Youngman v. Shular , 155 Tex. 437 ( 1956 )

The following statement of undisputed facts is taken from the opinion of the Court of Civil Appeals (281 S.W.2d 374):

"On October 29, 1936, Rem B. Love and Elizabeth Love (now Mrs. Shular) were husband and wife, and on that day executed an oil and gas lease to The Texas Company upon their homestead, consisting of 112.1 acres of land, fully described in the pleadings, and located in Atascosa County, Texas. Afterwards, in May, 1944, Rem B. Love died intestate, leaving as survivors his wife, Elizabeth Love, and five daughters. At the time of Rem B. Love's death no oil wells had been drilled on their homestead, but in 1946 The Texas Company, acting under the above lease, drilled an oil well upon this homestead, and has since that time drilled four more producing oil wells upon the lease. The Texas Company has been paying one-half of the 1/8 royalty provided for in the lease to Elizabeth Love Shular, who still occupies the land as her homestead. The other half of the 1/8 royalty has been paid to Keenedy A. Milburn under an assignment by Rem B. Love and wife, prior to Rem B. Love's death. This assignee is not a party to this suit and his rights are not in question. It was stipulated that the land was either community property or the separate property of Mrs. Shular's deceased husband, Rem B. Love.

"Mrs. Margaret Youngman and two of the other daughters of Rem B. Love and Elizabeth Love, brought this suit

for an accounting by The Texas Company, and for a declaratory judgment to the effect that they as remaindermen are entitled to the royalty from these wells allowing Mrs. Elizabeth Love Shular only an interest in the royalty."

The only question to be decided is whether the execution of the oil and gas lease during the lifetime of Rem B. Love requires the court to apply the 'open mine' doctrine and award to the surviving widow, whose claim thereto arises out of homestead right, the royalty from wells drilled after her husband's death, or whether such royalty will be preserved for the remaindermen, the widow being awarded only interest thereon.

The trial court applied the 'open mine' doctrine and awarded the royalties to the widow. That judgment was affirmed by the Court of Civil Appeals. 281 S.W.2d 373.

In its opinion the Court of Civil Appeals correctly pointed out that the question was one of first impression in this state and that decisions from other jurisdictions in which the question had been considered were unanimous in applying the 'open mine' doctrine in this and analogous fact situations. We have reviewed the decisions on the question, many of which are cited in the opinion of the Court of Civil Appeals, and have concluded that they are sound and should be followed by this Court. For example see Koen v. Bartlett, 41 W. Va. 559,23 S.E. 664, 31 L.R.A. 128; Andrews v. Andrews, 31 Ind. App. 189,67 N.E. 461; Lawley v. Richardson, 101 Okla. 40, 223 P. 156, 43 A.L.R. 803; Warren v. Martin, 168 Ark. 682, 272 S.W. 367, and 'Rights of a Life Tenant' by Clarence A. Guittard, Vol. 4, Texas Bar Journal, 265 (June 1941 issue) where the reasons for the holding may be found. They need not be repeated here.

In determining whether the 'open mine' doctrine applies, no distinction is made between a life tenant who holds a conventional life estate and one who holds a legal life estate. Davis v. Bond, 138 Tex. 206, 158 S.W.2d 297. Moreover, in determining whether the doctrine applies, one holding in virtue of a homestead right is regarded as a life tenant. Petrus v. Cage Bros., Tex.Civ.App., 128 S.W.2d 537, writ refused; White v. Blackman, Tex.Civ.App., 168 S.W.2d 531, writ refused, W.O.M.; Clayton v. Canida, Tex.Civ.App., 223 S.W.2d 264, no writ history; Thompson v. Thompson, 149 Tex. 632, 236 S.W.2d 779, 786-788.

The judgment of the Court of Civil Appeals is affirmed.

GARWOOD, SMITH and WILSON, JJ., dissenting.