46 N.Y.S. 57 | N.Y. App. Div. | 1897
Plaintiffs’ complaint alleged that George' W. Burdick was the owner in fee of the premises described in the, complaint, “ subject only to the rights of the plaintiffs therein, under and by virtue ” of a contract entered into on the 20th of January, 1896, with the plaintiffs Gibson and C. S. Lane, which contract is set out in the complaint.- In that agreement the following language was used, to wit: The party of the first part “ does hereby grant and convey unto the parties of the second part, their heirs and assigns, all the right, title and interest of the said party of the first; part of, in and to all the rock, petroleum, oil, gas and other minerals and volatile substances of, in or under the following described premises': ”
The answer of the defendants denies that on the 20th of January, 1896, Burdick was the owner in fee of the land “subject only to the rights of the plaintiffs therein under and by virtue of the contract set out in said complaint.” The defendants affirmatively allege in their answer “ that at the time of the commencement of this action, and for many days previous thereto, they were the
Some question was made at the trial as to the insufficiency of the plaintiffs’ complaint, but the trial court ruled in favor of the plaintiffs, and the defendants-are not in a situation to review that ruling.
Upon the trial the plaintiffs ¡Düt in evidence á deed of the premises in question to Burdick, made in 1887, and proved by Burdick that he went into possession under it, and that he executed the instrument mentioned in the. plaintiffs’ complaint. The case then states that the paper set up in the defendants’ answer was shown to the witness, and the witness continued : “ I signed that and delivered it to the party of the second part.” The paper was then marked for identification as Exhibit No. 1.
Burdick, as a witness, further .testified: “I don’t remember whether or not I had this lease, or a duplicate thereof, with me on the 19th day of January, at the store of Lane, when plaintiffs’ Exhibit ‘B’ (the instrument set out in the complaint) was signed, but think 1 did, and' think it was a subject of our conversation. Plaintiffs knew of this lease, Exhibit 11,’ when I executed Exhibit ‘B’ to them, and they took this lease with knowledge of defendants’ Exhibit ‘ 1.’ ” Thereupon the defendants offered in evidence Exhibit 1, which had been recorded in the clerk’s office of Allegany county on the 23d of. January, 1896. The plaintiffs stated several objections to the reception of it in evidence and they were over-ruled, and the plaintiffs took an exception. We think that, under
The instrument given to the defendants was executed on the 24th day of December, 1895, and stated that Burdick had, in considera^ tion of one dollar and certain stipulations contained in the instrument, “ granted, leased and demised, and do hereby lease, grant and demise, unto the said second party, their heirs and assigns, all that tract or parcel of land situate in the town of Wirt, county of Alleghany,” with appropriate language describing the lands in question. It also contained the following words : “ With the exclusive right to dig, bore and mine for all oil or gas found in and' upon the aforesaid premises, to have and to hold the same for the term of twelve years from this date, or as long thereafter as oil is found in paying quantities; also, all the right of way to enter upon said premises for the purpose of operating, mining or removing said oil or gases therefrom, and full power to erect all necessary buildings and tanks upon said premises for the purpose of procuring or storing such oil or gases, with the full right to the said second party of appropriating to their own use all the oil or gases found upon said premises for said term.” The instrument contained the following important language: “ This lease shall be null and void and at an end unless second party shall, within five days from this date, commence and prosecute with due" diligence, unavoidable accidents excepted', the "sinking or boring of one well to a depth of Wirt Center oil sand, unless oil in paying quantities is sooner found, and said well . shall be fully completed within ninety days from this date, unavoidable accidents excepted, and each ninety days thereafter there shall be drilled to completion one new well, unavoidable excepted, until there shall be a total of one well to each ten acres of land. * * * If the parties of the second part shall fail to keep and perform the covenants and agreements by them to be kept and performed, then this lease shall be null and void- and surrendered to the party of the first part.”
After the evidence which we have already mentioned was received the defendants rested, and thereupon the plaintiffs asked for a direction of a verdict on the ground “ that the defendants
The plaintiffs’ witness Dougherty testified : “ The making of ■ a grade for a derrick is necessary for- the operations of property for oil. The commencement of operations is where you commence on the ground to operate. * * * The' drilling tools we use in that locality will probably weigh twenty-two hundred or twenty-three hundred pounds, and the cable from seventeen hundred to twenty-two hundred. The derrick has to be built strong to sustain the weight. It takes a twenty horse power boiler weighing about sixty-five hundred and an engine weighing about twenty-five to thirty hundred.”
