of Natural Resources of an unreasonable waste of gas, that official is authorized to make an investigation and if he finds probable cause for such complaint, he must order the Supervisor of Oil and Gas to hold a hearing at a time and place fixed by the Supervisor. Section 3302. At the hearing, all persons interested may be heard and a transcript of all proceedings shall be made by a stenographic reporter. Section 3305. The order of the Supervisor, when he finds the complaint justified, is filed with the Director and if not complied with may be appealed within five days to the board of district commissioners, otherwise the Director must enforce it. Section 3310. If it is appealed, it shall be heard de novo by the commissioners, section 3351, and their decision shall be filed with the Supervisor. Section 3353. Such decision as modified may be reviewed by the superior court on the record from the commissioners. Section 3354. The sections on review are not pertinent here except to show that the regulatory provisions of Article 5, sections 3300 et seq., were designed to enable the administrative agencies to inquire into and correct abuses in the oil industry.
When the order of the district commissioners is not complied with by the operators of an oil field, it is the duty of the Director to cause the institution of proceedings in the name of the people of the State of California to enjoin the unreasonable waste of gas. Section 3310. In such suits a restraining order shall not be issued ex parte and an injunction shall not be refused or stayed pending appeal, but otherwise, the procedure on appeal shall conform with the provisions of Chapter III of Title VII of Part 2 of the Code of Civil Procedure. Section 3311. But section 3312 authorizes the director to institute proceedings in the superior court in the name of the people of the State to enjoin unreasonable waste of gas regardless of whether proceedings have been instituted under sections 3302 to 3305.
Now, proceeding No. 617733 is brought pursuant to such statutory provisions in the exercise of the police power to regulate the recovery of a natural resource. It is not a proceeding in which the private parties may plead and publish their personal grievances against one another. It is therefore a special proceeding. It differs from an ordinary action whereby one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Code Civ.Proc. §§ 22, 23; Carpenter v. Pacific Mutual Life Ins. Co., 10 Cal.2d 307, 327, 74 P.2d 761.
While jurisdiction of special proceedings is conferred upon the superior court, Constitution, Art. VI, § 5, such jurisdiction does not authorize that court to exceed the power conferred upon it by the legislature in the statutes that gave birth to the special proceeding. The occasion for the exercise of the jurisdiction is prescribed by the statute, sections 3310 and 3312; the limitations upon the issuance or dissolution of an injunction and upon the stay pending appeal are likewise provided by the statutes authorizing the special proceeding. Sections 3312, 3313. A number of decisions have emphasized that the superior court has no power in a special proceeding to entertain a pleading that does not strictly follow the procedure prescribed for such special proceeding. City of Pasadena v. Porter, proceeding in condemnation, 201 Cal. 381, 388, 257 P. 526, 53 A.L.R. 679; Estate of Davis, 136 Cal. 590, 597, 69 P. 412; Guardianship of Breslin, on an asserted claim against a guardian, no statute authorizing it, 135 Cal. 21, 22, 66 P. 962; Smith v. Westerfield, 88 Cal. 374, 378, 26 P. 206; Fisher v. Superior Court, petition to revoke probate of a will, 23 Cal.App.2d 528, 531, 73 P.2d 892. In Carpenter v. Pacific Mutual Life Insurance Company, supra, the court held that findings are not required in a special proceeding where the statute authorizing the proceeding has not incorporated the provisions of Part 2 of the Code of Civil Procedure, which demands findings in civil actions. The court said in effect in 10 Cal.2d at page 328, 74 P.2d 761, while findings are necessary in probate proceedings by virtue of section 1230 of the Probate Code, yet when the statute providing for a particular special proceeding is silent as to the necessity for findings, none is required. Such reasoning clearly demonstrates that unless the legislature in creating a special proceeding incorporates the provisions of Part II of the Code of Civil Procedure by reference into the creative statute, the procedure for such special proceeding will be exactly that which is prescribed in the act authorizing the special proceeding.
