text:
    P. O. LOFTIN et ux v. Mrs. Grace GOZA
    5-4428
    425 S. W. 2d 291
    Opinion delivered March 18, 1968

      Chambers & Chambers, for appellants.

      J. 8.. Brooks, for appellee.
   Lyle Brown, Justice.

Mrs. Grace Goza brought this action in ejectment to obtain possession of a small strip of boundary land and against the contiguous landowners, P. 0. Loftin and wife. The Loftins defended on a claim of title by adverse possession. The Loftins appeal from the finding of the chancellor that adverse possession was not established.

Appellee Goza is the record owner of the involved forty acres, less some two acres in the southwest corner which is owned by appellants, the Loftins. The dispute as to the location of the common boundaries seems to stem from an erroneous call in the Loftins’ deed. Because of that error P. O. Loftin ordered a survey which -utilized a description from a “county map.” ("We presume that map to be an ownership map prepared by some surveyor and utilized for reference by courthouse officials, abstractors, and attorneys.) The north boundary line, as determined by that survey, was not satisfactory to Loftin, so he moved that line farther north. There he established a new fence on what he alleges to have been an old fence line existing since 1948.

Mrs. Goza subsequently employed the county surveyor to fix the Loftin line, using the description in the Loftin deed. Surveyor Methvin described the erroneous call on the north boundary line as an error that is commonly found in old deeds. However, he testified those mistakes are corrected by harmonizing the entire metes and bounds description. The Methvin survey reduced the Loftin acreage on the east and north sides as fixed by the “county map” description.

As a result of the confusion in record title, Loftin built a new fence on the east and north sides. On the east he followed the county map line which he claimed corresponded to an old fence line, a continuation of the same 1948 fence which he said existed on the north side. Mrs. Goza claimed the new fence encroached on her record title and denied the existence of an old fence on the two boundaries.

The confusion created by the Loftin description is helpful only to an understanding of the background of the litigation. The trial court accepted the Methvin survey as the true boundary line. The Loftins claim by adverse possession the lands lying north and east of the Methvin survey and up to the new fence. The single issue on appeal is whether the Loftins sustained their claim of adverse possession.

It would serve no useful purpose to detail the testimony of the twelve witnesses, who were* equally divided between the parties. The testimony for the Loftins was directed toward their assertion that at the time of their purchase they were shown a boundary fence on the north and east sides; that the fence has been in existence since 1948;' and that they had always treated the old fence as the line. The same number of witnesses testified for Mrs. Goza. Their testimony tended to support the positive testimony of Mr. Goza. He was born and reared on these lands. His mother deeded him the tract north and east of the Loftins in 1951 and he deeded it to his wife in 1961. Goza no longer lives on the property; he does live nearby and is on the land frequently. It was his testimony that the old fence to which Loftin and his witnesses testified was never in existence.

For reversal, appellants here urge that “the evidence is crystal clear” that the old fence existed continuously since 1948. Numerically, the greater number of witnesses gave positive testimony of the existence of an old fence. But the greater weight of the evidence is not determined by the number of witnesses testifying to a controverted fact. That is merely an element to be considered. Just as important is the credibility of the witnesses. In that respect the chancellor is in much better position to evaluate credibility than the appellate court. It is apparent tliat the litigants had a “falling out” over this dispute. In that situation the vantage point of the chancellor is all the more important. See Siebert v. Benson, 243 Ark. 843, 422 S. W. 2d 683 (1968). Evidently the trial court was unusually conscious of credibility because in his findings he commented on the demeanor and credibility of the witnesses.

Appellants stress the fact that the majority of their witnesses gave positive testimony as to the existence of the old fence. They compare that evidence with the negative testimony of a majority of appellee’s witnesses, “negative” in the sense that the latter witnesses could not remember having seen an old fence on the east line. Those witnesses showed years of familiarity with the property, including the existence of “patch” and “cross” fences. One answer to appellants’ argument that we should accept the positive over the negative is that ofttimes positive testimony is over-positive, so much, so that its credibility is affected. The recollection of dates and unimportant experiences in years past is a common example. The opportunity to evaluate positive testimony is mainly at the trial level. There the trial judge sizes up the witness, utilizing the numerous factors that are available only to one who hears and observes that witness.

Some of the testimony of appellants’ positive witnesses was not so favorable to their claim of adverse possession. For example, P. 0. Loftin gave testimony inconsistent with the required intent to claim beyond the true boundary. When the controversy arose over the building of the new fence, Loftin testified he told Goza he (Loftin) wanted no part of the Goza property — only those lands which he had bought. In that conversation, which was prior to any survey, Loftin said he offered to abide by the conclusions of any surveyor of Goza’s choice. He concluded that line of testimony with this statement: ‘ ‘ Since Mr. Goza has sued me and caused me to come to court, I will claim everything under fence.” The recited testimony could well have raised in the mind of the trial court a serious question as to just when Loftin formed an intent to claim beyond his true record boundary.

It is axiomatic that one claiming title by adverse possession as against a record title has the burden of establishing it by a greater weight of the evidence. In view of that burden, we are unable to say the chancellor’s findings were against the greater weight of the evidence.

Affirmed.

Byrd, J., dissents.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Abe SCHNITT v. Lyman S. McKELLAR et al
    5-4208
    427 S. W. 2d 202
    Opinion delivered March 18, 1968
    [As amended April 29, 1968.]

      Simon, Carroll, Fitzgerald & Fraser, Shepherd, and Arnold & Arnold, for appellant.

