3 S.W.2d 760 | Ky. Ct. App. | 1928
Affirming.
This is a suit in ejectment tried and heard in equity without objection, being a companion case of that of W. *364
G. Sawyer v. James Potter, this day decided and reported in
On the other hand, it appears that James Potter, as assignee of another of the subdivisions of the Hogan lease, undertook development east of Newcomb creek in the month of April, 1922, and that, at the expiration of the five-year period, Ison claimed that the Hogan lease had expired and negotiated with him a top lease on the entire 800 acres embraced therein, and executed same on April 15, 1922, in consideration of $2,000. Part of this was paid in cash, and the balance was later paid by Barnett Ross and W.H. Wheeler, assignees of Potter, and who assigned an interest in their lease to the other defendants herein; all of the defendants relying on this chain of title. Appropriate pleadings made up the issues, and on proof heard the court dismissed plaintiff's petition and rendered judgment for costs in favor of defendants. Obviously, in ejectment the plaintiff must recover (if at all) on the strength of his own title, and as both parties claimed under John M. Ison, and as the five-year term for which that lease was executed had expired before the top lease of appellee's assignor, Potter, was *365 executed, it was incumbent upon plaintiff to show that oil or gas was produced on the lease within the five-year term in sufficient quantities to extend the lease beyond that period. He attempted to do so by proof of the drilling of a well in the year 1919 from which small quantities of gas were furnished locally, but none of which was marketed; the proof being in all respects similar to the proof taken in the case of Sawyer v. Potter, supra, to which reference is made for a further statement of facts. In that case we held that it was not shown that Sawyer had accepted the gas as an extension of the lease, and that it was insufficient for that purpose. We see no reason to depart from that finding.
Wherefore, perceiving no error, the judgment is affirmed.