Ritz, Judge:
On the 7th of March, 1902, John J. Musgrave, being the owner of a tract of about 335 acres of land, executed an oil and gas lease thereon for the term of ten years from its date, and as long thereafter as oil and gas, or either of them, is produced therefrom, and providing further for the delivery of a certain stipulated proportion of the production to the owner of the land as consideration for the lease. In 1895 he made his will devising this land to his several children. By the terms of the will it was cut up into several different tracts, one of which was de[120] vised to each of the children. In December, 1903, he departed this life. His will was duly probated, and his children took the parcels of land devised to them by the terms thereof. Up to this time there had been no development for oil or gas upon the tract of land. Sometime after the death of Musgrave the holder of the lease began development upon o.ne of the subdivisions. The well proved to be a producer, and subsequently several other producing wells were drilled on some of the tracts of land. Upon the part of the farm devised to the, plaintiff under the will of his father no development was had. He demanded of the lessee that the royalty derived from the, wells drilled upon the whole tract of land be divided among all of the heirs of John J. Musgrave, which demand was resisted by the parties upon whose tracts the wells were located, and denied by the lessee. This suit was thereupon brought by J. T. Musgrave, one of the children of John J. Musgrave, against the other heirs at law and the lessee in the oil and gas lease, to compel an accounting for the royalties produced from the wells upon said land, and a division thereof among all of the heirs at law of John J. Musgrave. From the de.cree of the circuit court of Monogalia county sustaining a demurrer to the bill, this appeal is prosecuted by the plaintiff.
It will be observed from the above statement that the sole question presented here is, whether the plaintiff is entitled to participate in the distribution of royalties arising from wells drilled upon a parcel of land other than the one devised to him, because of the fact that the lease under which the well is drilled was executed before the land was divided, and included the whole tract. The question was before this court in the cases of Campbell v. Lynch, 81 W. Va. 374, and Pittsburg & West Virginia Gas Co. v. Ankrom, 83 W. Va. 81, 97 S. E. 593. In the-former case it was held that where the owner of a large tract of land leased it for oil and gas development, and died before any work was done under the lease, and his heirs at law partitioned fhe land among them, the result of any development thereafter upon the land inured to the benefit of all of the heirs, regardless of the ownership of the subdivision from wbicb the oil or gas was produced- That decision was by a divided court, and subsequently, when practically the same question was presented in the case of Pittsburg & West Virginia Gas Company v. Ankrom, supra, it [121] was held, likewise by a divided court, that the oil produced belonged to the, owner of the tract of land upon which the well was located. In that case a bankrupt owned a large tract of land on which existed a valid oil and gas lease. His trustee in bankruptcy cut this up into a number of small tracts and sold them without regard to the oil and gas lease subsisting therein. Thereafter production was had on some of the subdivisions, and it was claimed by the owners of subdivisions upon which no production was had that they were entitled to participate, in the royalties, but it was held that such was not the case; that the owners of the subdivisions upon which the oil was produced were entitled to all of the royalties. The arguments in favor of the respective positions are fully developed in the opinions and dissenting opinions in these two cases.
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Ritz, Judge:
On the 7th of March, 1902, John J. Musgrave, being the owner of a tract of about 335 acres of land, executed an oil and gas lease thereon for the term of ten years from its date, and as long thereafter as oil and gas, or either of them, is produced therefrom, and providing further for the delivery of a certain stipulated proportion of the production to the owner of the land as consideration for the lease. In 1895 he made his will devising this land to his several children. By the terms of the will it was cut up into several different tracts, one of which was de[120] vised to each of the children. In December, 1903, he departed this life. His will was duly probated, and his children took the parcels of land devised to them by the terms thereof. Up to this time there had been no development for oil or gas upon the tract of land. Sometime after the death of Musgrave the holder of the lease began development upon o.ne of the subdivisions. The well proved to be a producer, and subsequently several other producing wells were drilled on some of the tracts of land. Upon the part of the farm devised to the, plaintiff under the will of his father no development was had. He demanded of the lessee that the royalty derived from the, wells drilled upon the whole tract of land be divided among all of the heirs of John J. Musgrave, which demand was resisted by the parties upon whose tracts the wells were located, and denied by the lessee. This suit was thereupon brought by J. T. Musgrave, one of the children of John J. Musgrave, against the other heirs at law and the lessee in the oil and gas lease, to compel an accounting for the royalties produced from the wells upon said land, and a division thereof among all of the heirs at law of John J. Musgrave. From the de.cree of the circuit court of Monogalia county sustaining a demurrer to the bill, this appeal is prosecuted by the plaintiff.