      McKay, Anderson & Crumpler, for appellees.
   John A. Fogleman, Justice.

This case involves a determination whether the trial court was correct in finding that certain instruments executed by certain Mc-Kellar heirs conveyed their interests in an undivided one-fourth working interest in oil, gas and minerals to J. H. Carmichael, Jr. and J. C. Stevens.

Appellant is the successor in interest to some of the McKellar heirs who were parties to these instruments. He filed this action for a declaratory judgment to determine the interests of Carmichael and Stevens and their respective wives under the instruments and for partition of all surface and mineral interests. Inasmuch as the evidence bears ont factual recitations contained in these instruments, and the intention of the parties to the instrument must be gathered from its four corners, we set out pertinent portions thereof:

‘ ‘ THIS CONTRACT, made and entered into on this 13 day of May, 1940, by and between* * * (hereinafter called clients) and J. H. Carmichael, Jr. and J. C. Stevens, Attorneys at Law, (hereinafter called attorneys) -WITNESSETH: That the said Clients own the following described lands, to-wit: * * *
THAT, "Whereas, there were executed certain oil, gas, and mineral leases on said lands, and there was discovered oil on said lands, and said lessees and assigns have failed to carry out the terms and conditions, both expressed and implied, in connection with said lease agreements, and have failed to properly develop and operate said lease, which has caused the said Clients to suffer great loss and damage.
THAT said failure on their part amounts practically to abandonment, for a period of over twelve (12) months. They have permitted said lands to be drained and said lease should forfeit to the original owners, and in addition they are entitled to damage in a large sum, sufficient to compensate them for all their loss.
WHEREAS, the said Clients are desirous of prosecuting their claims in every way possible, in order to recover their seven-eighths (7/8) working interest in said lands and in addition all claims of damage, and all other matters connected with said property and the clearing of the title, and for these purposes the said Clients hereby employ J. H. Carmichael, Jr. and J. C. Stevens to represent them in these matters and agree to pay them as their fee two-eighths (2/8) of their seven-eighths (7/8) interest, leaving said Clients five-eighths (5/8) working interest, and in addition agree to pay them the same proportionate amount of all sums recovered by way of damage or in any other way, said fee to be paid whether recovered in court action or by compromise.
SAID Attorneys are empowered and directed to take any and all steps they deem necessary to prosecute said claims and do any and all things desired in handling said matters. Said attorneys hereby accept the employment and fee as set out above and agree to represent said Clients to the best of their ability. NOW, THEREFORE: KNOW ALL MEN BY THESE PRESENTS:
That We,* * *for and in consideration of the sum of One Dollar ($1.00), cash in hand paid, receipt of which is hereby acknowledged, and other valuable consideration, do hereby grant, bargain, sell, and convey unto the said J. H. Carmichael, Jr. and J. C. Stevens, and unto their heirs and assigns forever, an undivided one-fourth (1/4) working interest as set out above, in and to all of the oil, gas, and other minerals in, under, and upon the following described lands lying within the County of Miller and State of Arkansas, to-wit* * *
TO HAVE AND TO HOLD the above described property, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said J. H. Carmichael, Jr. and J. C. Stevens, and unto their heirs and assigns forever.
And We,* * *for and in consideration of the said sum of money and other valuable consideration, do hereby join in the execution of the foregoing conveyance and do hereby release and relinquish unto the said grantees all of our rights and claims to dower and homestead in and to the above described property, to the extent of the rights and interest hereinabove described.
WITNESS our hands and seals this 13 day of May, 1940.
* * * CLIENTS.”

Carmichael and Stevens were associates in the practice of law at the time of the execution of the instruments. Carmichael testified that the two of them performed legal services for the heirs who signed the documents in proceedings in bankruptcy in the Federal Court in Little Rock and in a suit in the Chancery Court of Miller County to recover working interests given other parties by numerous standard oil, gas and mineral leases. He also stated that all services called for by the contract were performed by him and Stevens after the expenditure of years of time and thousands of dollars of money, for which they had received no compensation or reimbursement. The instruments were prepared by Carmichael and Stevens. Records in the Federal Court in Little Rock indicated that there was production of oil from the lands. Carmichael testified this was stopped at the time he and Stevens filed an intervention on behalf of their clients in the Federal Court. It is stipulated that neither Carmichael nor Stevens has ever attempted oil or gas development, executed or received leases or any agreement or contract with any other party dealing with the mineral interests. Carmichael said that he had paid taxes on the mineral rights for almost twenty years. There was no oil or gas lease on the property when this action was filed.

Appellant states twelve points on which he relies but all relate to the validity and construction of the instruments. He contends that the instruments are not deeds of conveyance but simply contracts of employment not creating any present interest, but if they were, the interest transferred was simply a lease without a term which had been abandoned by failure of appellees to develop for oil, gas and minerals within a reasonable time. Other contentions are that if this lease has not been abandoned, appellees are obligated to develop the properties when called upon to do so and that the instruments were void as contravening the rule against per-petuities.

Appellant places stress upon the following factors to sustain his position that there was no conveyance, or, at best, only a conveyance in the nature of a lease:

1. The instruments are labeled “CONTRACT ”.

2. That all Carmichael and Stevens were to receive was a one-fourth “working interest” or two-sevenths of the rights the lessees had under leases in existence at the time of the employment — the right to develop for oil, gas and minerals and to retain seven-eighths of .the proceeds.

3. That the only result of the activities of Carmichael and Stevens was the loss by the McKellar heirs of such production as they then had.

