*1
Opinion Pee
March
1964:
Curiam,
prior
repetitious
pe-
raised
Appeal
matters
tition.
Com.
rel. Altizer v. Hendricks,
See
ex
Duquesne Natural Gas v. Fefolt,
Appellant. P. J., 1963. Before Rhodes, November Argued Wright, Ervin, Woodside, Watkins, JJ. Flood,
Robert L. Geisler, appellants.
Paul A. him Simmons, with Tempest é Simmons, for appellees.
Opinion by 1964: March Watkins, J., appeal This is from judgment Court Common Pleas of eq- in Washington County, sitting in an uity, which determined by it was interpleader, title to certain oil and to Wil- reserved liam and Euth an Marlett, Jr., his Marlett, wife, estate in land.
The so was whether “. . . reserv- issue, determined, ing to first however, the equal party, one-eighth (%th) part of all oil produced and saved from said premises, to be. in delivered line to first the credit of the free . . .” “considera- party, charge and whether the in tion full to the so each and every well follows: producing gas upon said land shall be as part of all sold from well” each passes and whether it personalty realty land or remains the grantors- original lessors. Fe- Joseph Fefolt and Hannah January, 1925, his entered into an oil
folt, wife, appellants, Oil & Byers Company. Gas estate involved was to several successive conveyed Mar- in William and Euth grantees ending Marlett, Jr., Mar- his 1960. The wife, appellees, July, lett, 1961. letts made demand for royalties December, interpleader plaintiff company, was filed -of assignee Byers Natural Gas an Duquesne Company, The Fefolts com Company. granted and Oil & Gas follow- under the . . all veyed re- . . addition said, described ing premises”, serving party, first however, said saved from all oil (i/gth) credit line to the the pipe to be delivered . . .”. The Fefolts charge free of party, land said all their title veyed right, turn conveyed their Justine who daughter, Roper, Mar- her land to the all and interest right, letts. all Fefolts contend that & Oil in the said land-to the severance of causing complete reserva- said land. They contend
tion of the one-eighth
part was
(%th)
personalty
*3
Roper.
did
and
to Justine
pass
The Marletts
only seven-eighths
contend
that
to
oil
(%ths)
gas
actually
said
and
conveyed
Oil &
one-
Gas
Company.
reservation of
prop-
eighth
interest
remained vested as real
(%th)
in the
erty
passed
Fefolts and
by deed
them.
All of the
cases are
accord
Pennsylvania
the original
grant
and
the Fefolts
by
company
an estate in
property
created
real
severed the
oil from the
of the
estate.
rest
posed here is
reservation
whether
interest
and oil was
reservation of ah
estate
land or that
the entire gas
and oil interest'
real estate
in the grantee
sub-
to the
of'
ject
of a
payment
royalty upon
delivery
oil out of
the land and so personalty.
and/or
We
court
below that
property
viz: “. . .
reserved,
one-eighth (%th) part
.”
gas sold
each well . .
in the
as is described
lease in
this case is real
Penn-
Ohio
v. Franks’s
Gas
322
Heirs,
233,
;
A. 280
Barnsdall v.
(1936)
Bradford
338,
If the transfer of the
gas' rights
company conveys realty
it seems
clearly
clearly
logically
that the reservation
follow
portion
set forth
of that
grantors
though
realty
oil to the
must
also
even
provided by
delivery.
royalties
This
on
holding
is
of the courts in
most
n gasproducing
Hager
states.
453,
Texas
Stakes,
As below said: “It is true that the Act simple P. L. Section does causé fee to be when those words are used unless grant' expressly limited to a lesser and as estate; séven-eighths (%ths) Plaintiff does have a rea- fee title. is true for the Pennsylvania son the Court of has held ‘grant convey’ the words do cause a severance from the to the extent surface, -séven-eighths (%ths) óf case where there as is, grant one- at bar reservation in the ‘.of . . the eighth (psth) share of all oil and saved . ordi-
“The in natural narily belongs to the owner of the land. The oil part they on it or are of the land so are in it or are to control therein. other words, place. They they of the are are land while ownership from the can be severed surface exception separate corporeal grant rights. Ac- *4 separate they may cordingly, be the of a sale, apart any and from be- from the surface minerals grantee, they belong to the owner or his it; fee, íiéath although property, they remain of his as possible until are severed from them is not of use exactly done other case of all freehold a freehold in- Hence, the surface. of beneath minerals gas.” may in oil and created P.L.E* heritance page Mining, 144. Gas §11, Oil and own So far as the law of is concerned ership where of is to that coal, similar sur there the coal itself, are three estates of land, right support. Alden face Glen and the Smith Coal 2d 347 Pa. appellants heavily Prager’s rely Estate,
The on Superior (1920), in this Court Ct. 592 which appears did that a such as this case reservation property in create a technical reservation and so grantees question passed entirely and held to the being personal royalties theory were that no reserved. oil or language Prager’s in the Es the instrument quite tate similar to that the instant case case is view of the more recent decision Heirs, Court in Penn-Ohio v. Franks’s supra, be are constrained to court we keeping reservation low that the is effective extent an estate land, wit, grantors. interest, Judgment affirmed.
