Murbarger v. Franklin

• Decision Date: 22 January 1960
• Docket Number: No. 35325,35325
• Citation: 163 N.E.2d 818,18 Ill.2d 344
• Parties: David MURBARGER et al., Appellants, v. Josephine FRANKLIN et al., Appellees.
• Court: Illinois Supreme Court

Page 818

163 N.E.2d 818

18 Ill.2d 344

David MURBARGER et al., Appellants, v.Josephine FRANKLIN et al., Appellees.

No. 35325.

Supreme Court of Illinois.

Jan. 22, 1960.

Tolliver, Bayler & Rickelman, Louisville, and Conger, Elliott, Goebel & Elliott, Carmi, for appellants.

Wineland & Todd, Flora, for appellees.

BRISTOW, Justice.

This is an appeal from a decree of the circuit court of Clay County which adjudicated title to the oil and gas in and under a 31-acre tract of land.A freehold is involved to give us jurisdiction upon direct appeal.Miller v. Ridgley, 2 Ill.2d 223, 117 N.E.2d 759.

On March 17, 1942, David Murbarger was the owner of the land in question and was also the father of eleven children.On that date, joined by his wife, he executed a series of mineral deeds conveying to each of seven children an undivided 1/22 interest in the oil and gas under and above the land 'for a period of fifteen (15) years or as long as oil, gas, petroleum distillates or either of them are produced on the property.'Thereafter, on September 24, 1942, a similar deed conveyed an undivided 1/22 interest in the oil and gas to another child, and on May 24, 1944, three mineral deeds were executed conveying an undivided 1/22 interest to each of the three remaining children.The four deeds in the second series were also for a term of 15 years, or as long as oil and gas were produced on the property.Neither oil nor gas was being produced at the time either series of deeds was executed.

By warranty deed dated April 12, 1949, David Murbarger and his wife conveyed the tract to Baldy and Josephine Franklin, as joint tenants, the only reservation in the deed being that the grantors reserve 'the undivided one-half interest in all oil and gas in and under that may be produced from the premises for ten (10) years from this date.'Baldy Franklin died May 5, 1951, and Josephine Franklin, as the surviving joint tenant, became sole owner of the estate conveyed by the deed.

Seven years after the deed to the Franklins, on September 17, 1956, Murbarger, his wife and the eleven children executed an oil and gas lease to James F. McCollum, who started drilling and subsequently commenced the production of oil, which continues at the present time, on April 19, 1957.The arguments to this court concede that the 15-year term of the first series of deeds, conveying 7/22 interest, had expired before production commenced.Controversy arises, however, as to whether such 7/22 interest vested in Josephine Franklin or David Murbarger at the end of the term, and as to who will be the owner of the 4/22 oil-and-gas interest conveyed by the second series of deeds once the production of oil or gas is terminated.

Based upon a finding that the warranty deed from David Murbarger to the Franklins neither reserved nor excepted any part of the 11/22 interest conveyed by the mineral-term deeds to the children, the circuit court found that Josephine Franklin was the owner in fee simple of the 31-acre tract, subject to the following: (1) an estate for years in David Murbarger, his heirs and assigns, in an undivided one-half of the oil and gas for a period of 10 years dating from April 12, 1949, said estate to vest in Josephine Franklin, her heirs or assings at the conclusion of the 10-year period; (2) an oil and gas lease in favor of James F. mcCollum, his heirs or assigns, and (3) an undivided 1/22 interest in each of the four Murbarger children who were grantees in the last series of mineral deeds, for so long as oil, gas or petroleum distillates are produced from such property, the said undivided 4/22 interest to vest in Josephine Franklin when production terminates.

David Murbarger and certain of his children prosecute this appeal insisting that the former, at the time of his deed to the Franklins, had only a possibility of reverter in the 11/22 interest conveyed by the term mineral deeds to his children, and that, by virtue of section 1 of the act of 1947 relating to rights of entry (Ill.Rev.Stat.1947, chap. 30, par. 37b) such interest was inalienable.Appellees, who are Josephine Franklin, McCollum and the oil company which is purchasing the oil being produced, contend, as the court found below, that the reversionary interest created by an oil-and-gas grant, whether it be by lease or term deed, may be transferred by devise or conveyance and vests in a grantee of the land unless expressly reserved.

It is the settled law of this State that oil and gas in place are minerals but by reason of their fugacious qualities they are incapable of ownership distinct from the soil.Conover v. Parker, 305 Ill. 292, 137 N.E. 204.They belong to the owner so long as they remain under the land, and if an owner makes a grant of them to another by lease, (Watford Oil & Gas Co. v. Shipman, 233 Ill. 9, 84 N.E. 53) by mineral deed, (Triger v. Carter Oil Co., 372 Ill. 182, 23 N.E.2d 55) or mineral deed for a term, (Summers, Oil and Gas, vol. 1A, p. 281,) it is a grant only of the oil and gas that the grantee may take from the land, as well as the right to enter upon the land for the purpose of prospecting and operating wells.No title to it vests in the grantee until it is actually removed from the ground, thus oil and gas in the earth cannot be subject to an ownership distinct from the soil so long as they remain in the earth.Updike v. Smith, 378 Ill. 600, 39 N.E.2d 325;Triger v. Carter Oil Co., 372 Ill. 182, 23 N.E.2d 55.They belong to the owner of the land as long as they remain under the land.Miller v. Ridgley, 2 Ill.2d 223, 117 N.E.2d 759;Transcontinental Oil Co. v. Emmerson, 298 Ill. 394, 131 N.E. 645, 16 A.L.R. 507.In general, a landowner is entitled to the surface and all that is below it, and when he makes a deed that contains no reservation and does not limit the estate conveyed, he conveys everything under the surface as well as on the surface itself.His legal interest in the oil and gas is accessory to his legal...