DISSENTING OPINION. The decree of the court below should be reversed.
The provision in this deed that, "I, the undersigned, W.M. Bell do hereby reserve and except from the conveyance herein 1/32 of all gas, oil or minerals which may hereafter be found, discovered, mined or produced from the above described lands," excepts 1/32 of the oil, gas and minerals in the land from the conveyance and results in the grantor retaining the ownership thereof, McNeese v. Renner, 197 Miss. 203, 21 So.2d 7, thereby becoming a tenant in common with the grantee of all the oil, gas and other minerals in the land, Wight et al. v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So.2d 196, *Page 39 unless a subsequent provision of the deed necessitates a different construction thereof.
There are two subsequent provisions of the deed, one of them deals only with the rights of the parties to the deed under the lease of the land theretofore made by the grantor by which the lessee had the right for a limited time to remove oil and gas from the land; the second authorizes the grantee to permit one to whom he leases the land to remove the oil and gas therefrom including the grantor's 1/32 portion thereof. Neither of these provisions in any way limits the effect or changes the meaning of the exception of the oil, gas and minerals from the conveyance of the land.
Under this last provision, the grantee has the right, but is under no obligation to the grantor, to permit others to remove the oil and gas from the land, including the grantor's portion thereof, provided the grantor receives the stipulated portion of it. Should the grantee not care to act on this permission, he has the right, as does the grantor, to deal with the oil, gas and other minerals in the land in accordance with the law regulating tenancy in common.
The court below should have so held, and should have granted the prayer of the appellant's cross bill for a partition of the oil, gas and other minerals in the land. Wight v. Ingram-Day Lumber Co., supra.