34 W. Va. 49 | W. Va. | 1890
This was an action of unlawful detainer in the Circuit Court of Monongalia by Gully and Murphy against Iiukill for possession of thirty acres of land for drilling for petro-lium-oil and gas, in which there was judgment for plaintiffs, to which judgment Iiukill obtained this writ of error.
The case was decided upon a demurrer to evidence, from which it appears to be a contest between those claiming under two conflicting leases made by Wise for drilling for oil and gas. Wise made to Hays a lease of this thirty acres, dated 30th June, 1886, for twenty years, which on 10th January, 1889, was assigned to Iiukill. Under this lease Iiukill defends.
By lease dated 11th July, 1888, Wise leased the thirty acres to Rezin Calvert for twenty years, and Calvert assigned this lease to Ida C. and Yinnie Calvert on 16th March, 1889, and they assigned it to Guffey and Murphy on 8th May, 1889. Under this lease the plaintiffs claim.
It is claimed by the plaintiffs that the hostile lease to Hays became forfeited under provisions contained in it,
An important question in this case i.s whether or not the lease to Hays became forfeited and of no further force by reason of the failure to bore for oil or pay the monthly sum of one dollar and thirty three and a third cents in lieu thereof, and the subsequent lease by Wise to Calvert; for, if the Hays lease be still in life, Hukill can defend his possession, but, if dead, it affords him no defence. Such boring or the monthly payment of one dollar and thirty three and a third cents as-its commutation, is made by the Hays lease an express condition, for non-compliance with which its life is to cease. But it is earnestly contended for the appellant that such failure does not Wso facto end the lease, but that demand must have been
Does this law apply to this lease? It declares that failure of the lessee to commence operations, or pay one dollar and thirty three and a third cents per month in lieu of so doing, “shall work an absolute forfeiture of this lease,” but contains no provision for re-entry for such omission. Where there is not only a declaration that a certain act or omission shall work a forfeiture, but also that for it the landlord may re-enter, it may plausibly be said that the landlord may or may not choose to enforce the forfeiture by re-entry, and if he elects to so enforce it, he must make such re-entry, as that is the act pointed out by the express terms of the lease as the mode of enforcement of the forfeiture; whereas, when there is no provision for re-entry, it is not required. Is then' this common-law method of enforcing a forfeiture by demand and re-entry applicable to a lease which simply provides for forfeiture for breach of its covenants, but contains no clause of re-entry ? Or rather, in such case are demand and re-entry the only mode of declaring the will of the lessor to enforce the forfeiture ?
Taylor’s Landlord and Tenant (section 492) states the rule as above, but says that the distinction between estates for years and freehold “has been almost, if not quite, abated by the modern decisions, which establish that the effect of a condition making a lease void upon a certain event is to make it void at the option of a lessor only, in cases where the condition is intended for his benefit, and he actually avails himself of his privilege. The English law in this respect has been generally followed in this country, and such lease is therefore held good until avoided, though the lessee is estopped to set it up against the lessor.” In a note to section '492 Taylor says that the original rule, that breach of the condition in a lease for years per se forfeits it, prevails in Pennsylvania, but there have been contrariant decisions in Yew York, and cites decisions in a few other states that there must be some
There is in this case another reason why no re-entry was necessary. The lease let to Hays only the right to bore for oil and reserved the use of the land to Wise for tillage; and he was in actual possession. Ho man can enter upon himself. A man need not make a re-entry, when he is in possession himself. 1 Smith, Lead. Cas. side p. 109, notes Dumpor’s Case; Hamilton v. Elliott, 5 Serg. & R. 375; Co. Litt. 316b, 218b; Sheaffer v. Sheaffer, 37 Pa. St. 525, Alle-
“The relation of landlord and tenant will also be dissolved when the tenant incursa forfeiture of his lease in consequence of the breach of some condition therein con-. tained, and the landlord re-enters upon the premises, -or signifies his intention to treat the lease as void, if it is so expressed in the lease.”
So, where no re-entry is required, he may signify his intention. What did Wise do to manifest his intention to avoid the lease? Tie refused back rent and executed a subsequent lease of the land for oil purposes to Calvert, thus in a signal and unmistakable manner declaring his purpose to end the Hays lease. The common-law, rule above stated required no re-entry, and its modification, as stated by Taylor, and also the last quotations given above from Taylor, only required a declaration of the landlord to treat it as forfeited. And in the case of Alleganey Oil Co. v. Bradford Oil Co., supra, it was held by both the supreme court and the court of appeals of New York that where a lease for boring for oil provided, that, unless the lessee commence a well within nine months, the lease was “to become void and cease to be of any binding effect,” and there was failure to commence, no re-entry was necessary, as the lessor was in possession; and that no notice of the landlord’s intention to enforce the forfeiture was necessary; and that, even if any overt act or notice was necessary, the execution of a second lease to another party was a sufficient declaration of the landlord’s intention to enforce the forfeiture. The deed of an infant is voidable, not void,
The ease of Bowyer v. Seymour, 13 W. Va. 12, is urged upon us as decisive in favor of Ilukill. The lease in that case was made for coal mining, and provided that a failure to pay money, which it stipulated was to be paid for coal, should be considered an abandonment of the lease; and it was held, that, notwithstanding non-payment of such money, the lessor must make a demand for the rent and a re-entry to make the forfeiture complete. But there is a marked line of distinction between that case and this in the fact, that, Judge ITaymoxd says, that was a lease in fee or at least for life, and under the original common-law rule above given a freehold estate could not be forfeited for breach of a condition without demand and re-entry; whereas the lease in this case is a lease for years, which under said rule does not require re-entry. Anything said in that case as to a lease for years would be obiter. I think that case was decided correctly.
