65 W. Va. 531 | W. Va. | 1909
August 3, 1901, defendant and wife executed and delivered to West Union Gas Co., a lease, which on the same day it assigned to plaintiff, and whereby in consideration of two hundred and fifty dollars,, and other valuable considerations, the said lessors granted and demised unto said lessee all the oil and gas in and under a tract of one hundred and eighteen acres in Doddridge county and also said tract of land for the purpose and exclusive right of operating thereon for oil and gas, together with other rights usually appertaining to such leases, and containing this habendum: “To have and to hold the same unto the lessee for the term of five years from this date, and as much longer as oil ór gas is produced, or the rental paid thereon.” The lease also stipulates that the lessor shall be paid a royalty of one eighth part of all the oil produced and saved; and thereafter at the rate of two hundred dollars yearly for each gas well as long as gas therefrom is sold, payable within sixty days after commencing
The plaintiff, having paid the cash consideration entered, and regularly paid the quarter annual instalments of rent in advance for the full period of five years, but did not begin the work of drilling for oil or gas until June, 1906, after the last quarter had begun. It owned other leases adjoining and in the same neighborhood, on some of which it had put down wells, the wells drilled, defining defendant's land as gas, but not oil, producing territory. We take judicial notice that gas, unlike oil, can not be brought to the surface and stored to await a market for it, but must remain in nature’s storehouse, and, unless allowed to waste away, taken out only as and when the producer may be able to find customers to take and consume it.
Plaintiff, having 'then invested in bonus money and rentals, twelve hundred dollars, in June, 1906, began a well on defendant’s land, and, about July 20, struck gas in the salt sand at the depth of about 1240 feet, which when gauged, and tested showed a capacity of about 3,000,000 cubic feet per day. After striking
On December 8, 1906 the plaintiff upon its original bill obtained from said circuit court of Doddridge county an injunction protecting it in the possession and occupancy of said land, and enjoining defendant from in any manner interfering with any of its rights specified in said lease of August 3, 1901, and from in any manner interfering'with it in the use, occupancy and operation of said land for oil and gas purp'oses under said lease, and also, from prosecuting his said action of unlawful detainer until plaintiff’s rights under said lease should be settled and determined in this suit, and until the further order of the coiirt. The further prayer of the bill was on the grounds alleged that the court would decree plaintiff vested with the title to and inter
At January rules, 1907, the plaintiff filed an amended bill amplifying the grounds of relief alleged in the original bill, renewing the prayer thereof, and upon hearing upon said original and amended bill and the separate answer of John C. Coulehan thereto and upon the depositions and proofs taken and filed in the cause, the decree of September 7, 1907, appealed from, was pronounced by the circuit court, whereby, the court being of opinion that the evidence did not sustain the material grounds for relief alleged, decreed that said injunction bo wholly dissolved, the plaintiffs original and amended bills dismissed, but though expressing no opinion as to the production .of gas in the salt sand, reserves to plaintiff the right to interpose the same as a defense to said action of unlawful detainer.
The grounds for relief alleged and especially relied upon by plaintiff are; (1) That having for the consideration paid and acknowledged, purchased the lease, promptly paid all the bonus and rental money for the full term of five years and within that period having actually discovered and produced gas in the salt sand, it thereby acquired a vested estate in and the right to produce oil and gas according to the provision of the lease; (2) • That whether or not the first ground be good it could, and but for the alleged improper conduct and interferenee of defendant, it would have discovered and produced gas in the Indian sand before the five years expired.
