Colonial Royalties Co. v. Hinds
| Decision Date | 05 October 1948 |
| Docket Number | Case Number: 33179 |
| Citation | 1948 OK 203,216 P.2d 958,202 Okla. 660 |
| Parties | COLONIAL ROYALTIES CO. v. HINDS |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR - Harmless error in admission of incompetent evidence. Incompetent evidence, to secure reversal, must affirmatively appear to have caused prejudice to objecting party.
2. PARTITION - Right to partition of oil and gas rights severed from remainder of fee. Oil and gas rights, though severed from the remainder of the fee, may be subject to partition either in kind or by sale, as the circumstances may justify.
3. SAME - Partition in kind or by sale and division of proceeds.
Partition in kind of oil and gas rights is proper where there has been no development on or near the property and there is no other reason to believe one portion of the tract involved is more valuable for oil purposes than another. Where partition in kind cannot properly be allowed, partition may be accomplished through sale and division of the proceeds.
4. SAME - Discretion of trial court as to partition - Prevention of partition as matter of defense to be pleaded and proved. Generally, the right of partition is absolute, but in connection with the partition of oil and gas rights, the court is vested with sufficient discretion in denying or awarding relief to prevent the remedy from becoming an instrument of fraud or oppression. The prevention of partition upon this ground is a matter of defense to be pleaded and proved as such.
5. APPEAL AND ERROR - Judgment affirmed where errors assigned, if sustained, would not have resulted in injustice.
Where the right of plaintiff to recover, on the undisputed facts, is so apparent that the errors assigned, if sustained, could not have resulted in a miscarriage of justice, the judgment will be affirmed.
Appeal from District Court, Lincoln County; Kenneth Jarrett, Judge.
Action by Edd S. Hinds et al. in partition against the Colonial Royalties Company, and others. From the judgment, defendant, Colonial Royalties Company, appeals. Affirmed.
Harold E. Rorschach, of Tulsa, Jack L. Rorschach, of Vinita, and Harold C. Harper, of Tulsa, for plaintiff in error.
P.D. Erwin and Embry & Sutton, all of Chandler, for defendants in error.
John G. Ellinghausen, of Tulsa, amicus curiae.
¶1 This action in partition was instituted by the following named plaintiffs who are defendants in error here and who were the owners of the following undivided interests in the surface and in the oil, gas and other minerals in a 160-acre tract of land in Lincoln county, Oklahoma, to wit:
Surface Minerals
¶3 In December, 1925, the defendant, Colonial Royalties Company, acquired an undivided 1/16 or a 10-acre interest in the minerals in and under said lands from one Russell Cobb who, a few days previously, had acquired such mineral interest by conveyance from the first two above-named plaintiffs and Ora Hinds, another of the defendants. The original action involved other additional lands and various other defendants, but the above named Colonial Royalties Company is the sole appellant and claimed an interest only in the above parcel. Therefore, no other lands and the rights of no other party need be considered herein.
¶4 Plaintiffs, and most of the defendants, had inherited their respective interests in the property from their father and grandfather, one Frederick Hinds.
¶5 At the time the appellant bought its mineral interest, there was an oil boom in the county but no well was ever drilled on the land herein involved, nor was any well drilled near enough to give the property a mineral value other than purely speculative. At the time of the sale in 1925, the defendant paid and the plaintiffs received $350 per acre for the mineral interest conveyance. The commissioners, appointed in this case by the trial court, appraised such interest at $10 per acre. As to partition, plaintiffs' petition contained only the allegations required by statutes dealing with such actions (12 O.S. 1941 §§ 1501-1516 ). The defendant, in its answer denied generally the allegations in the petition and in addition alleged its ownership of the 1/16 mineral interest as set out in plaintiffs' petition. It further alleged that the allowance of partition, on application of plaintiffs who had participated in the severance of the two estates, would be inequitable because of effecting a forced sale of defendant's interest and that plaintiffs were equitably estopped from seeking such relief; that defendant's interest did not constitute realty and was therefore subject to partition only upon equitable grounds, allegations of which were not contained in the petition, and that the above statutes were not applicable; that ownership of the minerals was divided into small shares and that, by forcing the sale of these small interests, partition would operate as an instrument of fraud and oppression. The answer further contained the allegation that one Floyd G. Hubbell instituted a partition suit on July 10, 1935, against the defendant herein and against the above-named Edd S. Hinds and others, and that said cause was dismissed with prejudice January 27, 1936, which was equivalent to a "retraxit" at common law and constituted a bar to the instant action because of being litigation dealing with the same subject matter.
¶6 A trial was had to the court resulting in a judgment for plaintiffs for partition and the appointment of commissioners, who reported the property incapable of division in kind and fixed the value of the respective properties involved as to surface interests and mineral interests. The trial court, upon motion of plaintiffs, entered a judgment and order of sale. Defendant filed a motion to vacate the same. Plaintiffs filed a response and objection thereto which was by the court sustained, from which this appeal has been perfected.
¶7 Appellant first contends that the trial court erred in allowing plaintiffs to prove their title by the introduction in evidence of the records in the office of the county clerk, without prior proof that the originals were not in the possession or under the control of plaintiffs (12 O.S. 1941 §§ 486 , 502; 16 O.S. 1941 § 27 ). The record contains testimony of one of the plaintiffs, who kept all important papers, that the original conveyances could not be located although a thorough search had been made for them. The lower court considered this a sufficient compliance with the requirement. In addition thereto defendant's title was founded upon that of two of the plaintiffs and in turn depended upon the records so introduced. Plaintiffs, at no time, denied the title claimed by defendant. Therefore, if the evidence was entirely inadmissible, defendant was not prejudiced thereby and could not complain.
"Incompetent evidence, to secure reversal, must affirmatively appear to have caused prejudice to objecting party." Cole v. Ramsey, 124 Okla. 235, 254 P. 962; Gilliland v. Snedden et al., 195 Okla. 601, 159 P.2d 734.
¶8 The next two assignments of error are the gist of the matters at issue and can be discussed together - that the petition does not state a cause of action for partition of mineral rights, and the order for partition and sale of oil and gas rights was inequitable, because plaintiffs had participated in their severance. Defendant relies upon the cases of Coker v. Vierson, 170 Okla. 528, 41 P.2d 95; Clark v. Mercer Oil Co., 139 Okla. 48, 281 P. 283; Beardsley v. Kansas Natural Gas Co., 78 Kan. 571, 96 P. 859; and Wolfe v. Stanford, 179 Okla. 27, 64 P.2d 335. A brief amicus curiae has been filed herein in support of appellant's position wherein reliance is had upon the cases of Wolfe v. Stanford, supra; Fry v. Dewees, 151 Kan. 488, 99 P.2d 844; and State ex rel. Commissioners of the Land Office v. Armstrong, 199 Okla. 474, 188 P.2d 347.
¶9 It is argued that the interest in the minerals constitutes personal property, and that, since our statutes provide for partition of real estate only, the instant case is not controlled by them. This reasoning is sought to be supported by the above-cited Kansas cases construing statutory provisions identical to those of this state. Those cases deal with partition of interests conveyed by oil and gas leases and in the Fry case there was production on the premises. The defendant herein owned an interest in the minerals in place. There had been no oil and gas lease on the land for more than 20 years. The most recent decision from the Kansas court on the subject which has come to our attention is the case of Holland v. Shaffer, 162 Kan. 474, 178 P.2d 235, wherein the former cases are discussed. It was there said:
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