Filed 11/20/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

GARY D. LEIPER, as Trustee, 

etc.,

 Plaintiff and Respondent,

v.

DENNIS GALLEGOS,

 Defendant and Appellant;

JOHN L. POOLE et al., 

 Objectors and Respondents.

2d Civil No. B292905

(Super. Ct. No. P073688)

(Ventura County)

A tax sale of real property described in the deed as 

pertaining to surface rights does not include oil and gas rights 

which are “restrictions of record” in a previously recorded oil and 

gas lease.

In 1939, Mr. E.S. Barnard, believed there was oil and gas 

under a 2.3 acre lot he owned near the Ventura River, Lot 7. He 

entered into a lease with a major oil company to drill for oil and 
2

gas. Mr. Barnard was prescient. For 80 years, it has been a 

steady and reliable source of oil with no end in sight.

About 20 years later, Mr. Barnard conveyed fractional 

interests in the oil and gas royalties to family members. Another 

20 years later, one of the fractional owners either did not care, or 

was not paying attention to a $12.78 tax bill on the surface rights 

to Lot 7. Upon default, the County of Ventura sold it to the state 

of California. The state then sold Lot 7 to Mr. and Mrs. Joseph 

Gallegos for $3000. The tax deed to the Gallegoses was silent on 

oil and gas. Their son, Dennis, appellant, somehow got the idea 

that he owned the oil and gas under Lot 7.1

The trial court ruled, and we agree that appellant is the 

surface owner to Lot 7 but he does not now own an interest in the 

oil and gas under Lot. 7.

Dennis Gallegos appeals a quiet title judgment that a tax 

deed for the sale of Lot 7 did not convey the right to receive 

royalties on a 1939 oil and gas lease. The judgment states that

appellant has no interest in the oil and gas royalties from Lot 7.

Appellant claims that the trial court “got it wrong” and “threw up 

its hands and deferred entirely” to the referee’s findings and 

recommendations. That did not happen. We affirm but modify 

the judgment to show that upon termination of the oil and gas 

lease, any remaining oil and gas rights described in the 1939 

Memorandum of Oil and Gas Lease revert to the surface owner. 

(Code Civ. Proc. § 43; American Enterprise, Inc. v. Van Winkle

(1952) 39 Cal.2d 210, 219.) 

Facts and Procedural History

1 Appellant and his parents “sat” on the claimed oil and gas 

rights for 35 years.
3

Lot 7, also known as assessor’s Parcel 045, lies in the 

Ventura Avenue Field, the tenth largest producing oil field in 

California, < https://en.wikipedia.org/wiki/ Ventura_Oil_Field [as 

of Oct. 1, 2019], archived at <https:// perma.cc/5DDX-A5GC>. In 

1939, fee simple owner E. S. Barnard Company entered into an 

oil and gas lease with British-American Oil Producing Company 

that was recorded. The lease required that British-American and 

successor lessees pay oil royalties to the lessor. 

In 1957, E. S. Barnard Company, a family company,

dissolved and conveyed its interests in Lot 7, including the oil 

and gas lease, to its shareholders (the Barnards and Pooles; 

hereafter, fractional owners). In 1977, the fractional owners 

entered into an agency agreement titled “Barnard Oil Trust –

Hartman – Barnard Leases” (Barnard Oil Trust) for the 

distribution of oil and gas royalties.

1978 Tax Sale

The Ventura County Tax Assessor assessed Lot 7 using two 

assessor parcel numbers: APN 063-9-190-024 and APN 063-0-

190-045. The 1971-1972 tax assessment roll for APN 063-9-190-

024 listed a $14,775 valuation for “LAND Assessed Value of Real 

Estate and Mineral Rights Except Improvements.” The APN 

063-9-190-024 tax bill was mailed to Gulf Oil Corporation, the 

successor lessee. The tax assessment roll for APN 063-0-190-045 

listed a $100 valuation for “LAND Assessed Value of Real Estate 

and Mineral Rights Except Improvements.” The $12.78 tax bill

for APN 063-0-190-045 was mailed to “Barnard HA Attn Barnard 

Austin M” in Long Beach.

