Leiper v. Gallegos ( 2019 )

Filed 11/20/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
GARY D. LEIPER, as Trustee, 2d Civil No. B292905
etc., (Super. Ct. No. P073688)
(Ventura County)
Plaintiff and Respondent,
v.
DENNIS GALLEGOS,
Defendant and Appellant;
JOHN L. POOLE et al.,
Objectors and Respondents.
A tax sale of real property described in the deed as
pertaining to surface rights does not include oil and gas rights
which are “restrictions of record” in a previously recorded oil and
gas lease.
In 1939, Mr. E.S. Barnard, believed there was oil and gas
under a 2.3 acre lot he owned near the Ventura River, Lot 7. He
entered into a lease with a major oil company to drill for oil and
gas. Mr. Barnard was prescient. For 80 years, it has been a
steady and reliable source of oil with no end in sight.
About 20 years later, Mr. Barnard conveyed fractional
interests in the oil and gas royalties to family members. Another
20 years later, one of the fractional owners either did not care, or
was not paying attention to a $12.78 tax bill on the surface rights
to Lot 7. Upon default, the County of Ventura sold it to the state
of California. The state then sold Lot 7 to Mr. and Mrs. Joseph
Gallegos for $3000. The tax deed to the Gallegoses was silent on
oil and gas. Their son, Dennis, appellant, somehow got the idea
that he owned the oil and gas under Lot 7.1
The trial court ruled, and we agree that appellant is the
surface owner to Lot 7 but he does not now own an interest in the
oil and gas under Lot. 7.
Dennis Gallegos appeals a quiet title judgment that a tax
deed for the sale of Lot 7 did not convey the right to receive
royalties on a 1939 oil and gas lease. The judgment states that
appellant has no interest in the oil and gas royalties from Lot 7.
Appellant claims that the trial court “got it wrong” and “threw up
its hands and deferred entirely” to the referee’s findings and
recommendations. That did not happen. We affirm but modify
the judgment to show that upon termination of the oil and gas
lease, any remaining oil and gas rights described in the 1939
Memorandum of Oil and Gas Lease revert to the surface owner.
(Code Civ. Proc. § 43; American Enterprise, Inc. v. Van Winkle
(1952) 39 Cal. 2d 210, 219.)
Facts and Procedural History
1 Appellant and his parents “sat” on the claimed oil and gas
rights for 35 years.
2
Lot 7, also known as assessor’s Parcel 045, lies in the
Ventura Avenue Field, the tenth largest producing oil field in
California, < https://en.wikipedia.org/wiki/ Ventura_Oil_Field [as
of Oct. 1, 2019], archived at . In
1939, fee simple owner E. S. Barnard Company entered into an
oil and gas lease with British-American Oil Producing Company
that was recorded. The lease required that British-American and
successor lessees pay oil royalties to the lessor.
In 1957, E. S. Barnard Company, a family company,
dissolved and conveyed its interests in Lot 7, including the oil
and gas lease, to its shareholders (the Barnards and Pooles;
hereafter, fractional owners). In 1977, the fractional owners
entered into an agency agreement titled “Barnard Oil Trust –
Hartman – Barnard Leases” (Barnard Oil Trust) for the
distribution of oil and gas royalties.
1978 Tax Sale
The Ventura County Tax Assessor assessed Lot 7 using two
assessor parcel numbers: APN 063-9-190-024 and APN 063-0-
190-045. The 1971-1972 tax assessment roll for APN 063-9-190-
024 listed a $14,775 valuation for “LAND Assessed Value of Real
Estate and Mineral Rights Except Improvements.” The APN
063-9-190-024 tax bill was mailed to Gulf Oil Corporation, the
successor lessee. The tax assessment roll for APN 063-0-190-045
listed a $100 valuation for “LAND Assessed Value of Real Estate
and Mineral Rights Except Improvements.” The $12.78 tax bill
for APN 063-0-190-045 was mailed to “Barnard HA Attn Barnard
Austin M” in Long Beach.2
2 H.A. Barnard was the Secretary of the E.S. Barnard
Company and co-signed the Corporation Grant Deed conveying
the oil and gas lease to the fractional owners, which included
3
After Austin M. Barnard “defaulted” on the $12.78 tax bill,
Ventura County Tax Collector sold Lot 7 to the State of
California for $12.78. The Conveyance of Real Estate described
the property as APN 063-0-190-045 but was silent on mineral
rights. On February 10, 1978, State of California sold Lot 7 at a
public auction to appellant’s parents, Joseph and Ruby Gallegos
for $3,000. The tax deed described the property as APN 063-0-
190-045. After Joe Gallegos died, Ruby Gallegos deeded Lot 7 to
appellant.
