93 P. 340 | Kan. | 1908
The opinion of the court was delivered by
On November 2, 1905, Joseph Risinger and wife made and delivered to James O’Neill an oil- and-gas lease of certain lands in Wilson county of which they were owners. Two of the provisions of the lease are involved in this proceeding. The first reads:
“In case no well for oil or gas be drilled on said premises within six months • of date hereof all rights and obligations secured under this contract shall cease and determine, unless the second party shall elect to continue this lease in force, as to all of said premises, by paying an annual rental of one dollar per acre, payable yearly in advance, for all of said premises.”
The second is as follows:
“Provided, however, that the second party shall have the -right at any time to terminate this lease by surrendering this lease, released from records, and 'shall thereafter be released from all obligations and liabilities under the same.”
No well for oil or gas was drilled within six months of the date of the lease, nor at any time, and the lessee never paid any rental. In July, 1906, the owners of the lands brought this action to recover from the lessee the sum of $480 for rental of the lands for one year. The petition set up a copy of the lease and alleged that no well for oil or gas was drilled on any of the premises within six months of the date of the lease, nor at any time since, and then alleged that defendant, O’Neill, “elected to retain said premises under the said lease, by failing to surrender the said lease to plaintiffs upon
Defendant contends that the lease is merely an option giving him the right to operate thereunder by drilling a well for oil or gas within six months from the date the lease was executed, and that a failure to do this forfeited the lease, unless he elected to continue it in force by paying in advance the annual rental of one dollar per acre; and that a failure either to drill a well within six months or to pay the rent forfeited the lease and the rights of all parties thereunder. On the other hand, it is the contention of plaintiffs that the general provision giving the second party the right to terminate the lease at any time by surrendering it, released from the records, controls, and that the failure of defendant to surrender the lease under this provision continued it in full force and effect.
Plaintiffs rely upon the doctrine that'“a lessee cannot set up his own default in order to terminate the lease or escape liability under its provisions.” The doctrine contended for is stated in Brown v. Cairns, 68 Kan. 584, 66 Pac. 639, the syllabus of which reads:
“Covenants in a lease providing for its termination upon failure of the lessee to comply with specified conditions are for the benefit of the lessor only, and the lessee cannot, by a breach of its covenants, abrogate the lease and thus secure advantage from his own default.”
The doctrine has no application to a lease of this character. It would undoubtedly control if the lease in question contained covenants requiring the lessee to do anything. For instance, if it required the lessee to drill an oil- or gas-well within' a certain period his failure to perform his covenant could not be taken ad
The lease in this case provides in plain language that it shall be no longer binding upon either party in case no well be drilled for oil or gas within the first six months, unless the second party shall elect to continue it in force by paying an annual rental per acre. This provision protects the lessors by preventing the property from being tied up' indefinitely, for if the lessee fail to complete a well within six months the lessors would know that the lease had expired, unless within that time the lessee had extended it by making payments in advance for one year. The-clause in the lease providing that the lessee shall have the right at any time to terminate the lease by surrendering it canceled is a general provision, and must be construed in connection with the other clause which expressly declares
It follows that the demurrer to the petition should have been sustained. The judgment is reversed and the cause remanded, with directions to sustain the demurrer.