4. That the contract was drawn by Carmichael and Stevens and should be construed more strongly against them.

5. That the instruments were so vague and uncertain as to render them -void and inoperative.

A deed, or any other contract, should be examined to determine the intention of the parties. Smart v. Gunnels, 234 Ark. 567, 353 S. W. 2d 153. We find that it was the intention of the parties that the instrument convey, and that it did convey the grantors’ interests in an undivided one-fourth interest in the oil, gas and minerals under and upon the lands involved. The instrument names the parties as grantors and grantees. It has a granting clause using the words “grant, bargain, sell and convey.” The habendum clause is in the form commonly utilized in conveyances. The instrument conveys the grantors’ interests in the one-fourth interest not only in oil and gas, but in other minerals in, under and upon the lands. There is no provision for a time when drilling shall be done or provision for delay payments contained in the usual oil lease. It is hardly reasonable to suppose that these lawyers would have accepted employment which they could reasonably assume would require their services over a long period of time and the expenditure of considerable sums of money for compensation contingent upon profitable production on the lands obtained, if at all, through their efforts and expenditures. Nor is it plausible that they would, after performing the required services, do nothing at all to obtain production if they had accepted such a contract. It seems unlikely that the parties who signed this agreement, being already dissatisfied with production by a lessee in the business, would be satisfied to risk their possibility of improvement to two lawyers. It is also unlikely that parties who were so anxious to cancel leases on which they had unsatisfactory production would delay so long in asking cancellation of a contract abandoned by the opposite party. It is the terms of an instrument, not its name, which determine its character.

A portion of the preamble to the instrument having significance is the clause setting out specifically what Carmichael and Stevens are to do — represent the signers in prosecuting certain claims. Nothing whatever is said about their doing anything else. The “whereas” clauses set forth the reasons or inducements for entering into a contract and must be considered in determining the true intentions of the parties thereto. United States Fidelity & Guaranty Co. v. Sellers, 160 Ark. 599, 255 S. W. 26. There is no language in the instrument that places any other responsibility on the lawyers. It seems logical to us that if they had also had the responsibility of developing the lands for oil and gas, this would also have been stated somewhere in the preamble.

We recognize that in their ordinary use, the words ‘‘working interest” mean that interest acquired by a lessee. In this sense it is the lessee’s interest in the oil and gas produced over and above the owner’s interest or royalty interest. It is a settled doctrine of equity, however, that the form of a transaction will never preclude inquiry into its real nature and that the intention of the parties must govern, irrespective of the form. This court has applied this rule in holding what appeared to be absolute deeds to be mortgages only. Coleman v. Volentine, 211 Ark. 594, 201 S. W. 2d 592. By application of this maxim of equity it has been said that a “contract of sale” could actually be a mortgage. Maners v. Walsh, 180 Ark. 355, 22 S. W. 2d 12. Language used in the opinion in the case last cited is particularly appropriate here:

“Another maxim of equity is that equity regards the substance rather than the form, or that equity regards the substance and intent, not- the form. This principle is well established and is expressed in more or less similar language in many cases.* * * This maxim is as applicable at the present time as it was when it was first formulated. By force of principle equity goes behind the form of a transaction in order to give effect to the intention of the parties, either to aid an act abortive at law because formally defective or to impose a liability as against an evasion by a formal concealment of its true character. In the construction of a written instrument, equity always attempts to get at its substance, and to ascertain, uphold, and enforce the rights and duties that spring from the real intention of the parties. In doing so, while it will of course not change the words of the instrument, the court of equity will look into all the circumstances under which it was made, in order to determine the proper meaning of the transaction, It will do this not only to sustain a just claim but to defeat an unlawful demand. 21 C. J. 204, '205.
Equity looks beyond the mere form in which the transaction is clothed and shapes its relief in such way as to carry out the true intent of the parties to the agreement, and to this end all the facts and circumstances of the transaction, the conduct of the parties thereto, and their relations to one another and to the subject-matter are subjects for consideration. ’ ’

In construing a contract the court must, if possible, give effect to the intention of the parties as far as that can be done consistently with legal principles, and this intention must be ascertained from the whole contract. Dent v. Industrial Oil & Gas Co., 197 Ark. 95, 122 S. W. 2d 162; American Snuff Co. v. Stuckey, 197 Ark. 540, 123 S. W. 2d 1063.

To arrive at the intention of the parties to a contract, courts may acquaint themselves with the persons and circumstances and place themselves in the same situation as the parties who made the contract. American Snuff Co. v. Stuckey, supra. This is so the court can view the circumstances as they viewed them, so as to judge the meaning of the words and the correct application of the language to the things described. Taylor v. Taylor, 240 Ark. 376, 399 S. W. 2d 498. The court should arrive at the sense in which the words used would naturally be understood, taking into consideration the circumstances surrounding the making of the contract, the situation and relation of the parties. Scrinopskie v. Meidert, 213 Ark. 336, 210 S. W. 2d 281. Doing this, it would not be unreasonable to believe that not only Carmichael and Stevens construed this instrument to convey the grantors’ interests in an undivided one-fourth interest in oil, gas and minerals, but that the clients (grantors) and their successors in interest must have too. The construction that the parties have placed on a contract is entitled to great weight in interpreting it. Owen v. Merts, 240 Ark. 1080, 405 S. W. 2d 273. The intention of the parties is to he gathered, not from some particular phrase, hut from the whole context of the agreement. Arkansas Power & Light Co. v. Murry, 231 Ark. 559, 331 S. W. 2d 98, The language of a contract, as a whole, should be so construed as to make apparently conflicting provisions reasonable and consistent and so as not to give one of the parties an unfair and unreasonable advantage over the other. Scrinopskie v. Miedert, supra.

