As was said in the case of Northwestern | are expressions contained in it which were Ohio Natural Gas Co. v. Ullery, supra: not at all necessary for the decision of that The fact that oil and gas are vagrant and case. The controlling fact there was that transitory in their nature does not prevent the separate owners of the several adjoining their adhering to and becoming a part of tracts of land combined them themselves the land while passing from one tract to for the purpose of oil and gas production. another, and while so in one tract they are The tracts of land were small; they lay a part of that tract and belong to the owner contiguous to each other; and it may be thereof until they escape from such tract, well assumed that the oil and gas could be and, if brought to the surface before such produced therefrom more economically if escape, they become personal property be- the whole acreage was treated as one tract longing to the owner of the land. It there- than if each tract was leased separately. fore irresistibly follows that the oil or gas In fact, it could not well be held otherwise taken from the well on a particular tract than that the purpose of these parties was of land belongs to the owner of that tract, to treat their oil and gas as held by them in even though the contract under which the common. They combined their holdings well was drilled included other tracts of under a single description, and so far as the land. Because the contract of production lease goes there is but one tract of land may have included two or more tracts of to be dealt with. The case of Higgins v. land, such contract cannot have the force of California Petroleum & Asphalt Co. 109 Cal. taking from the owner of one tract the oil 304, 41 Pae. 1087, is very similar in its or gas adhering to such tract for the time facts to the case of Lynch v. Davis. In that being and bestowing it upon the owner of case the owners of two adjoining tracts of another tract, where it may never have land, for the purpose of having the mineral been.'" asphalt mined therefrom, combined them

In the case of Fairbanks v. Warrum, 56 and leased them as a single tract, and the Ind. App. 337, 104 N. E. 983, 1141, an exact-court held that by thus doing they in effect ly similar question was before that court. made themselves tenants in common in such Noble Warrum was the owner of two tracts mineral. That is the effect of the holding in of land containing 15 acres and 353 acres, Lynch v. Davis, and the only effect which respectively, and he executed an oil and gas should be given to the opinion in that case. lease covering both of them. Subsequently Confining the language used in the opinion he sold and conveyed the 15-acre tract and in that case within these limitations, it is 58 acres off the other tract. A well was not inconsistent with the opinion I now endrilled under the lease upon the 353-acre tertain, and correctly solves the questions tract, but not upon that part thereof in- there involved. cluded in the 58 acres conveyed away. The grantees in the deed from Noble Warrum conveying the 15 acres and the 58 acres above referred to contended that they were entitled to receive part of the royalties from this well. This contention was not sustained by the court, but, on the contrary, it was held that the royalties belonged to the party upon whose land the well was drilled. The reasoning of the courts in these cases commends itself to my judgment, and I believe condemns the conclusion reached by the majority in this case. I am satisfied that each of the heirs of Lewis took every estate there was in the parcel of land assigned to him, including the oil and gas underlying the same, or which might be captured by development thereon, whether such development was made under the lease executed by the former owner, Lewis, or otherwise.

I am not unmindful of the fact that the above views are inconsistent with some expressions contained in the opinion in the case of Lynch v. Davis, W. Va. - L.R.A. 1917F, 566, 92 S. E. 427. Upon a consideration of that opinion I find that there

Judge Poffenbarger, in his opinion, proceeds upon the theory that by the execution of the oil and gas lease there was created or brought into being an estate in the land which had not theretofore existed; to wit, the royalty in the oil and gas. He says: "The royalty is a separate and distinct entity. It is not the land, nor the land title. It is a wholly different thing from either, and is complete in itself, notwithstanding it comes from the land.”

I cannot agree that the royalty in the oil and gas is a separate and distinct entity from the land. It is well established that a grant of the rents and profits, or the income of land, passes the land itself, both in law and in equity. Judge Poffenbarger declared in Toothman v. Courtney, 62 W. Va. 175, 58 S. E. 915, that the reservation of the rental or royalty arising from the oil and gas was a reservation of the oil and gas in place, so that this estate or entity which Judge Poffenbarger calls royalty is nothing more than the oil and gas in place, and it could not be separate from the principal estate, inasmuch as both of these estates were vested in Lewis. He had never

