Thompson

This action was originally brought by plaintiff’s testator to recover damages for a trespass on his land. Upon his death plaintiff, as his personal repre- ° sentative, was substituted for him and judgment was given in her favor against the defendant J. M. Danziger only, who appeals. Appellant concedes that the acts complained of were wrongful and that plaintiff is entitled to recover damages therefor to the amount of the judgment, but denies that he is legally responsible therefor. The persons who actually did the acts in question were employed by one C. W. Whitley to do them as a part of his operations under an oil lease on the above mentioned land, and the only question presented by this appeal is whether appellant was a partner with Whitley in this matter and therefore liable for his acts.

Appellant had at one time been the owner of the oil lease above mentioned. Prior to the doing of the acts complained of he had executed an instrument by which he purported to assign this lease to Whitley. This instrument is signed by both appellant and Whitley and is much more than a mere assignment of the lease. It provides for payment to appellant of an over-riding royalty of 41/6 per cent…