2

 

2 H.A. Barnard was the Secretary of the E.S. Barnard 

Company and co-signed the Corporation Grant Deed conveying 

the oil and gas lease to the fractional owners, which included 
4

After Austin M. Barnard “defaulted” on the $12.78 tax bill, 

Ventura County Tax Collector sold Lot 7 to the State of 

California for $12.78. The Conveyance of Real Estate described

the property as APN 063-0-190-045 but was silent on mineral 

rights. On February 10, 1978, State of California sold Lot 7 at a 

public auction to appellant’s parents, Joseph and Ruby Gallegos

for $3,000. The tax deed described the property as APN 063-0-

190-045. After Joe Gallegos died, Ruby Gallegos deeded Lot 7 to 

appellant. 

Petition to Quiet Title; Oil Lease Royalties Interpleaded

In 2014 appellant received a letter from the successor 

lessee, Aera Energy LLC (Aera), describing the extent, timing,

and location of the oil extraction operation. (Civ. Code, § 848.) 

Responding to the letter, appellant claimed that Aera “was 

potentially trespassing and drilling on his property . . . .” 

Appellant further claimed that he was entitled to 5.714 percent of 

the royalties, representing H.A. Barnard’s fractional interest. 

This caused Aera to suspend distribution of the oil royalties. 

Appellant tentatively settled the dispute with Gary Leiper, 

trustee of the Barnard Oil Trust. The proposed agreement 

provided that appellant would receive $12,000, plus 5.714 percent 

of the impounded royalties and future royalties. But the

proposed settlement agreement required approval by the Ventura 

County Superior Court. Trustee filed a petition to confirm the 

Austin M. Barnard (an undivided 70/420th fractional interest

owner) at a Santa Monica address. The APN 063-0-190-045 tax 

bill was mailed to the same Santa Monica address. Appellant 

concedes that H.A. Barnard probably received the 1971-1972 tax 

bill on behalf of E. S. Barnard Company. 
5

“trust assets” in accordance with the settlement agreement. 

(Prob. Code, § 850.)3 

Aera filed a cross-petition to interplead the oil royalties 

($177,000+) and deposited the money with the trial court. John 

L. Poole, a Barnard Oil Trust fractional owner, objected to the 

settlement agreement and filed a petition to determine title and

royalty rights. 

Because there were so many conflicting claims, the trial 

court declined to approve the proposed settlement agreement and 

ordered Leiper to file a petition for quiet title and declaratory 

relief. Appellant, in response to the petition, asked the trial court 

to confirm his fee simple ownership in the oil and gas royalties 

based on the theory that the 1978 tax deed conveyed both the 

surface rights and subsurface oil and gas rights. 

Gas and Oil Title Expert Appointed

The trial court declared the case a complex action and 

appointed J. Nile Kinney, an attorney and recognized expert on 

oil and gas. He was ordered to act as a referee upon the parties’

agreement. (Code Civ. Proc., § 638.) Kinney was directed to 

make findings and recommendations based on a series of 

questions which asked, inter alia, who owned the surface and 

mineral estates prior to the $12.78 tax sale in 1972, the legal 

effect of the tax deed on ownership of fee title to Lot 7, and “what 

particular interest in the Property (including fee mineral rights, 

if any) was conveyed by the State of California . . . to [appellant’s 

parents] by way of the certain [tax] deed dated February 10, 

1978?” 

