Page:Arrington v. United Royalty Co.pdf/6

Rh We have held that leases given for a definite period in which exploration and discovery of the mineral might be made, to continue as long thereafter as oil and gas is produced, conveys not merely a license but an interest and easement in the land itself. Standard Oil Co. v. Oil Waste Salvage Co., 170 Ark. 729, 281 S. W. 360; Clark v. Dennis, 172 Ark. 1096, 291 S. W. 807; Henry v. Gulf Refining Co., 176 Ark. 133, 2 S. W. (2d) 687; and Henry v. Gulf Refining Co., 179 Ark. 138, 15 S. W. (2d) 979. As a consequence of this rule, our court has held that an attempted conveyance of the royalty reserved by parol is void, this, of course, being on the theory that the royalty was an interest in real estate.

In Allen v. Thompson, 169 Ark. 169, 273 S. W. 396, where it was contended that the owner of a royalty had conveyed half the interest therein which was attempted to be evidenced by a notation on a check given for the purchase price, the court said: "The check was not in substance or form a contract between the parties. It was merely an evidence of the payment of the sum named therein for the royalties expressed in the two deeds. The contract, if any, between the parties was oral and not enforcible as being within the statute of frauds." That a royalty is an interest in land and therefore a conveyance of it by parol is ineffective as within the statute of frauds seems to be the conclusion reached in Brown v. Brown, 33 N. J. Eq. 650; King v. Kaiser, 23 N. Y. Supp. 21, 52 N. Y. St. Reports, 281; and State v. Royal Mineral Ass'n, 132 Minn. 232. In the last-named case the court treated royalties as in the nature of a rent charge, and said: "Unaccrued rents are not personal property. They are incorporeal hereditaments. They are an incident to the reversion and follow the land. (Citing cases.) They pass with a sale or devise of the land. (Citing cases.) If transferred apart from the land, the provision of the statute of frauds relating to sales of land applies. (Citing cases.) In fact, although separable from the reversion, they are, until such separation, part of the land. (Citing cases.) 'For what is the land but the profits thereof?'"

In Mills-Willingham Law on Oil & Gas, after stating the general rule that royalties are to be treated as an