Petition to Quiet Title; Oil Lease Royalties Interpleaded
In 2014 appellant received a letter from the successor
lessee, Aera Energy LLC (Aera), describing the extent, timing,
and location of the oil extraction operation. (Civ. Code, § 848.)
Responding to the letter, appellant claimed that Aera “was
potentially trespassing and drilling on his property . . . .”
Appellant further claimed that he was entitled to 5.714 percent of
the royalties, representing H.A. Barnard’s fractional interest.
This caused Aera to suspend distribution of the oil royalties.
Appellant tentatively settled the dispute with Gary Leiper,
trustee of the Barnard Oil Trust. The proposed agreement
provided that appellant would receive $12,000, plus 5.714 percent
of the impounded royalties and future royalties. But the
proposed settlement agreement required approval by the Ventura
County Superior Court. Trustee filed a petition to confirm the
Austin M. Barnard (an undivided 70/420th fractional interest
owner) at a Santa Monica address. The APN 063-0-190-045 tax
bill was mailed to the same Santa Monica address. Appellant
concedes that H.A. Barnard probably received the 1971-1972 tax
bill on behalf of E. S. Barnard Company.
4
“trust assets” in accordance with the settlement agreement.
(Prob. Code, § 850.)3
Aera filed a cross-petition to interplead the oil royalties
($177,000+) and deposited the money with the trial court. John
L. Poole, a Barnard Oil Trust fractional owner, objected to the
settlement agreement and filed a petition to determine title and
royalty rights.
Because there were so many conflicting claims, the trial
court declined to approve the proposed settlement agreement and
ordered Leiper to file a petition for quiet title and declaratory
relief. Appellant, in response to the petition, asked the trial court
to confirm his fee simple ownership in the oil and gas royalties
based on the theory that the 1978 tax deed conveyed both the
surface rights and subsurface oil and gas rights.
Gas and Oil Title Expert Appointed
The trial court declared the case a complex action and
appointed J. Nile Kinney, an attorney and recognized expert on
oil and gas. He was ordered to act as a referee upon the parties’
agreement. (Code Civ. Proc., § 638.) Kinney was directed to
make findings and recommendations based on a series of
questions which asked, inter alia, who owned the surface and
mineral estates prior to the $12.78 tax sale in 1972, the legal
effect of the tax deed on ownership of fee title to Lot 7, and “what
particular interest in the Property (including fee mineral rights,
if any) was conveyed by the State of California . . . to [appellant’s
parents] by way of the certain [tax] deed dated February 10,
1978?”
3 The trial court found that the Barnard Oil Trust was not a
trust, but merely an agent to distribute the oil royalties.
5
Kinney submitted his findings and recommendations which
were adverse to appellant’s claims. In Superior Court, appellant
claimed that he was the sole owner of the oil and gas royalties
interplead with the court, the subsurface mineral estate, and the
“reversionary rights as well as all rights under the oil and gas
lease . . . including the right to receive royalties therefrom.” The
trial court adopted a portion of the referee’s findings and
recommendations on issues that were dispositive of appellant’s
claim. It expressly ruled that appellant had no interest in the oil
and gas royalties because the tax collector “didn’t foreclose upon
those rights.”
The Oil and Gas Lease - a Taxable Possessory Interest
The tax sale of oil field property presents unusual title
problems because a gas and oil leasehold is not “real property” or
“real estate” but an estate in land measured in terms of duration.
(Civ. Code, § 761; 4 Miller & Starr, Cal. Real Estate (4th ed.
2019) § 12.1, p. 12.3; Callahan v. Martin (1935) 3 Cal. 2d 110, 118
(Callahan).) In Callahan our Supreme Court “took the
position . . . that the lessee under an oil and gas lease ‘has an
interest or estate in real property in the nature of a profit [à]
prendre, which is an incorporeal hereditament . . . .’ [Citation.]
