207 Pa. 570 | Pa. | 1904
Opinion by
The defendant obtained a grant from Peter A. and Margaret Stewart on the 14th of May, 1902, of all the oil and gas under their farm, consisting of 189 acres in Westmoreland county. The grant was in writing duly executed and acknowledged by the parties to it. It stipulated that the gas company should have the right at all times of ingress and egress to drill and operate for oil and gas upon the farm, with the right to conduct all operations, lay all pipes, erect such buildings and tanks as were necessary for the production and transportation of oil and gas—no well to be drilled nearer than
Defendant filed no formal answer but took testimony at the hearing for a preliminary injunction, which was treated by the court below and the parties as its answer. It set up as a defense actual notice of the qualified possession by defendant from plaintiff, by the grant of the oil and gas under the farm; that without this, the operations of defendant were on the land in full view of the agent when he took the option and of
There was quite a full hearing of the evidence by the learned judge of the court below who awarded a preliminary injunction restraining defendant from in anyway entering upon said land or interfering with plaintiff in the ownership, possession or use thereof. We now have this appeal by defendant assigning for error the decree of the court.
It is somewhat embarrassing to an appellate court to discuss the reasons for or against a preliminary decree, because generally in such an issue we are not in full possession of the case either as to the law or testimony—hence our almost invariable i’ule is to simply affirm the decree, or if we reverse it to give only a brief outline of our reasons, reserving further discussion until appeal, should there be one, from final judgment or decree in law or equity. We therefore content ourselves here with a statement of the rules which should govern courts in granting or withholding preliminary injunctions, and advert very briefly to the testimony.
All the text books agree that a preliminary injunction should only be granted where injury to the property of complainant is imminent and if committed irreparable. And it will not generally be awarded where the complainant’s right is not clear or, to turn the proposition around, where the wrong is not manifest. Courts of equity invariably, on a hearing for preliminary injunction, endeavor as far as possible to make such decree, however, it may be framed, as will maintain the status quo until final hearing or judgment.
Under the undisputed facts in this, case, how could it be said that plaintiff’s right appeared clear at the preliminary hearing ? But one fact alone makes in his favor: by his deed from the Stewarts he holds the legal and equitable title to the land. On its face this carries the right to the exclusive possession, for under the recording acts, the oil and gas company, as against plaintiff, had constructively no right whatever, while as against the Stewarts, the common grantors, the company’s right was clear; but the company averred that plaintiff had full notice, before he took his option and accepted his deed, that already the Stewarts had made the grant to it, and that it was in possession under that restricted right.
Taylor was called by plaintiff, and was his most important witness. Whatever knowledge the agent who conducted the negotiations and took the option on the farm had, must be imputed to Hicks. Plaintiff then knew when the option was taken and deed accepted, that there was upon the farm a high derrick and large building for drilling purposes ; somebody was producing oil or gas from the land ; Stewart was an old farmer cultivating" the surface ; it is not even pretended that any one supposed he was operating the derrick and drill; it was there by consent of the owner, Stewart, under some kind of license or contract with him. This plaintiff, by the admissions of his agent, Taylor, was presumed to know. The slightest inquiry from Stewart would have disclosed the name of the owner of the derrick, and inquiry from him or Stewart would have disclosed the formal particulars of the grant antedating the option and deed. If plaintiff desired to put himself in the position of an innocent purchaser who had paid the purchase money without notice of any prior grant, inquiry became a duty on his part at this juncture in the negotiations. Thus far we have not noticed any testimony except that of plaintiff. It seems to us, he wholly fails to make out what the books call a “ clear right ” such as would entitle him to a preliminary injunction.
But a reference to Stewart’s testimony still further weakens plaintiff’s case. Taylor was there with Stewart to negotiate the option; they walked together over the farm talking about the proposed purchase; Stewart testifies: “ I told him there was a lease on the place as we came down the road past it and that that derrick was the fruit of the lease. I told him that I was telling him that as a matter of form as I supposed ho knew it already.” Without discussing at present the exact
The Stewarts could not have maintained a bill for a preliminary injunction, in the face of their grant; Iiicks, because he had notice of it, stands in their shoes. It is therefore a barrier to him.
Not only should the preliminary injunction have been refused because, on the evidence at that stage, plaintiff’s right was not at all clear, but it also should have been refused because he showed no irreparable damage. His use of the surface continued as undisturbed as Stewart enjoyed it; by the contract defendant must pay all damages occasioned by ingress or egress; it must keep at least 200 feet distant from the house; it must pay not less than $50.00 quarterly whether gas be produced or not; the quantity of gas produced is to be measured by an accurate system and to be paid for quarterly. If the contract with the Stewarts therefore be void, if it be eventually determined that it conferred no right on defendant, the measurement will accurately show just how much gas defendant got during the interval, between the ending of Stewart’s title and final judgment. Surely, it would not then be a very difficult matter to make plaintiff whole because of the alleged appropriation of the gas under his land.
But further, the preliminary injunction does not maintain the status quo. The defendant has sunk one costly well, has cased it and has piped the gas therefrom to its mains; is now supplying its patrons, the public; was about to sink another well under its contract with the Stewarts; has all its costly
It is further argued by appellant, that this court is without jurisdiction because this is what is known as an ejectment bill, an attempt to oust defendant from possession of land by a suit in equity while the remedy is at law by ejectment. To this appellee replies, in a supplemental paper-book, citing a number of our own decisions to the effect, that an oil or gas contract or lease is an incorporeal hereditament, that is, “A right issuing out of a thing corporate, or concerning, or annexed to or exercisable within the same. It is no part of the corporate thing; that remains as perfect after the right has issued or has been exercised as before.”
