Dilworth v. Fortier

1960 OK 5, 354 P.2d 1091, 13 Oil & Gas Rep. 601, 1960 Okla. LEXIS 440

• Court: Supreme Court of Oklahoma
• Decided: January 12, 1960
• Docket: 37965
• Status: Published

Opinions

BLACKBIRD, Justice.

This appeal concerns a quiet title action involving a quarter section of land originally described as the Northeast Quarter of Section 5, Township 27 North, Range 1 West, in Kay County, Oklahoma.

One Charles E. Dilworth homesteaded this tract (usually referred to herein merely by the abbreviation “NE”) and thereafter, on September 15, 1913, he and his wife executed and delivered to Hercules Oil and Gas Company an oil and gas lease covering it, for a period of twenty (20) years “and so much longer as oil or gas is found thereon in paying quantities.” The lease (which together with its leasehold will hereinafter usually be referred to merely as the “Hercules Lease”) reserved to said lessors one-eighth of the oil produced and saved from the leased premises, and provided, among other things, that if “gas only” was found “in quantities large enough to transport * * * ”, then lessee would deposit to lessor’s credit, for the produce of each well so transported, $100 each year after the completion of each such well. The deposit so provided will hereinafter be referred to as “the gas payment.”

After an assignee of the above described lease, called Jones & Buell Company, had become its owner, the Dilworths, by instrument dated October 7, 1915, conveyed to one D. S. Rose, subject to said lease, an undivided one-half interest “in and to all the oil and gas and the oil and gas rights in or under * * * ” the West Half of the leased tract. This conveyance specifically contemplated the grantee, Rose, receiving one-half of the royalties to be paid under the existing lease, and that he and the Dilworths would be equal tenants in common in the mineral rights, after said Hercules Lease had expired or “become void.” Such an interest will hereinafter be referred to as a “mineral interest”; and it. or so much of it as has survived the hereinafter described tax sale proceedings, if any, is now held by parties we will refer to herein as Wolfe, Mullendore et al.

The following Spring, or in April, 1916, a well was drilled on the leased quarter section that produced 10 barrels of oil per day. Later the same year, the Dilworths executed and delivered to one J. A. Frates a warranty deed, dated October 30, 1916, describing the entire quarter section (with-, out mention of their previous deed to Rose) and reserving to themselves, for a period not to exceed 99 years, a one-hundred-dollar gas payment in words identical with those of the above described Hercules Lease, and also the same kind of one-eighth oil royalty prescribed in said lease. In said deed, it was also stated, in substance, that it was “the intention” to reserve to the Dilworths, their heirs and assigns, not only the specified “royalties” under the exist-' ing lease, but “under any subsequent oil' and gas lease that may be made by any owner of such land, and and this reservation is to be construed as and deemed a covenant running with the land.” (Emphasis ours.) The interest, thus described, will' hereinafter be referred to as a “non-participating oil payment” to distinguish it from a “mineral interest”, whose owner retains the exclusive right to lease it. (In connection with our use of the terms :■ “non-participating” and “working interest”, notice the discussion in Colonial Royalties Co. v. Keener, Okl., 266 P.2d 467, 472.)

On November 11, 1916, Frates and hus-wife executed and delivered to Dilworth Townsite Company a warranty deed purporting to convey to said company, as “party of the second part” (without mention of Dilworth’s above described deed to Rose) the entire Northeast Quarter of Section 5. This deed also contained, however, a reservation of one-eighth oil royalty, and provision for a one-hundred-dollar per year gas payment, substantially in the same words that had been employed in the deed the Dilworths had previously executed and delivered to Mr. Frates, as aforesaid.

, After completion of drilling in the well héreto fore .mentioned, other wells producing gas were drilled ofi the NE under various assignments of the original Hercules-Leásé; and it is established that their production,' and the payment of gross production' taxes on' same, commenced at least as early as the year 1918, and continued until September, 1951. ' Nevertheless, after 60 acres of said quarter section had, in 1917, been selected as a site for the Town of Dil-worth, 'and platted into town lots by Dil-worth- Townsite Company, ad valorem, taxes were assessed against them for the yeaf 1917, and subsequent years.

•Tn February, 1918, an assignee called Rermont Oil; Company, which was then the, owner, of.the Hercules Lease, assigned it to.;Erqpire• Gas and Fuel .Company, except-, tog -from .said .assignment that portion of the'- NE.‘(platted and known , as the Town pf-, Dilworth; . * *■”. j Thereafter, in 1928, .by mesne assignments of the same lease, ■ Cities Service Oil Company became the -owner of the %ths working interest in the. oil rights; and Cities Service Gas Company became the.owners of the %ths working • interest, in the • gas rights under said lease. •

Thereafter, most of the tracts, and/or lots, comprising the NE were sold for delinquent ad valorem .taxes, assessed for years during which some (if not all) of the aforementioned wells on said quarter section were producing. After said, .taxes became delinquent and the tracts were purportedly. sold therefor, one C. L. Hartman acquired a resale tax deed to them in 1945.