When we apply these well known rules of construction, we must come to the conclusion that there was a conveyance of an interest in the oil, gas and minerals. As we have construed the instrument, there was a conveyance of a present interest so the rule against per-petuities is not applicable. Hanson v. Ware, 224 Ark. 430, 274 S. W. 2d 359.

Appellant contends alternatively that the court should have granted his prayer for partition and cites Ark. Stat. Ann. § 34-1801, et seq., (Repl. 1962). This statute provides for partition on petition of any person having any interest and desiring a division of land held in common. There can be no doubt that under our construction of the contract, the interest of appellees is an interest in land. This court has held that a mineral deed placed of record constitutes a constructive severance of the minerals from the surface and makes two titles, one the surface and the other the mineral title. Shelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S. W. 2d 425. It has also been said that the sale of an undivided mineral interest operates as a severance of soil interest from the surface and creates two separate and distinct estates. Neilson v. Hase, 229 Ark. 231, 314 S. W. 2d 219. The interest of appellees would not be an interest held in common with the owners of the surface in the sense of § 34-1801. On the other hand, the ownership of the minerals would be such an interest and the statute would be applicable to a division of the mineral interests, on the petition of the owners of the surface and an undivided interest in the minerals. This holding seems to be in keeping with the weight of authority, it being generally held that minerals, as a part of the real estate, if held in cotenancy, may be the subject of partition. See Annot., 173 ALR 854.

Generally, partition, either by partition in kind or by sale and division of proceeds, is something to which each contenant has an absolute and unconditional right, under both common law and statute. Freeman on Coten-ancy and Partition, § 433, p. 571; Knapp on Partition, p; 27; Annot., 15 Ann. Cas. 778; 2 Williams & Meyers Oil & Gas Law, § 506.2, p. 601. The basis for such right is well expressed in Dall v. Confidence Silver Mining Co., 3 Nev. 531, 93 Am. Dec. 419 (1867) where it was said:

“* * *As the law deems it against good morals to compel joint owners to hold a thing in common, a decree of partition may always be insisted on as an absolute right. It is not necessarily founded upon any misconduct of the co-tenants or part owners. Hence, in decreeing a partition, the rights and equities of all the parties are respected, and the partition decreed so as to do the least possible injury to the several owners; and ‘courts of equity,’ says Mr. Story, ‘may, with a view to the more convenient and perfect partition or allotment of the premises, decree a pecuniary compensation to one of the parties for owelty or equality of partition, so as to prevent any injustice or unavoidable inequality’, Story’s Eq. Jur., sec. 654.”

See, also, Holland v. Shaffer, 162 Kan. 474, 178 P. 2d 235 (1947).

The fact that interests in oil, gas and minerals are involved does not change the problem. Of this situation, Kuntz, in The Law of Oil & Gras, § 5.7 at p. 121, says:

“Where the ownership of oil and gas rights is divided among various owners, the possibility of an unknown or uncooperative cotenant presents difficult problems for a cotenant who wishes to develop the land for oil or gas purposes or who desires to lease it for operation by another.”

See, also, Allies Oil Co. v. Ayers, 152 La. 19, 92 So. 720 (1922).

It has long been recognized in other states that the owners of undivided interests in minerals are entitled to either partition or sale against the remaining owners, even under statutes worded as § 34-1801 was before the 1941 amendment. Canfield v. Ford, 16 How. Pr. 473 (N. Y. 1857), 28 Barb. 336 (1858) Brown v. Challis, 23 Colo. 145, 46 Pac. 679 (1896). See, also, Hughes v. Devlin, 23 Cal. 501 (1863).

A Mississippi statute provided for partition by tenants in common of any joint interest in the freehold. The Supreme Court of Mississippi held that under this statute the owner of the entire surface and an undivided one-half interest in the minerals was entitled to have a partition of the mineral interest. Wright v. Ingram-Day Lbr. Co., 195 Miss. 823, 17 So. 2d 196.

The Court of Appeals of Kentucky held that the owner of the surface in fee simple and of an undivided one-half in oil, gas and other minerals was entitled to partition of the mineral rights under their partition statute which required the showing of a vested possessory estate in land which is jointly held in any manner. Terteling Bros., Inc. v. Bennett, 287 S. W. 2d 607 (Ky. 1956).

The Texas Court of Appeals, in Henderson v. Chesley, 273 S. W. 299 (Tex. Civ. App. 1925), aff’d 116 Tex. 355, 292 S. W. 156 (1927), held that the owner of an undivided one-half interest in mineral rights was entitled to partition against the owner of the fee and an undivided one-half interest in the minerals under a statute which gave any joint owner or claimant of any real estate or any interest therein the right to compel partition.

It is suggested by appellees in their brief, however, that it would be a great injustice to them to partition the mineral interest in kind and that there is no need to require this interest to be sold. It has been said that this absolute or unconditional right cannot be defeated by showing that a partition would be inconvenient, injurious or even ruinous to a party in interest. Freeman on Cotenancy & Partition, § 433, pp. 569, 571; 2 Williams Oil & Gras Law, § 506.2, p. 601, § 506.3, p. 602.

