49 W. Va. 232 | W. Va. | 1901
Thomas B. Harness and Anna K. Harness, his wife, executed the following lease:
“In consideration of the sum of twelve hundred and fifty dollars, the receipt of which is hereby acknowledged, Thomas B. Harness and Anna K. Harness, his wife, of Pleasants County, West Yirginia, first parties, do hereby grant unto M. Finnegan, of Pittsburg, second party, his heirs and assigns all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and-operating for oil, gas or water, and to erect and maintain all buildings and structures and lay all pipes necessary for the production and transportation of oil, gas or water taken from said premises, excepting and reserving, however, to first parties the one-eighth part of all oil produced and saved from said premises, to be delivered in the pipe line with which second party may connect their wells, namely: All that certain tract of land situ-are in the district of Grant, county of Pleasants in the State of West Yirginia, bounded and described as follows, to-wit: on the north by the Ohio river; on the east by lands of W. S. Harness, Sarah A. Bumgardner and Bell Bros.; on the south by lands of Bell Bros, and 0. Williamson and Bull Creek; on the west by lands of Coffin, Alimass & Co. and' Ambrozine Boss, known as the river farm of one hundred and fifty-two acres, belonging to T. B. Harness. And the back lands of thirty-five and one-half acres belonging to Anna K. Harness, containing one hundred and eighty-seven and one-half acres more or less, to have and to hold the above premises on the following conditions: Term of lease two years and as much longer as oil or gas is found in paying quantities. If gas only is found, second party agrees to pay two hundred and fifty dollars each year, quarterly in advance for the product of each well while the same is being used off the premises. Gas free for dwelling house purposes. No well shall be drilled nearer than ten rods to any building now on said*234 premises, without the consent of first party. In case no well is completed within sixty days from this date, then this grant shall become null and void, unless second party shall pay to said first party one hundred dollars for each month, thereafter such completion is delayed. Rentals payable at the Second National Bank of Parkersburg. The second party shall have the right to use sufficient gas, oil or water to run all necessary machinery for operating said wells, and also the right to remove all its property at any time. And all conditions between the parties hereto shall extend to their heirs, executors, administrators and assigns forever. It is hereby agreed and understood that if the well now drilling on the Angus farm should make twenty-five barrels of oil per' day for thirty days after completion then second party shall pay to first party an additional bonus of seven hundred and fifty dollars, if the first well on these premises shall produce twenty-five barrels of oil for thirty days after completion an additional bonus of five hundred dollars shall be paid. Now it is also understood that if the Angus well should produce less than twenty-five barrels of oil per day, and the second well on these premises should produce- twenty-five barrels of oil per day, for thirty days after completion then second party shall pay to the first party seven hundred and fifty dollars, making the additional contingent bonus not to exceed twelve hundred and fifty dollars. And it is further agreed that the second party, his heirs or assigns shall have the right at any time to surrender up this lease and be released from all moneys due, and conditions unfulfilled, then and from that time this lease and agreement shall be null and'void, and no longer binding on either party, and the payments which shall have been made be held by the party of the first part as the full stipulated damages for the non-fulfillment of the foregoing contract.
In witness whereof, the parties hereto have hereunto set their hands and seals this 25th day of January, A. D. 1896.
ThoMAs B. Harness, [Seal]
Annie K. HARNESS, [Seal]
M. Finnegan. [Seal]”
“Witness: R. W. Wallace.”
Which was duly acknowledged and recorded. By a writing dated February 4, 1896, duly acknowledged and recorded, M. Finnegan, in consideration of nine hundred and thirty-seven
Defendant Eastern Oil' Company demurred to the bill, and filed its answer, denying any construction of the lease inconsistent with its terms, and the improper or fraudulent .assignment of a part of the lease by Finnegan to the Eastern Oil Company, and refer to the sworn answer of plaintiffs in the case of Bettman v. Harness, decided in this Court in November, 1896, where the plaintiffs join with Finnegan and the Eastern Oil Co. in maintaining the said assignment of Finnegan to said Company. Alleging that Finnegan had assigned his remaining one-fourth interest to Charles Amsler and that Finnegan had no further interest in the lease; admitting and charging that it had put down two wells on the one hundred and fifty-two acres, that it was done in connection with said Finnegan, that gas was obtained in paying quantities in the Berea grit sand in the first well, and that the well sprayed at the start some five barrels of oil per day, but denied that it could have been made a producer of oil or gas in the Cow run sand, and denies that it was a producer of gas in the big Injun said; charges that it made a show of oil in the Cow run sand, and that nothing was found in the big Injun sand except salt water; that the most advantageous use both to the lessors and lessee of the first well was to case off liquids, from the big Injun sand, and to use the gas from the Berea grit, at the same time preserving what oil could be produced from the Berea, which was done after the well had been fairly tested, and that from the time the well was completed in the spring of 1896, until the present time oil had been produced as well as gas from that well, one-eighth of the oil had been delivered to and received by said Thomas B. Harness and Anna K. Harness, and respondent had further used the gas from that well off the premises, and had regularly and promptly paid in
