Phillips Petroleum Co. v. Davis

• Decision Date: 16 June 1942
• Docket Number: Case Number: 29630
• Citation: 194 Okla. 84,1942 OK 243,147 P.2d 135
• Parties: PHILLIPS PETROLEUM CO. v. DAVIS et al., Adm'rs.
• Court: Oklahoma Supreme Court

1942 OK 243

147 P.2d 135

194 Okla. 84

PHILLIPS PETROLEUM CO. v. DAVIS et al., Adm'rs.

Case Number: 29630

Supreme Court of Oklahoma

Decided: June 16, 1942

Syllabus

¶0 1. ABATEMENT AND REVIVAL--Unknown death of plaintiff after judgment for him and while motion for new trial is pending does not bring about abatement of action which survives nor affect power of court to determine motion.

The unknown death of a plaintiff after judgment in his favor and while a motion for new trial is pending, in an action which survives, does not bring about an abatement of the action nor affect the power of the court to consider and determine the motion.

2. JUDGMENT--ORDERS--Court's control of its judgments and orders during term time-Authority to continue motion and rule thereon at subsequent term.

Judgments or orders of courts of record are under control of the court pronouncing them during the term at which they are rendered or entered, and where a motion involving such power is filed during the term and is continued until the next term, the action of the court thereon at such subsequent term has the same legal effect as if such ruling had been made at the term in which the motion was filed.

3. APPEAL AND ERROR-- Review of evidence in action of equitable cognizance -Conclusiveness of referee's findings.

Where, in an action of equitable cognizance, the issues are offered (to a referee) under an order to hear the evidence and make findings of fact and conclusions of law and return the same together with all the evidence adduced before the referee, and that all findings of fact and conclusions of law of the referee be subject to the approval of the court, and subject to review by the Supreme Court, in the event of appeal, this court on appeal will review and weigh the evidence, and determine whether such findings or any of them are clearly against the weight of the evidence, and will set aside such findings of fact as may be found to be clearly against the weight of the evidence.

4. MUNICIPAL CORPORATIONS--Applicant for permit to drill on oil and gas lease under zoning ordinance, in furnishing required certificate of titles from abstracter certifying last owners of lots in block, is not bound by such certificate as to who may be actual owner of any particular lot.

A zoning ordinance of the city of Oklahoma City required that the applicant for a permit to drill upon an oil and gas lease within the zone where such well might be drilled attach to the application a certificate of title or titles from a bonded abstracter certifying the last owner of the lots in the block and the character of the instrument or conveyance upon which ownership rests. Held: The applicant is not bound by such certificate as to who may be the actual owner of any particular lot.

5. SAME--Conclusiveness of finding by city board of adjustment that due notice was given of hearing on application for permit to drill.

A finding by the board of adjustment of the city of Oklahoma City that due and proper notice of the hearing, on an application for a permit to drill an oil or gas well under the zoning ordinance of said city, will be taken as conclusive evidence that such notice was given in the absence of any evidence to the contrary.

6. SAME--Sufficiency of service of notice to drill upon owners of unleased lots within area.

Where an order of the board of adjustment of the city of Oklahoma City granting a permit to drill an oil or gas well under the zoning ordinance of. said city requires that notice be served upon the owner of all unleased lots within the area covered by such permit and that such notice be either by personal service or by registered mail to the last known address of such owner and does not provide for other or substitute notice, neither publication nor affidavit "in lieu of such publication" is required.

7. ESTOPPEL-- Equity will not lend aid to party who with knowledge of facts stands by and lets another take all risks of venture and after venture proves successful seeks to share in profits.

Equity will not lend its aid to a party who, with full knowledge of the facts, and without risk to himself, stands by and sees another take all the risks of an uncertain venture, and, after the venture proves successful, seeks to share in the profits.

8. BOUNDARIES--Purchaser of city lot abutting nonnavigable stream held to acquire title to land extending to middle of main channel of stream.

Where a plat of an addition to a city dividing a tract of land extending to a nonnavigable stream shows no street or alley between the lots as shown by the plat and the bank of such stream, the purchaser of a lot abutting such stream acquires title to the land extending to the middle of the main channel of such stream notwithstanding the fact that the United States Government plat and field notes show the tract so platted as extending only to the bank of the stream.

Appeal from District Court, Oklahoma County; George H. Giddings, Judge.

