On January 21, 1930, an opinion prepared by Mr. Commissioner Teehee, affirming the judgment of the trial court, was approved by this court and delivered in this cause. In due time, a petition for rehearing was filed, and upon further investigation of the facts and authorities, cited in that opinion, I am unable to agree with the rule of law as herein announced and must dissent from the same.
The facts briefly stated are:
On July 30, 1913, J.R. Cottingham held the title to approximately 1,900 acres of land in Carter county, and on that date Cottingham executed and delivered to W.E. Hodges an oil and gas lease covering all of said lands. The lease was for a term of ten years and as long thereafter as oil or gas may be found in paying quantities "on said premises."
On May 24, 1915, Cottingham conveyed to J.S. Mullen, expressly subject to said lease, all of said lands, except 640 acres.
On November 17, 1915, Cottingham conveyed to Coline Oil Company (plaintiff in error), expressly subject to said lease, said remaining 640 acres.
On March 8, 1916, W.E. Hodges assigned said entire lease to Coline Oil Company.
Ever since prior to the execution of said lease oil has been produced in paying quantities from said 640 acres, and at the time of the trial in the lower court "30 wells were producing from said 640 acres."
At the time this action was filed, operations were in progress for the drilling of a well upon a portion of the land that had been conveyed to Mullen. That well and two additional wells have since been completed upon the Mullen acreage and all three wells have been producing oil in paying quantities.
This action was filed July 15, 1924, by Hal M. Cannon, as trustee of the estate of J.S. *Page 138 Mullen, bankrupt, to quiet the title to the lands that had been conveyed to Mullen.
The Coline Oil Company answered and asserted its said lease, which covers all the lands, that is, the part conveyed to Mullen and the part conveyed to said Coline Oil Company.
Many reasons were alleged by plaintiff in his reply as to why he claimed said lease was invalid and no longer in force and effect. For the sake of brevity we will not set them out here further than to say one of the reasons asserted was that when Coline Oil Company acquired said lease by assignment from Hodges, said lease, in so far as it covered said 640 acres, merged into the fee title to said 640 acres, which was then held by Coline Oil Company.
The trial court made a general finding in favor of plaintiff and quieted the title to said lands, thereby wiping out said lease in so far as it covered the Mullen lands.
The opinion filed in this, cause affirms the judgment of the lower court. The only question decided is that of merger. The opinion holds that when the Coline Oil Company acquired said lease by assignment, said lease, in so far as it covered said 640 acres, merged and was swallowed up in the fee title to the said 640 acres, and left said lease effective only as to the Mullen lands. It then holds that, since oil was not being produced from the Mullen lands at the expiration of said primary term of ten years, the lease automatically and of its own terms then expired.
Hereafter defendant in error will be referred to as plaintiff, and the plaintiff in error as defendant, as these are the positions they held in the court below. Merger was first brought into this case by plaintiff's reply to defendant's answer. Defendant contends in its brief, first, that merger did not occur, and second, that even if it did, that did not affect defendant's lease.
Defendant in its petition for rehearing again asserts that even if such merger did occur (which it does not concede and expressly disagrees with the majority opinion in that respect), it did not affect defendant's lease as to the Mullen lands, nor cause it to expire at the end of the primary term of ten years, provided oil was being produce in paying quantities from any part or the lands described in the lease; that oil was being produced in paying quantities from the 640 acres, and that such lands are described in the lease is not even questioned.
The lease by its own express terms and provisions provides when and how it will terminate, or, to put it the other way, it expressly provides how long it will continue in force. Section 1, article 1 of the lease, in part, reads as follows:
"To have and to hold the same from the date of the execution hereof for a period of ten years and as long thereafter as oil or gas may be found in paying quantities on said premises."
