This section contains the nature of the case and procedural background.

Fisher executed an oil, gas, and mineral lease to the Producers Oil Company on a fifteen-acre tract of land. Fisher, the original lessor, conveyed to Walter Keeble (P) the north five acres of the fifteen. Keeble (P) then conveyed to McRae (P) an undivided three acres out of his north five acres. Eighteen months later Fisher sold to Keeble (P) the remaining south ten acres of the fifteen-acre tract. On the same day, Keeble conveyed that very same ten-acre tract, for a very large profit, to D. All the deeds involved were general warranty deeds and all referred to the lease to the Producers Oil Company, which was itself in the usual or commercial form of oil leases. There was nothing in any of the deeds providing for an apportionment of the 1/8 royalty retained by Fisher. The deeds contained no language from which it could be said that any apportionment of royalty was in the mind of the parties at the time they were executed. P's deed expressly provided that P should have all the rights that the original lessor had in the ten acres. P succeeded in having the oil company, as the lessee, develop his ten acres. Under the lease, the lessee could develop any part of the fifteen acres just as it saw fit to do. Oil was discovered on the ten acres. Ps filed this suit for 5/15 of the 1/8 royalty from this oil, although their five acres had never been developed. The trial court denied the recovery sought and awarded all the money to P. The Court of Appeals reversed the judgment of the trial court and rendered judgment in favor of Ps for 1/3 of the royalty. D appealed.

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