The manifest hardship arising from division of property of an impartible nature has been generally and almost universally avoided by statutes authorizing sale of the property when its division in kind would tend to greatly depreciate its value or otherwise seriously prejudice the interests of cotenants. Freeman on Cotenancy & Partition, § 433, p. 571; Annot., 15 Ann. Cas. 778, 779; Richardson v. Monson, 23 Conn. 94 (1854). This was the object of such statutes. Wilson v. Bogle, 95 Tenn. 290, 32 S. W. 386 (1895). See, also, 2 Williams Oil & Gas Law, § 506.2, p. 601, § 506.3, p. 603. This purpose was reconized in Sutton v. McClain (on rehearing), 193 Ark. 49, 99 S. W. 2d 236, 241. This court has also recognized that, in any case to which Ark. Stat. Ann. § 34-1801 (Repl. 1962) is applicable, the right to partition or sale is absolute, no matter how small the interest of the owner seeking partition or how great the majority who object. Overton v. Porterfield, 206 Ark. 784, 177 S. W. 2d 735. We do not have here the type of partition suit provided by Ark. Stat. Ann. § 53-401 et seq, (Act 15 of 1935), which is designed to provide for a sale of the “oil and gas lease rights” or “leasehold estate only” and not of the interest in oil, gas and minerals which we have found were conveyed by the instrument in question here. The interest of appellees is clearly covered by the language of § 34-1801 and if there is any conflict, the present language of the latter section must control, for it was adopted in 1941.

Dictum in Overton v. Porterfield, supra, wherein partition and sale of the oil and gas leasehold were involved, expressed the thought that, in such case .as was there involved, § 53-401 et seq. did not impose upon a court of equity the imperative duty to order a sale whenever a proper petition was filed. The court said that a rule adopted in Oklahoma might apply in this type of case under certain circumstances. That rule, quoted in the opinion from Wolfe v. Stanford, 179 Okla. 27, 64 P. 2d 335 (1937), is that the court should be vested with discretion to grant or deny relief in order to prevent the right to partition from becoming a weapon of oppression and fraud in the hands of the financially fortunate who might use the right as a means of foreclosure of an owner of limited means. The Oklahoma Court clearly qualified this discretion as existing only in cases where there was no disagreement between the parties rendering co-ownership impractical and stated specifically that inability of a cotenant to purchase should not constitute a defense in the absence of approaching development or rapidly increasing values. The qualification was applied in Henson v. Bryant, 330 P. 2d 591 (Okla. 1958).

But even in those cases wherein the doctrine that the equity court has the discretion to deny either partition or sale to prevent the remedy from becoming an instrument of fraud or oppression, it is generally held that the matter is one of defense to he pleaded and proved as such. Henson v. Bryant, supra; Colonial Royalties Co. v. Hinds, 202 Okla. 660, 216 P. 2d 958 (1948); Williams v. Neal, 207 Okla. 552, 251 P. 2d 785 (1952); Holland v. Shaffer, 162 Kan. 474, 178 P. 2d 235 (1947); Gillet v. Powell, 174 Kan. 88, 254 P. 2d 258 (1953). In this case, appellees did not plead their present contention that a decree of partition or sale would constitute fraud or oppression against them, nor did they offer any evidence tending to support such a claim.

We therefore, modify the decree of the chancellor to award appellees an undivided one-fourth interest in oil, gas and minerals, to the extent of the undivided interest conveyed by the grantors in the “contracts.” Appellees’ interests were found by the trial court to he 13/27 of of %. Neither party questions this finding. We affirm the decree as modified, except as to the failure to grant partition of the mineral estates. We remand the case for appropriate proceedings for partition of the mineral interests, either in kind or by sale. In its proceeding, the trial court should bear in mind the peculiar nature of the property rights involved. Upon remand, the trial court should correct its decree so as to conform to this opinion.

Affirmed as modified and remanded.

       There are two virtually identical documents, differing only in that some of the heirs signed one and some the other.

       Treatment of the words “working interest” as meaning something other than their purely technical definition is not novel. In disposing of a similar problem, the Supreme Court of Oklahoma has given recognition to the fact that the term “working interest” is not always used in its technical sense and that it is often used to denote merely an interest in the mineral rights, particularly when a conveyance has specified the proportionate interest in royalty or mineral rights to be held by the grantor and the grantee, when consistent with the other provisions of the instrument as a whole. Colonial Royalties Co. v. Keener, 266 P. 2d 467 (Okla. 1953).

       A discussion of judicial partition relating to oil and gas rights will be found in § 6.3, et seq., 1 Kuntz, Law of Oil & Gas.

       Although the statute had been amended, at the time of this decision, to specifically cover the interest involved, there was a contention that the amendment did not apply in this case. The court said that it made no difference which statute applied, because the original statute authorized the action.


text:
    Doyce H. STONE et ux v. Elmer J. HALLIBURTON
    5-4415
    425 S. W. 2d 325
    Opinion delivered March 18, 1968

      James R. Howard, for appellants

      Charles L. Carpenter, for appellee.

       This deed was dated February 6, 1959.

   John A. Fogleman, Justice.

This is the second appeal in this case. On the first appeal, we held that the lower court erred in sustaining a motion to dismiss challenging the sufficiency of the evidence on behalf of appellants to make a prima facie case to establish a prescriptive easement for a road or driveway across the lot on which appellee’s home is situated. Stone v. Halliburton, No. 5-4017, 241 Ark. 710, 409 S. W. 2d 829.

On remand, the trial court heard the testimony of witnesses offered by appellee and rebuttal testimony offered by appellants. The complaint of appellants was dismissed for want of equity. The only question for our determination is whether the chancellor’s holding that appellants had not established a prescriptive easement for a way across appellee’s lot isclearly against the preponderance of the evidence.

