Beardsley v. The Kansas Natural Gas Company

• Decision Date: 03 July 1908
• Docket Number: 15.659
• Citation: 78 Kan. 571,96 P. 859
• Parties: HENRY BEARDSLEY et al. v. THE KANSAS NATURAL GAS COMPANY
• Court: Kansas Supreme Court

96 P. 859

78 Kan. 571

HENRY BEARDSLEY et al. v. THE KANSAS NATURAL GAS COMPANY

No. 15.659

Supreme Court of Kansas

July 3, 1908

Decided July, 1908.

Error from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT--Jurisdiction Amount in Controversy. The statute limiting the right of review in this court to civil actions where the amount in controversy exceeds the sum of one hundred dollars was repealed by chapter 256 of the Laws of 1907, and that limitation now applies only to civil actions for the recovery of money.

2. PRACTICE, SUPREME COURT--Transcript of Record--Case-made--Certification. A certificate to a transcript of the record by the clerk of the district court or a certificate by the district judge to a case-made, will be deemed sufficient if it be in the form prescribed by the rules of this court.

3. PARTITION--Parties. In a suit by the lessees in an oil-and-gas lease for a partition of their interests thereunder, the lessors are not necessary parties.

4. PARTITION--Statutory Provisions Apply only to Real Estate. The provisions of the statute relating to partition apply to real estate only.

5. TITLE AND OWNERSHIP--Mineral Lease--License. An ordinary oil-and-gas lease does not convey an interest in real estate, or any present title to the oil and gas which may be in the leased premises; it merely grants the privilege of exploring for gas and oil, and the right to sever the same, if found.

6. PETITION--Partition of Personal Property. A petition in a suit for the partition of property other than real estate will be deemed insufficient unless it contains averments which show the condition of the property to be such that equitable intervention is necessary to preserve the property or to protect the interests of the owners thereof.

Joseph P. Rossiter, and T. J. Hanlon, for plaintiffs in error.

Seth H. Piper, Eugene Mackey, James W. Reid, and John J. Jones, for defendant in error.

OPINION

GRAVES, J.:

This suit was commenced in the district court of Montgomery county for the purpose of partitioning the rights held under an oil-and-gas lease among the owners thereof. Plaintiff Henry Beardsley owns one-half, plaintiff White one-eighth, and the defendant, the Kansas Natural Gas Company, three-eighths of the lease. B. L. and Josie Frost are the grantors in the lease and the owners of the leased premises. They were not summoned, either in this or the district court, and have not entered an appearance in the suit. The defendant demurred to the petition. The demurrer was sustained, and, the plaintiffs declining to plead further, the defendant received judgment for costs. Plaintiffs bring the case here for review.

A motion to dismiss the petition in error has been presented by the gas company, upon these grounds: (1) It does not appear by the record that the amount in controversy exceeds the sum of $ 100; (2) the transcript attached to the petition in error does not appear to contain the whole record; (3) the Frosts, having been named as parties defendant, should have been brought into court. The first ground of the motion is not well taken for the reason that the law limiting proceedings in error to cases which involve the sum of more than $ 100 was repealed, except in actions for the recovery of money, by chapter 256 of the Laws of 1907, which took effect March 14, 1907, before the judgment herein complained of was rendered. As to the second ground of the motion, the certificates of the clerk and judge appear to be in form sufficient to make the exhibit attached to the petition in error good, either as a transcript of the record or as a case-made. Both seem to be in conformity with the rules of this court and are sufficient to confer jurisdiction. As to the remaining ground, it is sufficient to say that B. L. and Josie Frost have no interest in the litigation, are not necessary parties, and their absence is immaterial. The motion to dismiss is denied.

The petition contains two causes of action--one in ejectment and the other in partition. It is not seriously insisted in argument that ejectment will lie except when the property is real estate and the adverse party is in hostile possession, neither of which is alleged in this petition. We shall assume, therefore, that the demurrer was properly sustained to the first cause of action. As to the second cause of action, it is insisted that the petition states a good cause of action for partition, even if the property be regarded as purely personal, without any of the peculiar elements of real estate. This constitutes the real point in controversy. The property sought to be partitioned is the rights which the lessees hold under an ordinary oil-and-gas lease, the granting clause of which reads:

"That the said parties of the first part . . . have granted demised, leased and let, and by these presents do grant, demise, lease and let, unto the said second party, its successors or assigns, for the sole and only purpose of mining and operating for oil and gas, and of laying pipe-lines, constructing tanks, buildings and other structures thereon to take care of said products, all that certain tract of land...