parted with the oil and gas, or with the livered to Lewis, and before any operations royalty to anyone. It is fundamental that were commenced under such a contract a party cannot have two estates in the same Lewis died and his heirs partitioned his piece of land. There may be, it is true, estate, just as was done here, and one of several estates or interests carved out of it, the heirs had assigned to him a tract of held by separate parties, but when one par- land upon which there was no timber, and ty acquires them all, the lesser estates are subsequently the timber was cut under the immediately merged into the greater, and contract, would it be contended for a mohe becomes the owner of a single estate ment that the royalties arising from the therein, the fee simple absolute. So I cutting of the timber did not belong to say when Lewis died he was the owner of the party from whose land the timber was but a single estate in the land of which he cut? A number of cases are cited holding died seised; to wit, a fee simple absolute; that when leased land is divided among and this passed to and vested in his heirs several parties the rents arising therefrom at law. They did not inherit from him the will also be divided. Those cases are withland, and then another estate called the out application here for the reason that the royalty in the land, but they inherited sim- leases in those cases were general leases. ply the land. Judge Poffenbarger holds that The whole estate in the land was leased. when this land was partitioned, the divi- Here only a particular part of the land is sion of the land did not divide the royalty leased. To make a correct application of among the heirs, because of the fact that it an agricultural lease, we will say that Lewis is a separate entity and had an existence owned a large tract of land, as was the case separate and apart from the land itself. here, and he leased this land for the purpose, This position is untenable if there was no of raising corn thereon. There is only a other estate vested in Lewis's heirs than very small part of the land upon which corn the fee simple absolute. It must be con- can be raised. In a division of the land ceded that, prior to the partition of the among Lewis's heirs this corn land goes to estate, there was vested in these heirs of one of them as his part; to another is Lewis every interest in this land, includ- assigned a piece upon which corn cannot be ing the oil and gas, and the right to receive grown, but it is valuable fruit land, and beany rentals or royalties that might be de- cause of that fact it is worth just as much rived therefrom. What was the effect of as the corn land; another is valuable partitioning the land? It did not change mineral land, and because of the minerals in any way the title by which it was held, under it it is worth just as much as the or the estate which the parties held in it, corn land. Would it be said that the rents but it simply converted their joint holdings arising from the corn raised upon the tract into separate holdings. It conferred upon of land which was capable of bearing corn each of the heirs to whom a part was must be divided among all of the heirs just assigned the title and estate of all the heirs because it had been leased for that purpose in that part, so that the owner of each of before the death of their ancestor? This, these parcels got everything in them which it can readily be seen, would impose a maniwas theretofore vested in himself and his fest hardship upon the one who would hapcoparceners so far as the parcel assigned to pen to receive the assignment of the land him is concerned. There is nothing about which would bear corn. It is argued that oil and gas which distinguishes it from no hardship can result from the application other minerals except its vagrant character, of the rule laid down in the opinion by and this does not affect in any way the Judge Poffenbarger. I do not agree with ownership thereof. It is as much the prop- that conclusion. Serious hardship may reerty of the party upon whose land it is dis- sult. After the exhaustion of the oil on covered as is coal the property of the party part of this land the lessee may abandon upon whose land it exists, or as timber be- the land as not being profitable under preslongs to the land upon which it grows. ent conditions, and leave the oil in place Suppose, for the sake of the argument in upon the lands of some of the coparceners. this case, that part of Lewis's land had Subsequent developments, the increased use timber growing thereon, and he had exe- of these minerals for commercial and sciencuted a paper granting to another the right tific purposes, may make very valuable in for ten years to cut the timber off the whole the near future what is now of no value, tract of land, and providing that in case so that the party who owns the land which the timber was so cut at any time within was not developed will have a very valuable the ten years one-eighth of the lumber manu- estate in the future in the oil and gas therefactured from such timber should be de-in, while his coparceners' land has been de

pleted of its oil and gas for the common ! benefit. Can it be said that this is an equitable result? It is one that is bound to flow from the application of the rule laid down in this case.

Miller, J., concurs with me in this dissent.

Petition for rehearing denied January 15, 1918.

Annotation-Effect of partition of premises leased for mining purposes on the right to the royalty.

As to the construction of an oil or gas | 68 Ohio St. 259, 67 N. E. 494, 22 Mor. lease covering tracts of land owned by Min. Rep. 647, it was held that where the different persons in severalty, see note rental was specifically fixed at a lump appended to Nabors v. Producers' Oil sum per well, and the terms of the lease Co. L.R.A.1917D, 1124. As to the right implied a subdivision of the land, since to partition mineral, oil, or gas lands, it was made to extend to the heirs, exsee note appended to Gulf Ref. Co. v. ecutors, and assigns of the lessor, the Hayne, L.R.A.1916D, 1154. As to the rental was not apportionable among the right of a life tenant to oil and gas, see different persons who subsequently benote appended to Ohio Oil Co. v. Daughe- came owners of specific parts of the tee, 36 L.R.A. (N.S.) 1108. As to whether premises, but it was to be paid to the or not oil or gas is a mineral within a person having title to the land upon grant or reservation of minerals or min- which the well was located. The court eral rights, see note appended to Barker reasoned "that the oil or gas taken from v. Campbell-Ratcliff Land Co. L.R.A. a well on a particular tract of land be1918A, 487. longs to the owner of that tract, even though the contract under which the well was drilled included other tracts of land. Because the contract of production may have included two or more tracts of land, such contract cannot have the force of taking from the owner of one tract the oil or gas adhering to such tract for the time being, and bestowing it upon the owner of another tract, where it may never have been. As oil and gas are migratory in character, no one can tell from whence they came or whither they are going, and they must, therefore, belong to him upon whose lands they are captured. No one else can have any ownership in them, and a man can be awarded only that which he owns."