3 The trial court found that the Barnard Oil Trust was not a 

trust, but merely an agent to distribute the oil royalties. 
6

Kinney submitted his findings and recommendations which 

were adverse to appellant’s claims. In Superior Court, appellant 

claimed that he was the sole owner of the oil and gas royalties 

interplead with the court, the subsurface mineral estate, and the 

“reversionary rights as well as all rights under the oil and gas 

lease . . . including the right to receive royalties therefrom.” The 

trial court adopted a portion of the referee’s findings and 

recommendations on issues that were dispositive of appellant’s 

claim. It expressly ruled that appellant had no interest in the oil 

and gas royalties because the tax collector “didn’t foreclose upon

those rights.” 

The Oil and Gas Lease - a Taxable Possessory Interest

The tax sale of oil field property presents unusual title 

problems because a gas and oil leasehold is not “real property” or 

“real estate” but an estate in land measured in terms of duration. 

(Civ. Code, § 761; 4 Miller & Starr, Cal. Real Estate (4th ed.

2019) § 12.1, p. 12.3; Callahan v. Martin (1935) 3 Cal.2d 110, 118

(Callahan).) In Callahan our Supreme Court “took the 

position . . . that the lessee under an oil and gas lease ‘has an 

interest or estate in real property in the nature of a profit [à]

prendre, which is an incorporeal hereditament . . . .’ [Citation.] 

In essence, the courts now recognize that the owner of land does 

not have title to the oil and gas which may underlie his property; 

instead he has the exclusive right on his premises to drill for oil 

and gas and to retain as his property all substances brought to 

the surface. [Citation.] When this interest is transferred to a 

lessee the lessee obtains a profit [à] prendre. [Citation.]” (Lynch 
7

v. State Board of Equalization (1985) 164 Cal.App.3d 94, 102

(Lynch), first italics added.)4

Simply stated, an oil and gas lease is a taxable possessory 

interest because the lease is a servitude on the land and a chattel 

real at common law. (Civ. Code, §§ 801, subd. 5, 802, subd. 6;

Graciosa Oil Co. v. County of Santa Barbara (1909) 155 Cal.140, 

144 (Graciosa Oil Co.); see Cal. Code Regs, tit. 18, subd. (a), § 

468, p. 43 [the right to remove petroleum and natural gas from 

the earth is a taxable real property interest].) “‘[T]he cardinal 

feature of a taxable possessory interest is that it is an interest of 

finite duration. At some future date, the interest of the . . . 

possessor will terminate, and possession of the property will 

revert to the [fee title] owner.’ [Citation.]” (California State 

Teachers’ Retirement System v. County of Los Angeles (2013) 216 

Cal.App.4th 41, 57.) “In Graciosa Oil Co. v. County of Santa 

Barbara, supra, 155 Cal. at pages 144 to 146, it was contended 

that the assessment of land to the landowner included all 

interests, including the interest of an oil and gas lessee, and that 

the interest under the oil and gas lease could not be separately 

assessed. The Supreme Court rejected this contention and held 

that the mining rights and privileges of the lessee should be 

separately assessed to the lessee. [Citation.]” (Lynch, supra, 164 

Cal.App.3d at p. 103.) 

Appellant claims that the fractional owners lost their right 

to receive oil royalties after Lot 7 was sold at the tax sale. The 

4 “The incorporeal hereditament of common is defined by 

Blackstone as ‘being a profit which a man hath in the land of 

another; as to feed his beasts, to catch fish, to dig turf, to cut 

wood, or the like’. [Citation.] These are the rights which are 

described as profits [à] prendre . . . .” (Callahan, supra, 3 Cal.2d 

at p. 120, first italics added.) 
8

argument is based on the theory that the tax deed conveyed fee 

simple title to all subsurface mineral rights even though the tax 

deed makes no mention of mineral rights or the oil and gas lease. 

