299 F. 167 | 8th Cir. | 1924
This suit was begun July 26, 1922, by Blaster and Mitchell, appellees in No. 6435 and appellants in No. 6436, to> quiet their title as lessees in three 40-acre tracts in Elk County, Kansas. The lease covered 400 acres. It was given by Hyde and wife,, appellants in No. 6435 and appellees in No. 6436, in 1918, for a term, of five years and as long thereafter as oil or gas is produced from the land by the lessee. The lease contains this clause:
“On January 1st, 1922, eacli and every forty-acre tract that has not been developed to the extent of one finished well shall revert to the lessor and the-lease on these undeveloped forty-acre tracts shall become null and void.”
“This provision is. exceedingly plain and clearly means that there must be one well finished on each unit referred to in said lease of forty acres, or said unit of forty acres not so developed and improved would be forfeited and would revert to the lessor, said lease pertaining to each forty acres remaining so undeveloped would become null and void as to that unit.”
AftervJanuary 1, 1922, the lessors filed in that court their petition for its writ of assistance to put the lessees out and the lessors into possession of the eighth, ninth "and tenth dO-acre tracts. The writ was denied for these reasons, as shown by the record:
“That the question as to whether or not the lessees were complying with the terms of said lease was not presented to the (that) court. That the only question presented was as to the construction of certain portions of the lease as to what they meant. That is as far as the declaratory judgment affected the lease.”
As we view it, all that was done by the State district court was to make a declaration of record that the meaning of the lease was clear and it meant what it said as to development on each 40-acre tract. We see nothing in those proceedings, however, that operates as a bar to adjudication on the issue of forfeiture presented in this suit. We construe the lease as the State court did. To that extent there may be res ad judicata. Copy of the petition in the State district court is brought here, and from it it appears that the lessees there contended, and only contended, that there was conflict and disagreement between the clause of the lease that has been quoted above and other parts of the lease, and the only purpose of that proceeding was to obtain from the court an interpretation of the lease, whether the quoted clause prevailed or whether it was annulled or modified by other parts of the lease. There were other alleged ambiguities and inconsistencies in the lease submitted to that court for its solution and interpretation. No question or issue of forfeiture as to any of the 40-acre tracts was there under consideration. And obviously, the issue here presented could not have been considered or adjudicated, because that procedure and the findings of the court there made were several months prior to January 1, 1922. This suit, then, while between the same parties, is upon a different cause of action and presents a controversy on facts lying outside the lease and resting in parol that could not have been litigated or decided there. The action of the State court is in no sense res adjudicata of the controversy here. Hottelet Co. v. Garden City Milling Co. (C. C. A.) 285 Fed. 693, 696.
The lease here bears date October 24, 1918. By its terms it was to-“remain in force for a term of five (5) years from this date and as long thereafter as oil and gas or either of them is produced from said land by the lessee.” Hive years was the definite- term of the lease referred to in the statute. That term would not expire until October 24, 1923. The lessors made written demand of the lessees in July, 1922, that they release the lease of record. That demand is a prerequisite to the bringing of an action for damages under the statute. It was made prior to the expiration of the definite term of the lease; and the crossbill was filed prior to the expiration of that term. That is the term with which the statute deals as the basis from which to determine .when and whether a release must be executed; and not some other and indefinite term to be ascertained by facts and circumstances dehors the lease. So far as the statute goes it recognizes the validity of the lease for the definite term expressed in it, and points out the steps that may be taken to extend that definite term on the contingencies named; but it designates no procedure, either by lessee or lessor, by which that definite term may he shortened for the purpose of recovering damages and the penalties named in the Act. Its purpose seems clear. It applies to- leases for definite terms which may be extended upon the happening of named contingencies and the contingency does
It is argued by counsel for the lessors that the Supreme Court of Kansas has given a broader construction to the statute which permits recovery under the statute of damages and the named penalties, where the lessor claims that the lease has been forfeited for any reason, whether within the express terms of the statute or not. We are cited to Cole v. Butler, 103 Kan. 419, 173 Pac. 978; Elliott v. Crystal Springs Oil Co., 106 Kan. 248, 187 Pac. 692; Mollohan v. Patton, 110 Kan. 663, 202 Pac. 616, 205 Pac. 643. In the Cole Case' the gas and oil lease was given for a term of twenty years. The court said:
“Under the pleadings and facts apparent therefrom, nothing had been, done under the lease for 13 of its 20 years duration; neither was there any intent or disposition indicated to do anything. This situation entitled the plaintiff to a decree of cancellation. The parties seem to have acted under the provisions of” the statute “relating to the record, forfeiture, and surrender of oil and gas and other mineral leases.”
It thus appears that the question as to whether or not the action was appropriately brought under the statute was not raised, and the court did not construe the statute. It accepted the acquiescence of the parties that the action was under the statute. In the Elliott Case the lease was given for a definite term of five years “and as long thereafter as oil and gas or either of them is produced from said land by the party of the second part.” For all that appears in the opinion the definite term of five years had expired before notice was given to the lessee and the action hrought, and there was no compliance with the statute permitting a showing that the contingencies had happened on which the lease could be extended. In fact, it appears that the contingencies did not exist. In Mollohan’s case the full terms of the lease are not shown. It is referred to only as an oil and gas lease. It does not appear whether it was given for a definite term of years. There was a supplemental contract about drilling “another well on said premises” on or before a certain day. The lessee did not comply with that requirement. The court held, “In the absence of some agreement to the contrary the defendant’s rights with respect thereto were lost when he failed to carry .out this provision of the contract.” The court said the action was wPSÉpat under the statute here relied on. The opinion does not disclose whether a definite term was given by the lease and had expired, nor does it appear that the defendant contested the right
Affirmed.
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