Scott v. Signal Oil Co.

• Decision Date: 03 December 1912
• Citation: 128 P. 694,35 Okla. 172,1912 OK 816
• Parties: SCOTT ET AL. v. SIGNAL OIL CO.
• Court: Oklahoma Supreme Court

128 P. 694

35 Okla. 172, 1912 OK 816

SCOTT ET AL. v. SIGNAL OIL CO.

Supreme Court of Oklahoma

December 3, 1912

Syllabus by the Court.

A person may waive a right by conduct or acts which indicate an intention to relinquish it, or by such failure to insist upon it that the party is estopped to afterwards set it up against his adversary.

A departmental oil and gas lease was executed by a citizen of the Cherokee Nation to S., who thereafter assigned the same with the approval of the Secretary of the Interior, but without the consent of the lessor, to the Signal Oil Company who immediately entered into possession of the leased premises and in due time, after the expenditure of a considerable sum of money, developed a producing gas well. The lessor was duly notified of the assignment of said lease and the approval thereof by the Secretary of the Interior and thereafter for a period of several years accepted without question the rentals and royalties due her by the terms of said lease. Held, that the lessor by her conduct waived her rights under the clause of the lease which provides: "And it is mutually understood and agreed that no sublease, assignment or transfer of this lease, or of any interest therein or thereunder, can be directly or indirectly made without the written consent thereto of the lessor and the Secretary of the Interior first had and obtained, and any such assignment or transfer made or attempted without such consent shall be void."

The recordation laws of the state of Arkansas extended to and put in force in the Indian Territory do not require the assignment of an oil and gas lease executed by a citizen of the Cherokee Nation prior to statehood to be recorded in order to give it validity.

Error from District Court, Washington County; R. H. Hudson, Judge.

Action by the Signal Oil Company against Roxie A. Scott and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Norman Barker, of Bartlesville, for plaintiffs in error.

Rowland & Talbott and Jas. A. Veasey, all of Bartlesville, for defendant in error.

KANE J.

This was a suit commenced by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below, to enjoin them from interfering with certain rights which it claimed in a 40-acre tract of land under a departmental oil and gas lease. Upon trial to the court, a permanent order of injunction was decreed, as prayed for by the plaintiff, to reverse which this proceeding in error was commenced. The land in question is the allotment of Roxie A. Scott, a Cherokee citizen. The original lease was executed by her in favor of Charles B. Shaffer, and approved by the Secretary of the Interior on April 15, 1907. On the 3d day of May, 1907 Shaffer assigned the lease to the Signal Oil Company, which assignment was approved by the Secretary of the Interior on the 6th day of September, 1907. On March 7, 1911, the plaintiff in error Horton procured an oil and gas lease for the same premises from Roxie Scott under which he attempted to take possession, whereupon this suit was commenced.

The plaintiffs in error contend that the assignment of the lease by Shaffer to the oil company is void, because Roxie A. Scott did not give her written consent thereto, as required by a certain clause of the lease, which provides: "And it is mutually understood and agreed that no sublease, assignment or transfer of this lease, or of any interest therein or thereunder, can be directly or indirectly made without the written consent thereto of the lessor and the Secretary of the Interior first had and obtained, and any such assignment or transfer made or attempted without such consent shall be void." It is admitted that the assignment was made without the written consent of the lessor, and, if it were not for other circumstances which will be noticed hereafter the case would be controlled by the cases of Midland Oil Co. v. Turner, 179 F. 74, 102 C. C. A. 368, and Turner v. Seep et al. (C. C.) 167 F. 646, wherein it was held that: "Where an oil and gas mining lease executed by an Indian in Indian Territory on a form prescribed by the Interior Department expressly provided that no sublease or assignment of any interest therein could be made without the written consent of the lessor, and the Secretary of the Interior, and any attempted assignment or transfer without such consent should be void, a subsequent regulation of the department which contained no requirement of the lessor's consent in such cases could not validate an assignment of such lease made without the lessor's consent."

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