The Oklahoma courts have not considered the precise question presented here. It has been held, however, that the owner of land has a qualified title to the oil and gas in and under his land with the exclusive right to produce it, but has no absolute title thereto. Rich v. Doneghey, 71 Okla. 204, 177 P. 86, 3 A.L.R. 352. It is recognized that oil and gas are mobile and fugacious, and if it escapes to other lands or comes under another's control, whatever title the original owner had, is lost. It belongs to the person who legally obtains control and possession of it. Carter Oil Co. v. State, 205 Okla. 541, 240 P.2d 787; Magnolia Petroleum Co. v. Ball, 203 Okla. 514, 223 P.2d 136; Wright v. Carter Oil Co., 97 Okla. 46, 223 P. 835. See, also, United States v. Stanolind Crude Oil Purchasing Co., 10 Cir., 113 F.2d 194. In determining that title to the reinjected gas was lost because of its fugacious nature and that the gas then became subject to the law of capture, the trial court relied upon West Edmond Salt Water Disposal Ass'n v. Rosecrans, 204 Okla. 9, 226 P.2d 965, appeal dismissed 340 U.S. 924, 71 S.Ct. 500, 95 L.Ed. 667. That case involved the liability of one who injected into underground strata of land, salt water, which migrated, or percolated, beyond the boundaries of the land where injected.

And this statute has been regarded as adopting the theory of ownership of gas in place, and that a well in the common source of supply reduces the gas to possession. See Conservation of Oil and Gas, a History, published by the Section of Mineral Law of the American Bar Association. And in Magnolia Petroleum Company v. Ball, 203 Okla. 514, 223 P.2d 136, 137, the court said that while oil and gas while in the earth are not subject to absolute ownership in kind until reduced to possession "the right to reduce oil and gas to possession is a valuable property right which may be conveyed." The contract between Phillips and Cabot recognizes a right in Cabot to an interest in the gas in place.

"Possession is necessary to maintain a quiet title action and possession alone if accompanied by a claim of right is sufficient to maintain a quiet title action against one with an inferior interest." In support of their general position that possession is essential to a cause of action for quieting title and that defendants must have obtained possession in some lawful manner such as an action of ejectment filed against plaintiffs within one of the limitation periods above mentioned, plaintiffs rely primarily on Lane v. Bass, 193 Okla. 682, 146 P.2d 563, and Magnolia Pet. Co. v. Ball, 203 Okla. 514, 223 P.2d 136. The fatal flaw in plaintiffs' position, as pointed out by defendants, is that the judgment appealed from in the present case is no adjudication as to any cause of action defendants may, or may not, have had for quieting their title. It awards defendants no affirmative relief. It merely refuses plaintiffs such relief in accord with the principle requiring such parties, in order to obtain judgment in a statutory quiet title action, to prevail on the strength of their own title rather than the weakness of their adversaries'.

For a general discussion of the proper procedure when appellee omits material from his brief, see 5 C.J.S. Appeal and Error § 1344 (1958). For additional discussion of the issue, see Magnolia Petroleum Co. v. Ball (1949), 203 Okla. 514, 223 P.2d 136. The school board chose not to respond to Fisher's contention that failure of performance under one contract is not grounds for the termination of a second contract. If Fisher demonstrates prima facie error in this case we will reverse because we will not presume to argue this issue for the school board.