In essence, the courts now recognize that the owner of land does
not have title to the oil and gas which may underlie his property;
instead he has the exclusive right on his premises to drill for oil
and gas and to retain as his property all substances brought to
the surface. [Citation.] When this interest is transferred to a
lessee the lessee obtains a profit [à] prendre. [Citation.]” (Lynch
6
v. State Board of Equalization (1985) 164 Cal. App. 3d 94, 102
(Lynch), first italics added.)4
Simply stated, an oil and gas lease is a taxable possessory
interest because the lease is a servitude on the land and a chattel
real at common law. (Civ. Code, §§ 801, subd. 5, 802, subd. 6;
Graciosa Oil Co. v. County of Santa Barbara (1909) 155 Cal.140,
144 (Graciosa Oil Co.); see Cal. Code Regs, tit. 18, subd. (a), §
468, p. 43 [the right to remove petroleum and natural gas from
the earth is a taxable real property interest].) “‘[T]he cardinal
feature of a taxable possessory interest is that it is an interest of
finite duration. At some future date, the interest of the . . .
possessor will terminate, and possession of the property will
revert to the [fee title] owner.’ [Citation.]” (California State
Teachers’ Retirement System v. County of Los Angeles (2013) 216
Cal. App. 4th 41, 57.) “In Graciosa Oil Co. v. County of Santa
Barbara, supra, 155 Cal. at pages 144 to 146, it was contended
that the assessment of land to the landowner included all
interests, including the interest of an oil and gas lessee, and that
the interest under the oil and gas lease could not be separately
assessed. The Supreme Court rejected this contention and held
that the mining rights and privileges of the lessee should be
separately assessed to the lessee. [Citation.]” (Lynch, supra, 164
Cal.App.3d at p. 103.)
Appellant claims that the fractional owners lost their right
to receive oil royalties after Lot 7 was sold at the tax sale. The
4 “Theincorporeal hereditament of common is defined by
Blackstone as ‘being a profit which a man hath in the land of
another; as to feed his beasts, to catch fish, to dig turf, to cut
wood, or the like’. [Citation.] These are the rights which are
described as profits [à] prendre . . . .” (Callahan, supra, 3 Cal.2d
at p. 120, first italics added.)
7
argument is based on the theory that the tax deed conveyed fee
simple title to all subsurface mineral rights even though the tax
deed makes no mention of mineral rights or the oil and gas lease.
In construing the tax deed we are guided by the principle that a
tax assessor can only sell what has been assessed. (See, e.g.,
Nevada Irrigation Dist. v. Keystone Copper Corp. (1964) 224
Cal. App. 2d 523, 529-530 (Nevada Irrigation Dist.); Lough v. Coal
Oil (1990) 217 Cal. App. 3d 1518, 1527 (Lough) [“state could not
foreclose on any greater interest than that upon which taxes had
not been paid”]; Helvey v. Sax (1951) 38 Cal. 2d 21, 24 (Helvey)
[property tax operates in rem against the property interest being
taxed].) Nor does surplus language in the tax deed property
description expand or contract the right of the lessee when the oil
field surface rights are sold for the nonpayment of taxes. (Lough,
supra, at pp. 1521, 1528 [tax deed stating property was sold “ex of
mining rights” did not change or affect oil lease].)
The trial asked: “What’s being taxed?” Was the tax
assessment on the surface rights or the mineral rights or both?
The question is pivotal but fraught with problems because it
suggests that “mineral rights” and leasehold oil and gas rights
are the same thing in determining what the tax deed conveyed.
The “Supplemental Final Decision of Referee” filed with the trial
court states: “we must assume that for the portion of the
Property separately assessed as APN 063-0-190-045, the Ventura
County Tax Assessor did not assess, and levy taxes upon, any
mineral interest - whether leasehold (profit [à] prendre), mineral
royalty interest or reversionary interest (an interest in future
possession).” (Italics added.) That is erroneous.
8
The trial court found that the state “didn’t foreclose” on the
leasehold estate, but the tax deed did convey the lease
reversionary interest.
The controversy over what the tax deed means brings to
mind the Indian fable of the blind men and the elephant.5 It
begins and ends by looking at what mineral rights are described
in the oil and gas lease. Here, the recorded lease grants the
lessee the right to explore, mine, drill, and “operat[e] for oil, gas
and other hydrocarbon substances . . . .” The oil and gas royalties
are a large part of the elephant but the elephant has other parts,
including other mineral rights (silver, gold, uranium?) not
described in the oil and gas lease. A tax deed “conveys not
merely the title of the person assessed, but a new and complete
title under an independent grant from the state. [Citations.]”
