53 W. Va. 206 | W. Va. | 1903
Lead Opinion
James W. Morrow, died intestate on the 25th day of March, 1878, seized and possessed in fee of a tract of land, containing
On the 2nd clay of November, 1888, said Emma Morrow, in her own right, and as guardian of said infant children, by written agreement of that date, without first obtaining authority so to do, under chapter 83 of the Code, leased to- John McKeown, for oil and gas purposes, for the term of twenty years, one hundred and thirty-five of said one hundred and seventy-five acres. This lease was duly admitted to record, and recorded in the office of the clerk of the county court of Hancock County on the 14th day of February, 1889. The lessee was, by the terms of the lease, to deliver to the lessor the orie-eighth part of the oil discovered or produced, on the premises described, and to deliver the same in tanks or pipe lines to the credit of the party of the first part. The lease recites that “the sum of $4,500.00 is given and received as consideration for the above lease.” McKeown, under this lease, entered upon the land, drilled two holes thereon, one of which had a small showing of oil before either of said children became of age; and in 1890, he removed therefrom with his tools and fixtures, and has not, since that time, done any further drilling for oil or gas thereon. Some time prior to the 24th day of September, 1898, said McKeown died, leaving heirs. On the day and year last aforesaid, Sarah McKeown, B. D. J. McKeown and Scott McKeown, heirs of the said John McKeown, assigned and transferred said Morrow lease to Sutton Brothers, who are defendants in this suit, which assignment was also recorded on the 17th day of October, 1901, in said clerk’s office. On the 4th day of August, 1900, by their agreement in writing of that date, said Emma, Walden, and Geogre Morrow leased said one hundred and thirty-five acres of land to Wm: A. Haskell, for the period of one yeaT,
On the 18th day of October, 1901, Haskell Brothers, a firm composed of said Wm. A. Haskell and Frank Haskell, (the latter being interested in the lease of August 4th, 1900), Emma Morrow, Walden Morrow and George Morrow, presented their bill in equity to the judge of the circuit court of Hancock county, duly verified by affidavit, alleging substantially the foregoing facts, and also that said Hutton Brothers had continued their operations on said land; had held possession thereof for that purpose; and were producing oil therefrom, to the h'reparable loss and damage of plaintiff, without any right or title so to do; ‘ that said Sutton Brothers had produced large quantities of oil from said land, which was then in the lines and tanks of The Eureka Pipe Line Company unsold or otherwise disposed of. The bill also alleges that the said Mc-Keown. lease was and is illegal, null and void, of no binding force whatever, and .did not pass to the lessee named therein the interests of said, minor children in said tract of land for any purpose whatsoever; that said minors were then of full
The said judge thereupon granted an injunction, which inhibited, enjoined and restrained Sutton Brothers, their agents, etc., from further drilling for oil and gas upon said tract of land; and also inhibited, enjoined and restrained the said Sutton Brothers, and the Eureka Pipe Line Company from selling or otherwise disposing of any oil, which had been run into the lines of said pipe line company, or any oil that might be produced from the said tract of land, until the further order of the court. On the 31st day of December, 1901, a motion was made by the defendants in the said circuit court to dissolve said injunction; and the cause, as to said motion, being then heard upon the bill, duly verified, the order of injunction, the process duly executed and motion to dissolve the injunction, said motion was overruled and disallowed.
