53 F. 58 | 3rd Cir. | 1892
The errors assigned are as follows:
First. “In its answer to the said defendant’s first prayer for instructions to the jury, which prayer was as follows, to wit: ‘The lease from W. H. Webb to Or ín Siggins aud John Siggins, by its express terms, is not assignable, except by and with the consent in wilting of the said W. IT. Wobb, and, no such consent having been shown, the plaintiff has shown no such title under said lease as will support this action;’ and wan answered by the court as follows, to wit: ‘Refused.’ ”
Second. “In its answer to ¡he said defendant’s second prayer for instructions, which prayer was as follows, to wit: ‘The lease under which the plaintiff claims, on the one hand requires that the lessee shall prosecute the mining operations therein contemplated with reasonable diligence so long as they shall hold thereunder, and nob cease operations for more than thirty day's, and on the other hand provides for a surrender by the lessees before the expiration of the term. Therefore, if the lessees, or those claiming under them, commence the drilling of a well upon the premises, and after drilling the same to the depth of about 1,500 feet, and while continuing the drilling “stuck” the tools in the well and never thereafter took them out, or in any' manner rendered the well productive of profit to the lessor, but on the contrary' wuolly ceased operations upon the land, and removed their engine an l boiler from the premises, and thereafter made no claim to any light or interest in the premises while the defendant, Hague, was drilling thereon until after he had obtained a large and profitable gas well thereon, such acts and omissions amount to a surrender by act a.ml operation of law, aud the plaintiff cannot recover;’ and was answered by the court as follows, to wit: ‘Refused.’ ”
Third. “In that portion of its charge to the jury which was as follows, to wit: ‘On the other hand it is claimed by the defendants that the whole conduct of the gas company is consistent with, the theory that it gave up the property, failing to strike a productive well, and that its actions must lead to a conviction that it had indefinitely suspended operations aud abandoned the property, and that it was only after the defendant commenced operations and obtained a. good well that the g is company concluded to hold on to its lease. The testimony has been fully reviewed by the counsel, and it is noli necessary that it be again detailed to you. The burden is upon the defendant to satisfy yon upon this question.’”
The court treated the clause of the lease (recited in the first assignment) as a covenant, simply'. The plaintiff urged and stiU urges
This construction has the support of abundant authority. In Doe v. Godwin, 4 Maule & S. 265, the lease contained a similar provision against assigning; and also a provision for forfeiture on breach of other covenants. The court held that there was no right of re-entry for breach of the provision against assigning; that it did not create a condition but a covenant merely. In Crawley v. Price, L. R. 10 Q. B. 302, the lease contained a similar provision; and it was held that the lessor could not re-enter for its breach; that it was not a condition, but a covenant merely; and that a right of re-entry provided for the breach of other covenants, could not, under the circumstances, be applied to it. In Shaw v. Coffin, 14 C. B. (N. S.) 372, the lease contained the following clause: “The tenant agrees that he will not underlet the premises without consent of the landlord.” On its breach the court held that it did not create a condition, for the reason, as expressed, that no words of agreement merely will create a condition; that to produce this effect apt terms must always be employed. In Den v. Post, 25 N. J. Law, 285, the lease contained a similar clause; and upon its breach the court held it to be a covenant merely and not a condition, saying that to war->
The point recited in the second assignment, the answer to which is also complained of, requested the court to say that because of the facts therein stated a surrender by operation of law had occurred. The statement, contains only a part of the facts bearing on the question. The court refused the point and submitted the question of surrender to the jury on all the ev idence. In this we think it was right.
The third assignment is based on the court’s instruction that the burden of proof respecting the question of surrender was on the plaintiff in error. Here again we think the court was right. Ic is immaterial that the testimony respecting the question, on which the plaintiff relied, went in with (he defendant’s proofs. The allegation of surrender was the plaintiff’s — was a part of his case — and he was therefore bound to sustain it, by reference to the necessary proof. Finding no error in the several assignments, the judgment is affirmed.