Jilek v. Chicago, Wilmington & Franklin Coal Co.

• Decision Date: 15 March 1943
• Docket Number: No. 26972.,26972.
• Citation: 382 Ill. 241,47 N.E.2d 96
• Court: Illinois Supreme Court
• Parties: JILEK et al. v. CHICAGO, WILMINGTON & FRANKLIN COAL CO. et al.

382 Ill. 241

47 N.E.2d 96

JILEK et al.

v.CHICAGO, WILMINGTON & FRANKLIN COAL CO. et al.

No. 26972.

Supreme Court of Illinois.

Jan. 21, 1943.

As Modified on Denial of Rehearing March 15, 1943.

Appeal from Circuit Court, Franklin County; Blaine Huffman, judge.

Suit by John Jilek and others against Chicago, Wilmington & Franklin Coal Company and others to quiet title to certain real property and for other relief. From a decree dismissing the complaint, complainants appeal.

Affirmed.Runyard, & Behanna, of Waukegan (John L. Gleason, of Benton, and W. L. Cunningham, of Arkansas City, Ark., of counsel), for appellants.

Essington, Beebe & Pratt, of Chicago, and Roy C. Martin, Moses Pulverman, and Carter Harrison, all of Benton, for appellees.

GUNN, Justice.

The circuit court of Franklin county dismissed for want of equity the complaint of John Jilek et al., to quiet title to certain real estate, and for other relief. The issue involved is the ownership of the oil and gas purporting to be conveyed by a certain mineral deed delivered to one J. T. Chenault, and by mesne conveyance to appellees. A freehold is involved. Triger v. Carter Oil Co., 372 Ill. 182, 23 N.E.2d 55.

It is stipulated that on July 12, 1905, R. Q. Simpson was the owner in fee simple of the land involved. On that date, by warranty deed, he and his wife conveyed to J. T. Chenault ‘all the coal, oil, gas and other minerals in or underlying the following described Real Estate, to-wit: [description] absolutely and specifically granting the rights to mine and remove all the coal and other minerals underlying said land without any liability for surface subsidence caused by mining out of the coal or other minerals and from not leaving pillars or artificial supports under said land and the further right to make under ground passages or entries through, to and from other mines and lands adjacent thereto, and with the right to the perpetual use of the same for mining purposes. It is also covenanted and agreed that the grantee herein, his heirs and assigns shall have the right to take and use as much of the surface of the said land as may be deemed necessary for the purposes of erecting, maintaining and operating hoisting, air, pumping, and escape shafts, ditches and reservoirs and the necessary roadways and railroad tracks to and from the same, with the right of way for any railroad necessary or required to carry said coal to market; but all land, the surface of which is so taken, shall, when occupied, be paid for at the rate of Fifty Dollars per acre. If the surface of any land that is occupied by buildings or other permanent improvements is taken, the full cash value of all such permanent improvements shall be paid.’ On October 2, 1915, R. Q. Simpson and wife conveyed to J. W. Epperson the same land, reserving to grantors ‘all the coal, oil and gas underlying the surface of such land, with the right to mine and remove all coal, oil and gas, etc.’ By mesne conveyance appellants John Jilek and Mary Jilek, acquired title to the portion of the land so conveyed to J. W. Epperson ‘except the coal, oil, gas and other minerals underlying all of said above described tracts * * *.’ Thus it appears the original owner of both the mineral and surface estates first conveyed to one grantee all of the coal, oil, gas and other minerals, and later on to another grantee the land by the same description, excepting the coal, oil, gas and other minerals; and the parties to this appeal are the remote grantees of the respective estates granted and conveyed by the original owner, R. Q. Simpson.

Plaintiffs-appellants first contend the deed to Chenault of the mineral rights conveyed no title to oil and gas, or any right to use the surface to explore for or produce oil or gas, and that said oil and gas underlying said premises, because of its being incapable of being so conveyed, passed by Simpson's deed of the surface to appellants. This claim raises squarely the issue of whether the owner of land in fee simple may convey and grant to another the right to take or own oil and gas in the ground in and by a mineral deed without at the same time conveying the superimposed surface of the land.

