I adhere to my opinion that the plaintiffs' petition, together with the documents attached thereto and made a part thereof, did state a cause of action. In their petition the plaintiffs alleged that they held a mineral lease on certain described land which had been subject to a previous lease covering a larger area, part of which area (including the area affected by the plaintiffs' lease) was the subject of an assignment by the original lessee, J. E. Smitherman, and the Ohio Oil Company, dated September 10, 1930, a certified copy of *Page 193 which assignment was attached to and made part of the plaintiffs' petition. They alleged that there had not been any production, in paying quantities, for the past several years, on the area included in the assignment of September 10, 1930, and that therefore the portion of the original lease which was the subject of the assignment had lapsed according to its own terms.
As I pointed out in the opinion which I wrote for the court on the original hearing of this case, by the terms of the agreement of September 10, 1930, the original lessee, J. E. Smitherman, relinquished all control over the original lease so far as it affected the area described in that agreement. The agreement therefore constituted an assignment of part of the original lease; and, since the record did not disclose that the transaction affected adversely the interests of the original lessor, the transaction constituted a division of the lease. So that, if, as the plaintiffs alleged, there was no production in paying quantities on that portion of the original lease which was assigned, the lease on that portion of the land would have lapsed and the plaintiffs as holders of the subsequent lease would be entitled to their rights under that lease.
It is stated in the opinion on rehearing that an examination of the plaintiffs' petition and of the documents attached thereto fails to disclose any allegation that *Page 194 would support the plaintiffs' contention that all parties to the original lease consented, subsequent to the assignment dated September 10, 1930, to the division of the lease. It is stated also in the opinion on rehearing that the documents on which the plaintiffs' argument is based were not a part of the petition but instead were introduced in evidence after the defendants' objection to any and all evidence on the merits of the case had been made general by the trial judge. It is plain, however, that our decision rendered originally in this case, maintaining that the plaintiffs' petition, together with the documents annexed thereto and made part thereof, did disclose a cause of action, was not based in any way upon any document that was not annexed to and made part of the plaintiffs' petition.
For these reasons, together with those stated in our original opinion, I respectfully dissent from the opinion and decree on rehearing reversing our decision on the exception of no cause of action.