The description of the lands embraced in said lease immediately precedes the above quoted language. Now, "on said premises" means on any part of the lands described in said lease, and no amount of reasoning as to the theory or fiction of merger can change it. This court cannot change it without writing a new contract, and that it cannot do. This later rule is recognized by the writer of the majority opinion, as will appear at page 10 thereof. An attempt is made to avoid the rule by saying that the situation is one that arose by operation of law. The attempted explanation, in my opinion, is not sound. Neither the law nor the courts can rewrite this contract. There was nothing unlawful about it, and it was one the parties had a right to make. They had a right to continue this lease in force after the ten-year term upon any lawful condition or contingency they might choose. They selected one of their own choosing. They provided it should continue for ten years and as long thereafter as oil or gas may be found in paying quantities on such premises, — not only the Mullen lands and not alone those conveyed to the Coline Oil Company, but on any part of the premises described in the lease. Suppose they had selected some other lawful condition to continue it in force. Suppose they had provided that it should continue in force so long as oil or gas should be produced from some other tract of land (designating it) not covered by the lease. Would this court say that it, or the law, could rewrite the contract in that respect? Certainly not. Then equally so it has no authority to rewrite the provision for the term of this lease. That being the situation, the question of merger of the lease and the fee title as to the 640 acres had nothing to do with its terms as to the Mullen land. To further safeguard against any contention to the contrary, the parties expressly provide in the lease (section 7, article 3) as follows:
"If the lessor shall in the future sell and transfer any of the above-described premises, the terms and conditions of this lease, and each and every part thereof, shall run with such part of such land so transferred, and be binding upon the grantees therein named." *Page 139
In short, that provides that if the lessor shall convey any part of the lands described in the lease, the terms and conditions in the lease, and each and every part thereof, shall run with such lands and bind the grantees thereof.
Article 3 of the lease provides that lessee is not required to maintain continuous production or operation, and that the leasehold should not be considered abandoned "unless the lessee shall have ceased to operate thereunder as to all of the wells then in existence for an unbroken period of two years at any one time, and the drilling of additional wells shall extend the lease for an equal period."
Now, construing these clauses of the lease together, we have an oil and gas lease granting to the lessee the right to remove any and all oil and gas from any portion or all of said leasehold estate for a period of ten years and as long thereafter as oil or gas may be found in paying quantities on said premises and that the leasehold shall not be considered as abandoned, unless the lessee shall have ceased to operate thereunder as to all of the wells then in existence for an unbroken period of two years at any one time, and the drilling of additional wells shall extend the lease for an equal period; and if the lessor shall in the future sell and transfer any of the above-described premises, the terms and conditions of this lease, and each and every part thereof, shall run with such part of such land so transferred, and be binding upon the grantees therein named.
The above-mentioned covenants were in the special oil and gas lease executed and delivered by Cottingham, lessor, to Hodges on July 30, 1913. On May 24, 1915, Cottingham conveyed to J.S. Mullen, expressly subject to said lease, all of said lands, except 640 acres. Mullen accepted the deed with that express exception or reservation stated in the deed, and it being further stated in the deed that he as grantee took title subject to all the terms, provisions, and conditions of said oil and gas lease. Mullen was adjudicated a bankrupt and Hal M. Cannon, trustee of the estate of J.S. Mullen, a bankrupt, has just such rights as Mullen had and no more.
On November 17, 1915, Cottingham conveyed to Coline Oil Company expressly subject to said lease, said remaining 640 acres.
It is not claimed that lessee has ever ceased to operate, under the lease, the wells in existence at the time said lease was executed, and the undisputed evidence shows that at the time this action was commenced the Coline Oil Company, as assignee of said oil and gas lease, was drilling a well on the acreage conveyed to Mullen, and that said well and two additional wells have since been completed on that portion of said leased premises which subsequent to the date of the lease was conveyed to Mullen, expressly subject to the terms of the lease.
The majority opinion recognizes the fact that this court must construe the lease as the court finds it, and cannot make a new lease for the parties.
Under this state of the record, I am of the opinion that the majority opinion does not announce the correct rule of law wherein the court holds that the lease on the Mullen land will be considered as abandoned for failure to develop the same for oil and gas prior to the expiration of the ten-year period, for such a holding is not in accordance with the plain terms of the lease.
This is not the usual form of an oil and gas lease. Mullen took title expressly subject to this lease, and, according to his own testimony, he received a substantial reduction in consideration for doing so. He took title expressly subject to, among others, the provision that the lease continue so long as oil or gas be found in paying quantities on any part of the 1,900 acres, described in the lease. This lease, by its own terms, is to continue so long as oil or gas may be found in paying quantities on any of the lands described in the lease, regardless of any question of merger. The provision, as to the term of this lease, is a fundamental and controlling question as to whether or not it has expired by its own terms. The majority opinion holds that it is the contention of plaintiff in error that the lease continued thereafter, meaning after ten years, from the fact that oil and gas were being produced in paying quantities under and by virtue of the lease. As I read the brief, this is not the contention of the plaintiff in error in its brief nor in its petition for rehearing. It is the contention of plaintiff in error that it makes no difference whether oil and gas be considered as produced under and by virtue of the lease or not, so long as it is produced on said premises described in the lease. In other words, defendant contends that if it should, by some theory or fiction, be held that the plaintiff in error produced the oil from the 640 acres, under and by virtue of its fee title and not under and by virtue of the lease, that would not be decisive of the case because, as stated by plaintiff in error, the lease is to continue in force so long as oil or gas is produced from said *Page 140 premises described in the lease, not how, nor by what right it is produced, but the fact that it is produced.
