103 Kan. 419 | Kan. | 1918
The opinion of the court was delivered by
The defendant appeals from an order sustaining a demurrer to his answer, and from the judgment entered against him for $100 damages and $50 attorney’s fee, in an action to cancel a gas lease. The Doughertys, in 1903, made a gas and oil lease to J. H. Butler for 20 years, which gave full rights to explore for gas and other mineral, to erect sufficient equipment to take care of any product, to lay a pipe line or remove the product by any reasonable method. It provided that gas would be furnished free of charge at well for residence located upon the land, for domestic use for three stoves and ten lights when gas should be developed on the land. Butler conveyed to Booth, Booth to Axtell, and Axtell to the plaintiffs. The verified amended answer alleged that the lease was filed for record August 1, 1903; that, in a deed to Booth the Doughertys “excepted from the provision of such deed all the rights of the defendant lessee”; that Booth conveyed to Axtell “reserving from such deed the rights of such lessee”; that Axtell conveyed to plaintiff by warranty deed “excepting one certain gas and oil lease given to J. H. Butler dated January 18,1903”; and that the plaintiffs had full knowledge of all the terms and conditions of the lease prior to their purchase of the land, as shown by letter attached to the answer. The answer .admitted that no work or developments of any kind had ever been undertaken under the lease; that the plaintiffs had served notice that they elected to declare it forfeited and void, and demanded that it be released of record; and it was further admitted that neither the plaintiffs nor the grantors had received any rentals or royalties from the lease. The court sustained a demurrer to this answer and entered judgment against the defendant for. $100 damages and $50 attorney’s fee; the plaintiff having alleged damages in the sum of $100, that a reasonable attorney’s fee was $100, and asking judgment for both. The petition to set aside the lease was based on the ground that no work or developments had been undertaken, and that the lease was
“The consideration consists of a promise to furnish gas if it is found on the leased land; it is like a promise to pay $100 for the lease, provided the lessee should find that amount of money in the road. Certainly, the appellant, by his admissions, has established beyond the question of a doubt the absolute want of consideration in this lease.”
It can hardly be said that the lease was without consideration, for if operations had been begun within a reasonable time they would have been rightful and authorized by the lease itself. The amended answer enlarged the effect of the exception clause in the plaintiffs’ deed, which, as appears by the copy set out, was merely a,n exception of the lease in the covenants against incumbrances. An exception of the “rights of the lessee” merely amounts to a leas'e subject to such rights, and it must be concluded that the plaintiffs stand in. the lessors’ shoes and have a right to require the defendant to carry out the express and implied provisions of the lease. It is now thoroughly settled law that such instruments carry the implied condition that operations .shall be begun- within a reasonable time. (Mills v. Hartz, 77 Kan. 218, 94 Pac. 142; Howerton v. Gas. Co., 81 Kan. 553, 106 Pac. 47; Id. 82 Kan. 367, 108 Pac. 813; Collins v. Oil & Gas Co., 85 Kan. 483, 118 Pac. 54; Day v. Pipe Line Co., 87 Kan. 617, 125 Pac. 43; Wheeland v. Gas Co., 92 Kan. 50, 139 Pac. 1010; Alford v. Dennis,, 102 Kan. 403, 170 Pac. 1005.)
In certain instances, as in the Howerton case and in Alford v. Dennis, when the question is one of pursuing operations already begun, and the injury caused by abandoning such operations can reasonably be shown, the recovery of damages, instead of cancellation, is deemed the proper relief. But when, as in the case before us and in Mills v. Hartz, supra, there is no attempt or apparent intention of beginning operations, the lease may be canceled-as a mere cloud on the title.
Under the pleadings and facts apparent therefrom, nothing had been done under the lease for thirteen of its twenty years’ duration, neither was there any intent or disposition indicated to do anything. This situation entitles the plaintiff to a decree of cancellation.
The parties seem to have acted under the provisions of sec
Indeed there is nothing in the brief of the defendant to indicate a contrary view on his párt, the argument presented by both sides being addressed to the right to decree cancellation.
The judgment is affirmed.
