Dunlap v. Jackson

• Decision Date: 17 July 1923
• Docket Number: Case Number: 11222
• Citation: 92 Okla. 246,1923 OK 497,219 P. 314
• Parties: DUNLAP et al. v. JACKSON.
• Court: Oklahoma Supreme Court

1923 OK 497

219 P. 314

92 Okla. 246

DUNLAP et al. v. JACKSON.

Case Number: 11222

Supreme Court of Oklahoma

Decided: July 17, 1923

Syllabus

¶0 1. Deeds--Reservations--Oil and Gas Royalty.

E. executed a warranty deed to B. which contained the following reservations: "Party of the first part expressly reserves three-fourths of the royalty of all oil and gas or the proceeds therefrom, which may be produced from the above described premises." Held, that the reservation is valid under the record in this case.

2. Same.

J. accepted a deed from B., which described the premises as follows: The southwest quarter of the southeast quarter of section 9, township 18 north, range 11 east, together with an undivided one-fourth interest in and to all the oil and gas rights in and under the southeast quarter of section 9, township 18 north, range 11 east. D. was the owner of the balance of the quarter section and had a three-fourths interest in the oil and gas royalty produced from the land that J. bought Upon oil being discovered in paying quantities on J.'s land, she contends that she was entitled to all of the royalty from under her "40 acres." Held, that she was bound by the terms of her deed, and that she is entitled to one-fourth of the royalty and D. entitled to the three-fourths under the entire quarter section.

Commissioners' Opinion, Division No. 1.

Error from District Court, Creek County; Mark L. Bozarth, Judge.

Action by Pearl B. Jackson against James Dunlap and others to enforce oil royalty interests. Judgment for plaintiff, and defendants bring error. Reversed and remanded, with directions.

This is an action by Pearl B. Jackson, defendant in error, plaintiff below, against James Dunlap, the Prairie Oil & Gas Company, the Prairie Pipe Line Company, Sinclair Oil & Gas Company, and the Twin State Oil Company, plaintiffs in error and defendants below. The parties will be referred to as they appeared in the court below. The questions before this court for consideration are those shown by the pleadings filed below, including motions and demurrers.

It is alleged in the petition of plaintiff, Pearl B. Jackson, that plaintiff owns and is entitled to the immediate possession of the southwest quarter of the southeast quarter of section 9, township 18 north, range 11 east in Creek county. Okla. (hereinafter referred to in this statement for convenience as the "40 acres.") The said southeast quarter of section 9, township 18 north, range 11 east, will be referred to hereafter as the "quarter section. "The answers of the three defendants, the Twin State Oil Company, the Prairie Oil & Gas Company and the Prairie Pipe Line Company, state that the plaintiff is the owner of the southwest quarter of the southeast quarter, except three-fourths of the one-eighth oil and gas royalty, which, defendants state, is owned by the defendant James Dunlap; that the said defendant James Dunlap owns three-fourths of the entire "quarter section" (hereinafter referred to as the "120 acres"), being all of said "quarter section," except the said southwest quarter thereof.

The petition alleges that the said "40 acres" was formerly owned by Maggie E. Bruner and Joseph Bruner and W. D. Engles and Maggie J. Engles, and that plaintiff became the owner of same by reason of a deed executed on or about February 21, 1914, by Maggie E. Bruner and Joseph Bruner, her husband. The answers state that the said "quarter section" was the homestead and surplus allotment of one Phillip Jack, a Creek. Indian, and that he conveyed the same to Joseph Bruner; that on May 10, 1909, Joseph Bruner conveyed the said "quarter section" to W. D. Engles and Maggie J. Engles, reserving one-fourth of the royalty interest; that on the same date, to wit, May 10, 1909, W. D. Engles and Maggie J. Engles conveyed to Joseph Bruner the said "40 acres," reserving three-fourths of the royalty interest; that on the same date, to wit, May 10, 1909, Joseph Bruner and wife conveyed to W. D. Engles and Maggie J. Engles the said "120 acres," reserving one-fourth of the oil and gas royalty produced therefrom; that on February 21, 1914, Joseph Bruner and his wife, Maggie E. Bruner, conveyed to Pearl B. Jackson the said "40 acres," together with an undivided one-fourth (1/4) interest in and to all the oil and gas rights in and to the entire "quarter section."

