97 So. 597 | La. | 1923
Plaintiff sued defendant to annul a certain mineral lease on land in the parish of Caddo. This court annulled the lease and ordered that defendant, on its demand in reconvention, be paid $20,000 for procuring t?ie killing of a wild gas well on the leased property, with an additional sum to cover the value of gas produced from the well during the first year after its connection with the pipe line. The ease was remanded for the purpose of ascertaining the quantity and value, at 1% cents per thousand pubic feet of the gas so produced. It was further ordered that the sum of $16,014.04, which the court found from the record had been received by defendant from the production of the well, should be applied against the total amount due it for the killing, and from the production, of the well, and that the defendant should continue to receive the proceeds from the well until the balance due was liquidated, reserving to plaintiff the right to pay said balance in cash and resume possession of his property. 152 La. 308, 93 South. 104.
Upon the trial of the case under the order of remand, counsel for both sides submitted an affidavit showing that the value of the gas received after connection of the well with the pipe line was $3,148.30, and judgment was rendered accordingly. It was discovered subsequently that said affidavit was erroneous, as no gas whatever had been produced from the well, because of its extinction, and, on motion, the case was reopened, and judgment finally rendered decreeing:
“That defendant is entitled to receive for the closing of said ‘wild well’ the sum of $25,000, and that all sums received by defendant and its transferors from the proceeds or production of said ‘wild well,’ this being fixed at this time, as $16,014.04, or that may be due thereon, be credited against the said sum of $25,000, and that in payment of the balance, the defendant shall continue to receive the proceeds from said ‘wild well’ until the said sum of $25,000 is fully satisfied, reserving to plaintiff the right, if he so elect, of paying said balance in cash, and thus freeing his property from all other claims on account of the said contract of January 6, 1913. Defendant to pay all costs of this court.”
From this judgment plaintiff has appealed, and defendant has answered the appeal, praying that the judgment be amended by awarding it $3,148.30 for the value of the gas produced by the well the first year it was turned into the pipe line; or, in the alternative, since the original judgment, holding that defendant had received from said well $16,014.04, was based on an erroneous admission of counsel for both parties, the case should be remanded for the purpose of ascertaining whether the gas produced to said amount was from the said “wild well” or from other wells on the leased premises, and, if found to be the product of other wells, the erroneous admission of counsel should be corrected and the credit awalrded plaintiff should be disallowed.
An admission in the record shows that during the first year after the safd “wild well” was closed no gas was taken therefrom, and that the well was not connected with any pipe line for at least several years, if at all, after it was closed.
Plaintiff complains that the effect of tho judgment appealed from is to preclude him from recovering his property, since it permits defendant to retain the same until it receives payment of the balance due from a source from which it cannot possibly be derived, and that the reservation of his right to pay the difference in cash, and then receive his property, affords him no adequate relief, for the reason that defendant has already received more than $25,000 from the
Defendant urges that plaintiff is estopped, and it has filed a plea to that effect, by the admission of counsel on the original hearing that the production of the well was $16,014.-04, for which amount he received credit, from at this time disputing that the well produced gas for the first year.
The controversy, therefor, now stands with a judgment for $25,000 in favor of defendant against plaintiff, subject to a credit, under judgment in favor of plaintiff, of $16,014.04 and such further sums as defendant has received from the annulled lease, in gas taken therefrom, subsequent to the date of the admission of counsel filed in the original proceedings and used as a basis for the prior judgment of this court.
The district judge took the position that he was without authority to go beyond the instructions of this court in its order of remand, and that the only question for him to pass upon was as to the amount and value of the gas produced by the wild well after it had been closed, and his judgment was rendered accordingly.
Technically the district judge was correct, but a strict adherence to this view would leave the plaintiff remediless, since it wopld result, as it has already resulted in the court below, in a judgment impossible of execution in so far as the return to plaintiff of his property is concerned. It is our opinion, in order to bring this litigation to a close, plaintiff should be permitted to show, if he can, that defendant has actually received from the proceeds of the gas more than sufficient to liquidate its judgment of $25,000, and that the case should be remanded for that purpose.
For the reasons assigned, the judgment appealed from is affirmed in so far as it decrees defendant to be entitled to receive for the closing of the wild well the sum of $25,000 and orders that the sum of $16,014.-04 received by defendant and its transferors from the proceeds or production of said wild well be credited against said sum of $25,000.-00, and it is set aside in all other respects,