Barnes v. Keys , 36 Okla. 6 ( 1912 )

The motion for rehearing in this case challenges the opinion heretofore rendered, upon the ground that the evidence shows that Peter Hawkins, one of the tenants in common or heirs of the land, did not join in the lease, and that the wells which were drilled were waste as to his rights in the land, and that he should therefore receive the full value of one-eighth of all the oil taken. In taking this position counsel rely upon the case of Williamson v. Jones, 43 W. Va. 562, 27 S.E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891. The rule laid down in the Williamson case seems to be a sound one, but the facts of the two cases are different. In that case it appears that Jones, the lessee, knew of the claim of Williamson to a seven-tenths interest in the land, and it also appears that they sued him in equity to enjoin the production of oil. In the present case the lessee believed that he was getting a lease signed by all the persons holding interests in the estate. The lease was executed by all the adults at that time claiming interest in the estate, and was executed on behalf of the minors by guardian and approved by the United States court.

Upon the trial of the case Peter Hawkins testified as follows:

"Q. You are one of the defendants in this case, are you — one of the owners in the interest of the land of Maria Hawkins? A. I guess so. I leave it to the court. If the court says I am interested, I am. Q. Have you ever claimed any interest in it? A. Well, they all claimed interest in the shares, and they come to me, and I understood I didn't have any; and if the court decides it, it will be satisfactory to me. Q. You don't know really whether you have any interest or not? A. No, sir; I don't."

This is all the testimony upon the question of whether or not Hawkins claimed an interest in the land. It appears from this testimony that he made no claim to the land at the time the lease was made, and it nowhere appears that he made any effort to assert his rights until this suit for partition was brought. A reading of the entire record indicates that it was not his desire to repudiate the lease, but merely to share in the proceeds to the extent of his interest in the land, in the same way and to the same extent as the other heirs owning an interest in the land. This being true, the former decision of this court is correct, and the former opinion should stand.

It should, however, be considered as corrected in one particular. It is stated in the original opinion that all interested parties agreed that the land might be leased, and that the oil might be produced. This is not a correct statement of the facts. All persons claiming an interest at the time the lease was made agreed that the land might be leased, and that the oil might be produced; but Peter Hawkins did not enter into the agreement, for the reason that at the time of the making of the lease he did not believe he had an interest.

By the Court: It is so ordered.