51 Pa. Super. 376 | Pa. Super. Ct. | 1912
Opinion by
The agreement out of which this case arose was executed on June 25, 1907, and begins as follows: “In consideration of Thirty $30 Dollars the receipt of which is hereby acknowledged and the agreements hereinafter mentioned William M. Hutton and Angeline Hutton his wife .... hereby grants unto Carnegie Natural Gas Company .... its heirs and assigns all the oil and gas in and under the following described premises, together
It appears that within twelve months the defendant began drilling a well on the land, which, upon completion, it connected with its fine, and, on November 8, 1908,
This action was brought, in December, 1910, for the six quarterly installments beginning August 8, 1909, amounting in all to $450. By direction of the court, the jury rendered a verdict for the plaintiffs for the full amount of their claim, and from the judgment thereon this appeal was taken by the defendant.
The agreement between the parties was, neither in terms nor by the name they gave it, a lease of land for the purpose of exploring, drilling, and operating for oil and gas, but expressly and in apt terms was a grant of all the oil and gas in and under the described premises, to which was added the incidental right of ingress and egress for the purpose of drilling, operating, removing, etc. Oil and gas in and under land, being minerals, are part of the realty, which, notwithstanding their migratory nature, may be severed in title from the surface by conveyance so as to vest in the grantee the mineral estate, as fully as it was before vested in the owner of the land: Stoughton’s App., 88 Pa. 198; Blakley v. Marshall, 174 Pa. 425; Marshall v. Mellon, 179 Pa. 371; McIntosh v. Ropp, 233 Pa. 497, 512. In one of the latest cases on the subject it was said: “That there can be a severance of the minerals from the surface so as to create a separate estate in each, is too well settled to need the citation
One view of this clause, as expressed in the defendant’s first and second points, is that, as the contract is in the nature of a grant of the gas in place, the relation of landlord and tenant did not exist; that, therefore, the defendant was not required to give actual notice to the plaintiff of abandonment in order to be relieved from liability; and that “the mere cessation of the use off the premises of the said gas by the defendant was sufficient to relieve it of anything for which the plaintiffs claim in this case.” Under this construction, though the well was producing gas in paying quantities, the defendant might relieve itself from liability by closing it, while still retaining the grant in full force and thus excluding the plaintiff. Of course, the defendant could reheve itself from future liability by surrendering the grant, for the agreement so provides, but in that case the plaintiffs would be restored to the beneficial enjoyment of the property; whereas, under the construction above suggested, they could be deprived of that as well as of the expected profits from a producing well, which it is fair to presume was part of the inducement for the grant. Viewing the instrument as a whole, we cannot bring our minds to the conclusion that this construction would carry out the intention of the parties, or is necessarily required by the words. Moreover, we are unable to reconcile it with the doctrine of Double v. Union Heat & Light Co., 172 Pa. 388; Wilson v. Philadelphia Company, 210 Pa. 484; and Shrader v. Phillips Gas & Oil Co., 44 Pa. Superior Ct. 55. It is urged that two of these cases are distinguishable from the present upon the ground that they relate to grants of incorporeal rights, and not to sales of gas in place. But this distinction can scarcely be made as to Double v. Union Heat & Light Co., however it may be as to the other two cases. There is not sufficient difference between the terms of the grant construed in that case and the terms of the
The view of the clause taken by plaintiffs’ counsel, and ably set forth in the charge of the learned trial judge, is that, a well having been drilled and gas only having been found, the defendant became obligated to pay $300 a year until it surrendered the grant. It necessarily results, from this construction, that the undisputed facts— that at a certain date the well was plugged, the casing was removed therefrom, and the pipe line from the well to the main line was removed; that at a later date the main line which crossed the plaintiffs’ land was lifted; that these facts were known to the plaintiffs; and that the damages which they claimed to have sustained by the removal of the appliances and machinery of the defendant from the land were paid; in short, that the defendant ceased to produce gas from the well — are immaterial facts. As already intimated we agree that these facts, standing alone, would not constitute a complete defense. But it would also result, from the construction, contended for by the plaintiffs, that, although the disconnection and abandonment of the well were because of the fact, which the defendant’s evidence tended to show, that the well ceased to produce gas in the line, still the defendant must surrender the entire grant in order to escape liability annually for the stipulated sum of $300. We remark, in passing, that it is not necessary to adopt this construction in order to give full effect to the clause giving the defendant the right to surrender the grant. This can be done, and doubtless it was so intended, by construing that clause to mean that the defendant could surrender the grant even though the well was producing gas in the line. And, as suggested by appellant’s counsel, there are many other situations in which the grantee might desire to surrender the grant and be released from future liability. There is nothing in that clause that requires a different construe
It results from the foregoing, that the question whether the well had become nonproductive should have been submitted to the jury with instructions that, if they did not find that to be the fact, the plaintiffs were entitled to recover the full amount of their claim; but, if they did find that to be the fact, then the defendant would not be liable for the quarterly installments beyond the year
Judgment reversed and venire facias de novo awarded.