From the petition for rehearing and briefs in support thereof by attorneys for defendant in error, it appears that defendant in error and its counsel are *Page 310 somewhat confused as to the effect of the prior opinions of this court relating to the subject-matter in controversy, which opinions are referred to in the original opinion in this cause. For the sake of clarity and in order to end this litigation, which has had the attention of this court in three cases, we have concluded to elaborate our former opinion.
By the opinion in the case of Roxoline Petroleum Co. v. Wilson,123 Okla. 241, 253 P. 59, it has been conclusively determined that the J. G. O. Drilling Leasing Company became the owners of an undivided one half interest in and to the land and the oil produced therefrom, subject, however, to certain advancements made by the Roxoline Company. Such advancements were not pleaded in said action as a right of counterclaim or for a lien, and no proper evidence was introduced to support the same. This court therefore reversed that portion of the judgment.
The present action is one to quiet title, in which the Roxoline Company sought again to relitigate the title theretofore adjudicated in the J. G. O. Drilling Leasing Company. Counsel for defendant in error took the position in the trial court, and induced the trial court likewise to take the position, that said question of ownership still remained open for consideration. The judgment of the trial court in this cause was predicated upon this theory. The action of counsel and of the court, who found in favor of the Roxoline Company as to the absolute ownership of the claimed rights of the J. G. O. Drilling Leasing Company, made it unnecessary for the court to make a determination of the advancements made by the Roxoline Company in the completion of the well commenced by E. Talbert, and in the further development of said property, and unnecessary to require an accounting for the income from said undivided interest. For some reason this issue has not as yet been litigated and determined in this controversy.
We are pointing out that under the cases of Oklahoma Moline Plow Co. v. Smith, 81 Okla. 61, 196 P. 962, and Sartin v. Hughen, 154 Okla. 155,7 P.2d 151, the prior judgments of the trial court and of this court are not conclusive of this issue. Before this litigation can terminate, it will be necessary for the trial court to make such determination as may be warranted under proper pleadings and evidence supporting the same.
For this purpose the former opinion is modified, with directions to proceed in conformity herewith, but to grant to defendant in error leave to amend its pleadings to determine said issue; but if defendant in error sees fit not to seek such determination, then the trial court should enter judgment in favor of plaintiffs in error quieting their title.
RILEY, C.J., CULLISON, V. C.J., and SWINDALL, ANDREWS, McNEILL, BAYLESS, BUSBY, and WELCH, JJ., concur.