After some further evidence was given in behalf of the plaintiffs, which they claimed tended to indicate that the defendants had not, within five days of the date of the lease, commenced and prosecuted with due diligence “ the sinking or boring of one well to a depth of Wirt Center oil sand,” the case was again rested, and the defendants gave evidence tending to substantiate the position taken by them -at the trial, that they had fully complied with the terms and requirements of the lease executed by them, and that there had been, therefore, no forfeiture of their rights under it. Bearing upon that important question a large volume of evidence is presented which it is not necessary to refer to in detail.
At the close of the whole evidence the plaintiffs asked the court to direct a verdict in their favor on the ground “ that there is no-proof showing due diligence on the part of the defendants under the conditions of this lease, and no evidence upon which such finding could be made.” Thereupon the court held that- it “ should be
After a careful perusal of all the evidence, we are of the opinion that the ruling was correct, and that the evidence fairly presented a question of fact which it was proper to submit to the jury.
Work which was necessary to be performed in the sinking or boring of one well was literally commenced within the period ■ of five days from the date of the execution of the lease. The defendants were entitled to reasonable time in which to obtain the liecessary materials for the rig •—• for the erection of the derrick — and for the further preparations essential to carry forward the work of sinking or boring. (Fleming Oil & Gas Company v. South Penn. Oil Company, 37 W. Va. 645; Bartley v. Phillips, 165 Penn. St. 325.) Whether the work was prosecuted with due diligence or not, we think, under the circumstances disclosed by the evidence, was a question of fact for the jury to determine upon the whole volume of evidence before them.
In Salt Springs Nat. Bank v. Sloan (135 N. Y. 383) in considering whether diligence had been exercised or not, and the rules of law applicable thereto upon evidence, it was said: “ It depends frequently upon the character of the evidence itself, whether it is of such a nature that but one inference could be drawn from it by reasonable and intelligent men. In such a case as this for instance, the due diligence of the plaintiff is not a fact that could be testified to directly and in terms. * * * If the uncontradicted evidence show a case where different inferences might be drawn from undisputed facts as to the.existence or non-existence of negligence, it has been the law for many years that such inferences are to be drawn by the jury-under proper instructions from the court.” .
Having carefully examined all the evidence, we are of the opinion that the conclusion reached by the jury is cprite satisfactory.
By the terms of the lease the defendants were not required to have a completed well in less than ninety days, and the parties even in fixing that limitation were careful to guard against “ unavoidable accidents,” and we think the court committed no error in refusing
We think the case cf. House v. Howell (6 N. Y. Supp. 799) does not aid the contention of the appellants.
(2) When the witness Gordon was upon the stand he testified that on the twenty-sixth of December he -went on to the Burdick farm and saw Burdick, and ■ lié then adds: “ I told Randolph to- get the timbers out right away and lie said he would.” Thereupon the following question was propounded to him : “ "Q, Did you then and there intend to use those timbers on the Burdick farm % ” A general objection was interposed by the plaintiffs and overruled, and an exception was taken. .. The answer was, “ I did, yes, sir.” And then the witness continued: “ The timbers were fully gotten out on the 8th day of January;. that is, the trees were cut down, and timbers hewn and squared the proper length. I was up there again the 3d, 4th or 5th of January and saw the rig builders, and told him-he could build the rig provided he would do it as cheap as anybody else.” Some question had arisen as to whether the timbers were
It is claimed in behalf of the appellants that the court committed an error in charging the jury “ that the fact that the defendants succeeded in making a contract to drill this well at fifty cents per foot, and thereby saving upwards of $110.00 is of itself some evidence of such diligence as is required by the lease.”- When the request to bo charge was yielded to, there had been a full and careful presentment of the pivotal questions of fact in the case to the jury. Besides, it appeared that the drilling was to be of a well about 1,087 feet, and that several negotiations had been had with parties with a view of having a contract made for the'work, and that in several instances the price had been named at sixty cents, and in one case at fifty-six cents, and that subsequently a contract was made to have the work done for fifty cents a foot, and it must be supposed that when the court yielded to the request, he had in mind the circumstances attending the negotiations • that had been developed. We think the exception presents no prejudicial error.
We think the verdict should be sustained. No motion for a new trial on the minutes was made.
Judgment affirmed,, with costs.
All -concurred.
Judgment affirmed, with costs.
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