(Helvey, supra, 38 Cal.2d at p. 24.) “A purchaser at the tax sale
may thus receive a better title than that of the person against
whom the taxes were assessed, unless he is the defaulting
taxpayer or someone acting in his behalf. [Citation.]” (Ibid.)
A Tax Deed Subject to Restrictions of Record
Revenue and Taxation Code section 3712, subdivision (d)
provides that a tax deed conveys title free of all encumbrances
5The poet John Godfrey Saxe, in “The Blind Men and the
Elephant” described the fable as follows:
“And so these men of Indostan
Disputed loud and long,
Each in his own opinion
Exceeding stiff and strong,
Though each was partly in the right,
And all were in the wrong!” (United States v. Sanchez (2d
Cir. 1992) 969 F.2d 1409, 1411 & fn 1.)
9
except for, among other things, easements, water rights,
“restrictions of record,” and certain tax liens or special
assessments. The trial court impliedly found that the 1939 oil
and gas lease was a restriction of record and the oil and gas
leasehold interest was not intended to be sold at the tax sale.
“A taxing agency which has had no intent to assess mineral
estates does not assess them even though the unmeant
description of lands on the assessment book may be broad enough
to include such interests. If, intending to assess only the surface
estate, it unwittingly drafts a description broad enough to cover
both surface and subsurface estates, the inclusion of the latter is
a mistake and it cannot be permitted to reach for tax purpose an
estate it never sought. . . . [T]he problem is not appreciably
different from that existing where a taxing agency mistakenly
doubly assesses land, so that a nondelinquent tract is also
included in a larger parcel owned by another who allows his taxes
to become delinquent. The rule in such cases is well settled that
the tax deed conveys no title to the nondelinquent land . . . .”
(Nevada Irrigation Dist., supra, 224 Cal.App.2d at p. 529.) In the
words of the trial court, “What’s being taxed?”
Two Tax Assessments – Different Property Interests
The Ventura County Tax Assessor maintained two tax
assessment rolls (i.e., two APNs) on Lot 7.6 Substantial evidence
supports the finding that the APN 063-0-190-045 tax assessment
($100) was for the surface rights and mineral rights not described
in the oil and gas lease. When E.S. Barnard Company defaulted
on the APN 063-0-190-045 tax bill, the Lot 7 surface rights and
6Pursuant to appellant’s request, we have taken judicial
notice of the 1971-1972 assessment rolls for APN 063-0-190-045
and APN 063-9-190-024.
10
mineral rights not described in the oil and gas lease were sold to
the State for $12.78. The conveyance described the property as
APN 063-0-190-045 (the parties call it Parcel 045) which was sold
to appellant’s parents for $3,000.
Appellant argues that the subsurface mineral rights were
severed by the tax deed and conveyed to his parents in fee simple,
but that is not what happened. Appellant’s parents took title to
Lot 7 subject to the oil and gas lease. The referee explained
“[w]hen the owner of mineral rights enters into an oil and gas
lease, the owner conveys the profit [à] prendre to the mineral
lessee, for a prescribed period of time. [Citation.] In return, the
lessor is paid royalties and rents, which are likewise incorporeal
hereditaments and interests in land. [Citation.]” The referee
found that “no portion of the surface fee estate was ever severed
from any portion of the mineral fee estate prior to June 30, 1972,”
the date the property was sold to the State of California for
nonpayment of the APN 063-0-190-045 taxes.
That is consistent with California case law (Callahan,
supra, 3 Cal.2d at page 118 [oil and gas lease for term of years
and so long as oil is produced in paying quantities is a profit à
prendre])7 and Revenue and Taxation Code section 3712,
7 In California, an oil and gas lease with a “so long
thereafter” habendum clause creates a determinable fee interest
in the nature of profit à prendre, an interest that terminates upon
the happening of the specified event with no notice required.
(Renner v. Huntington-Hawthorne Oil & Gas Co. (1952) 39 Cal. 2d
93, 98.) Here, the lease term was for twenty years and “so long
thereafter as oil, gas, casinghead gas and other hydro-carbon
substances, or either or any of them, may be produced therefrom
in quantities deemed by lessee sufficient to pay to pump or
otherwise secure and save.” (See, e.g., Lough, supra, 217
11
subdivision (d) which in 1978, provided that a tax deed conveys
title free of all encumbrances except easements, water rights, and
“restrictions of record.” Profits à prendre, like easements, are
treated as incorporeal hereditaments. (Gerhard v. Stephens
(1968) 68 Cal. 2d 864, 880 (Gerhard).) A fair reading of Revenue
and Taxation Code 3712, subdivision (d) is that a recorded oil and
gas lease is a “restriction of record” and excepted from the tax
deed in determining the title conveyed.