In construing the tax deed we are guided by the principle that a 

tax assessor can only sell what has been assessed. (See, e.g., 

Nevada Irrigation Dist. v. Keystone Copper Corp. (1964) 224 

Cal.App.2d 523, 529-530 (Nevada Irrigation Dist.); Lough v. Coal 

Oil (1990) 217 Cal.App.3d 1518, 1527 (Lough) [“state could not 

foreclose on any greater interest than that upon which taxes had 

not been paid”]; Helvey v. Sax (1951) 38 Cal.2d 21, 24 (Helvey)

[property tax operates in rem against the property interest being 

taxed].) Nor does surplus language in the tax deed property 

description expand or contract the right of the lessee when the oil 

field surface rights are sold for the nonpayment of taxes. (Lough, 

supra, at pp. 1521, 1528 [tax deed stating property was sold “ex of 

mining rights” did not change or affect oil lease].) 

The trial asked: “What’s being taxed?” Was the tax 

assessment on the surface rights or the mineral rights or both?

The question is pivotal but fraught with problems because it 

suggests that “mineral rights” and leasehold oil and gas rights

are the same thing in determining what the tax deed conveyed. 

The “Supplemental Final Decision of Referee” filed with the trial 

court states: “we must assume that for the portion of the 

Property separately assessed as APN 063-0-190-045, the Ventura 

County Tax Assessor did not assess, and levy taxes upon, any 

mineral interest - whether leasehold (profit [à] prendre), mineral 

royalty interest or reversionary interest (an interest in future

possession).” (Italics added.) That is erroneous. 
9

The trial court found that the state “didn’t foreclose” on the 

leasehold estate, but the tax deed did convey the lease 

reversionary interest. 

The controversy over what the tax deed means brings to 

mind the Indian fable of the blind men and the elephant.5 It 

begins and ends by looking at what mineral rights are described 

in the oil and gas lease. Here, the recorded lease grants the

lessee the right to explore, mine, drill, and “operat[e] for oil, gas

and other hydrocarbon substances . . . .” The oil and gas royalties 

are a large part of the elephant but the elephant has other parts,

including other mineral rights (silver, gold, uranium?) not 

described in the oil and gas lease. A tax deed “conveys not 

merely the title of the person assessed, but a new and complete 

title under an independent grant from the state. [Citations.]” 

(Helvey, supra, 38 Cal.2d at p. 24.) “A purchaser at the tax sale 

may thus receive a better title than that of the person against 

whom the taxes were assessed, unless he is the defaulting 

taxpayer or someone acting in his behalf. [Citation.]” (Ibid.)

A Tax Deed Subject to Restrictions of Record

Revenue and Taxation Code section 3712, subdivision (d) 

provides that a tax deed conveys title free of all encumbrances 

5 The poet John Godfrey Saxe, in “The Blind Men and the 

Elephant” described the fable as follows: 

“And so these men of Indostan

Disputed loud and long,

Each in his own opinion

Exceeding stiff and strong,

Though each was partly in the right,

And all were in the wrong!” (United States v. Sanchez (2d 

Cir. 1992) 969 F.2d 1409, 1411 & fn 1.) 
10

except for, among other things, easements, water rights, 

“restrictions of record,” and certain tax liens or special 

assessments. The trial court impliedly found that the 1939 oil 

and gas lease was a restriction of record and the oil and gas 

leasehold interest was not intended to be sold at the tax sale. 

“A taxing agency which has had no intent to assess mineral 

estates does not assess them even though the unmeant 

description of lands on the assessment book may be broad enough 

to include such interests. If, intending to assess only the surface 

estate, it unwittingly drafts a description broad enough to cover

both surface and subsurface estates, the inclusion of the latter is 

a mistake and it cannot be permitted to reach for tax purpose an 

estate it never sought. . . . [T]he problem is not appreciably 

different from that existing where a taxing agency mistakenly 

doubly assesses land, so that a nondelinquent tract is also 

included in a larger parcel owned by another who allows his taxes 

to become delinquent. The rule in such cases is well settled that 

the tax deed conveys no title to the nondelinquent land . . . .”

(Nevada Irrigation Dist., supra, 224 Cal.App.2d at p. 529.) In the 

words of the trial court, “What’s being taxed?” 

