225 Pa. 338 | Pa. | 1909
Opinion by
We think the learned court below was in error in setting aside the verdict and entering judgment non obstante veredicto for the defendant. The prsecipe and writ show this case to be ejectment for the recovery of 100 acres of land in Hebron township, Potter county. The parties claim through a common source of title. The plaintiff’s title rests upon what is known as a gas and oil lease, dated November 8,
The lessee never went into possession of the premises, and brings this action to recover possession from a third party who does not claim under the lessor. The defendant resists a recovery on the ground that the agreement above recited, and upon which the plaintiff relies, conveyed no interest in the land but was simply a license to enter for the purpose of operating for oil and gas, and therefore did not convey a title sufficient to sustain an action of ejectment, the plaintiff never having been in possession. The plaintiff concedes that if the interest conveyed by the agreement was simply a license to operate for oil, the action cannot be sustained. On the other hand, the plaintiff contends that the agreement between him and his lessor conveyed a corporeal interest or an estate in land, and was not a mere license to drill and operate for oil on the premises leased; that being an interest in land and he having a right of possession by virtue of his lease, can recover the possession of the demised premises in an action of ejectment.
Whether an agreement, commonly known as an oil and gas lease, creates an estate or interest in land or is a mere license to enter and operate for those minerals has frequently been
The language of the agreement in the case at bar shows it to be a lease, conveying an interest in land, a corporeal and not an incorporeal hereditament. The lessor does, in the language of the lease, “grant, demise, lease and let unto the said party of the second part .... all that certain tract of land .... containing one hundred acres, .... for the sole and only purpose of mining and operating for oil, gas and other minerals and of laying pipe lines and of building tanks, stations and structures thereon to take care of the said products.” It will thus be seen, by this transposition of the language of the lease, that the land itself is granted and demised, and not simply the right to enter upon and prospect and operate for oil or gas. It is not simply a privilege given
Many other cases to the same effect might be cited, but
The defendant contends that, conceding the contract in question to be a lease and not a license, the plaintiff cannot maintain ejectment as he had not entered into possession of the premises. We are aware of the rule at common law which in the case of an ordinary lease requires the lessee to have been in possession of the premises before he can maintain ejectment against anyone who had ousted him. That is the rule recognized and followed in this state where real property is demised for the purpose of occupancy and use by the tenant. But we are not disposed to enforce it in cases like the present where by the contract the lessee is granted the possession of the land with the sole and exclusive right to mine and remove the minerals therein. In such case, while the tenant is regarded as a lessee, yet by the agreement he obtains title to the minerals and the right to the possession of the premises for removing them. As said in Duke v. Hague, 107 Pa. 57, the tenant has an absolute right of possession of all the surface necessary to enable him to drill and remove the oil and no one else can rightly take out oil during the term, save under him. The contract gives him the right to the oil and to the possession of the land to enable him to remove it. As also said in the Duke case, the whole of the oil, or only a part, may be taken under the lease, but whatever shall be taken is of the substance of the realty. Having ac
It is apparent that the only effective remedy for the lessee is ejectment, by which he may recover possession of the premises. An action on the contract, the ordinary remedy by the lessee for a breach thereof in refusing to give possession of the premises, would be entirely inadequate. The value of the oil to the lessee would depend upon the quantity produced and the fluctuations of the market during the ten years of the lease. It is apparent, therefore, that there is no standard for computing damages which would give the lessee a certain and an adequate remedy by an action on the contract. Such difficulty can be overcome, and the rights of the parties, contesting for the possession of the premises, can be adequately enforced by an action of ejectment in which the party legally entitled can be placed in possession of the oil.
This is not a contest between the lessor and the lessee for the possession of the premises. The lessor concedes to the lessee the right to the oil and to the possession of the premises for the purpose of removing it. This action is by the lessee against a third party who claims adversely to the lessor, and we think he can maintain ejectment which is the only action that will afford him an adequate remedy for his alleged injuries. The right to maintain the action is not decided but is recognized in Messimer’s Appeal, 92 Pa. 168; Long’s Appeal, 92 Pa. 171; Williams v. Fowler, 201 Pa. 336.
The right of the lessee in a mining lease to maintain ejectment was sustained by the common pleas of Luzerne county
The judgment is reversed, and the court below is directed to enter judgment on the verdict,