Appellants ’ east boundary is appellee’s west boundary. Both tracts (along with a lot now owned by one Perry) were once owned by John Redding. The Perry lot lies immediately north of appellants ’ property. Bell-wood Addition and Annex' lie immediately west and south of the Stone property. 'Stone purchased his house and lot on September 10, 1962, from one Edwards. Mr. and Mrs. Edwards told him that he had a right of ingress and egress through the Halliburton property. One of Redding’s children sold the Halliburton lot in 1957 to Marion Witkowsky, who sold it to appellee in 1959 or 1960. Mrs. Roe, a daughter of Redding, sold the Stone lot to Edwards.

Redding Lane runs in a westerly direction from the old Conway highway along the north side of appellee’s property and is admitted to be a public way until it reaches a point near the northwest corner of appellee’s lot. Appellants contend that this way continues on a curving route across the northwest corner of appellee’s lot, the southeast comer of the Perry lot and near the north boundary of appellants’ lot. This drive presently terminates at the western boundary of appellants’ property, near which their home is situated. Appellee contends that the use of the portion of the way across his property has been permissive and that he has withdrawn his permission for its use. He claims that he had the right to bnild a fence crossing the drive along his boundary.

Appellant, Doyce Stone, testified that the road or driveway was in the same condition as it was when he purchased his property until appellee built the fence in June 1965. He said that he had used the portion of the way across appellee’s property all this time and that this is the only way of getting in and out of his property. Since the fence was built, he has crossed the Perry property. Stone saw a post on the boundary line when he first moved into his home. He referred to the way as his drive or driveway. According to him, the only persons, other than himself, using the part in question were Mrs. Perry, who used it as a circle on which to turn around, and those persons coming in to see him. At the time of his purchase he was told that he had a separate deed for a 20-foot drive. This deed was never produced. “When Stone asked the mayor to pave Redding Lane, he also asked that the driveway be blacktopped. The mayor refused to do the latter because he considered the driveway to be private property. When appellant talked to Edwards after Halliburton blocked the drive, Edwards told him of having had the same trouble with Halliburton.

One A. M. Duncan testified that he first became familiar with this property in 1952. He said that he used the road in question to get into the territory to go squirrel hunting in the 1950’s. He stated that the only part of the road that is different in any respect is the portion of Redding Lane that has been blacktopped (i. e., the portion conceded to be a public way). He said that the road was used by John Redding to get in and out from his property and by the public to get back to the Redding house (now the Stone house). He admitted that Redding had told him that he could come in there.

Mrs. Bessie Turley, who has lived on Bedding Lane since 1942, also testified. She stated that the road has passed her property and the Stone house and proceeded to the Witkowsky property, lying immediately west of the Bedding property, since 1942. She said that no road was actually built in 1942, but that people just drove in and out. She testified that Bedding was a contractor and kept his trucks on his property and that Mr. John Witkowsky had some cattle and hogs he kept beyond the Bedding house. She said that everyone used the road to get in and out and to feed the stock and hogs. She called it a public road. She testified that Bellwood Addition had taken a part of the road, closing it at the west boundary of the Stone property. According to her, no one had ever tried to block the road except Mr. Halliburton who had blocked it three or four times. She said he had blocked it on Mrs. Boe, Mr. Edwards and Mr. Stone.

Sam Block, a real estate broker who had been familiar with the property since it was owned by Mrs. Boe, sought to help Edwards avoid litigation by obtaining an easement from Halliburton when the latter fenced off the way during Edwards’ occupancy of the Stone tract. Block had handled the sale of the property by Mrs. Boe to Edwards.

Marion Witkowsky testified that at the time he purchased the Halliburton lot, there were several wagon trails and that he made an all weather road which ended at the edge nf the Bedding property (now the Perry lot). He stated that Mrs. Boe then owned both the Stone lot and the Perry lot. He recalled that somewhere around 1957 or 1958, Mrs. Bedding (Boe?) sold the Perry lot to one John Perrin. Witkowsky then told Mrs. Boe that she was cutting herself off from the road by the sale of this property and suggested that sbe have some written agreement with the purchaser, but she relied on her friendship with her purchaser.

According to appellee’s testimony: Mrs. Roe was living in the Stone house when he acquired his property and a man named Ratliff was living on the Perry property; at that time, Mrs. Roe was crossing his property via an old wagon trail near the present location of his garage, some 30 feet north of the disputed area; he built a fence extending out from his garage, and Mrs. Roe then started using the disputed, area for ingress and egress; although he spoke to her a;bout this, she did not change her route; she sold the Stone lot to Ratliff'; the use of the entry across his property ceased upon the sale to Ratliff and no one thereafter has crossed his property without his permission; Edwards put gravel on the drive up to the property line and Stone had the disputed area graveled; appellee put up a fence on the line when Edwards lived on the Stone lot; he had given Edwards permission to cross as long as there was no trouble; the fence was still up when Stone first moved there, but he told Stone he would take- the fence down until they had trouble and that Stone could use the driveway until then.

Mrs. Halliburton, a part owner of the property, corroborated her husband’s testimony about the means of ingress and egress used by Ratliff and said that appellee told her of giving Stone permission to cross the corner of the property.

George White testified in rebuttal. He said that he had been acquainted with the properties of the parties since 1924; that back as far as he could remember, the road of which Redding Lane was a part went all the way back to the river; that when he first knew the property there was a dairy at the site of the Stone house and that this road was used by many people such as fishermen who used it to get to Levy; that the road was used as a public road up until'the Bellwood Subdivision went in.