Under the lease in this case, no rentals nor royalties were to be paid. No one other than plaintiff in error was interested in the production. Mullen understood that when he took title, Hal M. Cannon, trustee of the estate of J.S. Mullen, bankrupt, upon Mullen being adjudged a bankrupt, stepped into Mullen's shoes and has no greater rights than Mullen had. This court and many others have repeatedly held that, under an extension clause of an oil and gas lease, production in paying quantities from any part of the lands covered by the lease keeps the lease alive as to all lands covered thereby. This is true even though the ownership of the land has been split up and likewise the ownership of the lease.
In Gypsy Oil Co. v. Cover, 78 Okla. 158, 189 P. 540, it is said:
"The plaintiffs' next contention is that the lease as to the 120 acres terminated before the bringing of this action for failure to drill and operate the premises according to the terms of the lease, or was subject to forfeiture for failure to develop.
"It is admitted that one producing well was put down by Davis and the Producers Oil Company within one year from the date of the lease; also, that no well was drilled on the 120-acre tract nor rentals paid. This court held, in the case of Roach v. Junction Oil Gas Company, 72 Okla. 213, 179 P. 935, that after gas was found upon the leased premises within five years from date thereof in paying quantities, the lessee thereby became vested with a limited estate in the leased premises, for further operations in accordance with the terms of the lease (citing Brennan v. Hunter, 68 Okla. 112, 172 P. 49, citing numerous cases). In Pierce Oil Corporation v. Schacht,75 Okla. 101, 181 P. 731, it was held that where a lease covered a tract of 160 acres and an assignment was thereafter made to 40 acres, upon which a gas well was brought in and the royalties paid, from that time on there would be no indebtedness for future rentals, * * * and this would not only apply to the portion of the land where the gas well was situated, but to the land entirety, and the payment of said stipulated royalties continued the lease in force and effect as to the entire 160 acres of land."
To the same effect are Pierce Oil Corporation v. Schacht, 75 Okla. 101, 181 P. 731; Blackwell Oil Gas Co. v. Whited, 81 Okla. 45, 196 P. 688; Douthitt v. Wheeler, 110 Okla. 131, 236 P. 408; McCallister v. Texas Co. (Tex. Civ. App.) 223 S.W. 859; South Penn Oil Co. v. Snodgrass (W. Va.) 76 S.E. 961; Nabors Oil Gas Co. v. McCormick (La.) 81 So. 766; Harness v. Eastern Oil Co. (W. Va.) 38 S.E. 662; Thornton on Oil and Gas (3rd Ed.) sec. 920.
This is not an action brought by the defendant in error to cancel the lease for failure to continue development within a reasonable time after the discovery of oil or to prosecute development diligently or for failure to drill an offset well, as provided for in some oil and gas leases.
It is the contention of the defendant in error that, because the well was not commenced on the land conveyed by Cottingham to Mullen within ten years after the date of the lease, when Hodges assigned the lease to Coline Oil Company on March 8, 1916, it merged with the title which Cottingham conveyed to Coline Oil Company on November 17, 1915, and the majority opinion sustains the contention of the defendant in error, and with this view, taken by the court, we cannot agree, and the authorities cited in the opinion do not sustain the rule announced by the majority opinion.
The first case cited with approval in the majority opinion is Boykin v. Ancrum, 28 S.C. 486, 6 S.E. 305, 13 Am. St. Rep. 698. The third paragraph of the syllabus reads:
"Merger is the annihilation of one estate in another, and takes place usually when a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, whereby the less is immediately merged; that is, sunk or drowned in the greater."
