The opinion
Tubnee, /., dissenting: Assuming the soundness of the conclusion reached in L. B. Reakirt, 29 B. T. A. 1296, which, in my opinion, is not free from doubt, I am still unable to agree with the majority that that case is decisive of the question in the fourth issue above. The question here is one of property boundary. If the boundary line was located as the petitioner contended, there was no question as to' petitioner’s title as lessee to the lands on which its oil wells were located, and the property was not within the claim of the Government. If, on the other hand, the boundary line was located as contended by the Federal Government, petitioner had no title as lessee or otherwise to the lands it had developed. It seems to me thus apparent that petitioner’s expenditures were in defense of the title to its property and, being such, were capital expenditures and not deductible as ordinary and necessary expenses. Central Material & Supply Co., 44 B. T. A. 282; affd., 126 Fed. (2d) 542; and Jones’ Estate v. Commissioner, 127 Fed. (2d) 231, affirming 43 B. T. A. 691. The fact that the question as to title arose in a condemnation suit is, in my opinion, of no moment. I accordingly note my dissent.
Murdock, Mellott, Arnold, and Kern, JJagree with this dissent.