While the few cases bearing upon the question here raised are sufficiently dissimilar as to the facts to render them distinguishable, they are not in harmony in their reasoning. CAMPBELL V. LYNCH, ante, 1070, in holding that partition proceedings do not have the effect of causing a division of the royalties in accordance with the ownership of the land from which the product is obtained, approves of Wettengel v. Gormley (1898) 184 Pa. 354, 39 Atl. 57, 19 Mor. Min. Rep. 213, which holds that a stipulation in an oil or gas lease that "all the conditions between the parties hereto shall extend to their heirs, executors, administrators, and assigns," operated to sever the leasehold from the freehold estate, as between the lessor and the lessee, "their heirs, executors, or assigns," and thereafter the exclusive right of access to oil-bearing strata was in the lessee, whose duty it was to develop and operate the leasehold estate for oil and gas; and as to devisees of the lessor of specific portions of the leased premises, each should receive such share of the royalty as his or her share of the land bore to the whole tract covered by the lease, without reference to the location of the wells.

On the other hand, in Northwestern Ohio Natural Gas Co. v. Ullery (1903) L.R.A.1918B.

In J. M. Guffey Petroleum Co. v. Jeff Chaison Townsite Co. (1908) 48 Tex. Civ. App. 555, 107 S. W. 609, where the lessee participated in a partition of the leased premises, and recognized the several ownership created by such proceedings, the character of his holding was held to be changed by such proceeding from that of lessee of the owner of the whole tract to lessee of each owner of the different tracts carved out by the proceeding; and it was thereafter his duty to deal fairly with all of such parties with reference to the development of the different tracts of land.

A. G. S.

Estoppel - to attack incorporation of
municipality lapse of time.
4. Failure of a property owner for eight
years to attack an alleged municipal cor-
poration organization in which his property
was included will not estop him from main-
taining the action if the municipality was
organized merely to effect the organization
of a school district, and no attempt was
made to use the franchise until the levy of
a tax upon his property shortly before he
made his attack.

For other cases, see Estoppel, III. g, 1,
Dig. 1-52 N. S.

Same

payment of taxes

effect.

in

Statement by Hart, J.:

This is a suit for injunction in the chancery court by the Kansas City Southern Railway Company to restrain W. D. Waldrop, as collector of taxes for Little River county, from enforcing the collection of taxes in the town of Ogden, in said county, for the years 1915 and 1916. In the complaint it is alleged that there is no such incorporated town in existence, and the proceedings under which such town was attempted to be organized are void. It is also alleged that there was no valid levy of taxes for the years 1915 and 1916. The facts are as follows:

On the county court records of Little River county under date of June 24, 1907, appears the following:

In the Matter of Incorporation of Ogden.

Now on this date comes J. N. Wood et al., and present to the court their petition for the incorporation of Ogden, and upon consideration it is considered, ordered, and adjudged by the court that J. T. Cowling be, and he is hereby, designated as agent herein, and July 29, 1907, is hereby fixed as the day to hear this cause.

Ordered that court adjourn until court in course.

W. E. Kinsworthy, Co. Judge.

On the next page of the record appears the following:

In the Matter of J. N. Wood et al.-Petition to County Court.

as such

On this the 29th day of July, 1907, the day appointed for the public hearing of the petition filed by W. C. Forcade et al. for the incorporation of certain territory in the town of Ogden, this cause coming on to 5. Payment of school taxes for a period be heard upon the petition, and the petiof years in a district illegally organized, without knowledge of the organization, and tioners appearing by their agent, J. T. under the belief that no change had been Cowling, heretofore designated made in the district, does not estop the tax-agent, and it appearing to the court that payer from attacking the illegal organiza- due and legal notice was published in the tion. Little River News, a newspaper published and having a bona fide circulation in Little River county for four consecutive weeks, to wit, July 5th, 12th, 19th, 26th, respectively, and no remonstrance having been filed or other objections made by any person to the organization of said territory or incorporating the same into the town of Ogden, that said petition is signed by 25 qualified voters residing within the territory described in

For other cases, see Estoppel, III. g, 1, in
Dig. 1-52 N. S.