The answer of said defendants, Sutton Brothers, was then filed. It admits many of the allegations of the bill, but denies that said lease made by Emma Morrow, in her own right, and as guardian as aforesaid, to John McKeown, was or is illegal, null, or void, and of no binding force whatever. On the contrary, defendants aver that the lease, when executed, was a valid lease, in so far as it undertook to grant to the lessee the interest of the said Emma Morrow, as the widow of said Jame? W. Morrow, in the oil and gas in or under the l’and described in
The answer further avers that the circumstances attending the making of the said lease, and the circumstances which have since taken place, are such as to make the said lease valid in all of its particulars and details, with respect to the rights in the said land of the said George Morrow and Walden Morrow, as heirs at law of the said James W. Morrow, and to estop the said George Morrow and Walden Morrow from repudiating or denying the said lease and from interfering with said lease or the rights of these defendants thereunder. Defendants allege that when the said lease was made, the said McKeon paid the said Emma Morrow, in consideration of the making of the lease, the sum of $4,500.00, and that the said Emma Morrow treated the money so received from the said McKeown as though it belonged to the estate of the said James W. Morrow, deceased, and to her said wards as the heirs and distributees of the said estate. Defendants allege upon information and belief that there were in existence at the time of the making of the said lease, and of the receipt by the said Emma Morrow of the said $4,500.00 paid to her by the said McKeown, a number of large debts due by the said James W. Morrow at the time of his death, which were charges against his estate, and that the personal estate left by the said James W. Morrow was wholly insufficient to discharge these debts, so that they were charges upon the real property of which the said James W. Morrow died seized, and the real estate including and described in'the said lease; that one of these debts, amounting tc the sum of twelve hundred dollars or more, was due to one Robert Morrow, and another, amounting to the sum of twelve hundred dollars or more, was due to William A. Walden, and another for a considerable sum, although the amount is unknown to defendants herein, was due to Susan Colvig; that out.of the said sum of $4,500.00 paid to her by the said McKeown, the said Emma Morrow paid and discharged the said three debts clue to Robert Morrow, William
Depositions were taken and filed in the cause by both plaintiffs and defendants. On the 25th day of April, 1902, the cause was heard before, and submitted to, the court, and a decree was therein made and entered, declaring the said lease made by Emma Morrow, in her own right, arid as guardian, to John McKeown, bearing date on the 2nd day of November, 1888, to be illegal, null and void; the temporary injunction.awarded theretofore, was perpetuated; and the cause was referred to a commissioner to ascertain and report an account of the oil and value thereof, produced from the said land by Sutton Brothers. From the said two decrees, defendants appeal, and say that it was error for the circuit court to overrule the defendants’ motion to dissolve said injunction; error to decree that the McKeon lease was illegal, null and void; error to declare the McKeown lease absolutely void, and to refuse to recognize, at least, the rights of defendants under it, derived from Emma Morrow’s dower interest in the land.
The first question to be considered and determined is the alleged invalidity of the lease to McKeown,-
The said lease, tested by the authorities cited, was and is without legal validity to bind Walden and George Morrow, or either of them. As above shown, it is claimed by the defendants in their answer that said Walden and George Morrow are estopped from refusing to be bound by said lease.
It appears by the evidence that McKeown, about a year after the date of the lease to him, drilled one well on the land in which there was some showing of oil; that he then drilled a dry hole; that afterwards, in 1890 or 1891, he moved everything belonging to him from the land, and has not since operated thereon; that he has made no claim to said land since his removal therefrom as aforesaid; and that he has paid no rentals or royalties for said lease to the said Emma, Walden and George Morrow, or to either of them. The evidence proves the receipt of said $4,500.00 by Emma Morrow from said McKeown and the disbursements and use of the same by Emma Morrow, substantially as stated in said answer. It is also shown that Mrs. Morrow made objection to said Sutton Brothers coming upon the land to operate under said McKeown lease, and that this objection was made to said Álden H. Sutton, just as he was coming upon the land with the first load of materials, on the first day that they were working on the land. It is further shown that the said written notice was served on said Allen H. Sutton on the 19th day of January, 1901, after defendants—
It is also claimed by appellants that Emma Morrow had the right to convey her own interests in the land, whatever they may have been; and that under the McKeown lease defendants were entitled to all of the oil and gas rights which she owned; and were entitled to stand in her place with respect to the oil and gas in the land.
