| W. Va. | Mar 12, 1907
The defendant, S. B. McDougal, being the owner of sixteen and one-fourth acres of land, lying in Wetzel county, on the 24th day of August, 1899, conveyed to T. J. Conaway one-sixteenth of all the oil and gas within and underlying the same. On the 26th day of J anuary, 1903, McDougal leased this same tract of land to C. L. Johnson, for the sole and only purpose of mining and operating the same for the production of oil and gas thereon for the period of five years, and as much longer as oil and gas, or either of them, should be produced therefrom, and in consideration thereof the lessee covenanted and agreed to deliver, in case of productive operation, to the lessor, his heirs or assigns, free of cost in pipe lines, to his credit, the equal one-eighth part of all the oil produced and saved from the leased premises, and three hundred dollars per year for .the gas from each well drilled thereon. On the 26th day of September, 1904, McDougal granted unto H. M. Sartelle one-sixteenth of all the oil within and underlying said tract of land, and one-half of all gas royalties that might be paid thereon or arise therefrom, and thereafter, on the 16th day of May, 1905, McDougal granted to the plaintiff, Kilcoyne, with covenants of special warranty, all his right, title and interest in and to the oil and gas in and underlying the said tract of land. The lease executed by McDougal was assigned to the defendant, the Southern Oil Company, and it proceeded with operations thereunder,
The plaintiff, Kilcoyne, after obtaining the conveyance from McDougal, on the 16th day of May,' 1905, filed his bill in equity in the circuit court of Wetzel county, setting up the various conveyances and the lease aforesaid, and alleging that by reason of his purchase and deed from McDougal, he had acquired an interest in thd oil and gas, and claimed to be entitled to the full one-sixteenth of the oil produced, and one-half of the gas royalties, which lie averred had not been conveyed under the previous conveyances.
The-defendant, Southern Oil Companjq demurred and answered, and the cause proceeded to final decree, wherein it was determined that H. M. Sartellé or his assignees were entitled to eight one hundred and twenty-eighths of the oil,“the plaintiff to seven one hundred and twenty-eighths thereof, and the Southern Oil Company to the remainder, subject to the rights of T. J. Conoway, which were not adjudicated, the decree providing further that Kilcoyne is entitled to one hundred and forty dollars and seventy-five cents, part of the three hundred dollars royalty from each and every gas well, the product of which may be used or marketed off of the premises; and from this decree the Southern Oil Company has appealed.
The plaintiff claims that Conaway, under and by virtue of Iris conveyance from McDougal, obtained one-sixteenth of the oil and gas in place, which was before there was any lease whatever on the land, and that Johnson, the lessee, took his lease with record notice of the conveyance of the one-sixteenth to Conaway, and having this notice, stipulated and agreed to pay to the lessor, his heirs or assigns, the equal one-eighth of all the oil produced and saved, and that therefore the Southern Oil Company is liable to and must account for three-sixteenths of the oil jjroduced and saved, taking thirteen-sixteenths as the working interest, with the possible right to deduct from Conaway’s interest the pro rata Nshare of the costs of its production.
The conveyance from McDougal to Conaway passed to him a one-sixteenth of the oil and gas, whether in place or royalty is immaterial in the determination of this cause, which was not affected in any way by any of the subsequent
What we, have said is based upon the theory that a lease for years implies a warranty of good title and peaceable and quiet possession of the leased premises. This is not an open question in this state. It has been held in Knotts et al. v. McGregor, 41 W. Va. 566, 35 S.E. 899" court="W. Va." date_filed="1900-03-24" href="https://app.midpage.ai/document/knotts-v-mcgregor-6596383?utm_source=webapp" opinion_id="6596383">35 S. E. 899, and recently in the case of Headley v. Hoopengarner, 60 W. Va. 26, 55 S. E. 144. These cases cite abundant authority to sustain the position, and it seems entirely unnecessary to cite further authority or to make further comment upon the subject. We accept it as the settled law of this state, and we feel we can safely say there is no respectable authority holding the contrary view. My search has unquestionably led me to this conclusion.
The case of Harris v. Cobb, 49 W. Va. 350" court="W. Va." date_filed="1901-03-23" href="https://app.midpage.ai/document/harris-v-cobb-8174972?utm_source=webapp" opinion_id="8174972">49 W. Va. 350, is relied upon as authority to support the position of the appellee. The decision in this case was by two judges, and seems to be predicated upon the theory that'there is no implied covenant of warranty for good title and peaceable possession in a lease.
The decree of the circuit court is reversed, the demurrer sustained, and the bill dismissed.
Reversed. Bill Dismissed.