196 Ky. 290 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
On October 31,1917, R. L. Sears, Herbert Cilio ck and Leslie Cillock, owners of a boundary of land in Allen county containing about 1,000 acres, leased tbe same by a single contract of that date to J. E. Wrigbt and J. Y. Kuykendall. Tbe lands were described in tbe lease as follows: “Said lands being tbat certain tract of land situate in tbe-of-, county of Allen, state of Kentucky, bounded and described as follows to-wit: (here follows a description by adjoining lands), containing 1,000 acres, more or less.” Tbe lease contains tbe following provision: “To bave and to. bold tbe same unto tbe party of tbe second part, its successors and assigns, for eighteen months from date hereof and so long as oil and gas are produced from said premises in paying quantities. ’ ’ Tbe consideration . was one dollar ($1.00) paid to tbe grantors and tbe reservation of one-eighth of all tbe oil taken and saved from tbe premises, and certain sums to be paid for gas wells in case gas was found in paying quantities and was marketed off tbe premises. After tbe making of tbe oil lease tbe lands were divided and sold in tracts. Appellee Harrison and wife acquired about 100 acres. They received their deed January 5,1919, while tbe lease was yet in force. Before
Appellant answered and admitted that it was claiming the right to drill and develop the property under the lease contract and averred “that there is production on this land and that all of said wells have been drilled since plaintiffs purchased this land and while they were living on said land they stood by peaceably and without objection and watched defendant spend thousands of dollars drilling on said land and made no objection whatever, and that the said well was drilled only about two months before this suit was brought, and drilling would have continued except for differences which arose between defendant and the contractors which necessitated some litigation, and that when the last well was drilled that plaintiff knew it and raised no objection to said drilling; that the plaintiff, James Harrison, worked for the defendant, or for the contractor, did some hauling and some other work in assisting to drill the said wells for which he was duly paid; that the plaintiff never objected to defendant’s lease and made no claim that same had expired until after what was thought to he a large producing well on the Buckhannon land adjoining this land, when plaintiff had large offers made for a lease on the land if he could get defendant’s lease cancelled, and that prior to the filing of the said suit the defendant had made a contract with the drillers to go on said land and further develop same, and that on account of the claims, statements and threats plaintiff’s said contractor refused to go on said land, and that prior to the filing of said suit it did procure another contractor who is now drilling on said land and further developing the same. ’ ’
Issue being joined and evidence taken the case was submitted to the chancellor who decreed a cancellation of the lease in so far as it affected the leasehold owned by appellees.- The oil company appeals.
Appellant relies upon an estoppel arising through the acquiesence of appellees in and to the work of development done by appellant in drilling wells on the lease, and further upon the fact that the lease upon the full 1,000 acres was continued in full force and effect by the drilling of other wells in accordance with the terms of contract upon other parts of the lease outside of the tract
It seems clear, therefore, that appellant company had a right to have its machinery and employes on the premises in the middle of September, 1920, at the time it is insisted the contractors moved the drilling machinery, away. This right continued in appellant until it returned and began the drilling of the fifth well of which complaint is made, unless it abandoned the lease, and this depends upon the facts and circumstances. The general rule' seems to be that a lessee who has entered upon and partly explored a lease and has moved off or temporarily suspended operation, may re-enter within a reasonable time after he ceased operation and defeat the lessor’s proceeding to cancel the lease by proving that he did not intend to abandon the premises. • The relinquishment must be actual and the abandonment intentional. These are questions of fact. Thornton on Oil & Gas, vol. 2, p. 1206; Henne v. South Pen. Oil Co., 52 West Va. 192; Bay State Petroleum Co. v. Penn Lubricating Co., 121 Ky. 637. In the latter case Williams, the lessee, entered on the lease and did some development work; he then went away and remained some years. On his return the lessor objected to his entry on the lease and protested against his further work of development but Williams proceeded. * After working for some time and finding no oil in paying quantities, Williams again went away but this time he tore down his structures and took all his property away. We held that this was an abandonment, proven especially by the fa'ct that appellee intended to quit the premises, and this intention was manifested by his razing his derricks and removing all his property from the lease. We held, however, in the case with respect to the first cessation of development work of the lease by Williams, that although the lease had expired by its terms the acquiescence of the landowner in Williams’ work on the lease after his return was such as to work an estoppel against the landowner to claim a cancellation of the lease on the ground of abandonment, saying: “But when appellee (Williams) again abandoned the property he (the landlord) was not estopped to deny the right to return a second time.” The evidence in this case clearly shows that appellant did mot intend to abandon the premises er to cease development of the lease at the time the well drillers moved the machinery from the lease,
For these reasons the judgment must be reversed with directions to dismiss appellees’ petition.
Judgment reversed.