Majority opinion filed January 1, 1930. Upon consideration of the second petition for rehearing in this cause and further investigation of the issues presented by the appeal, I am unable to agree with the rule of law announced in the majority opinion, and I desire to briefly express my views.
The facts as disclosed by the record are that Cottingham owned a tract of real estate. He conveyed to Hodges the oil and gas thereunder for a term of ten years and as long thereafter as oil or gas might be found in paying quantities thereon. No delay money was to be paid. No royalty was to be paid. Cottingham conveyed a part of the land to the Coline Oil Company, subject to the oil and gas grant, and the remainder of the land to J.S. Mullen, subject to the oil and gas grant. Mullen became bankrupt and Hal M. Cannon was appointed trustee in bankruptcy.
This oil and gas grant cannot be considered an oil and gas mining lease. The grantor therein was to receive no portion of the oil or gas produced under the terms of the grant. He was to receive no rental or delay money thereunder. If oil or gas was produced during the term of the grant, it was to belong to the grantee and the grantor was to have no interest therein.
Thereafter the Coline Oil Company purchased the oil and gas grant and took an assignment thereof. At the expiration of the ten-year term oil was being produced from that portion of the land that had been deeded to the Coline Oil Company and arrangements were being made to drill on that portion of the land held by Hal M. Cannon, trustee.
The opinion holds that the purchase by the Coline Oil Company of the oil and gas grant on the entire tract while the Coline Oil Company was the owner of a portion of the tract constituted a merger and that the production of oil from that portion of the tract owned by the Coline Oil Company did not continue the term of the oil and gas grant as to that portion of the tract owned by Hal M. Cannon, trustee. I am unable to agree with that theory of the law.
In effect that holding amounts to this:
I buy a part of a tract of land subject to an oil and gas grant. The part that I buy is developed for oil and produces oil. Desiring to procure the oil produced from the land I own, I buy the oil and gas grant on the entire tract. The minute I acquire title to the oil and gas grant I lose the title to that portion thereof covering the land other than that portion that I own in fee. That cannot be the law. For that reason, I dissent.
Note. — See under (1) 10 R. C. L. p. 666; R. C. L. Perm. Supp. p. 2720. See "Easements," 19 C. J. § 156, p. 945, n. 61. "Estates," 21 C. J. § 233, p. 1033, n. 24; § 234, p. 1034, n. 36. "Mines and Minerals," 40 C. J. § 670, p. 1055, n. 39.