71 W. Va. 345 | W. Va. | 1912
Amanda E. Martin, wife of T. W. Martin, owned a tract of 4414 acres of land, and her husband an adjoining tract of 29 acres. By deed of lease dated the 1st day of November, 1898, Martin and wife leased both tracts for a term of ñve years to William Michael for production of oil and gas, reserving to said lessors one eighth of the oil produced to be delivered by the lessee to the credit of the lessors in the pipe line, and reserving a rental of $300.00 per annum for each gas well. By deed dated the 18th day of December, 1899, Martin and wife granted to L. S. Horner and C. S. Sands for cash “all of the one half of the royalty, being the one sixteenth, of all the oil and one half of all the gas within” the tract of 44% acres. There was no development under the Michael lease, and its term expired. By a deed dated the 2nd of November, 1903, Martin and wife leased the wife’s 44% acres to R. M. Orr for the development of oil and gas, providing for the same oil royalty and gas well royalty as had the Michael lease. This Orr lease came to the ownership of The Philadelphia Company of West Virginia, and under it that
What is the meaning of the granting clause of this instrument from Martins to Horner and Sands? Horner claims that it gives him and Sands one half of the very oil and gas themselves in the earth, not a mere part of the oil when brought forth by development, or part of fixed sum of $300.00 for the gas when the successful well has brought to daylight the hidden gas. The Philadelphia Company, on the contrary, claims that Horner and Sands are entitled only to half of the $300.00 annual gas well rental or royalty; that it has not to account to them for half the gas flowing from the well, as if they owned it, but that it owns all the gas produced from the well. The question is nice. We note that the deed contains the word “royalty” as the first word in the mind of the parties. We may know that it imports, in oil and gas leases generally used, a share of the product of the well. It is perhaps often regarded as applicable to the share of the oil, not to the specific sum fixed for the gas well; but not infallibly;' it depends on the context and circumstances under which it is used. Generally, its legal import is a tax, a duty, a share imposed, like rent of a farm, for the privilege of using a property, a portion or sum given the author of a book for the use of his manuscript, to the inventor for the use of his patent; to the landowner for the use of his oil or gas. The sum fixed for the gas well is a tax, or duty, or royalty, as well as the portion of oil. In
Counsel for Horner goes so far as to assert that “a grant of a royalty of oil or gas, or a share thereof, is a grant of the oil or gas, or a proportionate share thereof,” and for support appeal to the common law principle spoken by much authority that a grant of rents and profits of land operates to grant the land itself. Coke Litt, 4, 6; 1 Jarman on Wills 741; Beilstine Case, 194 Pa. 152; Green v. Biddle, 8 Wheaton 76; Hughes v. Tabb, 78 Va.
It is assigned as error that the decree pronounced by the circuit court is one of absolute dismissal, and is erroneous in not providing that it should not prejudice Horner’s right to a share of the oil and gas rental. Reference is made to Carberry v. Railroad Co., 44 W. Va. 260, and Watson v. Watson, 45 W. Va. 290 Those cases refer to decrees where there is no jurisdiction in equity. I do not think that rule applies in this case. There was no issue as to Horner’s right to a fourth of the gas well royalty or his share of oil. The gas company conceded his right to a fourth of the $300.00, and tendered it to him. The decree could not possibly bar him as to it in future. The Watson case requires that there should be issue and controversy to constitute a bar. See many cases. Chrisman v. Harman, 29 Grat. 494; Albaugh v. Coakley, 75 Va. 637; Darant v. Essex, 7 Wall, 197. To bar the decree must be on the merit of the matter in issue. We do not think there is error in this matter. But as a matter of precaution we will provide in our decree that it shall not prejudice Horner’s right to his half of one sixteenth of oil or-his fourth of the three hundred dollar gas well rental. With such modification the decree is affirmed.
Affirmed'.