In the enactment of the Public Resources Code, no mention of Part II of the Code of Civil Procedure is to be found prior to section 3311 which provides for specific limitation upon the issuance of injunctions in such proceedings, ‘but otherwise the procedure, including the procedure on appeal, shall be conformable with the provisions of Chapter III of Title VII of Part 2 of the Code of Civil Procedure’, sections 525–534, relating to ‘Injunctions.’ Had the legislature intended the general provisions as to civil actions to govern courts in special proceeding for injunction against wanton waste in the recovery of oil, it would have merely adopted the rules of practice for civil ‘actions.’ But it did not do so. On the contrary, it authorized resort to Part 2 of the Code of Civil Procedure for guidance when the provisions of the Public Resources Code have been exhausted. The lawmakers followed the same pattern in their statute authorizing writs of review, mandate and prohibition. C.C.P. §§ 1107, 1108. Applications for such writs are special proceedings and the procedure is fully prescribed in the statute. In providing the Rules of Practice in the enforcement of liens, after a volume was completed on the subject of General Procedural Provisions, section 1183 et seq., they finally declare in section 1201.1: ‘Except as otherwise provided in this chapter, the provisions of Part 2 of this code are applicable to * * * the proceedings mentioned in this chapter.’ Similar resort to Part II is prescribed in Probate proceedings, Probate Code, § 1233; in Eminent Domain, C.C.P. § 1256; in Forcible Entry and Detainer, C.C.P. § 1178. Such uniform thoughtfulness on the part of the legislature in first prescribing a special procedure for special proceedings and then authorizing the application of Part 2 of the Code of Civil Procedure to any situation not mentioned in the statutes which authorize the special proceeding, is persuasive that no step may be taken in such a proceeding as No. 617733 that is not authorized by sections 3310 to 3313, Public Resources Code, with the exception that if those sections should not make express provision for the injunctive process with respect to any feature, resort may be had to the chapter in Injunction. Code Civ.Proc. § 526 et seq.; See Carpenter v. Pacific Mutual Life Ins. Company, supra, 10 Cal.2d at page 311, 74 P.2d 761. And the fact that consultation of Part 2 is confined by sections 3311 and 3313 to Chapter III, indicates the legislative intent to limit the scope of inquiry to the issue relevant to the enforcement of section 3300 requiring action to abate the plundering of a public resource, namely the unreasonable wastage of natural gas. That the proceeding was intended to be summary and as expeditious as is consistent with the constitutional rights of private owners and at the same time to prevent waste is indicated by the sections of Article 5, Chapter 1, Division 3; ‘Unreasonable Waste of Gas'. It is unlawful, section 3300; the director, on receipt of the petition of any operator in the oil field requesting an inquiry into alleged unreasonable waste of gas, must order the supervisor to hold a hearing, section 3302; procedure preparatory to a hearing, sections 3303–3308; effect of the supervisor's order, section 3309; enforcement of the order by judicial proceeding, sections 3310–3313. The chapter goes so far as to forbid a stay of the injunction pending appeal and to make the findings of the supervisor prima facie evidence of an unreasonable wastage of gas, section 3311. Finally, any writ of review must be made returnable not later than ten days after its issuance and on the return day must be heard, unless continued for good cause, and in no event longer than thirty days.
Is it reasonable to believe that the Legislature could have intended that such a procedure designed to effect a speedy investigation of charges of waste and a cessation thereof should become entangled in the mazes of private feuds and controversies of the numerous persons and corporations interested in an oil field? That the entire Act for preventing the waste of natural gas (secs. 3300 et seq.) could have contemplated the filing of cross complaints or counterclaims by the defendants is utterly abhorrent to the idea that the Act is of a regulatory character, designed to be of service to the State and not to provide a leverage for private litigants to square accounts with one another.