As stated in South Penn Oil Co. v. McIntire, et al., supra, p. 305, “Petroleum oil, as it is found in the crevices of the rock, is part of the realty, and embraced in the comprehensive idea which the law attaches to the word land/ ” In Wilson, et al., v. Youst, et al., supra, p. 834, it is also said: “So, Washb. Real Prop. p. 208, states the law thus: A widow is entitled to dower
Emma Morrow's dower in the land has never been assigned to her. In George v. Hess, 48 W. Va. 534, 537, the court says, citing 10 Am. & Eng. Ency. Law, (2d Ed.) 144: “In fact, that work, page 147, says that until actual assignment of dower, the widow cannot alien or subject her dower to the payment of debts, and that neither process of law nor her own act can transfer her right to a stranger so as to confer on him a right of action at law for the dower. She cannot convey her contingent dower.” Again, on the same page, it is stated: “She is not seized of any part of the land, on the death of her husband, by any right of dower, until it is assigned to her.” Emma Morrow, therefore, could not and did not, in the legal sense, transfer or convey her dower interest in said land to MeKeown by said lease of November 2, 1888. She had no other interest in the land. The said lease to MeKeown was and is void, and is of no effect as to the Morrows, or either of them. It was not ratified by either Walden, or George Morrow. In order that a contract, made during infancy, may be ratified after full age, it must of necessity be a contract merely voidable. The lease under consideration being void, cannot be confirmed. Nothing
The most important question in the ease to be determined is the extent to which a court of equity will take jurisdiction of, and finally adjudicate between, the parties, the matters alleged ini the bill. It is urged here that the acts of the defendants are mere trespasses, for which the plaintiffs have a plain, adequate and complete remedy in an action at law. The bill alleges that James W. Morrow died seized and'in possession of said tract of' land. It appears that it descended to. Walden and George Morrow in fee, subject to the dower interest therein of their mother, Emma Morrow; and that plaintiffs were in pos
Although the McKeown lease was void, for the reason stated, it had been placed on record, and the assignment thereof to Sutton Brothers, as well; and .was then asserted by said Sutton Brothers as valid and binding on the plaintiffs.
Having determined that the court can and will take jurisdiction as to the cancellation of the McKeown lease, and the removal of the cloud which it creates on the plaintiff’s title to said land, and that the temporary injunction was properly awarded and continued in force, what is the further duty of the court? Must the plaintiffs be dismissed and sent to a court of
By retaining the cause and adjudicating the matters in difference between the parties, a multiplicity of suits may be avoided. 1 Pom. Eq. Jur., sec. 243, says: “The multiplicity of suits to be avoided, which are generally actions at law, shows that the legal remedies are inadequate, and cannot meet the ends of justice, and therefore a court of equity interferes, and although the primary rights and interests of the parties are legal in their nature, it takes cognizance of them, and awards some specific equitable remedy, which gives, perhaps, in one proceeding, more substantial relief than could be obtained in numerous actions at law. This is the true theory of the doctrine in its application to the two jurisdictions.” The author, in the same book, at section 181, says: “The concurrent jurisdiction of equity to grant remedies which are legal in cases which might come within the cognizance of the law courts is materially affected by the operation of two> important principles, which are now merely stated, and which will be more fully discussed in a subsequent section. The first of these principles is, that when a court of equity has jurisdiction over a cause for any purpose, it may retain the cause for all purposes, and proceed to a final determination of all the matters at issue. Eor this reason, if the controversy contains any equitable feature or requires any purely equitable relief which would belong to the exclusive jurisdiction, or involves any matter pertaining 'to the concurrent jurisdiction, by means of which'a court of equity would acquire, as it were, a partial cognizance of it, the court may go on to a complete adjudication, and may thus establish purely legal rights and grant legal remedies which would other
Little, if anything, can be added to what has been so well stated in Bettman v. Harness as to the characteristics of irreparable injury to real estate. We know that lands worth in the market practically nothing, a few years ago, by reason of the discovery of coal, oil or gas thereon, or near thereto, how sell for large sums per acre. While the quantity and quality of coal can be substantially ascertained by proper tests, m> one can determine in advance the amount of oil or gas which may be produced; how much will be lost by unskillful or negligent operations in its production; or how much it would realize in money, were it to remain in the earth a few years longer. It will not do to say that it is to the interest of the land owner to have exploration and development of his holdings; that he generally wants his coal, oil and gas produced and marketed; and that the trespasser who takes those valuable properties, — parts of the real estate, can be compelled to respond therefor in damages. It is true that the quantity of oil or gas actually run into the pipe line may be accurately astertained, and the value thereof determined by the market value at that time; but who can measure the amount of the part, which may escape or be destroyed by conflagration or otherwise in its production ? Unlike timber, coal and' marble, oil and gas are “fugitive” and “volatile” in character. The owner may lease his lands therefor to a person of his own selection; but because he does so a trespasser should not be- accorded the same legal rights on or to the land, as the lawful lessee thereof.
The owner is not obliged to surrender, whether he will or not, his property to another individual. The State, by virtue of its authority of eminent domain, cannot take or injure private property for public use, without just compensation, to the owner thereof. The trespasser should not be permitted to take the most valuable part of the freehold from the owner; waste it by his negligence or unskillfulness; then escape liability with such damages therefor, as may be ascertained and fixed by a court or jury; and afterwards, perhaps, be entirely relieved from any payment, by the use of an exemption list, under the statute, or a proceeding in bankrupty.
