*1
(Tex.
298 SOUTH WESTERN REPORTER
656
purpose mining
lee.
leased
writing
term
gas.”
peals. Affirmed.
Judgment
ty; R. T.
if well
ture rental
first
the lease
riod,
certain
commencement
see
Mines
no error committed
dicial to
Court
theory
pellant
relating thereto are overruled.
the
accordingly
not to be switched
notice to
mit a
the time of the accident would
stances. No harm could
track at
dangerous under other and different circum
vious
in an
gent person
lee’s
ears were
switch track at
around
ruling
fered
that
was,
arm.
after
.
WIDLSON,
H.
ulated
Appeal
ments
gas
Sanders &
Suit
The
[7]
Under
paid
case
specified
the
N.
case
a
of
DAVIS
lease
and
Appellant
having
of Civil
place
By
with
707
testimony
obvious
by
Rehearing
judgment
had not
contrary
date,'lease
of the trial
person
that
of
after
by
in
dated
Nelson,
renewal
five
appellant
lessee was
stipulated
should, therefore,
any
according to its
from
C.
an oil
him,
minerals
rests
for
payments
the terms of
apt
Brown, Judge.
the
acres of land
this
need not
so ordered.
the
of
would
trains
R. Davis
forfeiture
years,
payment
Sanders,
v. BUSSEY.
been
moment
O.
Appeals
down under
to
of
January 27,
yards
defendant,
place
District
been commenced
and
on
danger.
Oct.
any moment,
conclusion to stand.
ruling,
and
position
of
rental.
was
Denied Oct.
is not excessive
of the witness
J.
have
should
well
has been
&wkey;j78(2)
and
on
the
rental,
deprived
court
be
Carthage,
not
it is
by the
“for
after
pay
4,
gas lease
switching
of
this track without
and
By
not
which
appellee
for another
of
theory
against
operating
of
for
of the
been switched on
1927.
Court,
and the
required
danger. Any
terminate,
future rental
have resulted to
provisions.
occupied by
We would
the
the
immaterial
having
excluding
Texas. Texarkana.
Center,
to
apt
which
an instrument
failure
prejudiced by
and
be affirmed.
cars,
pointed
trial court
(No.
thereby
of the use
1920,
20, 1927.
—Lessee
appellee,
was
lease,
sole
to come
opinion
that cars were
for
providing
J.
Panola
was
plaintiff ap-
on
and
failed to
like
should
to make
assignments
3431.)
for oil and
to
B.
Swearingen
in
necessarily
for
have been
unless
appellant.
stated
appellant
and
out;
or before
in an
in oil and
appellee
the
pay
forfeited
amount;
not
Bussey.
appellee
'
to
moving
him at
install-
that
appel-
intelli
Appel
Coun- 9, 1926,
on
for a
preju-
of bis
defer
only
prior
that,
prof
stip-
It
that derstood'and
pay
per
les-
and
this
pe-
fu-
ap
the
the
ob
in
is
if
failed to do either.
sion of
tion,
years 1921,1922,
appellee’s
incurred no
it
ing
appellant
land. The instant
that
of
tion at the trial in the court below was that
agreed
ment rendered
to said suit
prayed for in
recovery
to
est
before
appellant
pay,"
to
the date of such
ment dated
so because
court further
mand
other
several
not
ed that
any
mence
on
all other
number of months
as
extending
per acre),
recited
ed to
ferred for.like reasons
der
as follows:
before the
defeasible title to.” See
lessee
which shall
privileges
well for
manner and
commencement of 'a well
707 acres
S. W. 779. The lease contained
was to
shall terminate as
(which
It
The trial court
“If'no well be commenced on said land on or
was
recover
$598
appellant;
aforesaid,
a well and
in
or before
on
appears
to the lessor
of
appellee
any
the trial court rendered
the date when said first rental
After
parties
on
on or before that date shall
optional
January
to
the
to
herein,
or before that
same,
the
pay appellant
turned out to be
opportunities
a
was
rights conferred.”
sought
day, appellee
12
rental
that
the
of
take
favor
drill
pay
covers not
27.th
commenced
appellant
year, aggregating $1,794,
the
lease,
March
Stating
operate
upon
trial court
of
agreed
liability
deferring
months from said
did
in
appellee
but also the
to recover of
former to
period
that
sued
found that
said
after
for the
$12.50
the down
that
day
a well
April 24,
nothing by
his lease
with him to commence
to
27,
therein on the
the record that
and
thereon;
for
not have
reassignment
like
found that
and defended
suit,
successively.
pay rentals,
to
29, 1923,
of
* * *
suit;
that
the Case as Above.
for;
as a rental and cover the
1923,
January
1923.
the
costs.
as
only
showed “a
January
Sustaining
payments
January, 1921,
an acre
to
both
the
(periods?)