Plaintiff at April rules, 1900, filed an amended and supplemental bill, making Charles 0. Amsler, P. Langton, P. J Langton and Eureka Pipe Line Co., a corporation, parties, making the original bill a part thereof, alleging that Eastern Oil Co. and Charles 0. Amsler by contract in writing dated December '28, 1899, pretended to convey a one-half interest in said lease to P. and P. J. Langton, except in wells 1 and 2 already drilled on the premises, for whcih interest said Langtons were to begin at once and drill a well to completion on said premises, and to further develop the premises if it was found to be profitable territory, and exhibited said contract; that said matters of transfer
All the defendants except the Eureka Pipe Line Company demurred to the amended and supplemental bill, and filed their answer thereto, adopting the answer of the Eastern Oil Co., to the original bill as far as the same was pertinent, and charge the same was true as of the time it was filed; admit the contract with the Langtons of December 28, 1899; that in September, 1899, they commenced a well on the one hundred and fifty-two acres and completed the same to and through the Cow run sand, that when completed it was absolutely dry and produced no oil or gas, said well marked No. 3, admit that a well had, within the then past sixty days, been completed under the contract with Langtons on the Harness land north of No. 1, and marked No. 4, that said well since about the 1st of March, 1900, had been and was then producing about twenty barrels of oil per day; one-eighth of which had been delivered into the pipe lines of the Eureka Pipe Line Co. to credit of plaintiffs according-to terms of lease of January 26, 1896; deny that either No. 1 or No. 2 were oil producing wells except as to No. 1, the production of which had been regularly paid as to the royalty according to the terms of said lease; deny the abandonment of the lease or any right thereunder, but allege it to be in full force and effect, and had been fully complied with; aver that the lease was executed upon a bonus and actual payment of one thousand two hundred and fifty dollars, paid to plaintiffs and within a year from the date of lease some oil was produced in No. 1, the royalty of which had been regularly paid to plaintiffs. In addition to that the Eastern Oil Co. had paid two hundred and fifty dollars in quarterly installments from August, 1896, to that time to plaintiffs for the use of gas from that well, and that since about August, 1896, plaintiffs had received and used as fuel in their home and residence the free use of gas from well No. 1, and were still using it. Admits that wells 3 and 4 were drilled after this suit was commenced, and after said defendants were notified by Harness not to drill further on the premises, but submit that they or their assignees were entitled to drill said wells, and that said well No. 4, as well as No. 3, was drilled under the terms of the original lease, and
Depositions were taken and filed in the cause for plaintiffs and defendants, and the cause submitted on the 20th of June, 1900, on the bills, demurrers, answers and replications, the depositions and exceptions to the depositions. On motion of plaintiffs the suit was abated as to the Eureka Pipe Line Company. The court overruled the demurrer as to the supplemental bill,' and was of the opinion and so decreed that as to all the territory embraced in the lease of January 25, 1896, said lease being a lease for the purpose of development save and except as to wells Nos. 1, 4, 5 and well No. 6, said to be drilling in said lease, and a
The first and sixth assignments are to the same effect. Ap-pellees insist mat the lease should be cancelled in any event as to the thirty-five and one-half acres belonging to planitiff Anna K. Harness, because it is conceded and defendants do not pretend that they have done anything whatever looking to the development of that tract. An inspection of the lease will show that the two tracts are leased as one tract of one hundred and eighty-seven and one-half acres jointly by the two owners, they were mentioned separately merely for convenience of description, then described as “containing one hundred and eighty seven and one-half acres, more or less, to have and to hold the above premises,”
The appellees in bringing their suit evidently were relying upon Klepner v. Lemon, 176 Pa. St. 502, but after the institution of their suit, and about the time it was heard, the cases of Colgin v. Oil Co., and Young v. Oil Co., supra, were decided, holding that under the decision in the Klepner-Lemon case the court only had equity jurisdiction because of the fraud on the part of the lessee, who had oil and gas leases on adjoining properties, upon which he had put down wells' near the boundaries of plaintiff’s land with the express purpose of securing the oil under plaintiffs’ lands through these wells, in which case the -lessee was required to drill another well to protect the lines of the lessor in default of which the leasehold estate should be deemed to be abandoned except as to the well actually drilled on plaintiff’s land, and a certain specified space around it. In that case Judge Mitchell dissented, and in his dissenting opinion said: “I would reverse this judgment as a flagrant violation of the liberty and sanctity of contracts by raising a purely factitious equity to enable the complainant now to make a better bargain at the defendant’s expense than he chose or was able to make for himself at the time.” The cases of Colgan and Young, 194 Pa. St., virtually overrule Klepner and Lemon. In case at bar, there is an attempt to have their claim for relief on fraud in order to give the court
For the reasons herein given, the decree will be reversed, and the bill dismissed.
Reversed.