Campbell v. Lynch
| Decision Date | 20 November 1917 |
| Docket Number | 3086. |
| Citation | 94 S.E. 739,81 W.Va. 374 |
| Parties | CAMPBELL ET AL. v. LYNCH ET AL. |
| Court | West Virginia Supreme Court |
Submitted November 14, 1917.
Rehearing Denied Jan. 15, 1918.
Syllabus by the Court.
Partition among coparceners of a tract of land on which there is a subsisting oil and gas lease executed by their ancestor in his lifetime, and assignment of dower therein to the widow before any wells have been drilled on the land, by a decree in which neither the lease nor the royalties and rents provided by it are mentioned, founded upon pleadings silent as to the lease and rights created by it, does not extend to nor include such royalties and rentals, and the owner of each lot assigned therein is entitled to a proportionate share of all the royalties and rentals accruing from all the wells drilled on the entire tract of land embraced in the lease subject to the widow's right of dower therein.
In such case, the wells drilled by the lessee on the portion of the land assigned to the widow, as and for her dower, are not mines or wells worked by her, since the working right is held by the lessee, even though they may be deemed to be mines opened in the husband's lifetime; and she is not entitled to the entire royalties and rents accruing from such wells nor is her dower right limited to such royalties and rentals as subjects thereof. She is entitled to dower, whatever its extent may be, in all the royalties and rents accruing from all the wells drilled on the entire tract of land covered by the lease.
An oil and gas lease vests in the lessee an estate in the oil and gas in the land embraced by it on his discovery thereof, but it neither vests title to such minerals in place, in him, nor effects a severance of the title thereto from the title to the land. The subject of the lessee's title is the incorporeal right of mining or extracting the oil and gas.
If the land of which a husband dies seised is subject to a valid lease at the time of his death, yielding a rental, the widow is dowable of the reversion and the rent as an incident of the reversion.
Appeal from Circuit Court, Roane County.
Bill in equity for discovery and accounting by W. C. Campbell and others against Lucy J. Lynch and others. Decree for defendants, and plaintiffs appeal. Decree reversed, demurrers overruled, and cause remanded.
Charles E. Hogg, of Point Pleasant, and J. F. Cork and J. W. Kennedy, both of Charleston, for appellants.
Harper & Baker, of Spencer, R. G. Altizer, of Charleston, and A. B. Fleming, Chas. Powell, and Kemble White, all of Fairmont, for appellees.
The complaint on this appeal goes to the dismissal of a bill in equity, praying discovery and an accounting as to oil and gas obtained from two tracts of land, under leases thereof, on several demurrers interposed thereto.
The two tracts of land were owned by Edward Lewis, now deceased, and were leased by him to the South Penn Oil Company, by separate leases, in his lifetime. In each lease there is a reservation of the usual oil royalty, one-eighth, and a covenant to pay $200 annually for the gas from each gas well. In June, 1902, Lewis died, leaving him surviving his wife and six children, two sons and four daughters. One of the daughters, Prudentia Campbell, died in 1905, leaving six children and her husband surviving her. In 1906 the two tracts of land, subject to the leases, were partitioned by judicial proceedings, and assignments made as follows: Lot No. 1, containing 200 acres, to the widow, Mary M. Lewis, as and for her dower; lot No. 2, containing 60 acres, to Lucy J. Lynch; Lot No. 3, containing 74 acres, to James McC. Lewis; lot No. 4, containing 80 acres, to Fannie M. Simpson; lot No. 5, containing 95 acres, to Mae L. Goad; lot No. 6, consisting of two parcels, 52 acres and 30 acres, total 82 acres, to the husband and heirs of Prudentia Campbell, deceased; and lot No. 7, containing 90 acres, to John E. Lewis and F. W. Abney, his grantee. Meantime the leases had been kept alive by payment of delay rentals, but no wells had been drilled under them. After the partition was consummated, operations under the leases were commenced, and, at the date of the filing of the bill, numerous producing wells had been drilled, one or more on each of the lots except No. 6 assigned to the Campbell heirs. On it no well had been drilled. The purpose of the bill filed by W. C. Campbell, life tenant of said lot No. 6, and his six children, the reversioners, three of them infants suing by him as their next friend, is to obtain shares of the oil royalties and gas rentals from the wells on the other lots, on the theory of right to apportionment thereof, without reference to the lots on which the wells are located. Demurrers were interposed by the lessee, the South Penn Oil Company, the United Fuel Gas Company, its assignee of the gas right under the leases, the Eureka Pipe Line Company, into whose lines the oil deliveries are made, the widow, the living children of Edward Lewis, save John E. Lewis, and F. W. Abney, grantee of John E. Lewis, all of which were sustained and the bill dismissed.
