DISSENTING OPINION. The decision in the Stern case, 148 Miss. 649, 114 So. 739, is sound and supported by a majority of the courts in this country. 3 Summers, Oil and Gas, p. 235, sec. 536, the cases referred to in the notes, one of which is the Dangerfield case (Dangerfield v. Caldwell, 4 Cir., 151 F. 554) cited in the opinion in the Stern case. *Page 833
In the Stern case, as here, there was involved a construction of the partition statutes (Sections 2920 and 2924, Code of 1930), Sections 961 and 965 (especially the latter), Vol. 1, Code 1942. In previous decisions our court held that there could be no sale and division of the proceeds between those interested under Section 965 unless it was proven to the satisfaction of the court that an equal partition in kind could not be had. Hilbun v. Hilbun, 134 Miss. 235, 98 So. 593; Hogue v. Armstrong, 159 Miss. 875,132 So. 446; Smith v. Stansel, 93 Miss. 69, 46 So. 538; Shorter v. Lesser, 98 Miss. 706, 54 So. 155. In the Stern case, construing the same statute, the court held that those decisions had no application to minerals under the ground; that they were not susceptible of partition in kind needed no proof; that the court would take judicial notice of that fact; in other words, that the court knew what everybody knew was a fact. Since the decision in the Stern case the legislature has held eight sessions and no change whatever has been made in either of those statutes. The re-enactment of a statute which has been judicially construed is an adoption of that construction, unless a contrary intent clearly appears. White v. Illinois Central R. Co.,97 Miss. 91, 52 So. 449, 55 So. 593; Thacker v. Illinois Central R.R. Co. (Miss.), 55 So. 595; Hamner v. Yazoo Delta Lbr. Co.,100 Miss. 349, 56 So. 466; Thompson v. Person, 177 Miss. 63,170 So. 694. It was held in the Thompson case that where a statute was construed by the Supreme Court and afterwards reenacted by the legislature, such construction "[became] a part of [the] newly-enacted statutes as fully as if expressly written therein."
A sale and division of the proceeds come nearer affording equality among the owners of the minerals than a "checkerboard" partition in kind. At a sale to the highest and best bidder everyone, including the parties interested, has an equal right to bid. Each bidder uses his own judgment as to where the minerals will most likely be found. On the other hand, if there is a division in kind *Page 834 no one of the interested parties has any right to choose what part shall be set aside to him. Commissioners appointed by the chancery court have the exclusive right to decide that question, subject, of course, to approval by the court. Now, which method comes nearest approaching equality? It seems to me to ask that question is to answer it. But admit that such a partition in kind would be nearer the right method, will the court now adopt it in view of the re-enactment of the statutes in the Codes of 1930 and 1942.
There is another matter of consideration in determining this question. By Chapter 191, Laws of 1936, the State Oil and Gas Board was given large powers to control where and under what circumstances oil and gas may be bored for. Under that Act the Oil and Gas Board has passed an ordinance regulating those matters so far as the Tinsley Field is concerned, and, of course, has the same authority with reference to any other field that might be developed.
The majority opinion does not overrule the Stern case in so many words but it does in effect. It holds that the question is open in each particular case whether or not the minerals can be divided in kind. The Stern case holds exactly the contrary.