
    HENDERSON v. CHESLEY et al.
    (No. 14167.)
    (Supreme Court of Texas.
    Feb. 23, 1927.)
    1. Partition &wkey;s92 — Land not déveloped or explored for minerals should be partitioned by dividing surface.
    Where there has been no development or exploration of land for minerals, court should assume, for purpose of partition, that each acre contains equal amount of minerals, and partition by dividing surface.
    2. Partition <&wkey;92 — Eabh owner of mineral rights may be given more than one allotment in several portions qf tract, if most equitable way of dividing it.
    In partitioning minerals, it is not necessary that holdings of each owner of mineral rights be represented by only one division or allotment, but division into various allotments, with each owner being accorded more than one allotment in several portions of tract, may be made if most equitable.
    3.Partition <®=^9&wkey;Court may consider habit of substance to be partitioned, such as oil, and apply legal and equitable rules in manner to attain equitable partition.
    In partitioning substance, such as oil, which behaves in different ways under different conditions, court may take into account its habit and apply rules of law and equity thereto in manner to attain equitable partition.
    Error to Court of Civil Appeals of Third ' Supreme Judicial District.
    Suit by Margaret E. Chesley and others against Upton Henderson and others. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (273 S. W. 299), and the defendant named applies for writ of error.
    Writ denied.
    J. B. Dibrell, Jr., of Coleman, for plaintiff in error.
   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 of any kind, 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.  