But even though a fair construction of the natural gas wastage act did not preclude the filing of a cross complaint in a special proceeding like No. 617733, the defendants had no right to do so. The sole remedy any of them had was to complain to the Director of Natural Resources by filing a petition. Section 3302. Prior to the filing of its cross complaint, the Sesnon group filed no such petition. Neither did they cause any order to be made by the Supervisor or Director. Therefore, they are in no position to ask judicial relief. In the event that an administrative remedy is provided by statute, relief must be sought from the administrative agency and such remedy must be exhausted before the courts will act. Such rule is not to be varied according to the ‘discretion’ of a court. It is a fundamental rule of procedure that applies to all courts. Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292, 293, 109 P.2d 942, 132 A.L.R. 715. Where a city filed a condemnation suit to obtain land for the extension of a street and the superior court by ex parte order directed the city to take immediate possession of the land and to remove therefrom all spur tracks of the petitioner, the Supreme Court issued a writ of review and restrained further proceedings. After hearing, it annulled the ex parte order for the reason that the contitution vests in the Public Utilities Commission the exclusive power to abolish a railroad's street crossing. The city's complaint had not alleged the Commission's approval of the proposed relocation of a crossing over railroad tracks. ‘An order of the superior court taking from a public utility property being used by it for the service of the public, in the absence of any showing of prior approval by the commission, is one which is in excess of jurisdiction as that term is used in determining the right of a litigant to a writ of prohibition or review.’ Northwestern Pacific Railroad Company v. Superior Court, 34 Cal.2d 454, 458, 211 P.2d 571, 574.
On behalf of the cross complaint, counsel for the Sesnon group submit Ambassador Petroleum Company v. Superior Court, 208 Cal. 667, 284 P. 445; Rescue Army v. Municipal Court, 28 Cal.2d 460, 171 P.2d 8; People v. Associated Oil Company, 212 Cal. 76, 297 P. 536; In re Sutter-Butte, 190 Cal. 532, 213 P. 974. No light is shed by any of them. The Ambassador Petroleum case quotes section 389 of the Code of Civil Procedure to the effect that “when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in” and quotes the “general rule is, that the court will not order new parties defendant to be brought in against the will of the plaintiff, unless the presence of such new parties is necessary to the determination of the action.” 20 Cal. at page 671, 284 P. 447. The pleadings in the instant proceeding disclose no reason why an adjudication of the issues raised by the answers cannot effect a ‘complete determination of the controversy.’ The State by its complaint seeks no more than to curb the excessive waste of gas. No new parties are proposed by the cross complaint in order to make the decree more far reaching. It merely proclaims new controversies with which the State has no concern.
People v. Associated Oil Company, supra [212 Cal. 76, 297 P. 536], involves the single issue of the validity of the ‘Oil and Gas Conservation Act’, Stats.1915, p. 1404, whose provisions are now included in the Public Resources Code. The word cross complaint is not mentioned. In Rescue Army v. Municipal Court, supra, the question of filing a cross complaint is not raised. In re Sutter-Butte, supra, was a motion to dismiss an appeal. Nothing is said with reference to a cross complaint. It does furnish an intelligent definition of ‘special proceeding.’
No Adequate Legal Remedy
The assertion that petitioners have a plain, speedy and adequate remedy at law by appeal is a chimerical concept. How could an appeal be adequate to the State's needs? By the circuitous course provided by statute through the Director of Natural Resources, the Supervisor of Oil and Gas, the District Oil and Gas Commissioners, the State finally concluded that its facts justified calling upon the Attorney General to seek judicial enforcement of the Supervisor's order. If prohibition should be denied, the court would evidently be for an indefinite time engaged in a trial of the issues between the cross complainant and the cross defendants. If a jury should be empaneled to try the legal issues, Pacific Western Oil Co. v. Bern Oil Co., 13 Cal.2d 60, 66, 87 P.2d 1045, a realization of the purposes of the original action would be further delayed and incalculable damage to the people would be done by the delay in enforcing the order of the Supervisor, if the court should determine that such findings are justified. In an action by the State to protect the public resources, it is entitled to a trial upon its complaint with reasonable celerity and not to have it impeded with private controversies among the offending defendants. Courts of appropriate jurisdiction are always open to litigants desirous of either legal or equitable relief against those whose acts are detrimental. It is therefore without reason that the State should be encumbered in its effort to serve the common good by sharing its forum with warring, hostile factions on matters that have no relation to the State's injunction against despoilers of public resources.
An appeal is not adequate; neither is it plain nor speedy. It is not available until after a final judgment shall have been entered. It will therefore not suffice to do justice in a matter where the final order in an action is unduly delayed. Providence Baptist Church of San Francisco v. Superior Court, 40 Cal.2d 55, 60, 251 P.2d 10. Where a litigant by reason of the vicissitudes of an unnecessary trial will be subjected to an unnecessary delay and expense in obtaining the relief he seeks, an appeal is not an adequate remedy. Hampton v. Superior Court, 38 Cal.2d 652, 657, 242 P.2d 1.