Two Tax Assessments – Different Property Interests

The Ventura County Tax Assessor maintained two tax 

assessment rolls (i.e., two APNs) on Lot 7.

6

 Substantial evidence 

supports the finding that the APN 063-0-190-045 tax assessment 

($100) was for the surface rights and mineral rights not described 

in the oil and gas lease. When E.S. Barnard Company defaulted 

on the APN 063-0-190-045 tax bill, the Lot 7 surface rights and 

6 Pursuant to appellant’s request, we have taken judicial 

notice of the 1971-1972 assessment rolls for APN 063-0-190-045 

and APN 063-9-190-024. 
11

mineral rights not described in the oil and gas lease were sold to 

the State for $12.78. The conveyance described the property as 

APN 063-0-190-045 (the parties call it Parcel 045) which was sold 

to appellant’s parents for $3,000. 

Appellant argues that the subsurface mineral rights were 

severed by the tax deed and conveyed to his parents in fee simple, 

but that is not what happened. Appellant’s parents took title to 

Lot 7 subject to the oil and gas lease. The referee explained 

“[w]hen the owner of mineral rights enters into an oil and gas 

lease, the owner conveys the profit [à] prendre to the mineral 

lessee, for a prescribed period of time. [Citation.] In return, the 

lessor is paid royalties and rents, which are likewise incorporeal 

hereditaments and interests in land. [Citation.]” The referee 

found that “no portion of the surface fee estate was ever severed 

from any portion of the mineral fee estate prior to June 30, 1972,” 

the date the property was sold to the State of California for 

nonpayment of the APN 063-0-190-045 taxes.

That is consistent with California case law (Callahan,

supra, 3 Cal.2d at page 118 [oil and gas lease for term of years 

and so long as oil is produced in paying quantities is a profit à

prendre])

7 and Revenue and Taxation Code section 3712, 

7 In California, an oil and gas lease with a “so long 

thereafter” habendum clause creates a determinable fee interest 

in the nature of profit à prendre, an interest that terminates upon 

the happening of the specified event with no notice required. 

(Renner v. Huntington-Hawthorne Oil & Gas Co. (1952) 39 Cal.2d 

93, 98.) Here, the lease term was for twenty years and “so long 

thereafter as oil, gas, casinghead gas and other hydro-carbon 

substances, or either or any of them, may be produced therefrom

in quantities deemed by lessee sufficient to pay to pump or 

otherwise secure and save.” (See, e.g., Lough, supra, 217 
12

subdivision (d) which in 1978, provided that a tax deed conveys 

title free of all encumbrances except easements, water rights, and 

“restrictions of record.” Profits à prendre, like easements, are 

treated as incorporeal hereditaments. (Gerhard v. Stephens 

(1968) 68 Cal.2d 864, 880 (Gerhard).) A fair reading of Revenue 

and Taxation Code 3712, subdivision (d) is that a recorded oil and 

gas lease is a “restriction of record” and excepted from the tax 

deed in determining the title conveyed.

The oil and gas lease is also an easement because an oil 

and gas lease is a profits à prendre, which is a non-possessory 

interest in land. (Gerhard, supra, 68 Cal.2d at pp. 880-881 [the 

term easement includes profit].) A profit is simply a type of 

easement. (12 Witkin, Summary of Cal. Law, Real Property (2d 

ed. 2017) § 401, p. 460 [Civ. Code sections 801-802 make no 

distinction between profits and easements].) Easements, 

including profits, come within the definition of real, not personal, 

property (Black’s Law Dictionary (11th ed. 2019) at p. 147), and 

clearly fall within the “[e]asements of any kind” exception of 

Revenue and Taxation Code section 3712, subdivision (d). 