$12.50
to
disclaimed
lease,
suit
on the
time
commenced
aforesaid,
reassigned
the consideration
that
appellant
pay
latter
the
Busey
that
that
payment (of $12.50
may
1923,
and refused
commencement
lease the laird
to
that
title to
on
Appellee’s
parties,
598
lessee’s
the sum of
against
and
his suit and in
appellee
pay,
appellee did
and
privileges
per
appellee.
27, 1921,
the
appellant
the latter had
judgment
May 18,
27, 1923,
in his answer
be further de-
land,
appellant
made
or tenders the
date.
by
ground
acres)
never before
recovered
And it is
and
v.
good
duly record-
for
against
the
the
and
acre
stipulations
by
or offer to
rentals,
any
pay
any
an
Davis,
unless the
is
February
the lease
when
option
this lease
the
appellee
and
that
for the
a
any
conten-
conclu-
any
conten-
payable
Rentals
and
instru-
In
or ten-
of the
for
of
grant-
to do
inter-
alone
judg-
drill-
1920,
com-
same
$707,
that
was
The
and
had
first
of a
the
and
not
did
like
un-
de-
the
276
he
he
as
in-
to
or
all
of
topic
Digests
Key-Numbered
other cases see same
and
in all
and
KEY-NUMBER
Indexes
®~>For
*2
Tex.)
DAVIS v.. BUSSEY
657
s.w.)
(298
sought
McLaughlin
577,
not entitled
to was
In
Brock,
to recover as he
v.
225 W.
S.
appel-
optional
on
Cochran,
the view that
with
which
it was
was like Ford v.
Court
the
pay rentals,
that,
Appeals
lee
of.
to
when
fail
Civil
and
he
said:
pay
specified
payable
ed to
the one
as
Jan
pay
“The lessee did not
himself
bind
to
said
uary 27, 1921,
by
(quot
lease
its terms
“the
rental,
payment
by
but the
of the same
him as
ing)
absolutely
became
forfeited as to both a condition for the continuation of the lease
entirely
parties.” Appellant
optional
him,
having
error— was
insists
was
this
with
and
pay
failed to
the same
appellee
the lease
termi-
optional
was
very
to
that
it was not
with
ipso
according
nated
of the
facto
the
to
terms
pay
rentals,
legally
the
but
that he was
stipulation quoted.”
pay
of
bound to
same —and cites decisions
courts of other
this one which
states than
Refining
Davis,
In Humble Oil &
v.Co.
296
support
seem to
Whether
his contention.
287,
Appeals,
S. W.
the Commission of
con-
for,
they
determine,
do or not we will not
struing
stipulation
question
in
a
one
like the
they did,
if we
we would
concluded
not here, said:
ruling
them,
follow
for
of the
we think the
they
failed,
did, on or
“When the lessees
as
to drill a well or
harmony
trial court was in
with decisions
September 4, 1923,
before
approve
we
Jones
of courts of 'this state.
drilling,
payment
¿¡>30
make
the
determined and came to
in
of
a
of
lieu
said
634;
Murphy (Tex.
App.)
v.
253 S.
terms,
Civ.
W.
lease, ipso facto,
per
express
its
as
(Tex.
App.)
Ford v. Cochran
1041;
W.
223 S.
an
This clause
Civ.
end.
provision.
a limi-
McLaughlin
(Tex.
App.)
not a
It was
was
forfeiture
Brock
v.
Civ.
grant,
upon
period
the
of
tation
and,
the term or
575;
(Tex.
225 S.
Civ.
W.
Weiss v. Claborn
pay
upon
as afore-
drill or
the failure to
App.)
884;
219 S. W.
Simms Oil Co. v. Col
by
said,
ceased and
the lease
the estate created
quitt (Tex.
App.)
491;
296
Com.
S. W.
Hum
lessors.”
reverted to the
(Tex.
Refining
&
ble Oil
Co. v. Davis
Com.
judgment
affirmed.
The
is
App.)
Davis v. Bussey
298 S.W. 656
Tex. App.1927Check TreatmentAI-generated responses must be verified and are not legal advice.