These two estates, could not possibly coincide and meet in the Coline Oil Company, because the Coline Oil Company never owned the whole of the fee title, subject to the lease of the entire acreage, but only owned the fee title to 640 acres, and the remainder of the fee title, subject to the oil and gas lease, was conveyed to Mullen. The New Century Dictionary defines "coincide" thus: "To occupy the same place in space, the same point or period in time, or the same relative position." Webster defines "coincide": "To occupy the same place in space, as two congruent triangles placed one on the other."
If the Coline Oil Company had purchased from Cottingham 640 acres of land subject to an oil and gas lease, and later the oil and gas lease on the 640 acres of land was conveyed to Coline Oil company, the two estates might coincide and meet in one and the same person, depending upon the circumstances as to whether or not there was any intermediate estate, or would it be to the manifest interest of the owner for the *Page 141 two estates to merge. Under such conditions, the two estates might merge, but I am of the opinion that it is an impossibility for one estate such as an oil and gas lease on 1,900 acres of land to coincide and meet in the same person on 640 acres of land. We might as well try to drown a 200-pound man in a two gallon pail of water, or hold that Jonah swallowed the whale instead of agreeing that the whale swallowed Jonah.
The majority opinion also approves the holding in the case of Hill v. Reno, 112 Ill. 154. The syllabus of that case is:
"A lessee of lands, the reversion in fee of which is in tenants in common, may upon purchasing a part of the reversion demand a partition even though it will necessarily result in a sale of the premises."
This case has no bearing whatever in the case at bar. The majority opinion states that the doctrine of merger is recognized in respect to oil and gas leases. Citing Thornton's Law on Oil Gas (4th Ed.) 206, sec. 69. The writer of the text cites in support thereof, State v. Coosaw Mining Co., 47 Fed. 225; Fairchild v. Dunbar Furnace Co. (Pa.) 18 A. 443. The first cited case holds:
"Act S.C. 1870 gave defendant the right to mine phosphate in the Coosaw river for 21 years on the condition that it should pay annually $1 a ton for each ton mined, and make annual return of its operations, or oftener if required. Act of 1876 proposed certain modifications of this contract as regards time and manner of making returns, payment, etc., and provided that on defendant's acceptance thereof its right to mine should become exclusive, and it should have the right, 'so long as, and no longer than', the new conditions were complied with. Held, that these words applied only to the duration of the original term, and did not make the right perpetual."
The latter case holds that:
"A contract not under seal, whereby, for a consideration (afterwards paid), the owner of land agrees to 'grant the right and privilege of digging all the ore on his land,' is an equitable conveyance of the ore in fee, and not a mere license to take minerals, and trespass by the grantee of the owner will not lie against those claiming under such contract for removing ore from the land."
There are numerous other citations in the majority opinion from text-writers, all of which merely announce the strict common-law rule as to merger. And all the authorities cited under other sections of the text announce the general exception to the rule, that merger is not favored in equity and will only be allowed to promote the intention of the parties; and that equity will prevent a merger when the same is not for the best interest of the grantee, or owner of the two estates.
This court in Yoder v. Robinson, 45 Okla. 165, 145 P. 775, quotes with approval from 2 Pomeroy's Equity Jurisprudence, sec. 788, as follows:
"Where the owner of the legal estate, as for example the fee, acquires by purchase or in any other manner, a lesser equitable estate not co-extensive and commensurate with his legal estate, a distinction exists; the merger, although taking place at law, does not necessarily take place in equity; indeed, it may be said that the leaning of equity is then against any merger, and that prima facie it does not result. The settled rule in equity is that the intention of the one acquiring the two interests then controls. If this intention has been expressed by taking the transfer to, a trustee, or by language inserted in the instrument of transfer, it will, of course, be followed. If the intention has not been thus expressed, it will be sought for and ascertained in all the circumstances of the transaction. If it appears from all these circumstances to be for the benefit of the party acquiring both interests that a merger shall not take place, but that the equitable or lesser estate be kept alive, then his intention that such a result should follow will be presumed, and equity will carry it into execution by preventing a merger, and by treating the equitable or lesser interest as subsisting, and by admitting all the consequences for the protection of the party with respect to other matters, which necessarily result from the fact of the equitable estate being left in existence."
In the case, Lashley v. Dexter, 133 Okla. 297, 272 P. 427, this court in an opinion by Commissioner Foster held:
"Where a junior mortgagee, who is also owner of first mortgage interest coupons, which are a lien upon the property superior to the lien of the first mortgage holder, causes the land to be sold upon a foreclosure of his junior mortgage, and purchases the same at execution sale, taking title in the name of a trustee, his lien under the first mortgage coupons does not become merged with his title at the execution sale, unless there are facts and circumstances indicating an intention that a merger should take place."