Appellant contends that the tax deed conveyed all the 

subsurface mineral rights because the 1971-1972 assessment for 

APN 063-0-190-045 shows a $100 assessment for “LAND 

Assessed Value of Real Estate and Mineral Rights Except 

Improvements.” However, the APN 063-0-190-024 tax roll lists 

$14,775 for “LAND Assessed Value of Real Estate and Mineral 

Rights Except Improvements.” That would be the tax assessment 

Cal.App.3d at p. 1528 [oil and gas lease remained in effect until 

such time as oil and gas is no longer produced in “paying 

quantities”].) 
13

for the oil and gas leasehold which was producing more than 

$100,000 annually.

8

APN 063-0-190-045 was a $100 tax assessment for vacant

river bottom land (the surface rights), and undeveloped mineral 

rights not described in the oil and gas lease. If the APN 063-0-

190-045 tax assessment was intended to include leasehold oil and 

gas rights, the assessed valuation would have been thousands of 

times greater than $100. The referee explained that “[t]he APN 

digit codes [i.e., APN 063-0-190-045 and APN 063-9-190-024] 

used by the Ventura County Assessor reflect this interpretation. 

The APN digit key . . . contains ten categories of interest, 

denominated by the tenth – ie. last – digit in the number. The 

number ‘5’ refers to ‘Surface Except all or part mineral.’ The 

number ‘4’ refers to ‘Mineral int. only.’”

Based on appellant’s construction of the tax deed (i.e., that 

it conveyed fee simple ownership to the oil and gas royalties), one

would have to assume that a double tax assessment was made on 

the same oil and gas rights. But that would “‘fling a plank of 

hypothesis over an abyss of uncertainty’” (Gradus v. Hanson 

Aviation, Inc. (1984) 158 Cal.App.3d 1038, 1056) and render the 

tax deed void with respect to the oil and gas rights. (See, e.g., 

Nevada Irrigation Dist., supra, 224 Cal.App.2d at p. 530; Nutting 

v. Herman Timber Co. (1963) 214 Cal.App.2d 650, 656 [erroneous 

double taxation of 40 acre parcel that was adjacent to 1,400 acre 

parcel sold at tax sale].) “[T]ax deeds which are the product of 

8 We presume that since tax on the oil and gas leasehold 

was not foreclosed, that the taxes were paid by E.S. Barnard, his 

successors, or the oil companies who own the oil and gas lease. 

Carried to its illogical conclusion, appellant is the owner of the oil 

and gas leasehold, without having paid the taxes, since 1978. 

This would be quite a windfall.
14

sales of doubly-assessed lands cannot be reached by either 

curative acts or general or special statutes of limitation. To 

attempt to apply either would constitute confiscation.” (Ibid.)

Two APN numbers were used to assess Lot 7, and it is 

presumed that the leasehold oil and gas rights were not doubletaxed. (See Rev. & Tax. Code, § 3712; Evid. Code, § 664 

[presumption that official duty has been regularly performed].) It 

is also presumed that the tax assessor assessed all the Lot 7 

property interests, including the oil and gas leasehold, at full 

cash value.9(Rev. & Tax. Code, § 401; Graciosa Oil Co., supra,

155 Cal. at pp. 144-145.) “The general rule is that there can be 

but one assessment of the entire estate in real property, which 

assessment includes the value of both the estate for years and the 

remainder or reversion, and the mortgagor or lessor of the real 

estate is liable for the taxes thereon. [Citations.]” (Tilden v. 

County of Orange (1949) 89 Cal.App.2d 586, 587, italics added.)

Although a leasehold is not “real property” or “real estate,” it is 

an estate in land and subject to property taxes as an estate in 

real property. (Civ. Code, § 761; Callahan, supra, 3 Cal.2d at p.

118.)

