The Lanyon Zinc Company v. Freeman

• Decision Date: 12 March 1904
• Docket Number: 13,515
• Citation: 68 Kan. 691,75 P. 995
• Parties: THE LANYON ZINC COMPANY v. REUBEN R. FREEMAN et al
• Court: Kansas Supreme Court

75 P. 995

68 Kan. 691

THE LANYON ZINC COMPANY v. REUBEN R. FREEMAN et al

No. 13,515

Supreme Court of Kansas

March 12, 1904

Decided January, 1904.

Error from Allen district court; L. STILLWELL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MINES AND MINING -- Petroleum and Gas are Minerals. Petroleum and gas are minerals. As long as they remain in the ground they are part of the realty. They belong to the owner of the land, and are a part of it as long as they are on it or in it, or subject to his control.

2. EXECUTORS -- Not Authorized by Will to Make Oil and Gas Lease. A resident of Ohio owning a Kansas farm that had never been used for other than agricultural purposes executed a will, providing that the executor and trustee should take charge of the premises and "lease and maintain the same in repair and good condition, with a view to obtaining the best income therefrom, without permitting the same to deteriorate in value or quality." Held, that the executor and trustee was not authorized by the will to execute an oil and gas lease, granting to the lessee all the oil and gas under said premises and binding the legatees thereby.

4. PARTITION -- Executor and Trustee Estopped. An executor and trustee, without having sufficient authority under the will to bind the legatees thereby, executed an oil and gas lease on a farm that had never been used for other than agricultural purposes. Prior to the execution of the lease he had individually acquired the interest of one of the legatees in the premises. Soon thereafter he acquired the interest of another of the legatees. Held, that, in an action of partition, under the circumstances of this case, he is estopped from denying that the interest acquired by him was not subject to the lease.

Campbell & Goshorn, C. E. Benton, and J. B. F. Cates, for plaintiff in error.

Oscar Foust & Son, and Baxter D. McClain, for defendants in error.

ATKINSON J. All the Justice concurring.

OPINION

ATKINSON, J.:

In 1895 Wilson A. Koontz, a resident of the state of Ohio, died solvent and testate. Letters testamentary were issued to Reuben R. Freeman, as sole executor and trustee of the estate of deceased. The widow, Louisa C. Koontz, a son, Philip D. Koontz, and eight grandchildren, Iosa W. King, Enola G. King, Texas B. Koontz, Carla S. Koontz, Ernest S. Koontz, Mabel C. Koontz, and Helyne L. Koontz, were named as legatees, the six last named being minors at the time of the commencement of this action. Among other real estate owned by the testator at the time of his death was the southwest quarter of section 8, township 25, range 19 east, in Allen county, Kansas. The will devised the premises above described to the grandchildren, with the condition that in the event the testator should die before the period of eighteen years from the date of the will (July 10, 1895), the executor and trustee should take charge of the land and "lease and maintain the same in repair and good condition, with a view to obtaining the best income therefrom, without permitting the same to deteriorate in value or quality," until such period of eighteen years shall have elapsed.

The widow, Louisa C. Koontz, not having consented in writing to the will, elected to take under the law of descents and distributions. On March 15, 1898, Iosa W. King and her husband conveyed to Reuben R. Freeman all their interest in said premises. On December 30, 1899, Reuben R. Freeman, as executor and trustee, and Louisa C. Koontz, in consideration of the sum of $ 802.41, jointly executed to the Lanyon Zinc Company a lease, granting unto the company all the oil and gas under said premises, together with the right to enter upon the land for the purpose of drilling and operating for oil and gas, and the right to erect and maintain thereon, and to remove therefrom, buildings, structures, pipes, pipe-lines and machinery necessary for the production and transportation of oil and gas, with the right to the lessors to use the premises for farming purposes. The lessee was to be liable for all damage to timber and growing crops by reason of operating under its lease for oil and gas. The lease also provided that if no well was drilled on the premises within ten years, or if the lessee reconveyed the premises, then, and in either such event, the lease should become and be null and void. On February 7, 1900, Enola G. King and husband conveyed to Reuben R. Freeman all their interest in the farm. On July 31, 1901, E. K. Taylor acquired by deed the interest of Louisa C. Koontz.

On December 13, 1901, E. K. Taylor filed in the district court of Allen county his petition, asking for a partition of the premises, and claiming to be the owner of an undivided one-half interest therein. In his petition the plaintiff averred that Reuben R. Freeman was the owner of an undivided two-sixteenths interest, and that each of said minors was the owner of an undivided one-sixteenth interest in the premises. The petition further averred that the Lanyon Zinc Company, a corporation, claimed some interest in the land, and asked that it be required to set up its interest therein. All parties were brought into court as defendants, the minors appearing by guardian ad litem. Upon the trial, the Lanyon Zinc Company, answering, admitted the averments of plaintiff's petition as to the interest of plaintiff and defendants in the premises, averring and contending, however, that the interest of each was subject to the claim of the company under its oil and gas lease.

The plaintiff, by reply, and the defendants, Reuben R. Freeman, individually and as executor and trustee, and the minors through their guardian ad litem, by answer, each denied any right or interest of the Lanyon Zinc Company in the premises by virtue of the lease, and averred that the same was void and without force or effect.

The court found the plaintiff, Taylor, to be the owner of an undivided one-half interest in the premises, subject to the rights of the Lanyon Zinc Company under its oil and gas lease. The court further found that Reuben R. Freeman was the owner of an undivided two-sixteenths interest; that as to the interest of Reuben R. Freeman and the interest of said minors, the lease of the Lanyon Zinc Company was void and without force or effect; and that plaintiff and the defendants then owning an interest in the premises were tenants in common. Judgment of partition was entered by the court, setting off and allotting the east half of the premises to plaintiff, decreeing the lease of the Lanyon Zinc Company in full force and effect upon and against the same.

It being found by the commissioners that partition of the west half of the land described could not be made among the owners according to their respective interests, it was ordered by the court to be sold, if, within twenty days, the parties in interest failed to file their election to take the same at its appraised value. By the judgment and decree of the court the lease of the Lanyon Zinc Company was held to be without force or effect as to the west half of the premises described, and as to that part the lease was canceled and held for naught. The decree provided, however, that nothing therein should affect the...