It is conceded that, in cases of this character, where irre
In Wilmuth v. Woodcock, 58 Mich. 482, 485, it is stated: “The bill states a case for equitable relief The continual invasion of complainant’s rights of property by the maintenance of the projection of the cornice over her north line, constituting a permanent injury to and deprecation of her property, addresses itself to and calls in exercise the equitable jurisdiction of the court. No remedy at law is adequate, owing to the uncertainty of the measure of damages to afford complete compensation. In one sense, it is taking her property without condemnation and without due process of law. No person can be permitted to reach out and appropriate the property of another, and secure to himself the adverse enjoyment and use thereof, which, in a few years, will ripen into an absoluto ownership by adverse possession. * * * Irreparable injury in the sense in which it is used in conferring jurisdiction upon courts of equity, does not mean that the injury complained of is incapable of being measured by a pecuniary standard.” Wilson v. City Mineral Point, 39 Wis. 160.
In Western Union Telegraph Co. v. Rogers, 42 N. J. 313, 314, it is said: “Again it is urged that the complainant cannot be heard in this court because the court never exercises jurisdiction unless it appears that the damages threatened are irreparable. This, it is true, is one well-settled rule; but another is equally well settled, viz: that a party will not be driven to his legal remedy' where it may appear that that remedy will prove inadequate. In this case there can be no doubt but that the complainant could at law recover; but recover what?” “By
In this suit, the .parties and subject matter, are before the court; the oil produced from the land is yet in the pipe line of the defendant pipe line company unsold; the defendants threaten to drill other wells and produce more oil — take out and remove a valuable part of the land. Must the owners of the property stand by and see a most material and valuabe portion of their land taken without authority of law, and then be compelled to go into a court of law for redress ? Can it be ■said, that a court of equity is powerless to ascertain the value of the oil already taken; to hold and apply the proceeds of the sale of the oil on hand, to the discharge of the defendants’ liability, when determined; and to perpetually restrain the wrong doers from further acts of trespass? "We think not. The bill in this cause, tested by the authorities, can be entertained for the purposes stated therein.
There is no error in the decrees complained of. They must be affirmed.
Affirmed.
Dissenting Opinion
(dissenting) :
The first question that presents itself is as to whether there is any equity in the bill, or are the grounds alleged mere equitable pretexts to avoid a suit at law.
The plaintiffs, Drank Haskell and William Haskell, are the oil lessees, George Morrow and William Morrow, who join in the
It is settled law that equity has no jurisdiction to- restrain a trespass or settle the right of possession. McMillen v. Ferrell, 7 W. Va. 223; Cox v. Douglass, 20 W. Va. 175; Schoonover v. Bright, 24 W. Va. 698; Cresap v. Kemble, 26 W. Va. 603; Watson v. Ferrill, 34 W. Va. 406; Burns v. Mearns, 44 W. Va. 744; Clayton v. Barr, 34 W. Va. 260.
