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

Texas (D) received an offer from Russell (P) for a revocable license to cover the mineral use of land known as section 23. The offer called for payment of $150 per day and that D's continued use of the roadway, water and or materials would constitute acceptance of this offer. P claimed title to section 23 from the Northern Pacific Railway Company through a contract followed by a warranty deed executed in 1918. In the contract and deed, there was a reservation of mineral rights by the grantor. D had been conducting extensive operations on section 23 since 1953 under an oil and gas lease granted by Northern. D rejected P's offer in December 1952 but used the section from October 30 until November 22 after notice of the offer. The trial court gave P judgment for $3,837.60 for use of the land as $3,600 for the revocable license and $237.50 under the terms of the mineral reservation. D appealed the $3,600 judgment.

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