It is my view that a conveyance by a widow of a fractional interest in oil and gas mining rights to land constituting a homestead does not work a complete segregation of the mineral *Page 533 interest to the land, and does not of itself establish an abandonment of the homestead right in so far as the mineral interests to the land are concerned, especially where there are minor children and the land is used and occupied as a homestead until the death of the widow.
Herein, the land was leased and dedicated to the production of oil and gas prior to the death of either spouse. The conveyance by the widow of an undivided one-eighth interest in the mineral rights was subject to the existing lease. The lease would endure, by its terms, so long as oil and gas should be produced in paying quantities. As stated in the majority opinion, in view of the existing lease this conveyance of mineral rights mathematically amounted to a right to take a 1/64 royalty interest from the production of petroleum.
While the so-called mineral deed purported to grant a right"of entering upon the land, searching for and drilling wellsand taking and carrying away all of said minerals, with rightof occupancy as may be necessary for such purposes, subject tothe existing oil and gas lease of the plaintiff," the fact is that the existing lease exclusively granted that right to the lessees, so that at most for the life of the lease the "mineral deed" simply operated as an assignment of a fractional part of the royalty.
Now under the rule stated in Lawley v. Richardson, et al.,101 Okla. 40, 223 P. 156, the widow was entitled to the use of the royalties as in the case of rents and profits. If she was entitled to them, it seems logically to follow that she was entitled to assign and convey the right to take them, thus to enjoy presently in lump sum the prospective profits, and so without abandonment of the homestead character of the land or minerals remaining.
Whether or not this conveyance of that which amounted to a fractional royalty was in perpetuity, I doubt that the grantee of the royalty became a cotenant with the widow and minor children. The interests were dissimilar. Could the owners of the royalty partition and upon failure to partition in kind sell the surface and the whole of the royalty? I think not, for after all the royalty, as the significance of the word indicates, is a species of crown right — a prerogative — a right to take rents and profits. It is only in a limited sense an interest in land. The rule has not yet been established that the owner of a hundredth or thousandth or any other fractional interest in oil and gas royalty may partition and sell the whole of the royalty.
This court held, as disclosed by the majority opinion, as to the widow:
"That she is legally entitled to assign any and all of the rents and profits arising from the land may hardly be disputed. Lusk v. Carter Oil Co., 172 Okla. 508, 53 P.2d 656. And this right is independent of the fee ownership during the continuance of the homestead interest."
Had the land not been dedicated to the production of oil and other minerals, the surviving widow, as a mere homestead occupant, probably would have had no authority to grant the right of production and sale of minerals from the land, in that such an act would, under such circumstances, constitute waste under a homestead right, which is similar to a life estate. 27 Rawle C. L. 1044.
I think it sound to hold:
"That the grantee in an oil and gas grant cannot demand an interest in the premises inconsistent with the homestead right of occupancy any more than can the lessee in the ordinary oil and gas lease."
For oil and gas in place are not subject to absolute ownership, separate and distinct from the soil of which they form a part. Cuff v. Koslosky, supra.
Assuming that the "mineral deed" grants a right of entry, exploration, and extraction of minerals in future or at present, subject only to protest of the lessee, it must be the conclusion that the "mineral deed" granted no right that could not be and was not enjoyed under the lease. Thereunder the lessee had the right and exercised the right to take seven-eighths of the profits in the petroleum produced, whereas under the so-called deed this right was a 1/64. Under the lease there was the right of entry, exploration, and extraction of minerals, and under the lease the intention is evidenced to continue so to do permanently or until profitable extraction of minerals ceases. No one now contends that the mere leasing of a homestead for oil and gas purposes segregates and terminates the homestead character of the land in so far as the rents and profits arising from the minerals are concerned.
But it appears to me that if the majority opinion is to be the law of this state, it would follow that a royalty grant and eventually the conveyance of a mere oil and gas lease would operate as a segregation of *Page 534 minerals and an abandonment of the homestead character of land in so far as the right to take profits from minerals is concerned.
Thus the purpose of a homestead as conceived by Constitution and statutes would be destroyed.