The opinion approves the rule announced in Dubbels v. Thompson, 49 Mont. 550, 143 P. 986; Westheimer v. Thompson, 3 Idaho, 560, 32 P. 205; Anglo-Californian Bank, Limited, v. Field, 146 Cal. 644, 80 P. 1080.
In Dubbels v. Thompson, supra, the court said:
"As between the plaintiff and defendant Carl N. Thompson, the deed dated April 18, *Page 142 1912, under the facts disclosed, did not extinguish the mortgage. It is a well-settled rule that, as between the parties, the result of such a transaction depends upon the intention which prompts it. This intention may be shown by the recitals in the deed itself, or by a separate agreement in writing, or it may be ascertained from parol evidence of the circumstances accompanying the transaction — such as that the mortgagee retains the evidences of the debt, having accepted the deed as additional security, or that he does not formally release the mortgage, or assigns it to a bona fide purchaser, representing that it is a valid, subsisting security. Gibson, Adm'x, v. Morris State Bank, 49 Mont. 60, 140 P. 76; Factors' Traders' Ins. Co. v. Murphy, 111 U.S. 738," and other cases.
The Idaho court holds:
"Presumptions are against merger where it is manifestly for the interest of the grantee that the charge should not merge.
"When the grantee of mortgagor buys in and takes assignment of a mortgage upon the premises conveyed, the mortgage so purchased does not merge, except in the case when the grantee has assumed payment of the mortgage as part of the consideration for the conveyance of the fee, or has manifested or declared an intention to have it merge."
In Factors' Traders' Ins. Co. v. Murphy, supra, the Supreme Court of the United States said:
"Where an incumbrancer, by mortgage or otherwise, becomes the owner of the legal title or of the equity of redemption, the merger of the incumbrance will not be held to take place if it be apparent that it was not the intention of the owner, or if, in the absence of any intention, such merger was against his manifest interest."
In the case at bar it would certainly be against the manifest interest of the Coline Oil Company for the oil and gas lease to merge with the fee title from Cottingham to Coline, as under the holding of the majority opinion it would operate as an abandonment of the oil and gas lease on the 640 acres of land conveyed by Cottingham to Mullen.
In the case of Anglo-Californian Bank, Limited, v. Fields, supra, the Supreme Court of California said:
"The merger of mortgage liens with the fee, on both being united in the same person, is a question of intent, and merger will not he implied where there is an intervening claim, but equity will keep the legal title and the mortgagee's interests separate, though held by the same person, whenever necessary for the full protection of his just rights; and if, from all the circumstances, a merger would be disadvantageous to the party holding the fee, his intention that merger shall not result will be presumed and maintained, and equity will keep the liens alive for the purpose of doing justice."
In the case of Bodcaw Lumber Co. of Louisiana v. B.D. Goode, 254 S.W. 345, 29 A. L. R. 578, the Supreme Court of Arkansas said:
"The oil, gas and minerals underlying a tract of land may be severed by reservation in a grant of the surface so as to create a right in perpetuity in the grantor.
"A reservation which is part of the granting clause of a deed must be read in connection with the grant as a limitation thereon, rather than as being in conflict with it.
"In case of an attempted reservation or exception in a deed, the question is to determine what the real intention of the parties was with respect to the thing granted, so that if the intention to create an exception is clear when the word 'reserve' is used, that intent will be given effect.
"A provision in a deed of real estate 'reserving to the grantor,' his successors and assigns, all minerals and mineral rights in the land, will be construed as an attempt to except the mineral rights from the conveyance."
That decision quotes with approval Rich v. Doneghey,71 Okla. 204, 177 P. 86, where this court said:
"But with respect to such oil and gas, they have certain rights, designated by the same courts as a qualified ownership thereof, but which may be more accurately stated as exclusive right, subject to legislative control against waste and the like, to erect structures on the surface of their land, and explore therefor by drilling wells through the underlying strata, and to take therefrom and reduce to possession, and thus acquire absolute title as personal property to such as might be found and obtained thereby. This right is the proper subject of sale, and may be granted or reserved."