Postponement of consideration of the rights of the life tenants, particularly that of the widow, until after disposition of the conflicting claims of the heirs, will tend to simplify the questions at issue and free from complication the reasoning by which the conclusion as to the principal right involved is reached. As to the heirs holding by partition, separate and distinct parts of a tract of land on which oil and gas wells have been drilled under a lease executed by their ancestor, after his death and the partition, the controlling question is whether the royalty from each well goes, by operation of law, or by virtue of the decree of partition, to the owner of the lo t on which the well yielding it happens to be.
The argument submitted for the negative of this question proceeds largely upon the view that the lease effected a severance of the oil and gas in the land from the surface and vested title thereto in the lessee, wherefore it could not have been partitioned, and was not. Though there are several judicial declarations that such a lease constitutes a virtual sale of the oil and gas, there are, perhaps, just as many or more to the effect that it does not pass any title, legal or equitable, to the oil and gas in place. All agree that, after discovery of the minerals, it vests a conditional estate in the lessee, but it is not title to the minerals in place. It is an incorporeal right to mine, the exercise of which may exhaust the minerals. This right, of course, is beyond the control of the lessor, his heirs or assigns, as long as the conditions upon which it depends are complied with, wherefore it binds the lands in the hands of the lessor and all persons holding under him. At the same time, if productive, it yields royalties which this court and others say are, in legal effect, rents. Notwithstanding the high character of the right vested by discovery of minerals, the lessor and lessee are everywhere held to be landlord and tenant, wherefore the former must be deemed the owner of the mines and the latter the tenant. A scientific or abstractly juridical view of the subject might reveal inaccuracies in all of these definitions. To call the lessee a tenant is amply sufficient for some purposes, but he may have a right in addition to that of tenancy. The lessor may be an owner and yet have only a limited, qualified, or incumbered estate. So a right may produce ultimately some of the results of a sale of the minerals and yet not be a sale. Whatever the right of the lessee may be, when accurately defined, he is not the owner of the oil and gas in place, and the lease does not sever the minerals from the surface. As to that, the decisions in every jurisdiction are uniform, even though some apparently inconsistent expressions may be found in them. However, the lease vests an estate, potential until discovery of minerals and actual afterwards, and that estate carries right to exhaust the minerals.
On the death of the ancestor, the land descended to the heirs, burdene d by this right in the lessee. It was complete master of the situation quo ad the oil and gas, having right to drill where it would on each of the two tracts, and the partition in no way affected its right or liberty in that respect. Taking the land in this condition, the heirs had right of partition thereof, and a proper demand for it by one of them could not have been defeated by the others. Partition was made upon pleadings and by a decree which are wholly silent as to the leases and the rights created by them, just as lands subject to such leases are often divided by deeds silent as to the leases. On the one hand, it is contended that the oil and gas were not divided because they had been severed from the land by the leases, and, on the other, that they were divided because there had been no such severance. Though there had been no actual severance in law or fact, there may have been a potential one sufficient in law to preclude right of partition, but whether there was or not is an academic, rather than a practical, question, determination whereof is unnecessary. If there was a division of the minerals in respect of the title, it does not necessarily follow that the royalties go with the ownership of the minerals in the manner claimed.
That the lease on a single tract of land broken up into several subdivisions by a partition or by conveyances is not segregated and converted into as many distinct leases as there are subdivisions is conceded. That could be done only with the consent and co-operation of the lessee. As to him the lease and its subject, the...
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