Opinion by
Mb. Justice Gbeen,
By the terms of the lease from Riddle to Galey it was to *38cease at the end of one year, but was to continue as long as gas or oil was found in paying quantities, or rental was paid according to the conditions expressed in the lease. It was the undoubted fact that neither oil nor gas was found in paying quantities at the end of the year, but some oil was found. It was also an undisputed fact that, after the expiration of the year, efforts were made, with the knowledge and active assistance of the plaintiff, to obtain a larger yield of oil from the well. On April 28, 1890, some time after the year had expired, the plaintiff, without any objection, and at the mere request of the defendant Mellon, acknowledged the execution of the lease before a notary and it was placed on record on May 18, 1890. The witness McDonald testified that he was at Mellon’s office one day in 1890, when Riddle came in, and said to Mellon he had heard he intended to pull the casing out of the well and abandon it, and wanted to know what his intentions were; that Mellon immediately told him he did intend to pull the casing out, and either drill that well deeper or on the adjoining property; that he intended to develop the farm, and that pulling the casing was not considered an abandonment; and “ Mr. Riddle said he was perfectly satisfied with that, provided he could get some hauling..... He said he would acknowledge the lease, which he afterwards did, and he went out in high glee, and seemed perfectly satisfied that Mr. Mellon owned the lease, and was going ahead to develop the territory.” The consideration of such testimony was, of course, for the jury; and, if believed, it clearly authorized an inference that Riddle consented to a continuance of the relation between himself and Mellon in the prosecution of further work under the lease.
Mellon testified on the same subject. He said that Riddle cam'e to his office about the twenty-third of April, 1890, and asked him whether he was going to do any more work on the farm : “ I told him that I was; that I had leased a number of other farms adjoining, and intended to do some drilling on them, and also drill another well on him. -He said to me that if I took the rig down, that it would be an abandonment. Well, I told him I would go on, and drill another well on his farm. ‘ Well,’ he says, ‘ that is all right.’ So I took the old rig down, and moved it over on the Scott farm, the adjoining *39farm, and proceeded to build a new rig on his farm; but before I had the new rig on his farm, he had leased to another party. I’m a little ahead of my story. The day he came into my office — Q. That date seems to be the twenty-eighth of April? A. I thought it was the twenty-third. Whatever day it was, when he came in I told him I would drill another well on his farm. ‘Well, that is all right,’ he says. I asked him to acknowledge the lease then, and we would put it on record. He did so, and I took it up shortly afterwards, and put it on record here in court.....Q. Now, after the lease was acknowleged, did you go on and spend money on his place ? A. Why, yes; I immediately commenced to develop the land I had taken up. Q. Did you go on his place ? A. I went on the place. The engine had been drilling there a year, and the boiler was in poor repair. I had to get things repaired, and the rig running to drill another well.” After testifying that Riddle had promised to take care of the first well for him, and to do whatever was necessary to be done about a well, and that he continued to do so from the time the first well was finished till the new one was commenced, he was asked: “ Q. Now, you stated when you made this arrangement in April, 1890, that you promised him that you would develop the adjoining territory, and also go on on his farm after a while; did you afterwards go on ? A. Oh, yes ; I commenced it, and put the rig up on his farm, two weeks after I had the rig up on the adjoining farm. Q. Have you drilled another well there ? A. I have drilled a second well, and started a third. Q. On this Riddle farm ? A. On the Riddle farm. Yes, sir.” On cross-examination, he was asked: “ Q. Didn’t you, in June, 1890, abandon that particular well ? A. No, sir, I had a clear understanding with Mr. Riddle. Q. Didn’t you pull down the rig? A. I pulled it down, but I talked with him about it beforehand. Q. Didn’t you pull the casing? A. Yes, sir, I used it on the other farm, on the adjoining farm. Q. Didn’t you plug the hole ? A. I plugged the hole, according to law, because 1 expected to drill. . . . Q. Now, then, did you ever commence to drill on that land till November, 1890 ? I am not speaking of hauling stuff there, or anything of that sort, but was there a stroke of work done at drilling a well until November, 1890 ? A. It was along about that time, yes, sir. All *40I was to do was to drill a well. Mr. Riddle and I had talked the thing over, and I was to drill this one well, or drill another one. He said, if I gave him the hauling for his well, and so on, it was all right if I would drill him a well, and I promised to do that, and fulfilled it.”
If this testimony was believed by the jury we do not see how they could resist the conclusion that Riddle consented to another well being put down by Mellon, after knowing precisely what had been done at the first well, after the subject of an abandonment by taking down the rigging of tire first one ba.d been discussed between them, and that Riddle agreed that Mellon might do exactly what he said be would do, and testified that he bad done. There is much more testimony corroborative of Mellon’s, but it is unnecessary to repeat it. The whole effect of it was for the jury. The learned judge of the court below, in a charge which was exceedingly fair for the plaintiff, committed the whole subject to the jury, and gave the plaintiff every possible chance to recover, if he could, under the testimony; but the jury found the facts agai.nst him, and, as it seems to us, with entire propriety. It was not possible for the court to take the facts away from the jury, and pronounce upon them as matter of law. We think the instructions of the court complained of in the assignments of error were altogether correct, and that the verdict was just and right, upon a fair view of the whole testimony.
Judgment affirmed. C.