It follows that the filing by Sesnon and others of the cross complaint in proceeding number 617733 pending in respondent court is not authorized by law and is an interference with the orderly procedure of a trial of the issues raised by the complaint and answers.
It is ordered that in each case the alternative writ issued herein is discharged and that a peremptory writ issue directing respondent court to strike the cross complaint of Porter Senson, Barbara Sesnon Cartan, William T. Sesnon, Jr., and B. F. Porter Estate, a corporation, from the files of such proceeding, and respondent court is prohibited from taking any steps under such pleading.
I regret that I am unable to agree with the opinion of the majority of this court for the following reasons:
First: A writ of prohibition is not available to control issues and procedure in a pending cause or to test the correctness of rulings on motions to strike the whole or any part of a pleading in a cause over which the trial court has jurisdiction. If the trial court's ruling was erroneous, petitioners have an adequate remedy by appeal. In Lichtenstein v. Superior Court, 85 Cal.App.2d 486, at page 489, 193 P.2d 508, 510, Mr. Justice Goodell accurately states the rule thus:
‘The petitioner cites several cases decided on appeal, holding that cross-complaints in those cases were improper, but no case is cited where any court has held that by a writ of prohibition such pleadings can be controlled or ruled out in a piece of litigation then under way in a trial court. We have discovered no such case. On the contrary the law seems to be settled (21 Cal.Jur. p. 603) that ‘The writ cannot be used for the purpose of regulating the issues in a pending cause and confining them to a particular scope, or to test the correctness of rulings on motions to strike out the whole or any part of a pleading filed in a cause over which a court has complete jurisdiction.’
‘In 21 Cal.Jur., p. 583 it is said, ‘Jurisdiction is power or ‘authority to hear and determine a cause.’ It does not depend upon the regularity of the exercise of that power or upon the rightfulness of the decisions there made, and the writ of prohibition is not, as a consequence, available to restrain or correct error,—to regulate or control procedure * * *'.
‘In Abelleira v. District Court of Appeal, 17 Cal.2d 280, 287, 109 P.2d 942, 946, 132 A.L.R. 715, the court restates the familiar rule that ‘If the lower court has power to make a correct determination of a particular issue, it clearly has power to make an incorrect decision, subject only to appellate review and not to restraint by prohibition.’
‘In County of Sutter v. Superior Court, 188 Cal. 292, 295, 296, 204 P. 849, 850, the Court expressed doubt whether the trial court ‘did not manifestly err’ in its action, but then went on to say that ‘we do not think these questions can be raised by a proceeding in prohibition. * * * Even if an order made as an incident in the progress of a case involves the question of jurisdiction, prohibition cannot be invoked to annul the order or stop proceedings under it.’
‘In the recent case of Rescue Army v. Municipal Court, 28 Cal.2d 460, 466, 171 P.2d 8, 12, the court said: ‘A remedy is not inadequate merely because more time would be consumed by pursuing it through the ordinary course of law than would be required in the use of the extraordinary writ of prohibition. (Citations.) Experience has shown that most of the meritorious defenses are sustained and most of the unsubstantial constitutional or other objections are weeded out at the proper time on the proper showing during the trial or on appeal. These remedies are therefore considered adequate in the usual situations. If this were not so, then whenever jurisdiction is challenged prohibition would lie and the trial of the case would be interrupted until the reviewing court passed upon the intermediate question and appellate courts in many cases would be converted into nisi prius courts. (Agassiz v. Superior Court, 90 Cal. 101, 103, 27 P. 49.)’'
The rule is likewise succinctly stated by Mr. Chief Justice Gibson, speaking for the Supreme Court of California, in Abelleira v. District Court of Appeal, 17 Cal.2d 280, 287, 109 P.2d 942, 946, 132 A.L.R. 715, as follows:
“Second is the nature of a writ of prohibition, which never issues to restrain a lower tribunal from committing mere error in deciding a question properly before it. If the lower court has power to make a correct determination of a particular issue, it clearly has power to make an incorrect decision, subject only to appellate review and not to restraint by prohibition. Hence, in examining the authorities, we must conclude that in those situations in which a writ of prohibition was issued, the particular action restrained was one beyond the jurisdiction of the court to take.”