But it is said this is a case of irreparable damage sustained was held in broad terms without qualification that “The unlawful extraction of petroleum, oil or gas from land, they being part of the laird, is an act of irreparable injury. Equity will enjoin it.” This is undoubtedly the rule in cases of waste committed by the life tenant, or oire joint tenant against another, for the reason that a suit at law for possession cannot be maintained, and the waste committed tends to the destruction of the inheritance. Williamson v. Jones, 39 W. Va. 231; Tress v. Eclipse Oil Co., 47 W. Va. 107; Anderson v. Harvey’s heirs, 10 Grat. 380 398. In the case of Williamson v. Jones, it was held that “Petroleum or mineral oil in place is as much a part of the realty as timber, coal, iron ore or saltwater.” Hence the same rules which apply as to the taking of the oire should apply as to the taking of the other. The extraction of petroleum oil is no more an irreparable injury to land than to dig coal or cut down timber. As it is said in Bettman v. Harness, “The word irreparable means that wnich cannot be repaired, restored, or adequately compensated for in money, or where the compensation caniaot be safely measured.” Under this rule irreparable damage can never be done by the extraction of petroleum oil when it is run into the pipes of and measured by ;a pipe line company, for the true quantity and value thereof is ascertained aiad determined by the market standard and unless the extraction of the oil and the pipe line company are both insolvent there is no danger of loss to the owner of the oil. But it is said, is not the owner of the oil entitled to keep “his own oil in
When the owner of land has granted away the right to extract the oil, he can no longer complain that he is injured by the unlawful extraction thereof, especially if he is secure in his royalty. For having released his right to retain the oil in place, its extraction can no longer be said to be destructive of his estate either in remainder or reversion, or that the injury is remediless. Koan v. Bartlett, 41 W. Va. 559. The right left to the owner is the receipt of the royalty, and this being secured to him under both tihe subsequent and prior leases, he can be in no wise injured by the extraction of the oil, whether done by the prior or subsequent lessees. The owners of the land in this case are in no danger of loss, for under both leases, their royalty is secure to them, and they have wholly parted with their right to have their oil retained in place. Their royalty in both instances they receive through the pipe line. Hence as to them, no irreparable injury has or can be inflicted by the extraction of the oil. Hor are they liable on a warranty, express or implied as against the prior lease, for the subsequent lessees took their lease subject -to and with full notice of prior lease as the allegations of the bill plainly show, and were themselves to have such prior lease declared invalid. The subsequent lessees are also without right to maintain this suit. They have no interest in the oil in place. Their only interest is to have it severed and reduced to possession. The severance by the prior lessees cannot possibly he injurious to them, much less irreparably so. For if it is their oil, they can claim it in the pipe line, where it is perfectly safe. The question of insolvency, either as to the defendants or pipe line is not even mooted. It is said their lease
Nor does the right to annul the defendants’ lease as a cloud on plaintiff’s title give equity jurisdiction. The subsequent lessees whose title is affected by the prior lease never have had possession of the land, while the defendants arc in possession thereof. Moore v. McNutt, 41 W. Va. 695. “The possession sufficient to support the action is generally limited to peaceable possession rightfully acquired.” 17 En. Plead. & Prac. 317. “Such a Lili is only entertained by a court of equity because the party is not in a position to force the holder of, or one claiming to defend under an adverse title into a court of law to contest its validity, and this as a genral rule, is the test to which a court of equity will look to determine whether t the necessity of the case requires its interference.” Alton v. Buckmaster, 13 Ill. 205; Smith v. McConnell, 17 Ill. 135; Comstock v. Newbury, 66 Ill. 214; Apperson v. Ford, 23 Ark. 757, If the plaintiffs can sue at law, and the defendant gives them the opportunity to sue at law, they must sue at law There was nothing in the way of the plaintiffs suing at law.
The four grounds on which equity jurisdiction is sought to be maintained, towit: irreparable damage, cloud on title, multiplicity of suits and the necessity of an account are mere pretexts to foist on equity a jurisdiction it does not possess, and this is the determination of the right to possession of land.
Nor does the fact that the first lease is void deprive the law of its jurisdiction. Gall v. Bank, 50 W. Va. 597; Davis v. Settle, 43 W. Va. 19, 37.
The case presented is simply the ordinary case of property claimed by one party in the possession of another party. It is a' mere ejectment bill, and there is nothing to give a court of equity jurisdiction. Messimer's Appeal, 96 Pa. St. 169. Nor is the taking of the oil from the wells under the facts of this case to be adjudged such an irreparable injury as in some cases might warrant the interference of a court of equity. Erskine v. Forrest Oil Co., 80 Fed. Rep. 583. “A bill to- quiet title in complainant to ;an oil claim under the placer mining laws, which alleges that defendants have entered upon the ground and have extracted and removed oil therefrom, and are engaged in sinking a well thereon, and which asks an injunction to restrain them from proceeding with such work and from taking and removing oil, is in effect a bill to obtain possession and admits the possession of defendants; hence, it
ÍTor have the plaintiffs acted with that diligence in presenting their claim that would entitle them to equitable consideration. They were aware shortly after defendants had taken possession and were about to drill for oil that defendants were doing so under a claim of right, and they might have by legal proceedings at once tested such right, yet they waited for about eight months, until defendants were actually engaged in producing oil before they complained to a court of equity. In short, they wanted the oil produced before interfering, and now thot it is being produced, they claim they are suffering irreparable damage, for the reason that the oil is not left in place — a mere pretense to gain the equitable ear of the court. The bill should be dismissed and the plaintiffs remitted to their legal remedies.