Although appellants contacted Edwards when this controversy arose, he did not testify. Apparently none of the property owners protested when the alleged way was closed on the west by the laying out of Bellwoo'd Addition.

The determination of whether use of a way over the lands of another is adverse or permissive is a fact question. Brundidge v. O’Neal, 213 Ark. 213, 210 S. W. 2d 305; St. Louis Southwestern Ry. Co. v. Wallace, 217 Ark. 278, 229 S. W. 2d 659. Former decisions are rarely controlling on the factual issue of whether a particular use is permissive or adverse. Duty v. Vinson, 228 Ark. 617, 309 S. W. 2d 318. If the use of this way was permissive or if the circumstances were not such as to put appellee and his predecessors in title on notice that the way was being used under a claim of right, then appellants cannot prevail. The burden was on appellants to show by a preponderance of the evidence that there has been use of the disputed strip which had been adverse to appellee and his predecessors in title under a claim of right, and not permissive, for a period of at least seven years. Duty v. Vinson, supra; Brundidge v. O’Neal, supra.

Use which is permissive in its inception can never ripen into an adverse or hostile right no matter how long continued unless the statutory period has elapsed after notice of the adverse claim has been brought home to the owner. Harper v. Hannibal, 241 Ark. 508, 408 S. W. 2d 591. Some act or circumstance, in addition to, or in connection with, the use of a way across unenclosed lands of another and tending to indicate that the use was not merely permissive is required to establish a right by prescription. LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461.

An inference may well be drawn from the testimony of Marion Witkowsky that no use was being made of this disputed strip between his acquisition of the property in 1957 and his sale to appellee. There is evidence tending to show clearly that appellee has at all times since his purchase of the property sought to exercise dominion and control over the disputed strip, that he granted permission to both Edwards and Stone to use the strip, and that, at one time before the present occasion, he withdrew that permission. The closing of the west end of this way without protest is also a factor to be considered in determining the fact question whether or not use has been permissive. Abbene v. Cohen, 228 Ark. 266, 306 S. W. 2d 857.

Furthermore, there is no evidence to indicate when the Halliburton residence was built or when, if ever, the lot ivas enclosed. Use of unoccupied and unenclosed lands for passage is presumed to be permissive until those using the way, by their open and notorious conduct, apprise the owner that they are claiming it as of right. Boullioun v. Constantine, 186 Ark. 625, 54 S. W. 2d 986; LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461.

"While not conclusive, the overtures made to appel-lee by Block in behalf of Edwards may properly be considered as a circumstance bearing on the nature of the use. Martin v. Winston, 209 Ark. 464, 190 S. W. 2d 962.

Not having had the advantage of seeing and hearing the Avitnesses, we are unable to say, on the conflicting-testimony, that the finding of the chancellor is clearly against the preponderance of the evidence.

The decree is affirmed.


author: Conley Byrd, Justice.

text:
    GEORGIA-PACIFIC CORPORATION v. Lindall H. NORSWORTHY
    5-4516
    425 S. W. 2d 320
    Opinion delivered March 18, 1968

      Paul Sullins and W. D. Bothwell, for appellant.

      Spencer & Spencer, for appellee.
   Conley Byrd, Justice.

Georgia-Pacific Corporation appeals from a determination by the circuit court affirming the Workmen’s Compensation Commission’s decision that the Commission’s order of April 23, 1965, did not constitute a “FINAL SETTLEMENT” with appellee Lindall H. Norsworthy within the terms of Ark. Stat. Ann. § 81-1319(1) (Repl. 1960).

The record shows that Norsworthy sustained a com-pensable injury on May 29, 1963, for which he received compensation and medical benefits without objection from Georgia-Pacific until August 1, 1963. At that time his doctors released him for light work with an estimated permanent partial disability of 7%% to the body as a whole. Norsworthy did not accept the 7%% but instead employed present counsel and applied for additional total temporary disability and medical treatment. Following an operation Dr. Hundley reported on August 17,1964, that Norsworthy was able to resume his regular work and that his residual permanent partial disability was 20% of the body as a whole.

Because of a difference of opinion on the issues of when the healing period ended and the amount of permanent partial disability, Georgia-Pacific had the matter set for a hearing on April 28, 1965. Prior to that hearing Georgia-Pacific on April 20, 1965, wrote as follows to the Secretary of the Commission:

“Dear Mr. Cowne:
‘‘ The above captioned case, which is set for hearing before the full Commission on Wednesday, April 28, 1965, at 2:30 p.m., has been settled by mutual agreement between the parties on the following basis:
PERMANENT PARTIAL DISABILITY: Computed at 20% resulting in 90 weeks at $35.00 per week or $3,150.00, less a credit due employer of $1,-365.00 for compensation paid claimant after healing period ended on June 15, 1964, resulting in a net payment to claimant of $1,785.00. ADDITIONAL ATTORNEY’S FEES: Maximum attorney’s fees based on amount of compensation controverted over 7%% and additional medical expenses, less certain credits for fees paid on compensation paid claimant subsequent to the end of the healing period, resulting in a net additional attorney’s fee of $177.38.
“We respectfully request that the full Commission enter its order approving the final settlement of this case on the above basis.”