It will be observed from the above statement that the sole question presented here is, whether the plaintiff is entitled to participate in the distribution of royalties arising from wells drilled upon a parcel of land other than the one devised to him, because of the fact that the lease under which the well is drilled was executed before the land was divided, and included the whole tract. The question was before this court in the cases of Campbell v. Lynch, 81 W. Va. 374, and Pittsburg & West Virginia Gas Co. v. Ankrom, 83 W. Va. 81, 97 S. E. 593. In the-former case it was held that where the owner of a large tract of land leased it for oil and gas development, and died before any work was done under the lease, and his heirs at law partitioned fhe land among them, the result of any development thereafter upon the land inured to the benefit of all of the heirs, regardless of the ownership of the subdivision from wbicb the oil or gas was produced- That decision was by a divided court, and subsequently, when practically the same question was presented in the case of Pittsburg & West Virginia Gas Company v. Ankrom, supra, it [121] was held, likewise by a divided court, that the oil produced belonged to the, owner of the tract of land upon which the well was located. In that case a bankrupt owned a large tract of land on which existed a valid oil and gas lease. His trustee in bankruptcy cut this up into a number of small tracts and sold them without regard to the oil and gas lease subsisting therein. Thereafter production was had on some of the subdivisions, and it was claimed by the owners of subdivisions upon which no production was had that they were entitled to participate, in the royalties, but it was held that such was not the case; that the owners of the subdivisions upon which the oil was produced were entitled to all of the royalties. The arguments in favor of the respective positions are fully developed in the opinions and dissenting opinions in these two cases.
The contention is made that when the, land was divided at the death of Musgrave, in accordance with the provisions of his will, this did not effect a division of the oil and gas, but that this estate was still held in common, notwithstanding the provisions of the wall and the devise, of respective parcels of the land to the several children. If this contention is sustained, then at the time of Musgrave’s death he owned two estates in the same parcel of realty, to-wit, the land itself, and another estate termed the royalty thereon, which according to all the authorities with which we are familiar cannot.exist. As argued in the opinion in the case of Pittsburg & West Virginia Gas Co. v. Ankrom, supra, a party cannot have two different estates in the same land. As soon as two outstanding estates in the, same tract of land become vested in one owner, the lesser - estate becomes merged in the greater. We think the determination of this case depends upon the answer to the question, what did John J. Mus-grave own at the time of his death ? He was .the owner of the whole 335 'acres of land, subject only to the right of the lessee in the oil and gas lease to develop the same for oil. It has been repeatedly held by this court that the holder of an oil and gas lease has no vested estate in the oil -and gas in place until development has been had upon the land, and oil and gas produced'. At his death each of his children took every interest in the parcel of land assigned to him respectively that John J. Musgrave had therein. It cannot be doubted that he, John J. Musgrave, [122] was the owner of the oil and gas underlying this tract of land at the time of his death. The lessee had not developed. No oil or gas had been found at that time, and the only interest that the lessee had in the property was a mere right to go upon it and prospect for oil and gas. The oil and gas underlying the property were owned absolutely by John J. Musgrave. When he, devised a particular parcel of this land to one of his children, that one took in that parcel of land all of the interest that John J. Musgrave had therein, including the oil and gas, and all other minerals underlying it. That oil and gas are minerals and belong to the owner of the, land cannot be denied. They are the property of him upon whose land they are produced. It is true that it is generally believed, and it may be conceded, that these minerals are more or less vagrant in their character. They do not persist in the, same position in the earth at all times, but the owner of land has the right to develop the same-for the purpose of producing oil and gas, and if in the course of this development oil or gas from adjacent lands escapes to his premises it belongs to him; and vice versa, if oil or gas which at one time underlay his land escapes and is produced through wells on adjoining lands, it belongs to the proprietor of such land. This is the, conclusion reached by the majority of the court in the case of Pittsburg & West Virginia Gas Co. v. Ankrom, supra, and after careful consideration we-adhere to that conclusion. It would serve no useful purpose to further elaborate the arguments in support of this contention as they are fully stated in the Ankrom case, and our attention is not called to -any further or other reason in justification or condemnation of the conclusion there reached. As shown by the opinion in that case, the conclusion is supported - by the decisions of the Supreme Court of Ohio in the case of Northwestern Ohio Natural Gas Co. v. Ullery, 68 Ohio St. 259, 67 N. E. 494; the Supreme Court of the State of Arkansas, in the case of Osborn v. Arkansas Territorial Oil & Gas Co., 103 Ark. 175, 146 S. W. 122; by the Appellate Court of the¡ State of Indiana, in the case of Fairbanks v. Warrum, 56 Ind. App. 337, 104 N. E. 983. Those cases are reviewed in the opinion in the Ankrom case, and we consider it unnecessary to do more than'cite them at this time.
[123] Since the decision in that case, the Supreme Court of Oklahoma has had before it this identical question, and in the cases of Kimbley v. Luckey, 179 Pac. 928, and Pierce Oil Corporation v. Schacht, 181 Pac. 731, that court followed the decision of this court in the Ankrom case, supported by the authorities there cited. It is true the Supreme Court of Pennsylvania has taken the contrary view in the case of Wettengel v. Gormley, 160 Pa. St. 559 and 184 Pa. St. 354. We could not agree with the conclusion reached by that court at the time of the decision of the Ankron case, and after a further careful review of the arguments advanced to support it we are still of the opinion that the' same is unsound.
Finding no error in the decree complained of, the same is affirmed.