The petition alleges that on June 7, 1913, the said Joseph Bruner, Maggie E. Bruner, W. D. Engles, and Maggie J. Engles executed and delivered to James R. Pratt an oil and gas mining lease covering the said land, which said lease provided for one-eighth royalty. The answers state that at the time of the execution of the said lease the "40 acres" now owned by plaintiff was owned by Joseph Bruner and W. D. Engles who also owned the "120 acres" now owned by the defendant Dunlap, and that the said lease covered the entire "quarter section," and provided for a one-eighth oil royalty; that prior to the execution of the said lease, conveyance had been executed by and between the Bruners and the Engles, whereby the owners of the "40 acres" became the owners of one-fourth of the one-eighth royalty to be derived from the "120 acres," and the owners of the "120 acres" became the owners of three-fourths of the one-eighth oil royalty to be derived from the "40 acres," and that thereby the defendant Dunlap became, and is now, entitled to three-fourths of the one-eighth oil royalty produced from the "40 acres."

The answer of defendant Twin State Oil Company alleges that by the terms of the lease covering the entire "quarter section," the one-eighth royalty was reserved "unto the lessors," and sets up that it and its co-defendants have at all times been ready, willing, and able to deliver to plaintiff in the pipe line that part of the royalty to which she is entitled by virtue of her right in the royalty interest, as set forth in said answer. The answer of defendant Prairie Pipe Line Company adopts the answers of the Prairie Oil & Gas Company and James Dunlap, and sets up other matters hereinafter noted. The answer of defendant Prairie Oil & Gas Company alleges the joint leasing of the land by the predecessors in title of the plaintiff and of the defendant James Dunlap, and that by such joint lease the royalty was reserved "to the parties of the first part," sets up the fixing by said predecessors in title of their respective royalty interests, and alleges payment to defendant Dunlap of his share of the royalty and tender of her share to the plaintiff. The lease itself is attached to the amended answer of defendant James Dunlap as "Exhibit H." It is entered into by and between W. D. Engles, Maggie J. Engles, Maggie E. Bruner, and Joseph Bruner, "parties of the first part, lessors." and James R. Pratt, party of the second part. In respect to oil royalties, which are the only royalties involved in this action, the party of the second part agrees "to deliver to the credit of the first parties, heirs or assigns, free of cost, in the pipe line to which it may connect its wells, the equal one-eighth part of all oil produced and saved from the leased premises."

It should further be noted that the answer of the defendant Prairie Pipe Line Company, after denying all of the allegations of the plaintiff's petition, except such as are admitted, and adopting the answers of defendants James Dunlap and the Prairie Oil & Gas Company, as its own defense, contains the following allegations:

"And further answering, this defendant says that it is a common carrier of crude petroleum oil, and that as such common carrier it received on account of the Prairie Oil and Gas Company the oil purchased from said land referred to in the plaintiff's amended petition, without any notice of any kind or character of the claims of plaintiff or any dispute as to the title to said oil, receiving the usual carrying charges for carrying and delivering the oil and having no further interest of any kind or character therein."

These appear to be all the allegations contained in the petition and answers that are material to this controversy: The said lease was assigned to the Twin State Oil Company by James R. Pratt on the same date that it was executed. The general allegation that plaintiff has owned said "quarter section" since February 21, 1914, is denied generally and specifically. It is alleged and admitted that the Twin State Oil Company explored said land for oil and gas mining purposes, and since April 1, 1915, has been producing oil therefrom; also, the allegation of the petition that at all times since April 1, 1915, the defendants have been appropriating to their own use the one-eighth royalty, and that plaintiff at all times since that date was, and is now, entitled to receive the one-eighth royalty, is met by a statement in the answer denying that defendants, or any of them, have been appropriating to their own use any royalty interest to which plaintiff is entitled, and stating that defendants have at all times been willing to deliver to plaintiff such royalty interest as she is entitled to under the lease and the conveyances to her.

Plaintiff prays judgment for such oil or amount of money as may be found clue her from the defendants on an accounting, and the defendants pray that they be dismissed with their costs.

Plaintiff demurred to the separate answer of the Twin State Oil Company, alleging that said answer does not state facts sufficient to constitute a defense to the cause of action in plaintiff's amended petition. Plaintiff, in seeking judgment against the Prairie Oil & Gas Company, a corporation, and the Prairie Pipe Line Company, a corporation, stated that said companies had been taking, receiving, and appropriating to their own use and benefit the equal one-eighth part of all oil produced and saved from the said "40 acres," to which the said defendant companies answered, setting up the same defenses as did the Twin State Oil Company, together with the other...