59 P. 640 | Kan. | 1900
The opinion of the court was delivered by
This proceeding involves a question of homestead right. JohnW. Boatwright owned, and with his wife occupied, as a homestead a quarter-section of land in Allen county. On April 5,1894, Boat-wright executed to George A. Bowlus & Go. a lease, giving them the right to enter upon the land " and operate for oil, gas and minerals for a term of ten years, and their rights under the lease were subsequently assigned to the Palmer Oil and Gas Company. The wife of Boatwright did not join in the execution of the lease, and has never consented that it should be made. In October, 1894, Boatwright and wife conveyed the land to Mary A. Parish, and she in turn
The lease was executed when Boatwright was absent from the land and while he was in Missouri, but it is claimed to have been a temporary absence, or, at least, that there was no abandonment of the homestead in Kansas. It appears that Boatwright and wife, in January, 1894, went to Fort Scott, where they remained for a number of-weeks, and from there they went to Nevada, Mo. He placed his Kansas property in the hands of real-estate agents and endeavored to sell or exchange it for other lands. He left at the Kansas home, however, two of his sons, a a portion of his household goods, some hogs, cattle, and horses, as well as farming implements. Both of the sons had been living with them as part of the family, and in that year the cultivated land was rented to the older one, and the pasture land was reserved for the stock which he left there. Some of the cattle on the farm were sold during the summer and fall of 1894, and some of them remained on the place until March, 1895. The other son, who was only fifteen years of age, and who had always lived at home, continued to occupy the house with the older brother until May, 1894, when he rejoined his father and mother in Missouri. Some of the horses and hogs left on the place remained there until the spring of 1895.
Boatwright frankly stated in his testimony that when he went down into Missouri he desired to secure
That the Boatwrights had a homestead in the property until January, 1894, is conceded. Did they abandon or lose it prior to the execution of the lease in 1894 because they had under consideration a change of residence, and were looking for an opportunity to dispose of the homestead? “A residence once shown to have been established is presumed to continue until it is clearly shown to have been abandoned.” (Keith v. Stetter, 25 Kan. 100.) To constitute an abandonment of a homestead there must be an attempt to abandon and an abandonment in fact. In Garlinghouse v. Mulvane, 40 Kan. 432, 19 Pac. 800, it was said that “where a residence is once established, it requires two conditions or things to destroy it: First, a removal; second, an intention not to return.” Ac
Another contention is that the lease did not contemplate any interference with the homestead rights, and therefore that the joint consent of the husband and wife was not essential to its validity. It is claimed that the principal value placed on this lease was on account of the natural-gas privileges, but by the terms of the lease the lessee and its assigns were given the right to operate for oil, gas, and minerals. Even if it only contemplated the taking of natural gas from the land, it appears that it would be necessary to construct houses over the wells for machinery and other purposes, and a right-of-way over the land would be required to reach the wells and to carry the product
The judgment of the district court will be affirmed.