In 1948,' Hartman conveyed his entire interest, in NE, including a 15-acre strip extending along the southern edge of the Dilworth Townsite, to Minnie Myra Wood-ruff and Margalee Hartman Gogos. Following. the cessation of production under the Hercules Lease, in' 1951, Cities Service Oil Company and Cities Service Gas Company executed on and before September 3, 1952, 'and thereafter filed of record, a release óf sáfi'd' léase. ’ Later, during the same month, Minnie Myra Woodruff and Margalee Hartman Gogos conveyed their' interests to Earl H. and . Floyd .Trenary,. said grantors reserving to themselves an-undivided one-half interest in the oil and gas rights in and under the property so conveyed.

In October, 1954, the Trenarys and their wives 'and Minnie Myra Woodruff and Mar-galee Hartman Gogos, hereafter sometimes referred to merely as “Woodruff and Go-gos”, executed and delivered to one W. R. Yeager an oil and gas lease purporting to' cover the NE. It was provided in said lease that even if the lessors owned a lesser in-, terest, than the entire fee simple estate, they should not receive less than one-eighth of the oil and gas produced and saved from-the leased premises, and ga.s and casinghead, gas used off said premises. This new lease (together with its leasehold) entered into, since cessation of production under, and abandonment of, - the Hercules Lease, will' hereinafter be referred to as the “Yeager. Lease.” '

By assignment, the %ths working interest-in this Yeager Lease, subject tó a Viath overriding royalty in Southwestern Finance' Company and Yeager, was acquired in equal parts, of an undivided one-half interest each, by National Cooperative Refining Association (hereinafter referred to as “National Co-op”) and by Leo R. Fortier and Wayne W. Wright, referred to as Fortier and Wright. Fortier and Wright, designated by said owners of said lease as its operators, have, under its authority, and beginning in 1954, drilled six producing oil and/or gas wells on parts of the NE not included in the Dilworth Townsite, and, when the present action was commenced on June 2nd, 1955, by the successors in title of the original landowners, the Charles E. Dilworths (including the successors to the interest of their grantee J. A. Frates) as plaintiffs, and hereinafter referred to as the “Dilworth Group”, the crude oil purchaser, Anderson-Pritchard Oil Company, h3d paid National Co-op the sum of $29,319.47, as the net proceeds of all production of said lease, between February 1, 1955,-and June 1-, 1955. During the pendency of this action, another $111,030.27, accruing from the same source between the latter date and April 1, 1957, was held in suspense or, in effect, impounded, to be paid to the parties adjudged in this action to be entitled thereto.

. The position of the Dilworth Group at the trial, and here, indicated by the statements in their petition, may briefly, and in general substance, be summarized as follows: That by reason of the hereinbefore mentioned .production under the Hercules Lease during the years for which ad va-lorem, taxes were assessed, that became delinquent and gave rise to the tax sales and issuance of the resale tax deed to Hartman, in 1945, as aforesaid,- the mineral estate in the NE was severed, for tax purposes, from said quarter section’s whole estate, and that, instead of being subject to ad valorem taxes during those years, it was, in' lieu thereof, subject to the gross production tax. Their conclusion from this premise was, and is, that the. sales for the ad valorem taxes, assessed for those years, could not legally have included said mineral estate, and that therefore, said sales, the tax certificates evidencing them, and the resale, through which Hartman obtained his tax resale deed of 1945, were impotent to convey any titje to said mineral estate, or to any so-called “Oil ¿hd/or gas rights.” The Dilwo'r'th-Group’s position is that, this .being true, Minnie Myra Woodruff and Margalee Hartman Gogos could convey to the Tre-narys no title.to any such interest or estate, and that therefore the Dilworth Group was •entitled (o have their title quieted to. said mineral estate, and all oil and gas rights •under the entire NE. In their petition, they did not specifically ask for cancellation of the Yeager Lease, but did pray that Fortier ■and Wright, National Co-op and Anderson-Pritchard Oil Corporation “be restrained and enjoined from going on or about.the premises, producing or attempting to produce oil or gas therefrom, or in any manner interferring with” their ownership of the minerals and royalties in thé premises and that they have an accounting from, and judgment against, said defendants for all of the oil or other minerals produced. from-the premises.