The defendant relies upon the theories: (1) That even if oil and gas was discovered in the salt sand in July, it was not util-' izecl, but abandoned, evidenced by drilling deeper, pulling the casing, whereby it was drowned out by the water and defendant thereby deprived of the use of the gas therefrom for domestic purposes according to the terms of the lease; (2) That by the provision of the lease the term of five years expired at midnight of August 2, and not as plaintiff claims at midnight of August 3, 1906, and that there was no such interference on his part with the completion of the well in the Indian sand within the five years, as claimed by Mm; as to entitle plaintiff at law or in equity to an extension of time, and that therefore the rights of plaintiff under the lease were wholly terminated at midnight of August 2, if not then certainly at midnight of
By its decree the court below was manifestly of the opinion that the bill presented no grounds of equitable relief, and that whatever rights, if any, plaintiff acquired by its alleged discovery of gas within the five years was available at law as a defense to defendant’s suit of unlawful detainer, wherefore its reservation in the said decree. If plaintiff’s rights depended solely on discovery of gas in the first sand, there would be force in this view of the Court, although jurisdiction in-equity to settle all questions as to the validity and'priority of leases, for oil and gas and other minerals and mineral rights, where the parties claim under the same title, has been established by a long line -of decisions of this Court, beginning perhaps .with Thomas v. Hukill, 34 W. Va. 385, and including Williamson v. Jones, 39 W. Va. 231; Bellman v. Harness, 42 W. Va. 433; Crawford v. Ritchey, 43 W. Va. 252; Steelsmithi v. Gartlan, 45 W. Va. 27; Lowther Oil Co. v. Guffey, 52 W. Va. 88; Lowther Oil Co. v. Miller-Sibley Co., 53 W. Va. 501; Pyle v. Henderson, 55 W. Va. 122; Siam v. Huffman, 62 W. Va. 422, and other cases, and ending with Suit v. Hochstetter Oil Co., 63 W. Va. 317, and Pheasant v. Hanna, 63 W. Va. 613. Jurisdiction in equity was maintained in many of these cases on the well recognized grounds of avoidance of multiplicity of suits, removal of cloud and quieting of title, accounting, avoidance of forfeiture and specific execution of. contracts. And it has been held by this Court in Kilcoyne v. Oil Co., 61 W. Va. 538; Knotts v. McGregor, 47 W. Va. 566, and Headley v. Hoopengarner, 60 W. Va. 626, that the covenant for peaceable and quiet possession implied in every lease for oil and gas is not limited to the right of exploration, but extends also to the right, after finding oil or gas, to produce the same, and that injunction is the proper remedy for enforcement of such covenant or to protect the.exclusive right of the lessee under the contract. Transportation Co. v. Pipe Line Co., 22 W. Va. 621; Tufts v. Copen, 37 W. Va. 623; Brown v. Spitman, 155 U. S. 673. In Pennsylvania we find it has been held that a preliminary injunction will be awarded against a lessor where he has made a re-entry under a claim of forfeiture and the claim is disputed on every ground on which he puts it. Thornton on Oil and Gas, 120, citing, Poterie Gas Co. v. Poterie, 153 Pa. St. 10;
But as we view this case the rights of the plaintiff are not wholly dependent on the discovery of gas in the salt sand. The fact of such discovery within the meaning of the lease, is controverted. The question whether the gas in that sand was not abandoned and the rights of the plaintiff, if any, lost thereby, •are raised here, and no doubt would be raised in the trial of the action at law, so that if the plaintiff has any other rights of an ■equitable nature to assert against the defendant of which a court of equity can take cognizance, or its defense at law would not be as complete, adequate and certain as in a court of equity it should not be required to relinquish its equitable rights. Hoggs Equity Proe., § 3, and state and federal cases cited. Eaton on Equity 31, and cases cited. As the Court said in Nease v. Insurance Co., 32 W. Va. 283: "A doubtful or partial remedy at law does not exclude the injured party from relief in equity.” And in Robinson v. Braiden, 44 W. Va. 183: “A defendant at law, having a legal defense to the action, and a distinct ground for equitable relief against the plaintiff’s claim may bring his suit in equity without waiting for the determination of the action at law, and may, without being compelled to waive his legal defense by confessing judgment, have a hearing in the court of equity on the merits of his case, and a decree for the proper relief.” These cases were affirmed in Gas Co. v. Window Glass Co., 63 W. Va. 266. Equity retains its jurisdiction to relieve from a forfeiture notwithstanding it may be relieved at law. Hoggs Equity Proe., § 587, p. 678, citing 2 Story Equity Jur. (4th Ed.), § 1301. Indeed this is such a well recognized rule that it requires no citation of authority to sustain it.
One of the questions presented, but particularly applicable to the rights of the plaintiff involved in the discovery of gas in the second sand, but somewhat apropos also to the discovery of gas in the salt sand is, when did the five years term expire ? It
But it is claimed that the receipts taken by plaintiff for the quarterly installments of rent show a different construction by the parties, which should prevail. We do not think so. The rule invoked is applicable only when the words of the instrument are ambiguous.