Second: Prohibition ordinarily issues to prevent future judicial acts rather than to undo acts already performed. Speaking for the Supreme Court of California, Mr. Justice Schauer, in Melancon v. Superior Court, 42 Cal.2d 698, 268 P.2d 1050, 1054, thus states the rule:
‘In the first place, the rule is that prohibition ordinarily issues only to prevent future judicial acts rather than to undo acts already performed. (See State Board of Equalization v. Superior Court (1937), 9 Cal.2d 252, 254, 70 P.2d 482; 21 Cal.Jur. 581–582, and cases there cited.)’
In the instant case petitioners are attempting, by a writ of prohibition, not to prevent future judicial acts of the trial court, but, in fact, to undo acts already performed upon the theory they are erroneous.
Third: The expense of an appeal is not a sufficient reason to justify the issuance of a writ of prohibition. Mr. Justice Schauer, speaking for a unanimous Supreme Court, in Jollie v. Superior Court, 38 Cal.2d 52, 56, 237 P.2d 641, 643, thus states the rule:
‘In support of the petition for the writ, petitioner Jollie contends that his remedy of appeal from the proposed judgment in action 561185 would be inadequate in that it would entail a large expenditure of time and money. As declared in Mitchell v. Superior Court (1950), 98 Cal.App.2d 304, 305, 219 P.2d 861, ‘This is insufficient.”
Fourth: The trial court impliedly found that the matters set forth in the cross-complaint arose out of the transaction or happening set forth in the complaint. This finding, supported as it was by substantial evidence, is binding upon an appellate court. In Lumas Film Corp. v. Superior Court, 89 Cal.App. 384, at page 386, 264 P. 792, the court in passing upon an application for a writ of prohibition, says:
‘On the other hand, the law is thoroughly settled that, on appeal, findings of fact made by the trial court on substantial evidence in support thereof are conclusive so far as the appellate tribunals are concerned. This court is advised of no reason why a similar rule should not obtain in a proceeding of the nature of that here involved. To hold otherwise, and to reach a conclusion different in any respect from that reached by the trial court, would amount to nothing less than a new trial by this court on the facts, and a substitution of the conclusion by this court thereon for the conclusion with reference to such facts as found by the trial court.’
Again, in 89 Cal.App. on page 389, 264 P. on page 794, it is stated: ‘In denying the writ, the Supreme Court declared that it was neither necessary nor proper for it to determine whether the action in the superior court was one in which summons might be legally served by publication, and added the following:
“* * * That court has jurisdiction of the subject-matter of the action, and whether it has obtained jurisdiction over the persons of petitioners is a question which (it) must determine for itself before entering judgment in the action, and which it has the same authority to pass upon as any other question of law or fact which may arise during its progress; and if, in the decision, error shall be committed to the prejudice of petitioners, the law affords them a plain, speedy, and adequate remedy by an appeal from any judgment which may be entered against them. (Agassiz v. Superior Court, 90 Cal. 101 (27 P. 49), and cases cited.)”
For the foregoing reasons I would deny the applications for writs of prohibition and would discharge the alternative writs heretofore issued.
FOOTNOTE. Section 3312: ‘Whenever it appears to the director that the owners, lessors, lessees, or operators of any well or wells producing oil and gas or oil or gas are causing or permitting an unreasonable waste of gas, he may institute, or have proceedings instituted, in the name of the people of the State of California, to enjoin the unreasonable waste of gas regardless of whether proceedings have or have not been instituted under sections 3302 to 3305, and regardless of whether an order has or has not been made therein.‘Such proceedings shall be instituted in the superior court of the county in which is situated the well or wells, or any thereof, from which the unreasonable waste of gas is occurring. The owners, lessors, lessees, or operators causing or permitting an unreasonable waste of gas in the same oil or gas field may be made parties to the action, although their properties and interests may be separately owned and their unreasonable waste separate and distinct.’
MOORE, Presiding Judge.
FOX, J., concurs.