54 W. Va. 530 | W. Va. | 1904
Henry A. Eymer and Frank L. Eymer and Edith, his wife, executed to the South Penn Oil Company, the following lease; “Agreement, made and entered into the 24th day of August A. D. 1897, by and between Ii. A. Eymer, Frank L. Eymer and Edith Eymer his wife of Middlebourne, County of Tyler and State of West Virginia parties of the first part and the South Penn Oil Company, a Pennsylvania' Corporation, party of the second part. Witnesseth: — That the said parties of the first part for and in consideration of the sum of one dollar to them
It is agreed, That the second party is to 'have the privilege of using sufficient water from the premises to run all necessary machinery, and at any time to remove all machinery and fixtures placed on said premises, and, further shall have the right at any time to surrender this lease to the first part, for cancellation, after which all payments and liabilities to accrue under and by virtue of its terms shall cease and determine, and this lease become absolutely null and void. Witness the following signatures and seals: Henry A. Rymer, (seal); Frank L. Rymer, (seal); Edith C. Rymer, (seal); South Penn Oil Company, (seal). By N. F. Clark, First Vice-President. Witness: C. Y. Bencdum.” Which is duly acknowledged by the lessors and recorded. The South Penn Oil Company subleased a part of the land so leased to it, io Treat and Crawford who took possession under their sub-lease and drilled two wells which produced oil in paying quantities. The South Penn Company afterwards took possession of the residue and bored seven wells near to those bbred by Treat and Crawford producing large quantities of oil. The tract of three hundred and sixty acres so first leased was composed of a tract of ninety acres, another of twenty-five acres both of which are vested in fee at the time of making the lease in Frank L. Rymer, the residue of two hundred and forty-five acres was owned in fee by Henry A. Rymer. The two wells bored by Treat and Crawford, as well as those bored by the South Penn Company were all on the ninety acre tract which was the property of Frank L. Rymer. Treat and Crawford delivered to Frank the one-eighth of the oil produced from the two wells, who also demanded from the South Penn Oil Company an accounting and delivery to him of the full one-eighth royalty from the wells bored by it, which it refused to do, claiming that the lease of the three hundred and sixty acres was a joint lease and that the royalties were payable to the lessors the said Frank L. Rymer and the heirs at law of Henry A. Rymer, who had
Frank L. Rviner filed his bill in the circuit court of Tyler county against the South Penn Oil Company and the Eureka Pipe Line Company alleging that all of the wells bored by the said South Penn Oil Company were located on his tract of ninety acres of land which being vested in him in fee simple entitled him to the whole of the one-cighth royalty oil therefrom, and the gas rentals, and praying that the defendant companies be made parties to the bill and be required to answer the same and make a full account and discovery of dates that any oil had been run into the pipe lines from-the said wells so drilled by the South Penn Oil Company upon the the said ninety acre tract of land and amount of oil so run into the lines of the Eureka Pipe Lino Company each time and the total amount of oil so run into the lines from said wells, and that the said companies be ordered to pay over to plaintiff any oils or money found due on such accounting and for general Telief.
The defendant, South Penn Oil Company filed its demurrer to plaintiff’s bill for non-joinder of parties claiming that the heirs and devisees of ITenry A. Rymer were necessary parties, the lease being a joint lease and the royalties and rentals payable to the lessors jointly. The demurrer was overruled by the court. South Penn Oil Company then filed its answer in the nature of an interpleader and cross bill praying that plaintiff be required by amended bill or orthewiso to make tbe heirs and devisees of Henry A. Rymer parties defendants in the suit that respondent might be fully protected in the payment of royalties under the said lease as well as to protect and preserve the rights of Treat and Crawford in carrying out the provisions of their lease in the delivery of royalty oil thereunder. By the cross bill of tbe South Penn Oil Company, all heirs at law of Henry A. Rymer, the defendant Eureka Pipe Line Company, and Treat and Crawford wore mn.de parties defendants thereto. The defendants Susan Smith, David M. Smith, her husband, Elizabeth
The cause was heard on the 9th day of December, 1902, when the court overruled said objections and exceptions to the depositions as to their competency to prove such parol agreement and decreed all the royalty oil, and the consideration for gas that may be produced from the ninety acres and the twenty-five acres of land under the said lease to the plaintiff Frank L. Rymer, and that defendants, Susan Smith and Elizabeth Boyers take nothing by their answers and cross bills, and directing the South Penn Oil Company to run said royalty oil produced and saved from said two tracts to the credit of Frank L. