We have found none. Indeed, our research leads us to quite the contrary conclusion. Cases like Emerson v. Little Six Oil Co., 3 F.2d 265, from this court, which appellants quote, and Zephyr Oil Co. v. Cunningham, Tex.Civ.App., 265 S.W.2d 169, from Texas, from the latter of which appellants quote the eminently correct statement, reservation of "overriding royalty" interest withholds from assignment something existent in assignor, are not in point either on their issues or their facts. Of appellants' alternative contention, that the case presented fact questions for decision on the issue of whether the lease was surrendered in good faith and the case was not, therefore, one for summary judgment, it is sufficient to say that we cannot at all agree with this view.
In addition to paying the $500 in cash, defendant Danciger Oil Refining Company was required to convey to plaintiff an overriding royalty. That constituted a conveyance of an interest in land because it is the general rule that an assignment of an overriding royalty carries an interest in the real estate. United States v. Noble, 237 U.S. 74, 35 S. Ct. 532, 59 L. Ed. 844; Homestake Exploration Corp. v. Schoregge, 81 Mont. 604, 264 P. 388; Sunburst Oil Refining Co. v. Callender, 84 Mont. 178, 274 P. 834; Robichaux v. Bordages (Tex.Civ.App.) 48 S.W.2d 698; Emerson v. Little Six Oil Co. (C.C.A.) 3 F.2d 265; Mills-Willingham, Law of Oil-Gas, § 128. These two constituent elements on each side of the contract were inseparable. Manifestly, neither party would have entered into the agreement without both being required of the other.
This same plaintiff brought suit to cancel the deed from Emerson to his wife, which conveyed the royalty interest in question, and was unsuccessful. Emerson v. Little Six Oil Co. (C.C.A.) 3 F.2d 265. The opinion in that case gives the detailed facts which entitled Emerson to his interest.
I am of the opinion that we were correct in the Wier v. Glassell case, and that decision that an overriding royalty interest is an incorporeal immovable is in accord with the view in other jurisdictions. Emerson v. Little Six Oil Co., 5 Cir., 3 F.2d 265; Phillips Petroleum Co. v. Taylor, 5 Cir., 116 F.2d 994; Phillips v. Bruce, 41 Cal.App.2d 404, 106 P.2d 922; La Laguana Ranch Co. v. Dodge, 18 Cal.2d 132, 114 P.2d 351, 135 A.L.R. 546; see Thornton, Oil and Gas (5th ed.), sec. 364, p. 646; Levy, Oil Royalties, A Distinct Species of Property, 11 So. Cal.L.Rev. 319, 327. The holding in this case that the royalty obligation as it applied to future leases was a personal one only is also contrary to the legislative enactments on the subject.
( McNamer Realty Co. v. Sunburst Oil Gas Co., 76 Mont. 332, 247 P. 166.) The reservation of the portion of the time, however, was not necessary to stamp the instrument as a sublease, as an assignment of all of the interest of the assignor, except reserved royalty, is not an abandonment of a lease ( Emerson v. Little Six Oil Co. (C.C.A.), 3 F.2d 265), and an overriding royalty, properly reserved and protected, attaches as an interest in the lease (Mills-Willingham, Law of Oil and Gas, sec. 128, and cases cited; Homestake Exploration Co. v. Schoregge, 81 Mont. 604, 264 P. 388.) While testing and exploring for oil or gas, the lessee has but the right to seek a profit from the land, but, on discovery and production, the oil itself becomes the property of the lessee, and the percentage reserved as an overriding royalty, being an interest in the lease, becomes the property of the royalty holder, to be delivered to him in kind under the provisions of this transfer; if oil is produced, therefore, this interest becomes a substantial one, which should be protected.
We also conclude that where a lessee subleases his interest and reserves an overriding royalty, his interest does not lose its character as an incorporeal hereditament. La Laguna Ranch 5. Co. v. Dodge, supra; Emerson v. Little Six Oil Co. (1925; C.C.A. 5th) 3 F.2d 265, writ of certiorari denied in (1925), 268 U.S. 700, 69 L.Ed. 1164, 45 S.Ct. 636; Roberts v. Tice (1939), 198 Ark. 397, 129 S.W.2d 258; Anno. 131 A.L.R. 1371. Acts 1881 (Spec.
These rules are to be applied to the facts of this case and to be considered in the light of the law of Texas, that an overriding royalty, created by assignment, is an interest in real estate regarded as a covenant running with the land as between the assignor and assignee, and enforceable by the assignor against the assignee. Emerson v. Little Six Oil Co., 5 Cir., 3 F.2d 265; Colquitt v. Eureka Producing Co., Tex.Com.App., 63 S.W.2d 1018, 67 S.W.2d 224; Holliday v. Erwin, Tex.Civ.App., 85 S.W.2d 355. Brewster v. Lanyon Zinc Co., 140 F. 801, 814; Denker v. Mid Continent Petroleum Corp., 10 Cir., 56 F.2d 725, 84 A.L.R. 756; Stanolind Oil Co. v. Kimmel, 10 Cir., 68 F.2d 520; Guffey Pet. Co. v. Jeff Chaison Townsite Co., 48 Tex. Civ. App. 555, 107 S.W. 609; Texas Co. v. Ramsower, Tex.Civ.App., 255 S.W. 466.