
    Upton Henderson v. Margaret E. Chesley et al.
    Application No. 14167.
    Decided February 23, 1927.
    (292 S. W., 156).
    Partition — Undeveloped Mineral Rights.
    Refusing writ of error in the case of Henderson v. Chesley, 273 S. W., 299, the court suggested a method of partition of mineral rights in the soil, between separate part owners of such rights while as yet undeveloped and unknown, held to be equitable and within the power of the court. (P. 355).
    Application for writ of error to the Court of Civil Appeals for the Third District, in an appeal from Coleman County.
    Chesley and others sued Henderson for a recovery of a half interest in the mineral rights in a tract of land owned by him and for partition of their interests. Henderson appealed from a judgment of plaintiffs and on its affirmance (273 S. W., 299) applied for writ of error, which is here refused, with opinion per curiam.
    
    
      J. B. Dibrell, Jr., for petitioner.
   Per Curiam:

The opinion of the Court of Civil Appeals in this case, holding the mineral estate subject to .partition, is plainly correct. That court in its opinion, among other things, says:

“Since there has been no development or exploration for minerals in, on or under the land in question, we think that the court should assume for the purpose of partition that each acre of the land contains an equal amount of minerals, and partition by dividing the surface.”

This is no doubt one correct view of the question, but we wish to suggest that in partitioning minerals it is not necessary that the holdings of each owner of mineral rights shall be represented by only one division or allotment. If the division into various allotments, with each owner being accorded more than one allotment in the several portions of the tract subject to partition, will be the most equitable way of dividing it, there is no rule of law inhibiting such method of partition. Oil is a substance peculiar to itself, and behaves in different ways under different conditions, and certainly the court may take into account the habit of the substance which is to be partitioned, and apply the rules of law and equity thereto in a manner to attain its equitable partition.  