*

*

"(7) Any payments due or to become due hereunder shall be deemed complete if made or tendered to the grantor, or if deposited or tendered for deposit to the credit of the grantor in the Bank at "(8) In case the grantee, or the successors or assigns of such, should sink a well or shaft, and discover either oil, gas, or other minerals within the limits of time, or the extension of such as herein provided for, then this conveyance shall be in full force and effect for twenty years from the discovery of said product, and as much longer as such minerals are produced in paying quantities.

"(9) No well shall be drilled nearer than * feet of the house or barn now on said premises, unless by consent of both parties. It is agreed that the grantor is to have the exclusive use of the premises hereinbefore described for all purposes other than above mentioned. When requested, grantee agrees to bury all pipe lines below plow depth, and pay all damages caused to growing crops and fences, when injured by grantee or by employés of such.

"(10) This lease is not intended as a mere franchise, but is intended as a conveyance of the property and privileges above described for the purposes herein mentioned, and it is so understood by all parties hereto.

"(11) It is agreed that this contract and all the terms hereof shall extend to and be binding upon the successors, legal representatives and assigns, and successive assigns, of such parties, respectively."

Upon eight of the leases assessed for taxation no wells had been drilled at the date of the assessment, and the aggregate value at which these leases were assessed was $69,205.25.

In this court, as in the trial court, the only question presented for our determination is that contained in the agreement copied above. Appellant admits that the privileges and interests acquired by virtue of the instruments termed "oil and gas leases" are property, and that the Legislature could, if it saw fit so to do, subject them to taxation, but contends that there is no statute requiring them to be taxed. The following are substantially the contentions urged in appellant's brief:

First. That oil and gas are fugitive substances having no fixed situs in the land, and do not become private property until they are taken from the land and reduced to actual possession, and that from the very nature of the subject-matter the oil or gas leases

Second. That such right is a chattel real, and not taxed by any of the statutes of this state.

Third. That, if they are taxable at all, they are taxable as personal property only, and that, too, in the county of the domicile of the owner.

Fourth. That the owners of the fee in the lands covered by the leases are taxed upon the entire values of those lands, including the privileges acquired under the leases, and that to tax the leases in addition to the taxes imposed upon the owners of the fee would be double taxation, which is not permissible in the absence of any statute specifically so providing.

Fifth. That the leases in question, and especially those upon lands which have not been exploited for oil or gas, are but conditional options of permits, subject to aban donment or forfeiture upon conditions contained in the leases.

Appellant has cited many authorities, excerpts from many of which appear in the briefs. We will quote a few of these only. as most of the authorities cited announce substantially the same views:

"Oil and gas, while in the earth, unlike solid minerals, are not the subject of ownership distinct from the soil, and the grant of the oil and gas, therefore, is a grant, not of the oil that is in the ground, but of such a part thereof as the grantee may find, and passes nothing which can be the subject of an ejectment or other real action." Watford Oil Co. v. Shipman, 233 Ill. 9, 84 N. E. 53, 122 Am. St. Rep. 144.

"The grant of oil and gas is a grant of such oil and gas as the grantee may find, and he is not vested with any estate in the oil or gas until it is actually found," since, on account of their wandering nature, and their liability to escape or be withdrawn to other lands, they are not subject to absolute ownership. Poe v. Ulrey, 233 Ill. 56, 84 N. E. 46.

"By the terms of that instrument the lessor granted to the lessee all the oil and gas in and under the land described, ‘and also the said tract of land for the purpose of operating thereon for oil and gas.' By a course of decisions it is well settled in West Virginia that a lease of this character is not a grant of property in the oil or in the land, but merely a grant of possession for the purpose of searching for and producing oil." Huggins v. Daley, 99 Fed. 606, 40 C. C. A. 12, 48 L. R. A. 320.

"The law seems to be settled that, under a lease of the nature here in question, title to the oil in place is not in the lessee." The lease, under these decisions, does not have the effect of placing the title of the oil and gas that is under the surface of the land in controversy in the lessee, but is to grant to

[1] We deem it unnecessary to determine whether the leases in controversy in this case when tested by the common law convey any title in the lands or any title to the oil or gas beneath the surface until the same is severed from the land and reduced to actual possession by the lessee, for, at last, the question to be determined is, as stated in the agreement of the parties copied above, Were the rights, privileges, and interest of the appellant acquired by the leases property, and as such subject to taxation against appellant in Wichita county? If such rights, privileges, and interest are taxable under any statute, they must be taxed, and it matters not how the Legislature has characterized them, whether as real estate or personal property.

which is exercised in producing its income. Even though the reasoning in the decisions of other states might lead to the conclusion that the leases in question under the common law conveyed neither real estate nor personal property, the same could not be given effect by us in view of our statute and this decision by our Supreme Court construing the same. In that case the intangible franchise was taxed separately from the roadbed, and our Supreme Court held that this could not be done, but that it must be taxed as a part of the roadbed. Later the intangible assets statute was passed, permitting a taxation of the intangible franchises of railroad companies separately from the roadbeds. As the rights and privileges conferred by the leases to appellant in this case did not belong to the owner of the fee, necessarily they were taxable against appellant, while the fee was taxable against the owner thereof, for the reason that the statute specifically requires that all property shall be assessed to the owner. Hence the holding by the Supreme Court above mentioned, that the franchise

Article 7503: "All property, real, personal, or mixed, except such as may be hereinafter expressly exempted, is subject to taxation, and the same shall be rendered and listed as herein prescribed."

Article 7504 reads: "Real property, for the purpose of taxation, shall be construed to include the land itself, whether laid out in town lots or otherwise, and all the buildings, structures and improvements, or other fixtures of whatsoever kind thereon, and all the rights and privileges belonging or in any wise appertaining thereto, and all mines, minerals, quarries and fossils in and under the same." Article 7506 provides in part: "The term, 'person,' shall be construed to include firm, company or corporation."

