concurring in part and dissenting in part. I agree that oil and gas were generally recognized as minerals in 1905, so I concur-with the Majority in affirming the decree here challenged. But I dissent from the reasoning which the Majority Opinion uses to reach such affirmance. I call attention again to the views I expressed in my dissenting opinion in Stegall v. Bugh, 228 Ark. 632, 310 S. W. 2d 251; and I express the hope that this Court will ultimately see fit to fix a date applicable to the entire State of Arkansas when oil and gas became generally recognized as minerals.
As I view the cases, we now seem to be proceeding on a county by county basis, because the Majority Opinion in the present case says: “ ... we have con-eluded that the finding of the Chancellor that gas was a commonly recognized mineral in Logan County on July 26, 1905, is not against the preponderance of the evidence in this case and that the judgment entered upon this finding should not be disturbed.”
On this matter, of how to determine when oil and gas were recognized as minerals, we have drifted like a “ship without a rudder,” as quotations from our cases will show.
(a) We started out in the Strohacker1 case in 1941 by saying it was the intention of the grantor that determined the issue, and we said:
“Our task is to decide what Iron Mountain meant when it reserved ‘all coal and mineral deposits.’ Although there were court decisions holding oil and gas to be minerals, such was not the general construction; and this was particularly true in a country where oil and gas were not given the slightest commercial consideration in connection with land values. ‘All coal and mineral deposits’ undoubtedly were thought to mean, in addition to coal, deposits of substances commonly recognized as minerals, ? ? '
(b) Then, in the Furqueron2 case in 1946, we quoted a headnote from the Strohacker case which included both the intention of the grantor and the intention of the grantee in the deed, for the said headnote reads:
“ ‘By excluding from deeds executed in 1892 and 1893 “all coal and mineral deposits” pertaining to lands in Miller County, Arkansas, accruing’ to railroad company through government grants, the company no doubt had in mind, as did its grantees, only substances then commonly recognized as minerals ; and in view of such intent the language was not sufficient to reserve oil and gas.’ ”
(c) Then in the Carson3 case in 1948, we again tested the mineral question by the mutual intention of the parties, for we said:
“We conclude that the rule announced in the Strohacker case, supra, as well as the unreasonableness, under the circumstances, of the construction asserted by appellee, requires a holding that bauxite was not in the contemplation of the parties to the contract when this reservation of mineral rights was made.”
(d) In the Brizzolara4 case in 1949, we still tested the mineral question with the “intent with which the words were used,” for we there said:
“ . . . the rule deals with a question of fact rather than of law.” “ . . . the question involves the intent with which these words were used in a different deed in 1897. At the trial neither party offered proof on this point, . . . ” ‘ ... we think it best to remand so that the facts may be ascertained.”
(e) But when we decided the Stegall5 case in 1958, we departed entirely from what the parties to the conveyance intended, and went to the test of what the word mineral was generally understood to mean at the time of the conveyance, for we said:
“We think that the meaning which this court has heretofore and should hereafter give to the word ‘mineral,’ in connection with its use in situations similar to those of this case, is governed not by what the grantor meant or might have meant, but by the general legal or commercial usage of the word at the time and place of its usage.”
(f) And now, in the present case, we seem to be going to a coimty by county basis to determine when oil and gas became recognized as minerals, for the Opinion herein contains the language already quoted, which is, “ ... we have concluded that the finding of the Chancellor that gas was a commonly recognized mineral in Logan County on July 26, 1905, is not against the preponderance of the evidence in this case and that the judgment entered upon this finding should not be disturbed. ’ ’
So we have gone from what the grantor intended, to what the parties intended, to what was generally understood in the locality, to what was understood in the particular county in which the land was located. It now seems that there will have to be a case brought to this Court from each of the seventy-five counties in Arkansas to have determined when oil and gas were first generally recognized as a mineral, in each such county; and it is from that line of holdings that I must necessarily dissent. As I tried to point out in my dissent in Stegall, I insist that oil and gas were generally considered to be minerals in all of Arkansas as early as January 1, 1900. I wish this Court would so state and put an end to this ‘ ‘ drifting like a ship without a rudder” course that we are pursuing on this question which is vital to property.
In short, I still insist that I was right in my dissent in Stegall v. Bugh, supra. I probably will not be on this Court when another mineral reservation case arises; but I predict that at some time the Court must fix a statewide date when it was generally recognized that oil and gas were minerals. We have before us in the case at bar as fine a record as will ever be presented on this question; and I think this is the time when it should be done; and I would still insist on January 1, 1900, as such date—or, if the “beginning of the century” is considered a more poetic date, then Jan. 1, 1901, would satisfy the situation.
Mo. Pac. Rd. Co. v. Strohacker, 202 Ark. 645, 152 S. W. 2d 557.
Mo. Pac. Rd. Co. v. Furqueron, 210 Ark. 460, 196 S. W. 2d 588.
Carson v. Mo. Pac. RR. Co., 212 Ark. 963, 209 S. W. 2d 97.
Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d. 728.
Stegall v. Bugh, 228 Ark. 632, 310 S. W. 2d 251.