At this point we will make no reference to the position of Woodruff and Gogos, or of the Trenarys, or of others whose title is deraigned through the Hartman resale deed of 1945, and whose names appear on the same brief herein with that of. W. R. Yeager, except to say that they maíntainéd-that the basis of their title — Hartman’s-purchase at the 1945 tax resale — carried, with it, and included, all minerals and oil and gas. rights in and under the NE.

The judgment entered at the close of the trial without a jury did not uphold the position of either of the aforenamed'groups of adversaries in toto. As concerns the issues in this appeal, there inheres in said judg^ ment the following findings and conclusions, among others: .

(1). That the Dilworth-Rose deed of October; 1915, conveyed to Rose an undivided Y¿ mineral interest in the W NE, riow owned by Wolfe, Mullendore et ah;

(2). That the Dilworth-Frates deed of October, and the Frates-Dilworth Townsite Company deed of November, both in 1916, left the Dilworth Group with a one-hundred-dollar per annum gas payment'covering the entire NE, and a non-pártiéipating oil payment of an: undivided ⅛⅛ ás -tó-thé E NE and an undivided ½6⅛ as-to;thelM. of said quarter section;

• (3). That by reason of development-.-uttr der the Hercules Lease, the .miheral estate in the NE (which included thé': above-described 'interests) was severed ‘from the whole estate -in-said.-tract, ¡and survrvted the hereinbefore mentioned tax sales arid ret ■sále, never passing, to Hartman* by the tak resale-and the resale1 deed*'he acquired-in 1945, but thereafter remaining-valid and Intact until cessation of productitín ' under, -and abandonment of, the. Hercules .Lease in •1951. . . V - , 1

On the basis of-such findings:and.cpttclir-sions, and others unnecessary: at this point to mention, the judgrhent quieted title in- the Trenarys to what was terme’d;thé.f/fée”,-or “fee simple”, in the NE, less certain lots in the Dilworth Townsite, and subject to, or diminished by, the following:

(1). The nonparticipating and contingent gas and oil royalty payment (⅛ as to E NE; ¼o as to W NE) interests of the Dilworth Group;

(2). The undivided ⅞ mineral interest of Wolfe, Mullendore et al. in the W NE;

(3). A J4th interest in the fee of the 15-acre strip South of the Dilworth Townsite, extending from East to West across the W NE, and in all oil and gas lease bonuses, rentals, and royalties, held in shares of an undivided ¼⅛ each.by Minnie Myra Wood-ruff- and Margalee Hartman Gogos.

The judgment, inter alia, upheld the Yeager Lease generally, found that none of the production obtained under it had come from that part of the NE embraced within the Dilworth Townsite; and determined the lease to be a valid and subsisting one on the E NE, and, as to the W NE, it held the lease did not cover the undivided ½ mineral interest owned by Wolfe, Mullendore et al.; and granted the latter recovery of ½ of the proceeds of the sale of all oil and gas produced under said lease from the W NE, less said owners’ proportionate share of the costs of “discovering and producing” it, “and the production tax thereon.”

■ After the overruling of a motion for a new trial filed by the Dilworth Group, another such motion filed by the Trenarys, Margalee Hartman Gogos, Minnie Myra Woodruff and Charles L. Hartman, hereinafter referred to collectively as the Tre-nary Group, and a third such motion filed by National Co-op, Fortier and Wright, John Ray Evans, W. R. and M. P. Yeager, hereinafter referred collectively as the “Yeager Group”, the present appeal was perfected.

Under “Plaintiff’s Proposition Number 3”, the Dilworth Group asserts error in that portion of the trial court’s judgment establishing their non-participating oil payment interest in the W NE, as being only an undivided ½6⅛, rather than an undivided ⅛⅛ part, or share. In support of their contention that their title should have been quieted to the entire ⅛⅛ interest, they cite the wording of the reservation in the Dil-worth-Frates Deed, and point out that there “was no pleading of any ambiguity in the deed” or any “testimony offered that the deed did anything but reserve a one-eighth in the whole quarter section.” In this argument, the word “testimony” must have been used advisedly, for, not being as broad as the word “evidence”, it disregards documentary proof in the form of the Dilworth-Rose mineral deed, that the Dilworths had executed almost a year previously, conveying an entire undivided' one-half interest in the minerals to D. S. Rose. As a result of this conveyance, the Dilworths retained, before executing the subsequent Dilworth-Frates deed, only an undivided one-half interest in the minerals under the W NE: Consequently, when, by the later deed, they purported to reserve unto themselves, a ⅛⅛ oil payment in the entire NE, this reservation could extend — as to the W of said quarter section — only to the ½ mineral interest which they then owned. We think the trial court committed no error in construing the reservation of this ⅛⅛ of ½ as retaining in the Dilworths an oil payment interest of only Viath in the W NE. Undisputedly, the Trenary Group did not specifically plead these conveyances, because they claimed all of the minerals under the entire NE through a new and different title, i. e., Hartman’s tax title from the county. But, as the Dilworth Group had to prevail, if at all, on the strength of their own title (Settles v. Atchison, T. & S. F. Ry. Co., Okl., 318 P.2d 867), the effect of said deeds was necessarily in issue. In this view of the matter, and, as the Dilworth Group introduced those deeds as evidence of links in their own chain of title, they have no cause for complaint in the court’s exercising its necessary prerogative of construing the deeds to arrive at the quantum of their present interest.

