
    No. 226
    BUCHANAN v. TWINEM, et
    No. 19587.
    Supreme Court
    On motion to certify.
    Dock. Jan. 21, 1926;
    4 Abs. 72.
    889. PARTITION — Are oil royalties apart-able in a partition suit brought by one of the tenants in common of land from which the oil is taken?
    Attorneys — Matz & Matz, for Buchanan; W. H. Cook, and Moore, DeVaul & Moore, for Twinem et; all of Woodsfield.
   Charles S. Buchanan Jr. brought this action originally in the Monroe Common Pleas against Charles A. Twinem, et al, all of whom are tenants in common of certain' property upon which oil rights have been leased. Charles S. Buchanan seeks a partition of royalties derived from oil taken from said property.

It seems that the plaintiff and defendants are tenants in common of property which passed under the will of C. S. Buchanan Sr., deceased. Oil rights had been leased in consideration of a % royalty to be paid to the owner of the property for all oil taken from said property. The Common Pleas refused partition and this judgment was affirmed by the Court of Appeals.

Charles S. Buchanan, in the Supreme Court contends that he and the defendants own the royalty in common, in fee simple; that oil is part of the real estate, that it descends to the heirs as real estate and is therefore apartable.

It is further contended that the oil and gas in question is in place and undeveloped and is capable of separate ownership and subject to partition.  