The oil and gas lease is also an easement because an oil
and gas lease is a profits à prendre, which is a non-possessory
interest in land. (Gerhard, supra, 68 Cal.2d at pp. 880-881 [the
term easement includes profit].) A profit is simply a type of
easement. (12 Witkin, Summary of Cal. Law, Real Property (2d
ed. 2017) § 401, p. 460 [Civ. Code sections 801-802 make no
distinction between profits and easements].) Easements,
including profits, come within the definition of real, not personal,
property (Black’s Law Dictionary (11th ed. 2019) at p. 147), and
clearly fall within the “[e]asements of any kind” exception of
Revenue and Taxation Code section 3712, subdivision (d).
Appellant contends that the tax deed conveyed all the
subsurface mineral rights because the 1971-1972 assessment for
APN 063-0-190-045 shows a $100 assessment for “LAND
Assessed Value of Real Estate and Mineral Rights Except
Improvements.” However, the APN 063-0-190-024 tax roll lists
$14,775 for “LAND Assessed Value of Real Estate and Mineral
Rights Except Improvements.” That would be the tax assessment
Cal.App.3d at p. 1528 [oil and gas lease remained in effect until
such time as oil and gas is no longer produced in “paying
quantities”].)
12
for the oil and gas leasehold which was producing more than
$100,000 annually.8
APN 063-0-190-045 was a $100 tax assessment for vacant
river bottom land (the surface rights), and undeveloped mineral
rights not described in the oil and gas lease. If the APN 063-0-
190-045 tax assessment was intended to include leasehold oil and
gas rights, the assessed valuation would have been thousands of
times greater than $100. The referee explained that “[t]he APN
digit codes [i.e., APN 063-0-190-045 and APN 063-9-190-024]
used by the Ventura County Assessor reflect this interpretation.
The APN digit key . . . contains ten categories of interest,
denominated by the tenth – ie. last – digit in the number. The
number ‘5’ refers to ‘Surface Except all or part mineral.’ The
number ‘4’ refers to ‘Mineral int. only.’”
Based on appellant’s construction of the tax deed (i.e., that
it conveyed fee simple ownership to the oil and gas royalties), one
would have to assume that a double tax assessment was made on
the same oil and gas rights. But that would “‘fling a plank of
hypothesis over an abyss of uncertainty’” (Gradus v. Hanson
Aviation, Inc. (1984) 158 Cal. App. 3d 1038, 1056) and render the
tax deed void with respect to the oil and gas rights. (See, e.g.,
Nevada Irrigation Dist., supra, 224 Cal.App.2d at p. 530; Nutting
v. Herman Timber Co. (1963) 214 Cal. App. 2d 650, 656 [erroneous
double taxation of 40 acre parcel that was adjacent to 1,400 acre
parcel sold at tax sale].) “[T]ax deeds which are the product of
8We presume that since tax on the oil and gas leasehold
was not foreclosed, that the taxes were paid by E.S. Barnard, his
successors, or the oil companies who own the oil and gas lease.
Carried to its illogical conclusion, appellant is the owner of the oil
and gas leasehold, without having paid the taxes, since 1978.
This would be quite a windfall.
13
sales of doubly-assessed lands cannot be reached by either
curative acts or general or special statutes of limitation. To
attempt to apply either would constitute confiscation.” (Ibid.)
Two APN numbers were used to assess Lot 7, and it is
presumed that the leasehold oil and gas rights were not double-
taxed. (See Rev. & Tax. Code, § 3712; Evid. Code, § 664
[presumption that official duty has been regularly performed].) It
is also presumed that the tax assessor assessed all the Lot 7
property interests, including the oil and gas leasehold, at full
cash value.9 (Rev. & Tax. Code, § 401; Graciosa Oil Co., supra,
155 Cal. at pp. 144-145.) “The general rule is that there can be
but one assessment of the entire estate in real property, which
assessment includes the value of both the estate for years and the
remainder or reversion, and the mortgagor or lessor of the real
estate is liable for the taxes thereon. [Citations.]” (Tilden v.
County of Orange (1949) 89 Cal. App. 2d 586, 587, italics added.)