The tax assessment rolls, the use of two APN numbers to 

tax different property interests, and the APN 063-0-190-045 

property description in the tax deed support the finding that the 

9 “The right to mine and extract minerals from real property 

may have a value to its holder far in excess of the value of the 

surface uses. [Citation.] The taxable nature of such an interest 

has long been settled. The conveyance of a mineral interest in 

land, it has been held, creates two separate estates in the land, 

each of which is subject to taxation and thus may be separately 

taxed. [Citations.]” (Howard v. County of Amador (1990) 220 

Cal.App.3d 962, 973.) 
15

tax deed did not convey the leasehold oil and gas rights. As one 

court explained: it would be “unconscionable to divest the owner

of title to his subsurface estate and transfer such ownership to 

[appellant] through the hocus-pocus of an inadvertent 

inexactness of description” in the tax deed. (Nevada Irrigation

Dist., supra, 224 Cal.App.2d at p. 529.) “Equally confiscatory 

would be an attempt to give vitality, as against the owner of a 

mineral estate, to a deed derived from tax proceeding aimed only 

at the separate and severable surface estate.” (Id. at p. 530.)

Reversionary Interest in Leasehold Mineral Rights – How 

Many Angels Dance on the Head of a Pin?

Appellant argues that the trial court erred in finding that 

the Barnard Oil Trust beneficiaries were fee owners of the 

leasehold mineral rights and that appellant has no reversionary 

rights. (See Dabney-Johnston Oil Corp. v. Walden (1935) 4 

Cal.2d 637 [lessor of oil rights has a reversionary interest in the 

right to drill for and produce oil, dependent upon the termination 

of the lease].) That was not the trial court’s ruling nor did the 

trial court say it was adopting the referee’s findings in toto. The 

trial court found that the mineral revisionary right “isn’t a part” 

of the oil and gas lease and that the oil and gas rights revert back 

to the surface owner and his/her successors “after oil and gas is 

no longer being produced in payable quantities.” “Once this lease 

can no longer produce in payable quantities, who gets the 

revisionary right? . . . There’s nothing – there’s nothing to drill 

for. [¶] . . . [B]ut if you want to . . . count angels dancing on the 

head of a pin, go right ahead and litigate it to the Court of Appeal 

[or] the Supreme Court.” 

Like the trial court, we presume there is some reversionary 

oil and gas right after the oil is pumped dry. (See Collins v. 
16

Chappell (Okla. 1958) 333 P.2d 578, 583 [“‘One who purchases all 

or a portion of a lessor’s reversionary interest in the oil and gas in 

the land, acquires no interest in the production under an existing 

lease and can only hope that the present lease will terminate 

before the minerals in the land are exhausted,’” (Quoting 3A 

Summers, Oil & Gas (Perm. ed. 1958) at p. 311)].) That is 

consistent with Civil Code section 761 which provides the lessee 

has a present possessory interest in the property, while the lessor 

has a future reversionary interest and fee title. (See, e.g., Avalon 

Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC

(2011) 192 Cal.App.4th 1183, 1189-1190.)

Appellant, in his opening brief, concedes that the trial court 

“acknowledged that [appellant] owned 100% of Parcel 045 and

the reversionary rights at the end of the Lease.” That is a fair 

statement of the trial court’s order and requires no further 

elaboration, but in the exercise of caution, the judgment should 

be clarified.

Disposition

The trial court is directed to amend the judgment to 

provide that upon termination of the oil and gas lease, the oil and 

gas and hydrocarbon rights described in the 1939 BarnardBritish-American Memorandum of Oil and Gas Lease revert to 

the surface owner. (Code Civ. Proc. § 43.) As modified, the 

judgment is affirmed. Respondents are to recover costs on 

appeal. 

CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J. PERREN, J.
Glen Reiser, Judge

Superior Court County of Ventura

______________________________

Law Offices of Greg May and Grey May; Jones & Lester; 

Jones, Lester, Schuck, Becker & Dehesa, Mark A. Lester and 

Theresa Loss; Norman Dowler and Brett L. Price for Defendant

and Appellant Dennis R. Gallegos.

Musick, Peeler & Garrett and Cheryl A. Orr for Respondent 

Bank of the West, co-trustee for Austin M. Barnard, deceased.

John L. Poole, in propria persona, Respondent.

No appearance for Plaintiff, Gary D. Leiper as Trustee.