(McCulloch, Ch. J., dissents in part.)

Note.

(December 10, 1917.)

As to character of territory which may be organized into municipal corporation, see annotation following this case, post, 1086.

idences elsewhere. After the order of the county court declaring the organization of the special school district was entered of record, there was no other attempt to exercise any of the governmental functions of a municipality. There was no other elec tion of officers, and those elected in the beginning did not attempt to exercise any of the functions of their offices after the first of the year 1908, until they were persuaded to come back in the fall of 1915, and make the levy of special taxes which is the subject-matter of this lawsuit. Other facts will be stated or referred to in the opinion.

said petition and asked to be embraced in place early in 1908, and the record also said incorporation, and that the name pro-shows that the most of the aldermen at posed for said town is proper and sufficient various times left and established resto distinguish it from towns in the state, and it further appearing to the court that it is right and proper that the said petition should be granted, it is therefore considered, ordered, adjudged, and decreed by the court that the following territory, being the same set out in said petition, be organized and incorporated into the town of Ogden, to wit: Beginning at where the north and south lines of sections 7 and 8, township 14 south, range 28 west of fifth principal meridian strikes the south bank of Red river, and running thence north along said line to the northwest corner of southwest quarter section 7, township 13 south, range 28 west of the fifth principal meridian; thence west to the northwest corner of the southwest quarter section 15, township 3 south, range 29 west of the fifth principal meridian; thence south to the south bank of Red river; thence east along said south bank of Red river to the point of beginning.

All

The chancellor found that the alleged town of Ogden was not legally incorporat ed, that the alleged order of incorporation made July 29, 1907, was void, and that there was no levy of taxes as required by law. It was decreed that W. D. Waldrop, as collector of taxes, be enjoined from the collection of any taxes claimed to be dur the town of Ogden from the plaintiff.

Mr. M. E. Sanderson for appellant.
Mr. James B. McDonough, for appel

lee:

The purported levy of taxes is illegal and void.

Morris v. Levy Lumber Co. 103 Ark. 579, 148 S. W. 252; Alexander v. Capps, 100 Ark. 488, 140 S. W. 722.

Any taxpayer has the right to enjoin the collection of illegal taxes.

On a subsequent page of the same record appears an order of the county court changing the boundary line between Ogden special school district and common school district No. 6, in Little River county. of the territory in the town of Ogden was created into the special school district. Formerly the whole of said territory had been a part of common school district No. 6. The evidence in the record shows that originally the negroes were largely in the majority in the common school district No. Little Rock v. Prather, 46 Ark. 471; Ft. 6, and the white people desired to form Smith v. Scruggs, 70 Ark. 555, 58 L.R.A. themselves into a special school district in 921, 91 Am. St. Rep. 100, 69 S. W. 679; order to get rid of the negroes. They were Conway v. Waddell, 90 Ark. 130, 118 S. W. advised that the way to do this was to or- 398; Laprairie v. Hot Springs, 124 Ark. ganize a town and then form a special 349, 187 S. W. 442; Greedup v. Franklin school district out of the territory embraced County, 30 Ark. 101; Oliver v. Memphis & within the corporate limits of the munic-L. R. R. Co. 30 Ark. 128: Watkins V. ipality, as provided by §§ 7668 of Kirby's Griffith, 59 Ark. 344, 27 S. W. 234. Digest et seq. In attempting to organize the town of Ogden the land on both sides of the railroad for 7 miles in length and 5 miles in width was taken. There were houses on the 80 acres on which the railroad Gaither v. Gage, 82 Ark. 51, 100 S. W. 80: station of Ogden was situated. The bal- Alexander v. Capps, 100 Ark. 488, 140 S. W. ance of the territory designated was either 722; Morris v. Levy Lumber Co. 103 Ark. farm lands or timberlands. Most of the 579, 148 S. W. 252; Berger v. Lutterloh, 69 lands were timberlands. There were about | Ark. 576, 68 S. W. 37; 27 Am. & Eng. Ene. four lakes situated within the proposed Law, 730; Ft. Smith & V. B. Bridge Co. v. territory. After the purported order of Hawkins, 54 Ark. 509, 12 L.R.A. 487, 16 the county court above set forth was en- S. W. 565. tered of record an election of a mayor, a recorder, and five aldermen was had. The evidence shows that a few ordinances were passed, but no record was made of them. The person elected mayor left for another

No taxes can be collected without a proper order of the county court levying said taxes. This applies to municipal taxes as well as to county and school taxes.

There can be no collection of a tax without a valid levy.

Brodie v. McCabe, 33 Ark. 690; Parr v. Matthews, 50 Ark. 390, 8 S. W. 22; Boehm v. Porter, 54 Ark. 665, 17 S. W. 1.