DISSENTING OPINION. Two questions are here presented. (1) Has the state, or persons claiming under it, the right to enter this land over the objection of the lessees thereof, sink wells therein, and, in event oil or gas is discovered thereby to be in the land, to remove it therefrom; and (2) have the lessees of the land the right to remove and appropriate for commercial purposes oil or gas that may be found beneath the surface of the land? I concur in holding that the second question should be answered in the negative, under the law governing the relationship of landlord and tenant. I am also of the opinion that the first of these questions should also be answered in the negative. Such was the law until Gulf Refining Company v. Terry, 163 Miss. 869,142 So. 457, was overruled a moment ago. That *Page 813 case was maturely considered, and the controlling opinion therein fully expresses my views hereon. I can add nothing to what was there said, and what I shall now say is only for the purpose of showing the irrelevancy here of a legal principle that has for the first time been brought into this discussion, and to point out the uncertainty of the rights of the lessees of sixteenth section land under the decision just rendered.
The state's title to the sixteenth sections in the several townships rests upon a grant thereof from the Federal Government made pursuant to its agreement with the State of Georgia when the land in which the sections are situated was ceded to it by that state. Heretofore, under the decisions of this Court and of the U.S. Supreme Court, this grant vested in the state the absolute power to lease or sell any portion of the land, and if leased the rights of the state and the lessee therein were governed by the terms of the lease and the general law of landlord and tenant. The only obligation assumed by the state in accepting the grant was to devote it, or the revenue derived therefrom, or the proceeds of a sale thereof, to "the support of schools within the" township, and under leases of the character here under consideration, the lessees have "the right to the exclusive possession and occupancy of every part of the land," and the state, the lessor, is without the right to enter thereon except when, under the law of landlord and tenant, it has the right so to do in order to prevent the commission of waste. Gulf Refining Company v. Terry, supra, is but one of many decisions of this court so holding, and not only that case but the many others holding that these leases conveyed to the lessees the right to the exclusive possession of the land have by the decision just rendered been overruled. The two opinions in the Terry case discussed every question that was then though to have any bearing thereon, but it now appears that the Judges in that case, and in many other prior cases, were mistaken in supposing that the relationship between the state and its lessees under these *Page 814 leases was merely that of landlord and tenant for, as it now appears, the state acquired and deals with the land in its sovereign capacity under its police power, which power cannot be contracted away, in whole or in part, and therefore if the state should be held under these leases to have contracted away its right to enter a sixteenth section and remove minerals therefrom, that contract is not binding on it. If this is correct, the lessees of sixteenth section land have no rights therein except such as the state chooses to recognize, and in effect are but tenants thereof at the will of the state, for the holding cannot be limited to the right of the state to remove oil and gas from sixteenth section land which it has leased but applies to all of the relations created by the lease between the state and its lessee.
The history of this court's dealing with the rights of the state and its lessees under these ninety-nine year leases of sixteenth section land is quite interesting. Until the decision in Warren County v. Gans, 80 Miss. 76, 31 So. 539, more than sixty years after the state began to make these leases, no question was raised as to the right of the lessees to do what they pleased with the land, for, as was said by Judge CALHOON in the case of Moss Point Lumber Company v. Harrison County,89 Miss. 448, 42 So. 290, 294, 873, "by universal understanding the lessee for 99 years of sixteenth-section lands acquired all of the rights of an owner in fee for the time." In the Gans case, supra, the court said this understanding of the rights of these lessees was wrong, and they were liable for the commission of waste — there the sale for commercial purposes of timber from the land. Four years after that case was decided, and the personnel of the court had changed the court held in Moss Point Lumber Company v. Harrison County, supra, that this universal understanding was correct, and the lessee of the land during the ninety-nine year period could deal with the land as the owner thereof except that at the end of that period the land reverted to the state. The court was then composed of three *Page 815 Judges, one of whom dissented from the decision then rendered. The term of one of the two Judges who decided the case expired while a suggestion of error was pending therein. The Judge appointed to succeed him agreed with the Judge who dissented on the original hearing. The suggestion of error was then sustained and the court returned to the ruling of the Gans case, holding that while the lessees had the right to the exclusive possession and occupancy of the land, they were mere tenants thereof without the right to commit waste thereon. This holding was adhered to in many decisions, including Gulf Refining Company v. Terry, supra, in which case it is held that the state is without the right to interfere with the possession and occupancy of the lessee of a sixteenth section, holding under a lease of the character here in question, by entering it and boring for oil or gas that might be therein. That case, like the Moss Point Lumber Company case, supra, was decided by a divided court, and since it was decided, the personnel of the court has again changed, resulting in a majority of the Judges now saying that it was wrongly decided and should be overruled. If the past is any forecast of the future, it seems safe to predict that when the personnel of this court again changes, it will run true to form and overrule the decision just rendered.
Griffith, J., concurs in the foregoing opinion.