From judgment in favor of J. C. Davis in proceeding for accounting for oil and gas produced by the Phillips Petroleum Company, the latter appeals. Reversed, with directions.

Don Emery and Rayburn L. Foster, both of Bartlesville, R.B.F. Hummer and E. G. De Parade, both of Oklahoma City, George Sneed, Jr., of Bartlesville, and Harry D. Turner, of Oklahoma City, for plaintiff in error.

Twyford & Smith and William J. Crowe, all of Oklahoma City, for defendants in error.

RILEY, J.

¶1 This is an appeal from a judgment against plaintiff in error and in favor of defendant in error J. C. Davis in a proceeding in accounting for oil and gas produced by Phillips Petroleum Company from a well drilled in block 3, Aungst addition to Oklahoma City.

¶2 The well was drilled under a permit granted by the board of adjustment under the provisions of what is known as the zoning ordinance. For convenience plaintiff in error will hereinafter be re.erred to as Phillips, and defendant in error J. C. Davis will be referred to as Davis. Phillips procured the permit to drill the well and in its application stated that it was the owner of valid subsisting community oil and gas leases covering all the lots in said block except lots I to 4, inclusive, and lots 22 to 25, inclusive. The lots claimed by Davis are lots 1 and 2 in said block. Along with other information required by the ordinance was a certificate from a bonded abstracter certifying the name of the last record owner and the character of instrument or conveyance upon which the ownership rests. With reference to lots 1 and 2, the certificate showed as owner: "E. M. Bissell (Deed) Louis J. Rusche (Deed) title based on tax deed issued to him 9-5-2l." As to lots 3 and 4 it showed as owner, "Louis J. Rusche (Deed)." At another place where the names and last-known addresses of lot owners in the block were given, it was stated as to lots "1 and 2 owner E. M. Bissell, whereabouts unknown," and a notation "serve notice by publication." Immediately thereunder it showed as to the same lots "1 and 2 Louis J. Rusche and Minnie Rusche, Harrah, Oklahoma." As to lots 3 and 4 the statement showed that Louis J. Rusche, Harrah, Okla., was the owner. Though the application stated that Phillips had no lease covering lots 1 to 4, inclusive, it later developed that it did in fact have assigned to it an oil and gas lease covering said lots 1 to 4, inclusive, executed by Louis J. Rusche and Minnie Rusche.

¶3 The ordinance provides that the board of adjustment:

". . . shall have authority and shall make any requirements, regulations or orders which may be necessary, proper or equitable for all persons interested therein, and shall protect and safeguard the rights of all parties affected by such order."

And:

". . . The board of adjustment, after giving notice and conducting hearing as hereinafter provided, shall have authority to determine the equities and grant a proper permit for drilling a well upon such block or tract."

¶4 The order granting the permit contained the following provisions:

"It is the judgment of the board, and the board so finds, that each owner of lots or parcels of land in said block 3, should be entitled to share in the one-eighth (1/8) of the oil, gas and/or casinghead gas that may be produced from the well to be drilled on said block 3 in the proportion that the area of such lots and parcels of land, exclusive of streets and alleys, bears to the entire area of said block 3, exclusive of streets and alleys; . . ."

And:

"It is further ordered, adjudged and decreed that any owner of any valid and subsisting oil and gas lease covering any lots or parcels of land within said Block 3 not leased to appellant herein, and/or any owner of any unleased lots or parcels of land within said Block 3, shall have the right to participate in and receive his, or their proportionate part of the seven-eighths (7/8) working interest oil, gas and/or casinghead gas produced from said Block 3 in the proportion that the area of such lots or parcels of land, exclusive of streets and alleys, bears to the entire area of said Block 3, exclusive of streets and alleys, upon compliance of such owner with the following conditions:

"Within ten days (10) after the issuance of permit as provided herein, the appellant shall serve written notice, either by registered mail to the last known addresses, or by personal service upon all such lease owners, or owners of unleased lots or tracts, that appellant intends to drill, or is drilling, a well upon said Block Three (3), and each such owner shall have ten (10) days from the date of service of such notice to furnish a bond signed by some surety company, authorized to do business in the State of Oklahoma, running in the name of the appellant herein, executed by such owner as principal and conditioned that such owner will pay as rendered, all proper bills for his proportionate part of all costs and expenditures in the preparing for drilling, drilling, equipping, operating and maintaining said well and appurtenances

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