Mr. Cowne, Secretary of the Commission, replied:

“Dear Mr. Asher:
“I have your letter dated April 20, 1965, in which you advise that the above case which is set for a hearing before the Full Commission on Wednesday, April 28, 1965, at 2:30 p.m. has been settled by mutual agreement and request the Full Commission to enter an order approving the settlement based on the agreement in your letter.
“In view of your letter, this is to advise that we are cancelling the hearing scheduled in the above case for April 28, 1965, and are removing this case from our hearing docket at this time.
“Before we submit this case to the Full Commission for an order and so that our records might be complete, we are by copy of this letter requesting Attorney J. V. Spencer, Jr., to please confirm the agreement as set out in your letter of April 20, 1965.
“As soon as we have heard from Attorney J. V. Spencer, Jr. this matter will be submitted to the Full Commission for an order to be entered.”

After receiving copies of both letters Mr. J. V. Spencer, Norsworthy’s counsel, wrote the Commission:

“Dear Mr. Cowne:
“Pursuant to your letter of April 21, 1965, to Mr. Gerald E. Asher of Georgia-Pacific Corporation, a copy of which was forwarded to this office, this is to advise that the agreement outlined in Mr. Asher’s letter of April 20, 1965, is satisfactory with us and with Mr. Norsworthy, and we hereby request that the full Commission enter its order approving this settlement. ’ ’

On April 23, 1965, the 'Commission entered the following order:

‘ ‘ The parties hereto have entered into an agreement as set forth in Mr. Asher’s letter of April 20, 1965, addressed to Secretary Cowne and confirmed by Mr. Spencer in his letter dated April 22, 1965, addressed to Secretary Cowne.
“Based upon the agreement the Commission herewith finds that claimant’s healing period ended June 15, 1964; that as a result of instant injury claimant has sustained a 20% permanent partial disability to the body as a whole which is compensation for a period of 90 weeks producing a sum of $3,-150.00; however, respondent has paid claimant the sum of $1,365.00 to apply on his permanent partial disability leaving the sum of $1,785.00 due claimant. Claimant’s attorney is entitled to a net additional attorney fee of $177.38.
“It is, therefore, the order of this Commission that respondent continue payment of compensation to claimant at the weekly rate of $35.00 until the remaining balance of $1,785.00 has been paid. Respondent shall also pay to Mr. J. V. Spencer, Jr. the sum of $177.38 as attorney’s fees.”

The present controversy arose when claim was made on Georgia-Pacific in August, 1966, for payment of services rendered to Norsworthy by Hundley Orthopedic Clinic and Hickerson Brace Company. The provisions of the Compensation Act dealing with settlements are Ark. Stat. Ann. §§ 81-1320 (a) and 81-1319(1) (Repl. 1960). They provide:

“81-1320. Contracts waiving \rights void. — (a) Waiver of compensation. No agreement by an employee to waive his right to compensation shall be valid, and no contract, regulation, or device whatsoever, shall operate to relieve the employer or carrier, in whole or in part, from any liability created by this act [§§ 81-1301 — 81-1349,] except as specifically provided elsewhere in this act.”
“81-1319. Payment of compensation. — . . . (1) Joint petition. Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties, the Commission shall hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement should be had. If the Commission decides it is for the best interests of the claimant that a final award be made, it may order such an award that shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall deny the petition, such denial shall be without prejudice to either party. No appeal shall lie from an order or award allowing or denying a joint petition. ’ ’

The rule-making power of the Commission in Ark. Stat. Ann. § 81-1342(f) (Repl. 1960) provides:

“(f) Administration of act. For the purpose of administering the provisions of this act [§§ 81-1301 —81-1349] the Commission is authorized (1) to make such rules and regulations as may be found necessary; (2) to appoint and fix the compensation of temporary technical assistants and medical and legal advisers and to appoint and to fix the compensation of clerical assistants and other officers and employees; and (3) to make such expenditures (including those for personal service, rent, books, periodicals, office equipment and supplies, and for printing and binding) as may be necessary. All expenditures of the Commission in the administration of this act shall be allowed and paid from the Workmen’s Compensation Fund, upon the presentation of itemized vouchers therefor approved by the Commission.”

Pursuant to this authority the Commission promulgated its Rule 19 which provides:

“The Commission strongly discourages use of the Joint Petition as a means of settling cases except in unusual circumstances. No Joint Petition will be approved unless such Petition sets forth the nature of the unusual circumstances and unless such unusual circumstances are proved at a hearing. Such Joint Petition must set forth in detail the reasons its approval will he in the claimant’s best interest as required by Section 19 (1) of the Workmen’s Compensation Act.
“Joint Petition settlements under Section 19 (1) of the Workmen’s Compensation Act will be heard by the Full Commission at its offices in the Justice Building, Little Rock, Arkansas, unless the Commission determines it will be to the best interest of the parties to designate a referee to conduct said hearing for the Full Commission.
“It shall be necessary for the claimant to appear and testify at any hearing. Petitions shall be signed by all parties, including the claimant, and must be verified.
“Under certain circumstances, the Commission may designate referee to hold such hearing at a location convenient to the parties or may direct the taking .of a claimant’s testimony by deposition or interrogatories.
“In all Joint Petitions where the claimant is represented by an attorney, the amount of agreed attorney’s fee shall be set out in the petition. No attorney’s fee shall be approved if it exceeds the limitations provided for in Section 32 of the Act.”

Since Georgia-Pacific made no attempt to comply with Rule 19, above, we hold that the Commission was justified in finding that its order of April 23, 1965, was not a final settlement within the meaning of Ark. Stat. Ann. § 81-1319(1), supra.

Affirmed.