Article 7509 in part reads: "All property shall be listed or rendered in the manner following: 1. Every person of full age and sound mind, being a resident of this state, shall list all of his real estate, moneys, credits, bonds or stock of joint stock or other companies (when the property of such company is not assessed in this state), moneys loaned or invested, annuities, franchises, royalties, and all other property."

Article 7526 provides: "All property of private corporations, except in cases where some other provision is made by law, shall be assessed in the name of the corporation." In the case of the State of Texas v. Austin & N. W. R. R. Co., 94 Tex. 530, 62 S. W. 1050, our Supreme Court held that the franchise of a railroad company was one of the rights and privileges appertaining to roadbeds and taxable as real estate under article 7504 above quoted. In other words, that in

separately from its roadbed, the roadbed and franchise belonging to the same owner, could not be given force in this case without a violation of the express terms of the statute. Clearly the rights acquired by appellant under the leases are at all events "rights and privileges belonging or appertaining" to the lands upon which the leases were given within the meaning of article 7504, and were taxable under that article, and the fact that those rights and privileges were subject to termination under the conditions contained in the leases, we think, would make no difference.

[2] As shown by the agreement, the tax assessor assessed the fee to the owners thereof and the leases separately to appellant, and in assessing the fee to the owners he did not include the values of the franchises held by appellant under the leases which were separately assessed to appellant. It thus appears that there was not a double taxation as contended by appellant.

[3] Independent of the foregoing conclusions, under the pleadings, there is another insurmountable obstacle to a grant of the relief sought by appellant, in this: A portion of the taxes sought to be enjoined were county taxes. Wichita county would be materially affected by a judgment enjoining the collection of the taxes claimed by it, and therefore was a necessary party defendant. But Wichita county was not sued; the tax assessor, tax collector, county judge, and county commissioners being the only defendants. See Bradford v. Westbrook, 39 Tex. Civ. App. 638, 88 S. W. 382; Watkins Land Co. v. Clements, 98 Tex. 578, 86 S. W. 733, 70 L. R. A. 964, 107 Am. St. Rep. 653; Biggs v. Lee,

For the reasons indicated, the judgment of the trial court is affirmed.

CONNER, C. J. (dissenting in part). I have been unable to concur with the opinion of the majority in its entirety, but for want of time can only indicate very briefly my diverging view. It is not pretended that there is any iron, coal, or other mineral except oil to which the leases under consideration can relate, and throughout the presentation and consideration of the case the leases have been treated as applying to oil only. So treating the leases, I entertain the view of their legal effect that is contended for by appellant as indicated in the opinion of the majority. In other words, that, as applied to oil, the leases vest in appellant an intangible right or privilege only, which is not taxable apart from the land to which they relate. Such privilege, in my view, by force of the terms of Revised Statutes, art. 7504, is but an appurtenant to the land, which for purposes of taxation is inseparable from it in the absence of a statute otherwise authorizing, and it is not pretended that there is now any such statute. If this view be correct, as seems to be established by the great weight of authority, then the owner of the fee the land-of right must be taxed for the value of the whole, including the rights and privileges appertaining thereto, and it can make no difference that in the instance before us this was not done. See State of Texas v. A. & N. W. R. R. Co., 94 Tex. 530, 62 S. W. 1050, which it seems to me has a reverse application from that given it by the majority.

Under Rev. Civ. St. 1911, art. 2021, providing that, where the ground for a new trial is misconduct of the jury or any communication made to the jury or that the jury received other testimony, the court shall hear evidence thereof, that it shall be competent to prove such facts by the jurors or others by examination in open court, and that, if the misconduct be material, a new trial may be granted, the denial of a new trial because certain jurors visited the premises involved would not be reviewed where the record did not show whether the court heard evidence in support of such motion or, if so, what the evidence showed, since the court is to exercise a discretion in the light of the testimony, and in the absence of such testimony it could not be determined whether such discretion was abused.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2944-2947; Dec. Dig. § 706.*]

Appeal from District Court, Tarrant County; W. T. Simmons, Judge.

W. H. Slay, A. B. Curtis, and H. C. McCart, all of Ft. Worth, for appellant. Smith, Turner & Bradley, of Ft. Worth, for appellee.

SPEER, J. The appellee sued appellant to recover damages to a certain lot situated in the city of Ft. Worth, alleging that the city had excavated the street in front of plaintiff's lot in such manner as to damage his property in the amount claimed. There was a judgment against the city in the sum of $325, which it is sought to reverse on this appeal.

There are three assignments of error presented, but all relate to one question, and that is the misconduct of the jury in that some of its members without the permission of the court or the consent of the parties, visited the premises in controversy and were influenced by what they saw. Article 2021, Revised Civil Statutes 1911, provides that a new trial may, in the discretion of the court, be granted because of the misconduct of the jury in receiving other testimony, but in such connection it is provided that the court shall hear evidence concerning such matter and of course is to exercise his discretion in the light of such testimony. There is nothing whatever in the present record to indicate that the court did or did not hear any evidence upon the issue raised by appellant in its motion for a new trial setting up such misconduct. There is neither statement of fact nor bill of exception in this respect, and in this state of the record we cannot, of course, say the court abused his discretion in overruling the motion for a new trial, and this is the only point raised on the appeal. It may be, for aught the record shows, that the court did hear evidence and that the jurors one and all denied that they were influenced by the communication of their fellows who visited the premises, or indeed it may be that such visit was denied altogether. The sworn motion is no more than a plea raising such issue and is not itself evidence requiring the court to grant a new trial. The judgment is affirmed.

ages.