Brandenburg v. Petroleum Exploration

• Decision Date: 25 February 1927
• Citation: 218 Ky. 557,291 S.W. 757
• Parties: BRANDENBURG v. PETROLEUM EXPLORATION ET AL.
• Court: Kentucky Court of Appeals

291 S.W. 757

218 Ky. 557

BRANDENBURG v. PETROLEUM EXPLORATION ET AL.

Court of Appeals of Kentucky.

February 25, 1927

Appeal from Circuit Court, Lee County.

Action by Louisa Brandenburg against Petroleum Exploration, and others. From a judgment of dismissal, plaintiff appeals. Affirmed.

E. L McDonald, of Lexington, John D. Carroll, of Frankfort, and E B. Rose, of Beattyville, for appellant.

O'Rear Fowler & Wallace, of Frankfort, and Chester Gourley, of Miami, Fla., for appellees.

REES J.

The appellant, Louisa Brandenburg, is the widow of Larkin Mays, who died intestate on June 8, 1895, leaving surviving him the appellant, his widow, and four children who were infants at the time of his death. He owned a tract of land in Lee county which was worth less than $1,000 at the time of his death and which the appellant continued to, and still does, occupy as a homestead. After the children attained their majority they executed an oil and gas lease on this land, this lease now being owned by the appellees.

The appellees entered upon the land and drilled wells which are producing oil and gas. Appellant brought this action setting up these facts and alleging that no mines or wells were drilled on the land during the lifetime of her husband, Larkin Mays, nor did he lease or grant the right to open such mines or drill such wells, nor had she authorized such operations, and that the defendants had no authority or right to disturb or interfere with her homestead rights; that by virtue of her homestead rights she is entitled, not only to an undisturbed occupancy of the land, but to all the issues and profits therefrom as long as her homestead rights continue, including the right to operate the wells that had been drilled and to have an accounting for and to receive the value of all oil and gas that had been taken from the land. She asked that the defendants be enjoined and restrained from entering upon the land or operating thereon for the production of oil or gas during the continuance of her homestead rights, and that they be required to account for all oil and gas that had been produced and taken therefrom.

A demurrer to the petition was sustained, and, the plaintiff refusing to plead further, judgment was entered dismissing her petition, and from that judgment she appeals.

In the petition as originally filed was an averment that the defendants in their operations had destroyed valuable fruit trees, perennial shrubs and crops, and had interfered with her use of the land for crops and as a home to her damage in the sum of $700, and she asked judgment for that amount in addition to the injunctive relief. It appears that this averment was withdrawn from the petition after appellant and appellees agreed upon the amount of damages for such injuries that had therebefore been done or were thereafter reasonably incident to the operation of the wells.

The sole question left to be determined is, what interest, if any, has appellant in the oil and gas that has been or will be produced from the land occupied by her as a homestead? The appellant contends that her rights in the homestead are the same as those of a life tenant, and that the adult children of her deceased husband could not execute an oil and gas lease on the homestead property which would invest the lessees thereunder with the right to produce oil therefrom during her life or occupancy of the property, and that since wells have been drilled by the lessee under such a lease, and oil has been produced, she is entitled to all of the oil or the proceeds therefrom. And she further contends that she is entitled to an injunction against the appellee enjoining it from operating under the lease from her adult children, and that she is entitled to continue the operations for oil and gas and to appropriate to her own use all oil and gas produced during her life or occupancy of the homestead.

Section 1707, Kentucky Statutes, provides:

"The homestead shall be for the use of the widow so long as she occupies the same, and the unmarried infant children of the husband shall be entitled to a joint occupancy with her until the youngest unmarried child arrives at full age. But the termination of the widow's occupancy shall not affect the right of the children; but said land may be sold, subject to the right of said widow and children, if a sale is necessary to pay the debts of the husband."

Homestead rights are creatures of the statutes, and the statutes creating them must be looked to in order to determine their extent. The object of all homestead statutes is primarily to afford a home for the person in whose interest the right is created. In Miles v. Hall, 12 Bush, 107, the court said:

"The humane and politic purpose of the Legislature was to secure homes for families, and this can as well be accomplished by holding that the homestead exemption continues only so long as it is necessary to accomplish the purpose intended. And such has since been declared to be the legislative intention."

In Evans v. Evans' Administrator, 13 Bush, 587, it was said:

"The whole tenor of the act shows that the intention of the Legislature was not to enable the debtor to hold property free from the demands of his creditor, but to protect him in the enjoyment of his homestead so long as the realty exempted is actually used as a home for himself and family. The act did not create a new and inalienable estate in the debtor; it merely exempted a portion of his land from coercive sale by his creditors so long as his occupancy of the same should continue. Brame and Wife v. Craig, 12 Bush, 404. And this exemption, and nothing else, continued after the death of the debtor, Evans, for the benefit of his widow and children, enlarged only to the extent that the temporary absence of the widow, she still holding possession by her tenant or agent, will not forfeit or terminate her claim to the homestead."

In Gowdy v. Johnson, 104 Ky. 648, 47 S.W. 624, 20 Ky. Law Rep. 997, 44 L. R. A. 400, it was said:

"We thus see that the thing attempted to be protected from sale is the land-- the homestead itself. The object of the statute, as of all statutes of like character, is not so much to exempt a certain sum of money from subjection to debt or land of a certain value, but it is intended to protect the homestead itself--the dwelling house and appurtenances--to the end that the citizens of the commonwealth may be home owners. The matter of value is a mere incident--a proper one, it is true, as our lawmakers have conceived it to be the better rule that some limitation in value should be applied."

Appellant relies on Miller v. Mills, 7 Ky. Law Rep. 221, as authority for her contention that a homestead right is a freehold estate, but that case involved the right of infant children, and the court in making the statement that a homestead right is a freehold estate, no...