It has long been recognized in this State that mineral rights may be severed from the surface rights and conveyed separately, and that two estates are thus created in the land, each of which is distinct, and each of which may be conveyed or devised, and each is subject to taxation. In re Major, 134 Ill. 19, 24 N.E. 973;Ewing v. Sandoval Coal & Mining Co., 110 Ill. 290;Catlin Coal Co. v. Lloyd, 176 Ill. 275, 52 N.E. 144;Renfro v. Hanon, 297 Ill. 353, 130 N.E. 740;Transcontinental Oil Co. v. Emmerson, 298 Ill. 394, 131 N.E. 645, 16 A.L.R. 507;Updike v. Smith, 378 Ill. 600, 39 N.E.2d 325. The severance of the underlying mineral estate from the surface estate in the land is effected by the deed which conveys one alone without conveying the other. Kinder v. LaSalle County Carbon Coal Co., 301 Ill. 362, 133 N.E. 772;Uphoff v. Trustees of Tufts College, 351 Ill. 146, 184 N.E. 213, 93 A.L.R. 1224. Both the mineral estate and the surface estate in the land, when thus severed, are real estate. Catlin Coal Co. v. Lloyd, supra; Renfro v. Hanon, supra; Transcontinental Oil Co. v. Emmerson, supra. When the mineral estate is severed from the surface estate the means of obtaining or enjoying it are also granted, and pass with the grant of the minerals, without an express covenant for such purpose. Sheppard's Touchstone, 89; 2 Blackstone's Commentaries, 36; Ewing v. Sandoval Coal & Mining Co. supra; Threlkeld v. Inglett, 289 Ill. 90, 124 N.E. 368;Chicago, Rock Island & Pacific Railway Co. v. Smith, 111 Ill. 363. The right to take such minerals is a part of the real estate granted by a deed for such minerals. Manning v. Frazier, 96 Ill. 279. Real estate does not consist of the soil alone, but incorporeal rights, attached to or growing out of it, are also designated real estate. Texas Co. v. O'Meara, 377 Ill. 144, 36 N.E.2d 256;Tallman v. Eastern Illinois & Peoria Railroad Co., 379 Ill. 441, 41 N.E.2d 537;Oswald v. Wolf, 126 Ill. 542, 19 N.E. 28.

The principles set forth are firmly fixed with respect to surface and mineral estates in the land, so far as solid minerals are concerned, but it is said a different rule applies to fluid or nonsolid minerals, such as oil and gas, and that because of their supposed fugacious and wandering character a rule should be applied which permits the owner of the land in fee to convey, by deed, rights involving solid minerals, but denies him the power of conveying oil and gas rights, or the right to take them, and as a necessary corollary such rights remain affixed to the surface estate, and will pass by conveyance as a part thereof.

Oil and gas, by the overwhelming weight of authority, are minerals, (Ohio Oil Co. v. Daughetee, 240 Ill. 361, 88 N.E. 818, 36 L.R.A.,N.S., 1108; People ex rel. Carrell v. Bell, 237 Ill. 332, 86 N.E. 593; Poe v. Ulrey, 233 Ill. 56, 84 N.E. 46; Triger v. Carter Oil Co. supra; Ohio Oil Co. v. State, 177 U.S. 190, 20 S. Ct. 576, 44 L.Ed. 729;Burke v. Southern Pacific R. Co., 234 U.S. 669, 34 S.Ct. 907, 58 L.Ed. 1527) and belong to the owner of the land so long as they remain in the land. Watford Oil & Gas Co. v. Shipman, 233 Ill. 9, 84 N.E. 53,122 Am.St.Rep. 144; Poe v. Ulrey, supra; Updike v. Smith, supra. Oil and gas are parts of the land, and though in their natural state, i. e., ‘in place,’ they are considered of an impermanent or fugitive character, still they are things which by surface operations may be reduced to possession, and therefore their presence in the land, with their capability of being possessed, is a valuable property right growing out of ownership of land.

Oil and gas leases granting the right to search for and take oil and gas are freehold estates in the land. Triger v. Carter Oil Co. supra; Carter Oil Co. v. Liggett, 371 Ill. 482, 21 N.E.2d 569;Greer v. Carter Oil Co., 373 Ill. 168, 25 N.E.2d 805. Appellants rely almost wholly upon Watford Oil & Gas Co. v. Shipman, supra, wherein we said: ‘A lease of land to enter and prospect for oil or gas is a grant of a privilege to enter and prospect, but does not give a title to the oil or gas until such products are found. In the eye of the law oil and natural gas are treated as minerals, but they possess certain peculiar attributes not common to other minerals which have a fixed and permanent situs. Owing to their liability to escape, these minerals are not capable of distinct ownership in place. Oil and gas, while in the earth, unlike solid minerals, cannot be the subject of a distinct ownership from the soil. A grant to the oil and gas passes nothing which can be the subject of an ejectment or other real action. It is a grant, not of the oil that is in the ground, but to such part thereof as the grantee may find. [Citations.] The right to go upon the land and occupy it for the purpose of prospecting, if of unlimited duration, is a freehold interest.’ [233 Ill. 9, 84 N.E. 54,122 Am.St.Rep. 144.]

It is to be observed this language was used in connection with an oil and gas lease by which the owner of land granted the lessee the whole of the premises for the purpose of drilling and operating for oil and gas. It did not involve a severance of the surface and mineral estate in the land. The lease in the Watford case was executed by a cotenant owning a one-tenth interest in the real estate, and later this cotenant joined with the others in leasing all of said lands to another for the purpose of drilling for oil and gas. The first lessee prayed for an injunction and for the partition of the land between the cotenant executing the first lease and the other cotenants, so that said portion might be set off to enable the plaintiff to enter upon it and drill for oil and gas. It was with respect to such rights of a lessee that the court also said: ‘Appellant had no right to a compulsory...