Now as to the two main questions. Eirst, was gas discovered in the salt sand, and if so did the plaintiff thereby become vested with an estate in the right to produce oil and gas, which has not been lost by abandonment or otherwise? It is not controverted that gas in some quantity was struck in this sand; but an effort was made, and some evidence offered, tending to show that it was not of sufficient quantitv for profitable production, and
But suppose we are wrong in our conclusion on the first question, what rights, if any, did the plaintiff acquire by the slightly belated discovery of gas in the Indian sand ? It is conceded the Indian sand was not penetrated and the gas gotten there until about one o’clock of August 4, some twelve hours after the five years had expired. What is the proper construction of the lease as to time? It is for five years from date and as much longer as oil or gas is produced or the rental paid thereon. If oil or gas was produced within the five years given for exploration the full term thereof was as surely for as much longer as oil or gas should be produced, as it was for the term óf five years in which to explore. Failure to produce oil or gas within that time therefore, while not strictly or technically working a forfeiture of any further right to explore or produce oil or gas, it resulted in the same thing to plaintiff, and we perceive no reason why in a proper ease equitable principles applicable in cases of technical forfeiture should not be applied. The same necessity therefor, in order to prevent a gross injustice, may arise in the one case as in the other. It is said, however, that in contracts of this kind time is of the essence 'thereof, and this proposition, for which authorities are cited by counsel, is not controverted; but the case we have in hand is one where the plaintiff was legally entitled to the full term of five years given for exploration, without let or hindrances of the lessor; indeed the lessee by the implied covenants of his deed was entitled to the protection of the lessor therein. The evidence satisfies us that though defendant may not have been guilty of serious breach of the implied covenants of his deed, yet that he was anxious the lessee should fail to get to the Indian sand in time, did nothing to aid him,
Do these facts and circumstances give rise to no equitable rights against defendant? Shall he be permitted to take advantage of his own wrong in this way? And if he had not so interfered and the well could not have been drilled in within the time, are there no principles available to a court of equity upon which the plaintiff can be relieved from the gross injustice which the defendant seeks to inflict upon it? The plaintiff was acting in good faith, had invested large sums of money; the defendant lost nothing, but he got the benefit of the successful search, and wherein has he been wronged? Defendant's counsel cite us to Thornton on Oil and Gas, § 141, for the proposition that “although a well be commenced in time if it be not completed in time the lease will terminate." For this Thornton cites Clem-inger v. Baden, 159 P’a. St. 16, a ease in which though the well was commenced in time, there was no .intention to complete it in time. It was not begun in good faith, and it was very properly held the beginning of the well did not prevent a forfeiture. The other cases cited are of the same character, and are not, we think, in conflict with the conclusion we have reached in this case. A lessor should not be heard to complain of a default caused by himself, or permitted to take advantage of his own wrong. Delmar Oil Co. v. Barllett; 62 W. Va. 700; Chenny v. Libby, 134 U. S. 68; Stahl v. Van Vleck, 53 Ohio St. 136; Hukill v. Guffey, 37. W Va. 426.
We perceive that upon the facts shown, the plaintiff is entitled to relief by injunction upon at least two well recognized grounds of equitable jurisdiction: First, upon the principle applicable in cases calling for relief from a forfeiture; second, upon the ground that where there has been a substantial compliance with the contract and gross injustice would be inflicted upon the plaintiff by denying him relief, relief should be granted. As we have said the case in hand does not strictly speaking, in
blow on the subject of substantial performance of the contract. There can certainly be no question as to the fact that the plaintiff substantially performed its contract. It had discovered gas in one sand and was about to find it in a lower sand in still greater quantities, and we cannot say from the evidence that but for the improper interference by the defendant with its operation it would not have discovered the gas in the lower sand within the term of five years. Where there has been such substantial performance of a contract, equity may set aside or disregard a forfeiture occasioned by a failure to comply with the very letter of an agreement. 1 Pomeroy, section 451, page 756, citing Hager v. Buck, 44 Vt. 285 (8 Am. Rep. 368), and Bliley v. Wheeler, 5 Colo. App. 287. And this Court in Railroad Co. v. Triadelphia, supra, page 517, recognizes the doctrine announced in Henry v. Tupper, 29 Vt. 358, opinion by Chief Justice Redfield, that relief may be granted in equity even where the condition is for the performance of collateral acts.
Eor the reasons given we think the plaintiff has made out a case entitling it to relief in equity and the decree which the circuit court should have entered will be entered here, making-perpetual the injunction awarded upon the original, and prayed for therein and in the amended bill, and that the plaintiff have its costs in this Court and in the circuit courl in this behalf expended.
Reversed and Remanded.