The opinion
CALVERT, Justice
(concurring).
I do not wish to be understood as agreeing that the entirety clause in the leases involved in this case operates to permit or requires one owning only an interest in royalty derived from a part of the leased premises to share with others, proportionately, in the royalties from the entire leased premises. The parties have assumed that it does; and, accordingly, so has the court.
An entirety clause, like all other provisions of a lease contract, should be interpreted and applied according to the intention of the parties. I doubt that the parties to the instant leases intended that the entirety clause operate on ownership of royalty divorced from ownership of the mineral fee estate.
The principal purpose of the more common entirety clause, such as was involved in Thomas Gilcrease Foundation v. Stanolind Oil & Gas Co., 153 Tex. 197 , 266 S.W.2d 850 , and Gypsy Oil Co. of Schonwald, 107 Okl. 253 , 231 P. 864 , is to relieve the lessee of undue burdens incident to a fraction-alized ownership of the mineral fee estate. That is the recited purpose of the clauses. It is also the recited purpose of the clause in the instant lease. The courts have recognized that the clause operates also to relieve inequities among owners of parts of the leased fee resulting from decisions such as Japhet v. McRae, Tex.Com.App., 276 *685 S.W. 669 and Galt v. Metscher, 103 Okl. 271 , 229 P. 522 , even when the ownership is of undivided interests. Thomas Gilcrease Foundation v. Stanolind Oil & Gas Co., supra. But its operation for this latter purpose, when its recited purpose is to relieve the burdens of the lessee, is purely incidental. It may be given that effect only when its language reasonably permits.
Whether an entirety clause similar to those involved in the Gilcrease and Schonwald cases operates on ownership of royalty only has not been decided in this state. The question is an important one — too important to be decided incidentally when it has been neither presented, briefed nor argued. Decisions from other jurisdictions are not entirely harmonious. As indicating that it does so operate, see Gypsy Oil Co. v. Schonwald, 107 Okl. 253 , 231 P. 864 ; Schrader v. Gypsy Oil Co., 38 N.M. 124 , 28 P.2d 885 ; Eason v. Rosamond, 173 Okl. 10 , 46 P.2d 471 , and Thomas v. Ley, 177 Okl. 150 , 57 P.2d 1186 . Of the cited cases the Schonwald case is most closely in point, and as to the holding in that case Summers, in his work on Oil and Gas, Permanent Edition, Vol. 3, p. 544n, has commented: “It seems somewhat doubtful whether this provision in a lease was intended to apply to the assignment of royalty interests.” As indicating that it does not so operate, see Iskian v. Consolidated Gas Utilities Corp., 207 Okl. 615 , 251 P.2d 1073 . For a discussion of the distinguishing features of the foregoing cases, see Apportionment of Royalty to Separate Tracts by Hardwicke, 32 T.L.R. 660, 665-667.
There is much less reason for saying that the entirety clause in the instant leases operates on ownership of royalty only. The relevant part of the clause reads as follows: “Lessors hereby covenant * * * that in case of any change of ownership of said land, or part thereof, * * * all rentals and royalties accruing hereunder shall be paid to the new owners in proportion to their ownership of the whole of the land hereby leased so that no owner of a segregated part of said land shall be entitled to the whole royalties accruing from developments on said segregated tract, but only to such part of such royalty as the acreage in his tract is to the whole acreage embraced in this lease; * * The very wording of the clause indicates to my mind, rather clearly, that it was intended to operate only to apportion royalty where there was a change in ownership of a part of the mineral fee. It does not answer this obvious fact to say that it operates where there is a change in ownership of a part of the land and that under our decisions royalty is an interest in land. In writing the clause the parties used the words “royalty” and “land” to refer to wholly different interests, thereby disclaiming any intent that the word “royalty” should mean the same thing as the word “land”. A casual analysis will supply proof. The clause provides that in case of any change of ownership of said land (referring to the leased premises) “all rentals and royalties” accruing under the lease shall be paid “to the new owners in proportion to their ownership of the whole of the land.” Would we say that a purchaser of a part of the royalty from a segregated part of the leased premises became entitled to a proportionate part of the rentals? The requirement of proportionate payment of rentals and royalties to new owners is according “to their ownership of the land hereby leased." Could it be held that royalties are hereby leased? It is declared that the apportionment is made “so that no owner of a segregated part of said land shall be entitled to the whole royalty accruing from developments on said segregated tract, but only to such part of such royalty as the acreage in his tract is to the whole acreage in this lease.” I deem it unlikely that any lessee ever engaged in developments on segregated royalty, or that any one ever thought of or referred to a royalty interest as a segregated tract.
All in all, it is doubtful, to say the least, that the entirety clause in the instant leases was intended by the parties to effect an apportionment among royalty owners who own no interest in the mineral fee estate. The Gilcrease case is certainly no authority for saying that it was. I am not at all cer *686 tain that the clause could reasonably be given that effect even to relieve the lessee of burdens incident to fractionalization of ownership of royalty only. There is much less reason for saying that it could reasonably be given that effect to relieve inequities among owners of royalty only. It is no answer to say that some entirety clauses, or pooling agreements, are so worded as to require an apportionment of the whole royalty among owners of royalty derived from separate parts of the leased premises. That simply means that such other clauses are different from this one, and would be no sound reason for torturing the language of this one into a meaning which the parties to the lease did not intend it to have. •
Inasmuch as the question here discussed was neither presented, briefed nor argued, our incidental determination thereof seems not to be stare decisis. Griffin v. Chubb, 7 Tex. 603, 609-610 ; 14 Am.Jur., Courts, § 73, p. 290 and § 76, p. 291. I, therefore, regard the question as yet an open one and join in assuming that the entirety clause required an apportionment of royalty by and among owners of royalty who own no part of the mineral fee estate.