Although a leasehold is not “real property” or “real estate,” it is
an estate in land and subject to property taxes as an estate in
real property. (Civ. Code, § 761; Callahan, supra, 3 Cal.2d at p.
118.)
The tax assessment rolls, the use of two APN numbers to
tax different property interests, and the APN 063-0-190-045
property description in the tax deed support the finding that the
9 “The
right to mine and extract minerals from real property
may have a value to its holder far in excess of the value of the
surface uses. [Citation.] The taxable nature of such an interest
has long been settled. The conveyance of a mineral interest in
land, it has been held, creates two separate estates in the land,
each of which is subject to taxation and thus may be separately
taxed. [Citations.]” (Howard v. County of Amador (1990) 220
Cal. App. 3d 962, 973.)
14
tax deed did not convey the leasehold oil and gas rights. As one
court explained: it would be “unconscionable to divest the owner
of title to his subsurface estate and transfer such ownership to
[appellant] through the hocus-pocus of an inadvertent
inexactness of description” in the tax deed. (Nevada Irrigation
Dist., supra, 224 Cal.App.2d at p. 529.) “Equally confiscatory
would be an attempt to give vitality, as against the owner of a
mineral estate, to a deed derived from tax proceeding aimed only
at the separate and severable surface estate.” (Id. at p. 530.)
Reversionary Interest in Leasehold Mineral Rights – How
Many Angels Dance on the Head of a Pin?
Appellant argues that the trial court erred in finding that
the Barnard Oil Trust beneficiaries were fee owners of the
leasehold mineral rights and that appellant has no reversionary
rights. (See Dabney-Johnston Oil Corp. v. Walden (1935) 4
Cal. 2d 637 [lessor of oil rights has a reversionary interest in the
right to drill for and produce oil, dependent upon the termination
of the lease].) That was not the trial court’s ruling nor did the
trial court say it was adopting the referee’s findings in toto. The
trial court found that the mineral revisionary right “isn’t a part”
of the oil and gas lease and that the oil and gas rights revert back
to the surface owner and his/her successors “after oil and gas is
no longer being produced in payable quantities.” “Once this lease
can no longer produce in payable quantities, who gets the
revisionary right? . . . There’s nothing – there’s nothing to drill
for. [¶] . . . [B]ut if you want to . . . count angels dancing on the
head of a pin, go right ahead and litigate it to the Court of Appeal
[or] the Supreme Court.”
Like the trial court, we presume there is some reversionary
oil and gas right after the oil is pumped dry. (See Collins v.
15
Chappell (Okla. 1958) 333 P.2d 578, 583 [“‘One who purchases all
or a portion of a lessor’s reversionary interest in the oil and gas in
the land, acquires no interest in the production under an existing
lease and can only hope that the present lease will terminate
before the minerals in the land are exhausted,’” (Quoting 3A
Summers, Oil & Gas (Perm. ed. 1958) at p. 311)].) That is
consistent with Civil Code section 761 which provides the lessee
has a present possessory interest in the property, while the lessor
has a future reversionary interest and fee title. (See, e.g., Avalon
Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC
(2011) 192 Cal. App. 4th 1183, 1189-1190.)
Appellant, in his opening brief, concedes that the trial court
“acknowledged that [appellant] owned 100% of Parcel 045 and
the reversionary rights at the end of the Lease.” That is a fair
statement of the trial court’s order and requires no further
elaboration, but in the exercise of caution, the judgment should
be clarified.
Disposition
The trial court is directed to amend the judgment to
provide that upon termination of the oil and gas lease, the oil and
gas and hydrocarbon rights described in the 1939 Barnard-
British-American Memorandum of Oil and Gas Lease revert to
the surface owner. (Code Civ. Proc. § 43.) As modified, the
judgment is affirmed. Respondents are to recover costs on
appeal.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J. PERREN, J.
16
Glen Reiser, Judge
Superior Court County of Ventura
______________________________
Law Offices of Greg May and Grey May; Jones & Lester;
Jones, Lester, Schuck, Becker & Dehesa, Mark A. Lester and
Theresa Loss; Norman Dowler and Brett L. Price for Defendant
and Appellant Dennis R. Gallegos.
Musick, Peeler & Garrett and Cheryl A. Orr for Respondent
Bank of the West, co-trustee for Austin M. Barnard, deceased.
John L. Poole, in propria persona, Respondent.
No appearance for Plaintiff, Gary D. Leiper as Trustee.