Gillet v. Powell, 38827

• Decision Date: 07 March 1953
• Docket Number: No. 38827,38827
• Citation: 254 P.2d 258,174 Kan. 88
• Parties: GILLET et al. v. POWELL et al.
• Court: Kansas Supreme Court

Page 258

254 P.2d 258

174 Kan. 88

GILLET et al. v. POWELL et al.

No. 38827.

Supreme Court of Kansas.

March 7, 1953.

Syllabus by the Court.

1. In an action by cotenants to partition oil and gas and other minerals in place, where there is no present production and no personal property is involved, it is not necessary in order to state a good cause of action to allege equitable grounds for partition.

2. Partition is governed by equity and the question of whether there are equitable reasons why partition of oil and gas and other minerals in place should be denied, is a matter of defense to be pleaded and proved.

3. In an action such as that described in the first paragraph of this syllabus, the record is examined and it is held that no equitable reason why partition should be denied was proved.

David W. Wheeler and Edwin G. Westerhaus, both of Marion, on the briefs, for the appellants.

D. M. Ward and Charles W. Ward, both of Peabody, on the briefs, for the appellees.

SMITH, Justice.

This was an action to partition mineral interests in place. Judgment was for plaintiffs. Defendants have appealed.

After identifying the parties, the petition alleged that all parties were the owners of all or most all of the oil, coal and other mineral rights and royalty interests under a described quarter section. The petition set out the means by which the various parties acquired the interests claimed; that there was oil production under leases commencing in 1918, but all wells had been plugged and abandoned and the leases released; that partition of the surface and agricultural rights had been had and were owned by plaintiff Gillet. The petition then contained an allegation as follows:

'Partition of surface and agricultural rights has been had and are now owned by Roy Gillet. He claims inherited interest from Jules Gillet, Sr., after the death of the widow follows the real estate he owns. Plaintiffs urge partition by valuation and appraisement since the interests are unequal and badly scattered, and partition in kind would cause manifest injury. It is inequitable to force obtaining signatures of such owners, without which reputable operators will not drill for oil and gas.'

The prayer was that partition of the oil, gas and other minerals in place and interests in real estate among the tenants in common in the land in question be made according to the respective interests of the parties or by valuation and appraisement and for equitable relief believing that partition cannot be had without manifest injury and proceeds distributed according to law. Defendants' demurrer to this petition was overruled.

Six of the defendants then answered admitting the allegations as to the residence of the parties and denying that the plaintiffs had stated any cause of action against the defendants. The answer then alleged that the answering defendants each owned as heirs of one Jessie Kellum an undivided one-seventh interest in the oil, gas, coal and other mineral rights under the land in question and that such interests carried with the above real estate for the purpose of exploration for the mineral interests.

The answer further alleged that oil had been produced upon the property in question under oil and gas leases executed by the common ancestor of the parties, who desired to have the entire family participate in all oil recoveries, and for that reason executed the instruments set up in plaintiffs' petition and for a number of years the parties or their predecessors enjoyed the benefits of this family arrangement but that several years ago the producing wells were plugged and the leases released; that recently interest had developed in the land in question for a secondary recovery oil operation. The answer alleged that an oil and gas lease could be sold at once for the purpose of exploring the land in question for oil and gas; that defendants were willing to execute such a lease but plaintiffs refused to sign until all the defendants were 'squeezed out of' their fractional oil and gas mineral interest by means of the partition suit in question; that plaintiffs had entered into a scheme with deliberate intent of 'squeezing out' the answering defendants; that plaintiffs were using the suit as an instrument of fraud and oppression; that a partition by appraisement would set up merely the present value of the royalty interests and would not take into account a future value that would be immediately present if plaintiffs would sign an oil and gas lease and that a partition would result in a great financial loss to defendants; that a partition of mineral interests in the land at this time would be inequitable and unconscionable and should be denied. The defendants further alleged that they had no adequate remedy at law; that no effort had been made by plaintiffs to secure the signatures of defendants on an oil and gas lease and that the defendants denied that it was inequitable to require plaintiffs to secure signatures of defendants and other co-owners to an oil and gas lease when such signatures could be obtained. The answer further alleged there was no reason for equitable interference in the co-ownership of the land by plaintiffs and defendants and a partition of the mineral interests in the land would be in contravention of the intent of the common ancestor in setting up a program wherein the entire family would share in the enjoyment of oil produced. The answer then contained an allegation:

'Answering defendants further allege that this case is res adjudicata for the reason that the question in issue has been passed upon in the District Court of Chase County, Kansas, wherein plaintiffs in this action asked that partition of mineral interests be denied and a judgment was made to that effect in that Court.'

