This appeal from a summary judgment, rendered on undisputed facts,1 that the plaintiffs take nothing by their suit for an accounting for oil produced from a forty acre tract under a lease dated November 4, 1953, from E. M. Mills et al. to one Arnold H. Bruner, presents a single question for decision.

This question is whether an overriding royalty of one-sixteenth of seven-eights, created and carved out of the working interest in an oil and gas lease covering 40 acres dated Aug. 7, 1939, which plaintiffs, as owners of the leasehold estate, had reserved to themselves out of an assignment made Dec. 4, 1946, to one Harry E. Riley, survived the termination of the lease out of which it was carved and its surrender by later assignees and owners of the leasehold estate to the mineral owners, the original lessors.

The district judge, concluding that the plaintiffs' right or claim to an overriding royalty was appurtenant to and dependent on the continuance in force of the leasehold estate out of the assignment of which it was excepted, and that upon abandonment and surrender by the owners of the leasehold, it ceased to exist, rejected plaintiffs' claim to oil and gas produced under the lease to Bruner and gave judgment for the defendants.

Plaintiffs, appealing from that judgment, are here insisting that the district judge erred in so holding and adjudging, and the judgment should be reversed and remanded with directions to enter judgment in their favor. In the alternative, they urge that the evidence is sufficient to raise an issue of fact as to whether Marshall acted in good faith in terminating and surrendering the 1939 Mills lease and whether Bruner and his assigns acquired their interest with notice of such facts as would put a reasonably prudent person on inquiry.

Appellees, countering appellants' position, that an overriding royalty interest reserved in assigning a leasehold estate does not terminate when the owner of the estate surrenders and releases the lease out of which the overriding royalty was carved, with a counter proposition2 of their own, urge upon us that the Texas oil industry and the Texas courts3 early had occasion to pass upon this question, and the conclusion, that the reserved overriding royalty or production payment terminated as to the land covered by that portion of the lease which was surrendered back to the landowners, was accepted by the courts and litigants alike, and that generally elsewhere4 the rule is the same.

We agree with appellees that this is so, and that, unless, as is not the case here, the instrument creating the overriding or royalty interest makes express provision to the contrary, the interest continues or ceases with the leasehold estate out of which it is carved and cannot survive termination by surrender or release of the leasehold estate by the owners.

Appellants cite no case from Texas or elsewhere which supports their view. We have found none. Indeed, our research leads us to quite the contrary conclusion. Cases like Emerson v. Little Six Oil Co., 3 F.2d 265, from this court, which appellants quote, and Zephyr Oil Co. v. Cunningham, Tex.Civ.App., 265 S.W.2d 169, from Texas, from the latter of which appellants quote the eminently correct statement, reservation of 'overriding royalty' interest withholds from assignment something existent in assignor, are not in point either on their issues or their facts.

Of appellants' alternative contention, that the case presented fact questions for decision on the issue of whether the lease was surrendered in good faith and the case was not, therefore, one for summary judgment, it is sufficient to say that we cannot at all agree with this view.

Assuming, without deciding, that the surrender to the mineral owners by the holders of the leasehold estate could, under any state of facts, operate to give the owners of the override an interest in oil produced not under the lease from which the override was carved but under a new one issued by the mineral owners to a different lessee, though in the state of the authorities affirming the right of the lessee to do just that, it is difficult to assume any state of facts which could do so, it is quite clear that no such facts or circumstances are presented or pointed to by plaintiffs. For while in paragraph two of their reply to the motion for summary judgment, they do say, 'There are issues of good faith involved with respect to a reported surrender of the lease by Reynolds, Miller, and Marshall, as shown by instruments attached', nothing stated in them, though taken in the light most favorable to the plaintiffs, could furnish a basis for the claim plaintiffs assert here.

Here, as in Collins v. Atlantic Oil Pro. Co., 5 Cir., 74 F.2d 122, Marshall et al., remote assignees in the leasehold chain of title, were under no obligation to plaintiffs to drill or to continue to hold on to the lease, and the facts set out in plaintiffs' affidavit, that they knew or might have known that a good well could be brought in on the property, could not have prevented them from surrendering the lease to the landowners for any reason or for no reason at all.

Mr. Earl A. Brown, in his article entitled 'Assignments of Interests in Oil and Gas Leases * * *', 5th Annual Institute on Oil and Gas Law and Taxation, at page 51 states:

'Ordinarily, an assignment of a lease where assignor retains an overriding royalty interest without further provision does not create a fiduciary relationship between the assignor and assignee. * * *'

On page 64, he makes the further statement:

'* * * The obligations of the payor or grantor of the oil payment, unless otherwise modified, go no further than those contained in his contract with the payee, and the rights and privileges of lessee under the lease may be exercised without liability to the holder of the oil payment. Thus, he may allow the lease to terminate under its terms for nonpayment of delay rentals or by surrender of the lease or by failure to drill. * * *'

Mr. A. W. Walker, Jr., concurs in this conclusion, as shown by his statement on page 288 of his article entitled 'Oil Payments', 20 Texas Law Review, 259:

'The ease with which oil payments may be destroyed presents a much more serious problem to the person who has acquired his oil payment by grant from the lessee, or by reservation in the assignment of a lease. Since the person owning the reversionary interest is not a party to the transaction creating the oil payment, the payee has only a restricted opportunity to protect himself against the possibility that the lease will terminate and his interest be destroyed.'

In Montgomery v. Phillips Petroleum Co., Tex.Civ.App., 49 S.W.2d 967, 971, the court, in discussing the fact that Phillips had a right to surrender the lease, quoted from 1 C.J. 965, Sec. 58 as follows:

"* * * The exercise by one man of a legal right cannot be a legal wrong to another. * * * To state the point in a few words, whatever one has a right to do, another cannot have a right to complain of. * * *" See also 1 C.J.S., Actions, § 15.

In this case, Marshall, Mercer and Reynolds had a clear and absolute right to release the Mills 1939 lease. The third party defendants are not in privity with these persons. If they did anything wrongful, which plaintiffs seem to intimate without pointing out anything specific, in the doing of an act which they had a right to do, it would seem that plaintiffs' cause of action, if any, is against Marshall, Mercer and Reynolds, and not against appellees who were in nowise connected with the transaction of which plaintiffs complain. In the Tunstill, Simms and Harrison cases,5 cited in note 3, supra, the courts held to this effect.

The judgment was right. It is affirmed.