In Williams v. Bricker, 109 P. 998, the Supreme Court of Kansas, in discussing when an estate for life (and not a lien or easement) will merge in the fee title, said:
"It is claimed, therefore, that with the execution of the deed the life estate and the vested remainder united in the same person and therefore merged together, and that the contingent remainder then expired, because there was no longer a life estate to which it could attach. This result would doubtless follow where the unmodified common law prevails. 16 Cyc. 656; 24 A. E. Enc. of L. 413. it might, however, be seriously questioned whether it follows in Kansas, for this reason, among other: Here the union of two estates in one person does not necessarily result in a merger. Loan Association *Page 143 v. Insurance Co., 74 Kan. 272, 86 P. 142; Shattuck v. Bank,63 Kan. 443, 65 P. 643. The merging of two estates by their union in a single individual is purely a matter of theory. The two estates are conceived as remaining separate whenever that view is to the advantage of their holder. There is more reason that they should be kept apart when their merger would operate to the prejudice of one who is not a party to the transaction.
" 'At law, the rule that whenever a greater estate and a less coincide in the same person without an intermediate estate, the lesser is merged, is invariable and inflexible in equity, the rules of law as to merger are not followed, and the doctrine of merger is not favored. Equity will prevent or permit a merger as will best subserve the purposes of justice and the actual and just intent of the parties; whenever a merger would operate inequitably it will be prevented. * * * In equity, the merger will be prevented whenever necessary to protect the rights of an innocent third party, or of the person in whom the estates meet.' 16 Cyc. 605, 668.
" 'In equity the legal rule of merger is not regarded as inflexible, and the question whether the doctrine of merger will be applied or not is determined by the intention of the party in whom the estates unite, provided that his intention shall not be enforced to perpetrate fraud or wrong. * * * The equitable doctrine has superseded the legal doctrine almost entirely at this day; for in England the equitable doctrine controls in courts of law by statute, while in many of the United States equitable remedies can be had in courts of law.' 20 A. E. Enc. of L. 590, 591."
In the case of Moore v. Luce, 29 Pa. 260, the Supreme Court of that state said:
"Merger takes place when a greater and a less estate come together in the same person, and when there is no reason for their longer existence as separate estates. The doctrine has its foundation in the convenience of the parties interested, and therefore, whenever the rights of strangers, not parties to the act that would otherwise work an extinguishment of the particular estate, require it, the two estates will still have a separate continuance in contemplation of law."
It will be noted, as announced in the Kansas case, that section 170, C. O. S. 1921, modifies the common-law doctrine, and is as follows:
"The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object."
Numerous other authorities might be cited in support of this proposition, but it seems to be settled by the former decision of this court that equity will prevent a merger, unless it is for the interest of the party in whom the two estates meet.
We do not feel that it is necessary to discuss servient estates, as that section of the statute has nothing to do with the leasehold estate involved in this action. Section 8438, C. O. S. 1921, is identical with section 2770, Comp. Laws of Dakota 1887, chapter 3, on servitudes.
A servient estate is an estate, or some use in the nature of an easement, on which another estate is dependent of necessity for enjoyment. Dillman v. Hoffman, 38 Wis. 559.
When one part of an estate is dependent, of necessity, for enjoyment on some use, in the nature of an easement, in another part, the former is the dominant, and the latter the servient, estate. Galloway v. Bonesteel (Wis.) 26 N.W. 262.
The term "servient estate," in the law of easements, is used to designate the estate in which another owns an easement. Stevens v. Dennett, 51 N.H. 324.
The servient estate is the one upon which the easement is imposed. Walker v. Clifford, 128 Ala. 67.
We do not want to be understood as holding that there are not instances in which, even though the two estates do not coincide, that there could be a pro tanto merger of the two estates, but they do not exist in cases like the one under consideration, and it is not necessary to discuss that subject here. We feel confident in saying there is not a well-considered case holding contrary to the early decision of the United States Supreme Court in Factors Traders' Ins. Co. v. Murphy, supra, which holds that merger will not be held to take place if it be apparent that it was not the intention of the owner of the two estates that they should merge, or if, in the absence of any intention, such merger was against his manifest interest.
It cannot be successfully contended in this case that it would not be against the manifest interest of the Coline Oil Company to hold that the law forced a merger of the two estates in the case under consideration, and such is the holding of the majority opinion.
I am therefore of he opinion that the *Page 144 majority opinion is contrary to the former holdings of this court, as well as against the great weight of authority, hence this dissent.