Dissenting Opinion J.: respectfully disagree I with the its Prager’s clusion that Estate, present (1920), instru- not control the case. The does very ment us similar if not now before identical conveys in that It Oil with the one case. and Gas and to its trust, successors assigns gas “all the oil under” the tract land described with the to use water and therein, producing the surface land and trans- porting “reserving and water; to first however, party equal one-eighth (1/8) part pro- of all oil duced and saved from said to be delivered party in the line to the credit free (Emphasis supplied) charge, . . .” *5 gas provides found “If further: and as It convey quantity consid- to to market, in sufficient every well for each, eration full to the producing upon follows: shall be as said land, ad- “In well”; sold from each l/8th dition party royalty, shall
to the above mentioned sup- (Emphasis dwelling,. . have for one .” fuel, plied) to a of the fee was limited to the surface explore.
not
or
a lease
to
license
Penn-Ohio
Franks’s Heirs,
(1936),
ÍL08
*6
“for the sole
acres
containing miner-
and other
for oil,
operating
mining
,
the de-
the lease was
for
The consideration
als
the
of the lessors
in
lines
credit
livery
from
and saved
produced
all the oil
one-eighth part
pos-
for
in ejectment
an action
This was
premises.
the
that
lease
the
and it was
tract;
of the
session
miner-
explore
of a license to
the grant
not merely
en-
corporeal
hereditament
grant
als but was the
the
Although
to possession.
the
titling
lessees
opinion
not at
the
and gas
issue,
of title to the oil
recognizes
contains
discussion
oil and
under a
between
distinction
in
place
those under a
of oil
conveyance
an
: “He is not
absolute owner
whole
344)
in place conveyed
he
the oil
be were all
would
him in
fee.”
I
in
agree
majority
Pennsylvania
from
it
the land and
severs
creates a
in
I
separate
estate
However,
cannot
that a
conveyance of all
and gas,
a reservation of one-eighth
produced
saved and
one-eighth
that whole
gas sold, reduces
estate to a
Oil and
seven-eighth
produced
interest.
or
or
much
saved,
different from
sold,
in
interest
in
such minerals
place.
expense
Much
must
be incurred before
and oil in
place
becomes
or
or sold.
saved,
primary rule
be observed
interpreting
agreements of this nature is that
real intention
the parties, particularly
that of the
must.be
grantor,
sought and carried out
possible.
whenever
v.
Lacey
Montgomery,
Ct. 640,
1Q9 as tenants agreement themselves to establish intended gas, it new estate common have very for-them matter have been a would seven-eighth convey agreement to written to have or the oil interest place. excepted one-eighth in then opinion prevails, of this effect If the seven-eighth agreement be the would consideration nominal for the the oil interest nothing I dollar; of one find drilling prevents their one- the lessor compelling eighth one-eighth inter- produce their for the lessors lessees *7 might incongruous mentioned situations Other est. this view. if should adhere to we my opinion, been decided has Judge Prager’s Judge later President Estate. Keller, thoroughly con- the law examined this Court, mere exclu- was not a in that case cluded that the deed gas, operate right nor for oil and or license to sive operating for oil for the lease of the land all the a sale and but was min- place; these to sever effect was its conveying of the land, from the surface or balance erals leaving grantees, his them to the purchase money due it fell the consideration payable. to the estate that, The ease operation consid- veyed, the same whether its lump payable install- at once or sum eration was a royalty on the nature of a or was ments, Finally “His he said,. and saved. purchase money, is, in them was limited proportioned money amount of a certain pressure off used the amount premises marketed, per-
‘produced and was and saved’ execu- in his at his death, which, sonal 110 594). . . .”
tor did not to Ms devisee. pass Court have Court and this our Furthermore, ac- times and have considered Estate Prager’s many cepted question.1 it without ap-
I would reverse judgment and enter it for pellants, Joseph Fefolt and Hannah wife. his Fefolt,
I dissent. 1 290, 295, v. Alden Smith Glen Coal Pa. A. 2d 347 32 227, ; (1943) Wahl, 237, 239, 252, 253 231 Waldron v. 286 Pa. A. 133 (1926) ; City 521, Commission, 512, Erie v. Pa. Public Service 278 103, 471, (1924) ; Foster, 95, Hamilton v. 272 Pa. 116 A. 475 50, Dierken, Superior 389, 394, (1922) ; Miller v. Pa. 33 52 153 Ct. 39, Kerr, Superior 804, (1943) ; 37, A. v. 142 2d 807 Ct. Burke 685, (1940) Guthrie, Superior ; Ct. v. 15 A. 2d Guthrie 135 Superior ; Appeal, 588, 592, (1939) A. 2d Baird’s 132 Pa. Saltsbury Colliery 573, 584, (1938) ; v. 1 A. 2d Co. Ct. Mining Company, Trucks Coal Appellant.
Commonwealth Greer,