The prayer of the answer was that partition be denied and that if it be allowed then that the writ include partition of all minerals in place both of the owner of the agricultural and surface rights and of all the other co-tenants of royalty interests, including right of ingress and egress for the purpose of exploring for oil and gas.

The reply was a general denial and an admission that oil recovery was had; that all wells have long since been abandoned; some possibility of secondary recovery had arisen; that each of the plaintiffs had an undivided one-seventh in the oil, gas, coal and other minerals under the land in question; that it might be possible to sell an oil and gas lease on all or some part of said premises.

Some other defendants filed an answer in substance to the same effect as the one already set out.

The trial court took note of a stipulation as to the interests of the parties, that there were no outstanding oil and gas leases upon the land of record; that oil production was had commencing in 1918 but that all producing wells have been plugged and abandoned, more than 15 years ago; that there was a possibility of secondary recovery of oil to result from recent inquiries about drilling for same and found that judgment in favor of Roy Gillet, Jule Gillet and Henry Gillet, plaintiffs, should be rendered against all defendants and Millie Kellum upon the facts and the law. Judgment was entered accordingly. The journal entry ordered that the perpetual interests in the oil and gas and other minerals under the land be partitioned, commissioners were appointed to appraise the land and the time for election was fixed at ten days from the time the commissioner's report was confirmed.

The defendants, Albert H. Kellum, Ernest E. Kellum, Sherman A. Kellum, Kenneth K. Kellum, Bernice Mildred Jennings, Jack Powell, Elwood Powell and Ida Mullikin filed a motion for a new trial on April 5, 1952, on the grounds of abuse of discretion by the trial court, erroneous rulings of the court and that the verdict was in whole or in part contrary to the evidence and the law. On May 5, 1952, this motion was overruled--hence this appeal.

The specifications of error are that the judgment was contrary to law, as applied to the evidence and the record as a whole; that the judgment was wholly contrary to the evidence; that the action was res adjudicata; that the court erred in overruling defendants' demurrer to plaintiffs' petition; in overruling defendants' demurrer to plaintiffs' evidence; in failing to dismiss the case after one of the plaintiffs stated she did not authorize the suit; in overruling plaintiffs' motion for a new trial; in refusing to set aside the judgment and in refusing to enter judgment for the defendants.

The position of defendants as stated in their brief is that they were not permitted to join in a regular oil and gas lease although willing to do so because plaintiffs would not sign such a lease and hence plaintiffs were refusing to do equity although they come into an equity court asking an equitable remedy and the purpose of this partition suit was to squeeze out defendants. They further argue the case was res adjudicata.

We shall dispose of the argument as to res adjudicata later.

The defendants' position is further stated in their brief as follows:

'We submit that appellants' demurrer to the petition should have been sustained since no equitable grounds for partition whatsoever were alleged in plaintiffs' petition as were alleged in the Holland v. Shaffer, supra, case, 162 Kan. 474, 178 P.2d 235, 173 A.L.R. 845. We further submit that appellants' demurrer to plaintiffs' evidence should have been sustained for no evidence of any kind was introduced by plaintiff showing any equitable reason for partitioning these minerals in place * * *'

Defendants cite Fry v. Dewees, 151 Kan. 488, 99 P.2d 844; Drake v. Drake, 153 Kan. 56, 109 P.2d 77; and Spikes v. Magnolia Petroleum Co., 158 Kan. 659, 149 P.2d 348. They argue these opinions all hold that a contenant in minerals in place may not have partition except upon equitable grounds, which must be alleged in the petition and proved by plaintiffs. They argue...