D. E. Whelan and R. J. Whelan, Appellants, v. Placid Oil Company et al., Appellees, 198 F.2d 671 (5th Cir. 1952)

It is ordered by the Court that the petition for rehearing filed in this cause be, and the same is hereby denied.

RIVES, Circuit Judge.

I concur specially.

To what has been so well stated in the court's opinion, I would add some further reason for my concurrence. As I understand the effect of the judgment appealed from, it is to hold the Placid lease superior to the Whelan lease as to the disputed one-half interest in the 146 acre tract. That holding would considerably reduce the fractional royalty interest of each of the four children of W. N. Peal insofar as the disputed interest is concerned, and the court cannot say whether or not that reduction is fully offset by the sustaining of the Dee Knox utilization agreement. If the court's judgment had been to the opposite effect and had held that the Whelan lease instead of the Placid lease carried the present right of possession and enjoyment of the disputed interest, then as to that interest the Placid lease would have been practically without value. In that event, so far as I can see, there would be no way that the royalty owners under the Dee Knox Unit could ever enforce any interest in the Peal 146 acre tract. It seems to me therefore that not only the royalty owners under the Dee Knox Unit, but also the four Peal heirs, are indispensable parties.