Brazell v. Brown , 169 Okla. 623 ( 1934 )

On rehearing our attention has been called to the case of Lusk v. Green, 114 Okla. 113, 245 P. 636, and it has been suggested that it conflicts with the opinion in the case of Higgins v. California Petroleum Co. (Cal.) 41 P. 1087, cited in the opinion in this case. A careful examination of the two cases shows that the facts are widely different and distinguishable, and we do not consider the law announced in either of those cases is in conflict with the views expressed herein.

In the case of Lusk v. Green, supra, a husband and wife, owning separate tracts of land located several miles a part, joined in an oil and gas mining lease covering said tracts. There was no provision in the lease designating which tract the first well should be drilled upon, and the court held that there was no intimation in the record that it was the intention of the lessors for each to share in the other's royalties, and, under such facts, this court held that, in the absence of affirmative evidence to the contrary, it would not be presumed that either the husband or wife intended to convey to the other a royalty in interest in his or her land.

In the instant case the intervener alleged in his petition that at the time of the execution of the lease an oral contract had been entered into between him and the other lessor for a division of the royalties. The two tracts of land here involved are contiguous and the lease contained a provision for drilling the first well on the Brown tract.

In the Higgins Case, supra, a joint lease for mining asphaltum was executed by owners of two contiguous tracts, the Ashley and the Higgins tracts, respectively. The defendant therein became the sole owner of said lease by assignment. It appears that the lessors were not tenants in common of any part of the land described in the lease, nor of any part of the "deposit of bituminous rock" leased, but that each severally owned a definite part of both, adjoining each other, and the "deposit" leased extended horizontally through the contiguous lands of both lessors as described in the lease. Thereafter, the owner of the Ashley tract conveyed all that part of the land to the defendant. There was no agreement between the two lessors as to division of the royalties.

The court, in paragraphs 1 and 2 of the syllabus, said:

"1. A joint lease for mining purposes, executed by owners in severalty of two adjoining tracts, provided that the lessee should pay as royalty a certain sum monthly to the lessors. One of the lessors subsequently conveyed his separate tract to the lessee. Held, that the remaining lessor was entitled to royalty thereafter in an amount equal to the value of his distinct tract as compared with that conveyed to the lessee.

"2. Where a mining lease, executed jointly by owners in severalty of adjoining tracts, provided that the lessee could extract asphaltum from any part of the leased premises, and the share of one lessor was subsequently conveyed to the lessee, it is no defense, to an action by the remaining lessor for royalties, that no asphaltum was taken from his separate tract."

In the body of the opinion, the court also said:

"And in this case the terms of the lease warrant the presumption that each lessor was to receive one-half of the royalty, and such presumption is in perfect accord with the practical construction of the lease, by the parties thereto, up to April, 1893. The fact that, prior to the commencement of this action, the lessee had elected to mine only in that part of the 'deposit' lying within the Ashley tract detracts nothing from the right of Higgins to demand his proper share of the royalty, nor from the obligation of defendant to pay it. The royalty of 50 cents on each ton of rock mined was, by the terms of the lease, to be paid to the lessors not to the individual lessor from whose land the rock may have been mined. The lease does not restrict the mining to any particular part of the deposit at any time. The lessee has had the right, at all times since the execution of the lease, to mine any part of the deposit, and will continue to have such right until the expiration of the term of 20 years, only about 5 years of which had elapsed when this action was commenced; and more than one-half of the term is still in the future, during which defendant is at liberty to mine exclusively in that part of the deposit lying within the Higgins tract, and may completely exhaust it. The royalty per ton of the rock mined is but a mode of estimating the rent to be paid for the right to occupy exclusively the whole premises demised, and to mine any part or all parts thereof at any time during the term, at the election of the lessee."

It is to be observed that in the Higgins Case, no issue was presented as to whether the lessors entered into an oral agreement to share in the royalty derived from the lands of each other. Rehearing denied.

RILEY, C. J., CULLISON, V. C. J., and SWINDALL, OSBORN, BAYLESS, and WELCH, JJ., concur. BUSBY, J. dissents.