25 Colo. App. 162 | Colo. Ct. App. | 1913
On August 13, 1909, appellee filed Ms complaint in the district court to quiet title to certain lands and water rights in Boulder County; the bill contained the usual allegations, in proceedings of this sort where brought under the code. No question is made as to the ownership or possession of the property, the title to which plaintiff seeks to have quieted; both are in plaintiff. But the defendant below, appellant here, claimed an interest in the land and water rights by virtue of a certain purported oil and gas lease. Judgment was rendered in favor of plaintiff, from which judgment the defendant, Davis, brings this appeal.
1. . The purported lease upon which appellant bases his claim of interest in the land, and to cancel which
2. The lease, as we have pointed out, imposed no positive Or certain obligation upon the lessee therein named. It purported to tie up, not only the land, but the water rights incident thereto, for forty years, and purported to give a right during all that time to said lessee (without any corresponding obligation upon him) to prospect the land for oil and gas, construct and maintain machinery, pipe lines, buildings and railroads upon the land, with the right to remove all such improvements; it gave him the further right to sublet any or all of the premises, and to assign and transfer any and all rights by him acquired under the lease. The defendant is not shown to have paid any consideration whatever for the lease, nor is he required by the terms thereof to expend a dollar in money or a day in time in prospecting, searching for, or developing oil or gas wells on the land therein described. Neither did Davis attempt to show on the trial that he had entered upon the work, taken possession of the land, nor that he had any intention of .so doing. All that Davis.appears to have done under the lease was to place it of record, thereby casting a cloud upon appellee’s title. Under these circumstances the lease was voidable at the option of the lessor, or his successor in title, at any time before the lessee, by performance, had supplied the lack of both consideration and mutuality, and made the contract binding and enforcible; and he had the right to withdraw therefrom at any time before performance by the lessee, since the instrument which the parties have termed, and which, we, for convenience, have referred to as a lease, is, properly speaking, but a lease option.—
Judgment Affirmed.