121 Kan. 478 | Kan. | 1926
The opinion of the court was delivered by
Harry Chisler and Wilbur E. Stone owned some 3,000 feet of oil-well casing, which they leased to D. E. L. Byers for a period of ninety days, the contract reciting that it might be used only upon what was known as the Castleton well. Byers agreed to pay the stipulated rent and return the casing within the time named. Byers had already contracted to drill ■ another well, known as the .O’Halloran, for George E. Gano, and he used this casing on that well. He found himself unable to carry out his contract, and in consideration of $2,250 signed a writing releasing Gano from obligations under it, Gano also< releasing him. At this time Byers told Gano that Chisler and Stone owned the casing, and that they would probably want it or pay for its use. Chisler and Stone demanded the casing of Gano. He refused, to pay for it, and only agreed to let them have it upon condition they would not injure the well in removing it. He said: “Well, it is out there and it is yours; you can go and get it. If you pull it out of that hole, I will sue you for damages.” Stone and Chisler then brought this action against
The question, presented is whether the course of the defendant amounted to such an assertion of title as to warrant a finding of conversion. Cases and texts announcing the general rule with illustrations are cited on both sides, the defendant relying particularly upon an excellent note in 24 A. S. R., 798-801, but the decision here must turn upon the effect in this regard to be given to the particular facts presented. We think the demurrer should have been overruled, upon these considerations: The title and right of possession of the casing was clearly in the plaintiffs. They had done nothing to forfeit the right to follow it into the hands of Gano, who appears to have been advised of their rights at the time he settled with Byers. While he seemed in words to recognize their title and right of possession, he imposed the condition on his consenting to their taking it that they must not injure the well — not that they should not unnecessarily injure it, but that they should not injure it, however carefully they proceeded. This, was in effect a denial of their right to pull the casing, for if they had a legal right to take it they had a right, if they exercised due skill and caution, to do so much incidental injury to the well as necessarily resulted from their doing what was itself lawful — Portia’s decision to the contrary in Shylock v. Antonio notwithstanding. In saying that if they pulled the casing he would sue them, he is fairly to be regarded as denying their right to pull it, for he can hardly expect to be understood as meaning that he would sue otheiwise than to enforce a lawful claim. And to deny their right to pull it was to deny their right to take it, since possession could be obtained by them only in that manner.
The judgment is reversed, with directions to overrule the demurrer.