Under Proposition I in the Yeager Group’s brief, and Propositions I and II in the Trenary Group’s brief, it is urged that the trial court erred in holding that the interests of the Dilworth Group survived the hereinbefore mentioned tax sales and resale, rather than being extinguished, or wiped out, thereby. By a rather lengthy and involved argument, in which they “break down” landowners’ ownership of land, leased for oil and gas mining purposes, into three distinct interests, the Tre-nary Group, by excerpts from the Gross Production Tax Statute (Tit. 68 O.S.1951 § 821 et seq.), seek to show that the gross production tax is not an “in lieu” tax on said “reverter” interest, but that it is covered by ad valorem tax assessments, and therefore is cut off, or extinguished, by a valid tax resale, out of which a virgin fee simple title emerges, clothing the owner thereof .with a new title to both mineral and surface estates. On the basis of such premise, the Trenary and Yeager Groups argue that at least as early as all production ceased under the Hercules Lease and said lease’s abandonment, title to all of the minerals, and oil and gas rights of whatever nature, vested in Minnie Myra Woodruff and Margalee Hartman Gogos. In another part of their argument, these Groups, pointing to the evidence indicating that no gross production tax was paid on any product of the NE’s mineral estate, except natural gas, contend that said payment did not prevent all oil rights, in existence previous to the tax resale, from being extinguished thereby. These arguments are untenable in more than one respect. ,

Firstly, the gross production tax is not just a tax on the landowner’s or lessor’s interest, or of just the lessee’s interest in the mineral estate. It is a tax on both — on the entire mineral estate, including “the oil in place, the mining 'rights and privileges granted under a lease thereof arid ■the royalty rights reserved thereunder * * Meriwether v. Lovett, 166 Okl. 73, 26 P.2d 200. In bbth the Dilworth-Rose and the Dilworth-Frates deeds, title to the oil and to the gas was severed together, and by the same instruments. Both of these fugacious minerals, which are almost invariably discovered and produced together, and from the same strata or common source of supply, are parts of the same mineral estate; and production from said estate of either of them brings about a severance of said estate, from the whole estate, for tax purposes. As such is the nature of the mineral estate severed in the present case, we think it unnecessary and inappropriate to answer queries posed by part of the Trenary Group’s argument as to 'whether payment of the gross production tax — made in this case on gas — prevented the lien of the ad valorem taxes, assessed against the tract, from covering said tract’s possible non-fugacious mineral deposits such as coal, lead and zinc.

In their argument under “Sub-Topic No. Four: The Tax Deed” the Trenary Group inserts a quotation from Secrest v. Williams, 185 Okl. 449, 94 P.2d 252, 253, to the effect that the sale of oil for ad valorem taxes passes title to the land, including the mineral rights, “whether severed or not * * * ”; but an examination of said opinion shows that the severance there spoken of was a severance of title, rather than 'a severance for tax purposes, which latter only occurs when production commences. In this connection, see Peteet v. Carmichael, 191 Okl. 593, 596, 131 P.2d 767, 769, and Boone v. Claxton, Okl., 269 P.2d 980, 982, where the distinction between the severance in that case and the one in Secrest v. Williams, supra, is noted. McCoy v. Childers, 124 Okl. 256, 256 P. 25 (cited by the Trenary Group) in holding that the provision in the gross production tax statute referring to the lien for said tax as being “strictissimi juris”, is in nowise contrary to the above-noted pronouncement in Meri-wether v. Lovett, supra. As above demonstrated, the expression “royalty interest” as used in said tax statute means not only production, but the “interest”, or (mineral) estate, from which it is derived. Therefore, the definition of “royalty” the Trenary Group cites from Federal Land Bank of Wichita, Kansas v. Nicholson, 207 Okl. 512, 251 P.2d 490, is not applicable. Nor do the cases of Boone v. Claxton, supra, which much of the Trenary Group’s argument concerns, and the cited case of Sears v. Randolph, 195 Okl. 200, 156 P.2d 595, furnish them any relevant support. In holding in the Boone case [Okl., 269 P.2d 984] that the trial court should have quieted the title of the allottee, Mrs. Boone “to the fee of the lands outside of plaintiffs’ fence * * * ”, we merely distinguished surface rights, which plaintiffs had bought at the resale (and to which they had perfected their title) from the remainder of the whole estate, which, because of production, had not been subject to the lien of the ad valo-rem taxes assessed against it.