The reasons given above are sufficient, I think, to show that the Hays lease is forfeited, and to render it unnecessary for us to pass on the question discussed in argument as to the effect of a lease for years, for the purpose of producing petroleum oil or gas, containing provision- for its forfeiture on breach of condition and a clause of re-entry, or to say whether we would approve the decision of the supreme court of Pennsylvania in Brown v. Vandergrift, 80 Pa. St. 142, so confidently relied on by appellee.
That lease provided that the lessee should begin to bore for oil in sixty days, and that if he should not commence within the time specified he should pay thirty dollars per month, until drilling should commence, and that a failure of the lessee to comply with any of its conditions and agreements should work a forfeiture of his rights, and the lessor might enter upon the land and dispose of it as if the lease
“The discovery of petroleum led to new forms of leasing-land. Its fugitive and wandering existence within the limits of a particular tract was uncertain, and assumed certainty only by actual development found upon experiment. The surface required was often small compared with the results, when attended with success, while these results led to great speculation by means of leases covering the lands of a neighborhood like a flight of locusts. Hence it was found necessary to guard the rights of the land-owner, as well as public interest, by numerous covenants, some of the most stringent kind, to prevent their lands from being burdened by unexecuted and profitless leases, incompatible with the right of alienation and the use of the land. Without these guards lands would be thatched over with oil leases by sub-letting, and a farm riddled with holes and bristled with derricks, or operations would be delayed so long as the speculator might find it hopeful or convenient to himself alone. Hence covenants became necessary to regulate the boring of wells, their number and time of succession, the period of commencement and of completion, and many other matters requiring special regulation. Prominent among these was the clause of forfeiture to compel performance and put an end to-the lease in case of injurious delay or want of success. These leases were not valuable, except by means of development, unlike the ordinary terms for the cultivation of the soil.
If that case was correctly decided, it follows a fortiori that our decision upon this lease, having no clause of re-entry, is correct.
These cases draw a distinction between oil leases and leases of other kinds. The payment of the rent or commutation money to Wise, and his consent to Hukill’s taking-possession under the Hays lease, could have no effect to waive the forfeiture, because such payment and taking possession occurred after the execution by Wise to Calvert of the second lease, which operated as a declaration of forfeiture, and to divest all estate under the Hays lease and invest it in Calvert; and the after act of payment did not destroy Calvert’s' rights.
It is said that the lease of the plaintiffs is itself forfeited because of non-payment and failure to bore for oil within the time specified in it; but that lease is dated 11th July, 1888, and provides for boring a well within six months, and, on failure, then payment of fifty cents per acre, payable within six months “from the time of completing such well.” A tender of seven dollars and fifty cents was made 10th July, again on 11th July, 1889, and refused by Wise, and a tender of fifteen dollars was made 10th January, 1890, and refused. The only acts of disaffirmance by Wise of said lease were such refusals and assent to the entry under the Ilays lease. Forfeiture of this lease could not revest title under the Hays lease, though it might show that the plaintiffs had no title on which to maintain their action; but there was no forfeiture, as the tenders saved it. The contention that chapter 93, Code 1887, provides the only
It seems hardly necessary to say that the contention, that plaintiffs are estopped by standing by and seeing Ilukill spend money in developing oil without setting up claim, is not good. Ilukill began operations early in May, 1889, and it is admitted that on 5th July Guffey and Murphy sent him a formal notice in writing that they had the sole right to drill for oil under'their lease, telling him the very page and book where he would find it on record, and warning him not to drill, lie did not produce oil until November.
The evidence offered *by defendant of the amount of money expended by him in developing oil was properly rejected, as the question was one of right between the parties under their respective claims, and the proposed evidence was immaterial. As to the complaint that plaintiffs were allowed to give evidence that when they acquired their right they had no notice of defendant’s claim, I think it immaterial. If the Hays lease had become forfeited, there was no right under it of which they could have notice. Land Co. v. Laidley, 32 W. Va. 134 (9 S. E. Rep. 61.) As to the exclusion as evidence of the deed of 14th of May, 1889, from "Wise to Ilukill, conveying absolutely all the oil and gas under said tract, it could not affect the right of plaintiffs under the Bezin Calvert lease, made and recorded
Aeeirmed.