Undoubtedly, several of our cases hold, that an oil or gas contract in the usual form is an incorporeal hereditament, and ejectment cannot be maintained thereon. But whether it is the subject of ejectment by him who has the title of the corporate thing, after the right has issued out of the thing corporate, depends on the special situation of the incorporeal hereditament in the particular case at the date of the suit; if, to enjoy the right or exercise it, an actual though qualified or restricted possession has been taken, then the owner of the thing corporate, who denies the existence of the right, or alleges it to have been lost or forfeited, can maintain ejectment against him who has the restricted possession under the incorporeal hereditament. We will not say that ejectment would in all cases be the only remedy of the owner, for there might be rare cases where equity would take jurisdiction, but
And the cases cited by counsel for appellee in their supplemental paper-book in no wise antagonize but support this view. Funk v. Haldeman et al., 53 Pa. 229 is the first and leading case cited. In that case Funk filed his bill to restrain defendants from trespassing on land leased exclusively to him for oil purposes by McElheny the owner; the defendants alleged that Funk, the first lessee, had forfeited his right and, that at all events his right was not exclusive. The court below held that Funk had forfeited his right and granted an injunction. He appealed to this court, which in an elaborate opinion by Woodwabd, C. J., reversed the decree and awarded an injunction, holding, that Funk had not violated' his covenants whereby a forfeiture had been incurred, and that if he had, “ A chancellor would be likely to send the grantors into a court of law to enforce the forfeiture by ejectment, for equity does not ordinarily enforce forfeiture.” It will be noticed that this case was not between the oil lessee and the owner, but between two rival claimants of the oil, yet it is more than intimated, that if Funk had forfeited his lease, and the defendants under their contract had succeeded to his right, then, they would have stood in the shoes of the owner and Funk being in possession, ejectment would have been their remedy. This is the first case in this state in which the nature of the estate acquired by a lease of the exclusive right to search and drill for oil was passed upon by this court. And although it is, somewhat reluctantly, held to be an incorporeal hereditament, yet it is in substance, decided that if the suit had been between the owner of the land and Funk the owner of the incorporeal hereditament or license, the owner’s remedy to oust Funk would have been by ejectment. This case was decided in 1866, a very few years after the great utility of natural oil and its immense value as an article of commerce had been demonstrated; its extent under the earth, the means of discovery and methods of production were still but imperfectly known. It may be doubted whether now after forty years more of knowledge, if the question were first before us, we would hold that a grant of exclusive right to the oil under a defined tract of land, coupled with the ex-
The next case cited is Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173, an action on the case for damages between two rival companies for the oil rights under the same land. It was held that the action would lie for the interference with and obstruction of the right of one by the other, although the right was an incorporeal hereditament. The case was tried in the court below, by Judge Trunkey, afterwards a justice of this court. In his charge he says, “ If he (McClintock, the owner of the land) were asserting, or attempting to enforce his rights to the possession of the soil, his remedy would be ejectment or trespass.” The charge as a Avhole, although also relating to other facts, was approved by this court in an opinion by Sharswood, J.
The case of Carnegie Nat. Co. v. Phila. Co., 158 Pa. 317, also cited by appellee, is a case of two warring lesees each claiming the right to the gas under the same tract of land and the main question was, as to whether the one company by the failure to keep its covenants liad forfeited its rights and thereby the other company had acquired the exclusive right. It was held in that case that the right of each company was an incorporeal hereditament and that equity had jurisdiction on the facts of that case. It by no means holds that equity had ex elusive jurisdiction.
We have found no case and none has been cited, which holds that the remedy of the owner of the thing corporate against' the unlaAvful possession by the owner of the incorporeal hereditament must oust the trespasser by injunction. The other cases cited involved trespasses or acts in their nature tortious, in which cases, it has been decided, that for them actions at law are often inadequate remedies. In the case before us, the possession Avas initiated by virtue of a positive contract with the owners of the fee. It was actual and peaceable. It is not alleged, nor could it be, that defendant’s entry was in the beginning wrongful; all that is alleged is, that during that possession
So that supposing defendant after taking its restricted possession had erected its buildings and structures, had commenced as it did, to pipe, transport and sell large quantities of gas, and had then refused to pay; and then the grantors, as provided by the contract, had declared it forfeited; then their right of re-entry on the land where defendant had erected its derricks and buildings would have been clear, and if possession had been refused, their right could have been enforced by ejectment. It would have been the only appropriate remedy. The plaintiff by his deed, if he had notice of the lease, has no higher or other right than his grantors.
Assume that this contract was a mere license, then as long as defendant remained outside, did not have full control or possession of the hereditament, it could not under the authorities cited bring ejectment. But when it has actually entered upon the land under its contract its position is entirely different ; it then has actual peaceable possession. It could not bring an ejectment to be put in possession but the owner could and must bring one to put it out. The reason given for barring the licensee in several of the cases is that if he recovered, the sheriff could not under a writ of habere facias put him in possession without interfering with the rightful possession of the owner; but the reason wholly disappears when the grantee is in possession and the owner denies his right to be upon his land under any contract. The nature of this possession is aptly stated by Mitchell, C. J., in Westmoreland, etc., Nat. Gas Co. v. DeWitt, 130 Pa. 235:
“ And equally so as between lessor and lessee in the present case, the one who controls the gas has it in his grasp, so to speak, is the one who has possession in the legal as well as in the ordinary sense of the word. Tested by these principles, there is not the slightest doubt that the possession of the gas as well as the right to it under this lease, was in the complainants when the bill was filed. They had put down a well, which
We think plaintiff in this case on this contract and under the evidence had a full and complete remedy at law by ejectment. Therefore, for all the reasons given, the decree of the court below is reversed and for the last one, the bill is dismissed at the costs of appellee.