The underlying fallacy and weakness that extends through most of the arguments of the Yeager and Trenary Groups (and especially the latter) is that they attempt to make of the lessee’s abandonment of, and cessation of production under, the Hercules .Lease, a vehicle for the vesting of title in them of all oil and gas deposits then left in place. The first step in this attempt is the contention that the Hercules Lease should .be considered a conveyance of all oil and gas in place under the NE. However, they .concede that, after execution of said lease, •the lessors, the Dilworths, still had the right to have said, minerals revert to them upon said lease’s being abandoned or becoming •inoperative. Therefore, if this “possibility of reverter” remained the property of Dil-worth, and his successors in title, until 'lawfully extinguished — but the tax resale of ,1945' (being a sale for delinquent ad valo-rem taxes, whose lien could not cover, or ■attach, to the mineral estate, because it was severed from the land’s whole estate and subject to a different kind of tax (gross production) during the years for which the delinquent ad valorem taxes were assessed) could not accomplish such extinguishment —then what was there about abandonment ■of production under the lease that constituted it. a muniment, or conduit, of title, and made it capable of changing the course of'that reverter, so that, instead of reverting 'to ,the holders of the title from whence ■it came; -it followed a completely different course and vested in the new, or “virgin” tax title ? • If the tax sales and resale did not fill this' gap between the new and the old title, how could cessation of production, and abandonment of the lease, do it? We think the obvious answers to these questions demonstrate the utter unsoundness of the Trenary and Yeager Groups’ position.

And, if the tax sales and resale did not cover the oil and gas mineral estate of the NE, they did not affect the right to lease said tract for mining those minerals — which right was incident to ownership of the minerals (see authorities cited in Morgan v. McGee, 117 Okl. 212, 245 P. 888, 891) and had already been exercised and was subsisting as a part of the mineral estate during the Hercules Lease’s operation and development. As hereinbefore shown, such mining on this quarter section had for many years previous to the resale in 1945, and for several years thereafter, been done under the exercise of such right to lease by the homesteader, Charles E. Dilworth, and his wife. Thus the right might be said to have been pre-empted at the time of the tax sales and resale. Being withheld from these sales, no part of it passed to the county by reason thereof. Consequently, this right could not have been vested by the resale in any individual or group. It could not transcend the gap between the chain of title emanating from Charles E. Dilworth, and the new chain of title emanating from the county, any more than the rest of the mineral estate.

The Trenary and Yeager Groups’ argument that the reservation as worded and described in the Dilworth-Frates and the Frates-Dilworth Townsite Company deeds had the effect of vesting the right to lease in whoever was the “owner of such land” at the expiration of the Hercules Lease, is untenable. That reservation applied only to the Dilworth chain of title; it did not apply to, or run with, an absolutely new and foreign title, such as that from the county. In view of the foregoing, we .have concluded that the trial court erred in upholding the Yeager Lease on the strength of any purported rights its lessors deraigned through the Hartman resale deed of 1945. Neither of the parties who executed it derived any right, or lawful power,- to do so through. the medium of that -deed. That right and power remained in those who owned :the land previous to -its acquisition by the county for delinquent taxes. As those owners were the only ■ones who had the lawful right to execute a, valid oil .and gas lease on said quarter section, the trial court’s judgment, at least in so far as based upon a contrary determination,-was-error.

' ;As the rights of various-parties affected ⅛ this fundamental error must be redetermined-at a.new.trial,-at.which some, of the alleged errors and/or .issues, not dealt with herein, may never arise, or be materially different, we now express no opinion .on them.

: The judgment appealed. from herein is hereby vacated, and the cause is remanded to the trial court for a new trial, not inconsistent .with .the .views expressed herein.

DAVISON/ G. J., WILLIAMS, V. C. J., and HALLEY, JOHNSON, IRWIN' and BERRY, JJ., concur. WELCH and JACKSON, JJ., dissent.