This is аn equitable action to cancel an oil and gas lease of certain lands for failure to prospect and develop them.
In 1902, the grantor of the lease ownеd some 936 acres of land in two separate tracts, one of 220 acres and the other of 716 acres. The two tracts were about two miles apart. These lands were leased in one contract evidenced by one written instrument to the defendants for ten years and “as much longer as gas or oil may be found in paying quantities.” The contract aсknowledged receipt of one dollar as consideration, bound the lessees to pay certain royalties, and—
“It is mutually agreed that the parties of the second part shall begin operation' under this lease within six months from the delivery hereof, and complete on or before the first day of January, 1904, three wells on the above described lands, no other or additional expense shall be incurred under this lease by the second party, and this lease shall be binding so long as second parties shall comply with their obligations hereunder, otherwise, this lease shall be null and void and no longer binding on either party.”
As time passed, the plaintiff as one of the heirs of the grantor succeeded to the title to the 220 acres, and in 1916 he commenced this action. His petition alleged, among other matters, that defendants had drilled twenty-five oil wells, gas wells, and dry holes on the larger and seрarate tract of 716 acres, and that defendants paid royalties on the paying wells thereon to the present owners thereof; but that in all the thirteen years or more since the lease was executed no drilling or development of any sort had ever been undertaken on the 220 acres now owned by him, nor any attempt at exploration or development thereof, nor any attempt made to take possession of that tract of land; that it was one of the implied covenants and the intention of the parties to the lease that his tract of land (as well as the other) should be drilled and explored for gas or oil and not held indefinitely without exploration; that in that community there had bеen three distinct “oil booms,” in 1904-05, in 1912-13, and in 1915-16; that plaintiff had had several opportunities to lease his land to other parties for gas or oil development, one of whom offered him a dollar per acre if the unused lease of 1902 held by defendants
Defendants’ demurrer to this petition was sustained and plaintiff appeals.
Both tracts of lаnd were covered by the one contract of lease. It was improvident for the owner to grant a lease of two large tracts of land for a long term on such meager specified requirements of exploration and development as those particularized in this contract, and without providing that a certain minimum of work should be done on each tract. But it is not the province of the courts to end a contract inerely because it is a bad bargain. (Rose v. Lanyon,
In Harness v. Eastern Oil Co.,
“The principles of equity would not permit the lessees, without consideration, to hold the lease indefinitely for speculative purposes, to the prejudices of the interests of the lessor.” (р. 250.)
The plaintiff asks the court to cancel this, contract, to decree a forfeiture of it, and not for default of any expressed provision of the contract but merely for default of one of its implied covenants. The instances are rare where equity will enforce a forfeiture. It will never 'do so where less drastic redress
In Howerton v. Gas Co.,
It seems that in principle the case at bar is subject to similar disposition. The clause in the leasе providing that “no other or additional expense should be incurred” seems fairly susceptible of restriction to.the acknowledged obligation to drill three'wells, etc., prior to January 1, 1904; and such interpretation is more rational and just than to say that it ex-empted the lessees from, developing plaintiff’s separate tract of 220 acres to any extent or at any time — even in fourteen years. Unless the plaintiff’s tract was to be developed some time there was no reason to include it in the lease, and as it stands it is of nо value to defendants. Unless the defend-; ants had a bona fide intention to prospect' and develop this. tract they had no proper purpose in leasing it, and to cancel thе lease will do them no injury. While equity abhors forfeitures it likewise abhors injustice.
Since plaintiff’s lands are burdened with an oil and gas lease he is entitled to have those lands prospected for oil and gas within a reasonable time.
“On principle, it would seem that there is such implied covenant in the written instrument. When no time is fixed for the performance of a contract, a reasonable time is implied. When a contract for the erec*407 tion of a house or other structure is silent as to the quality of the materials or; workmanship, it is implied that the same should be a reasonable quality. In a lease of a farm for tillage on the shares, it is implied that the tenant shall cultivate the farm in the manner usually done by reаsonably good farmers. So, under an oil lease which is silent as to the number of wells to be drilled, there is an implied covenant that the lessee shall reasonably- develop the lands and reasonably protect the lines.” (Harris v. The Ohio Oil Co.,57 Ohio St. 118 , 127.)
(See, also, Note, 20 Ann. Cas. 1165, et seq.)
Plaintiff’s petition stated a cause of action of some sort. It narrated a predicament capable of some lеgal or equitable redress, not necessarily the 'redress prayed for by plaintiff, (Eagan v. Murray, ante, p. 193, syl. ¶ 2.) Indeed, a critical reading of defendants’ brief discloses that this conclusion has been anticipated by their counsel, who cautiously mentions the possible ascertainment of damages, and, failing there, that the plaintiff should proceed “by making the necessary demands upon the lessee to do the desired drilling, giving the lessee a reasonable time in which to do it.”
We think this lawsuit will answer the purpose of a demand for drilling; and chat justice between the parties will be best subserved by remanding the cause to the trial court with instructions to set aside its ruling on the demurrer, and to permit issues to be joined and the pertinent facts determined, to allow plaintiff damages if they can be definitely ascertained; and in the alternátive that the defendants be required to proceed in good faith to prospeсt and develop plaintiff’s lands within a reasonable time, to be fixed by the trial court, and on failure of the defendants so to do that the lease of plaintiff’s lands be canceled, in' harmony with the views herein expressed and in harmony with the doctrine announced in the fourth paragraph of the syllabus of Howerton v. Gas Co., supra.
Reversed.