Such a result is manifest from the rule quoted from 13 Rawle C. L. 656.
"Where, however, the purpose for which lands are leased, or the circumstances of the leasing, show that there is an intention to devote the part leased permanently for a purpose other than occupation as a homestead, the right of exemption does not attach to the land thus leased."
That rule, as I conceive it, is applicable in some jurisdictions where land is leased for, say, a period of 99 years, but it is inapplicable to oil and gas mining leases or to conveyances of royalty interest in land and interests under mineral deeds, except perhaps in so far as the particular interest conveyed is concerned, for there is no expressed intention by virtue of such conveyances to abandon the right to take profit from the remaining lands. Moreover, the rule stated is limited to land "thus leased" and has never before been extended to remaining land.
This court has recently held that the sale of a portion of a homestead in fee accompanied by temporary removal from the residence remaining does not destroy the homestead right, which right is an enjoyment of all uses of remaining land.
I am not willing to hold that the mere conveyance of a fractional interest, or of a fractional mineral right, or of a lease where lands have been devoted to mineral developments, segregates the minerals as a whole, and frees the minerals remaining and the right to a profit upon them, from the beneficent homestead provisions of our Constitution and statutes.
In the case to which the note in 13 Rawle C. L. 656, is appended, to wit, Green v. Richardson, 122 La. 361, it was held in accord with the majority rule that the leasing of a part of the homestead does not constitute an abandonment even as to that part leased. And in Sibley v. Lawrence, 46 Iowa 563, the court held that a lease of a coal right under agricultural lands for a term of 99 years did not constitute an abandonment, and that the reversion in the coal lands was not subject to a sale or execution. The reason for the rule seems to be that the homestead is provided, not only for residence purposes, but for all purposes of general utility. The object being to secure the homesteaders, not only a house, but the means of a livelihood.
In the cited case it was contended that "the mining privilege granted" amounts to a segregation or "in legal contemplation constitutes a severance of the coal from the surface and creates a separate and independent estate," but the court said: "This argument proves too much." The lease grants for the period of 99 years the privilege of mining coal, but suppose such privilege was never exercised, does the mere lease or grant, in legal contemplation, sever the coal from the residue of the estate, or must there not be a severance in fact of the coal, and when it is so severed, does not the coal become the property of the lessee, etc?
The court further reasoned:
"Suppose there had been growing on this land timber suitable for railroad ties, and the plaintiff had granted the privilege to another to cut and remove from the premises all such timber for a certain compensation for each tie: would such a contract amount to a severance of the timber while standing and the creation of an independent estate? We think not. Until there was a severance in fact, such timber so standing constituted a part and parcel of the home-stead to the same extent as if the contract bad never been made. So with this coal until it was in fact severed. At which time only it ceased to be a part of the homestead and the plaintiff at the same instant of time ceased to own the same and it became the property of the lessee."
So it is with the oil and the right to take profit from the oil. This widow, under our decisions, was entitled to use of all the royalty as rents and profits. She might well convey for cash consideration that right pending the homestead privilege. She might well grant that right in perpetuity as to her own interest, but under the reasoning of the Iowa court, that not conveyed remained and the whole homestead was preserved until an actual severance occurred, and the homestead right was diminished only to the extent of the corpus removed.
As in the case of Parker v. Riley, 63 L. Ed. 847, nothing contained in the mineral grant "suggests that the rights of the heirs, as among themselves, were to be altered or affected."
There was no expressed intention to segregate or abandon the homestead right to the remaining minerals. These remaining minerals constituted an undivided part of the whole homestead. They were not capable of separation until reduced to possession. *Page 535 The grant by the widow was simply a profit a prendre pro tanto. As such, there was no disturbance of the homestead right possessed by the surviving spouse.
In Atlas Supply Co. v. Blake, 51 Okla. 778, 152 P. 601, it was held that a tenant in common may have a homestead, and is entitled to a homestead exemption, in lands held in common. Consequently it is my firm conviction that in the case at bar there was no segregation of mineral interests in the lands remaining and constituting the homestead and no abandonment of homestead rights was established by the act of the surviving spouse whereby she conveyed a fractional mineral right to the land.