76 W. Va. 207 | W. Va. | 1915
Plaintiff brought this suit against the Hope Natural Gas Company, praying that it be enjoined from interfering with his right to take and use, for domestic purposes, free of charge, the gas from defendant’s gas well situate on his land. A temporary injunction was awarded; and defendant gave notice that it would move for its dissolution. Plaintiff appeared and resisted the motion, which was heard by the judge in vacation, upon the bill, answer and affidavits taken, pro and con; and the judge took time to consider thereof. On the 25th of February, 191*1, at a special term of court, he overruled the motion, and continued the injunction in force, until further order of the court. The cause was thereafter fully matured, and heard upon the pleadings and numerous depositions taken by the respective parties, and a final decree entered on the 15th of September, 1913, holding that plaintiff was entitled to gas from defendant’s well for domestic purposes, free of charge, to be consumed on the land on which the well was situate, and not elsewhere, and dissolving the injunction and dismissing plaintiff’s bill; and he has appealed.
The land, described as containing 221.47 acres and situate
In the year 1904, the South Penn Oil Company assigned to the Hope Natural Gas Company the gas and mining rights in connection therewith, on the Lyon land; and, in 1905, it drilled a producing gas well thereon. In the latter part of 1906, plaintiff applied to it, through its agents in the field, for gas from the wrell for domestic purposes; and, in January-or February, 1907, his line was connected with one of defendant’s pipe lines which connected with other wells than the well on the Lyon tract. He continued to use the gas thus supplied until he was disconnected by defendant on June 13, 1910. He thereupon moved his line, and connected it up with the J. O. Ice line which was fed by the gas well on the Lyon tract; and he wjas again cut loose. He then brought this suit to enjoin defendant from interfering with his right to connect
Defendant has taken much evidence to prove that the connection with its line was made without authority; and there is some conflict in the testimony, as to which one of defendant’s agents did make the connection. But, in view of defendant’s admission, it is unnecessary to consider this conflicting testimony. That defendant knew plaintiff was connected with its line, and was using gas, free pf charge, in his dwelling house, not on the leased premises, is, we think, abundantly shown. All of its field agents, who had charge of its lines in that vicinity during the time plaintiff was using gas, must have known that he was consuming it off the leased land. A letter to plaintiff from defendant’s home office in Pittsburg, written by John G. Pew, its vice-president, on December 30, 1908, exhibited with plaintiff’s deposition, proves that it knew he was using gas, free of charge, from its line. In this letter Mr. Pew complains of leakage in plaintiff’s pipe line and of using an open outside light; and he closes by saying: “We do not object to your using an outside enclosed light of a Welsbaeh or similar pattern but all others must be disconnected.” This letter was accompanied by a circular one, intended for consumers of gas generally, in defendant’s territory, and it calls attention to the great waste of gas in the field, on account of leakages in private lines, and to past efforts by the legislature and public
Plaintiff, of course, had not the right to demand free gas from any of defendant’s wells, except the one on the Lyon tract; • still, as long as defendant supplied him with free gas, it was immaterial to him where it came from, provided it cost him no more to make his connection with the line or well. But his right was limited to the wells on the Lyon land; and he could demand that he be supplied with gas therefrom, on making Ms own connection, so long as he owned the surface of the Lyon tract, and the wells thereon produced gas. That the Lyon well was producing, at the time this suit was brought, is proven, by Mr. Lyon who testified that he was still receiving, from defendant, his gas well rental of $400 per year. If the well were not flowing it would not be paying.
Defendant seeks to excuse itself for denying free gas to plaintiff, on the alleged ground that it is not bound by law, or by the terms of its covenant, to furnish free gas for domestic purposes to plaintiff’s dwelling house situate off the Lyon land. The lease is silent as to where the free gas is to be consumed, and defendant insists that the law confines its use
The' legal question presented for decision is this: Has plaintiff, owning both the land and the covenant for free gas from the wells thereon, for domestic purposes, the right to carry the gas off the land for his consumption? The covenant for free gas, although running with the land, is, nevertheless, a part of the consideration of the lease. Thornton on Oil and Gas, Sec. 226. What right has the lessee to say how the lessor shall use the consideration, so long as his burden is not increased? A covenant running with the land need not, necessarily, be performed on the land itself. 11 Cyc. 1080. “A covenant is capable of running with the land, although not directly to be performed on it.” Van Rensselaer v. Smith, 27 Barb. (N. Y.) 104. See also, Norman v. Wells, 17 Wend. 136. There is certainly nothing in the public policy, - which would prohibit the owner of the land and covenantee for free gas, from consuming it off the premises; and we find no reason for so interpreting the lease. If the purpose was to confine the use of gas to a dwelling house on the leased premises, why did not the covenantor so stipulate? The subsequent conduct of the parties, given practical construction to the covenant, indicates that they did not so intend. Consumption of the gas, elsewhere than on the land, does not destroy the real character of the covenant. The covenant runs with the land regardless of where the gas is consumed, because it issues out of the land and is a benefit to it. As before stated, defendant is interested only in the quantity consumed. It is bound, however, to furnish gas for one dwelling house only; and has a right to demand that plaintiff keep his pipe lines and appliances in good repair, and use a closed light on the outside, with a Welsbach, or some
Defendant’s counsel have assigned cross-error. One is that defendant was improperly refused permission to file an amended answer. This was not error. The amended answer was tendered after the issues had been made and numerous depositions taken, and after' the cause was ready for final submission. Defendant does not show sufficient reason why he should have been allowed to amend. The rule is much stricter in regard to amending answers than bills. Ratliff v. Sommers, 55 W. Va. 30. It is largely within the discretion of the chancellor, and we do not see that he has abused his discretion in this instance. Liggon v. Smith, 4 H. & M. 407. The statute permitting a defendant to file his answer any time before a final decree, has no relation to amendments. Plaintiff’s case is disclosed by his bill, and defendant is supposed to be fully advised 'of his defense before answering. Moreover, both the bill and answer were sworn to in this ease, an additional reason for refusing amendment. The other cross-assignments are sufficiently answered in the discussion of the principal question concerning the nature of the free gas clause in the lease!
The decree will be reversed and a decree entered here reinstating the injunction and requiring defendant to permit plaintiff to connect his private pipe line with the well on the Lyon tract of land, or with its pipe line running thereto, as it may elect.
Reversed, decree entered here.