Howard Townsite Owners, Inc. v. Progressive Oil Co.

BISHOP, J. pro tem.

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The plaintiff brought this action on behalf of itself and many other lessors of a community gas and oil lease, to recover royalties due and unpaid since 1953. From the judgment in plaintiff’s favor the defendants have appealed, and in its support present four “Assigned Errors. ’ ’ We have weighed each of the four and determined that none of them warrants a reversal of the judgment.

The first of these claimed “errors” is: “Complaint fails to state ... a cause of action. ’ ’ Defendants complete argument “Re: Failure of Complaint to State Cause” is this: “Appellant submits said matter upon the Record.” We have examined the record, and decline to reverse the judgment on the ground of the first “error.”

The second error deserves little more attention. It is that “Finding of Fact Includes Conclusion of Law.” It is doubtless technically a conclusion of law to find as a fact “ ‘That royalties and interest thereon have accrued to the lessors under the community oil and gas lease with respect to all of the properties’ ” as follows: Then there appeared (1) the amounts of royalties that had accrued—a finding of fact whose value is not to be wiped out because of the surplus words: “to the lessors,” and (2) the amounts of interest figured on several amounts of principal. The appellants might also have complained that the conclusions of law contained a finding of fact, as they do in that it is there deter

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mined that the sum that should be deducted from the total of royalties found to have accrued, because they were the royalties derived from Lots 8 through 18, was the sum of $273.57. The defendants make no claim of error in the amounts found due as royalties or in the computation of interest based on the amounts. A judgment is not to be reversed because a finding of fact or conclusion of law appears under the wrong heading in the findings of fact and conclusions of law.

The third of the four “Assigned Errors” is complex: “The evidence is insufficient to sustain: a. The findings of fact; b. The conclusions of law; or c. The judgment.” Defendants’ argument concerns itself with but one matter under this error, that the finding, that the allegations of amended paragraph VII of the complaint are true, is incorrect. With this we agree, in part. It was alleged, in that paragraph, that a producing well was developed during the period that the Southern California Petroleum Company was the lessor and before any assignments or quitclaim deeds had been executed, and that collective payments had been made to Howard Town-site Owners, as collecting agent for royalties up through July 1953, but not since. The finding is incorrect, first, in referring to the Southern California Petroleum Company as lessor; it was the lessee. Moreover, no producing well was developed while it was lessee, but later as the defendants contend and plaintiff agrees. But what do we have here but a couple of more errors to be chalked up? The judgment is not to be affirmed or reversed depending upon the number of errors, but because of their consequence, and we can not see that it makes a whit of difference under what reign the well came into production. Royalties were paid until August 1953; they have not been paid since then.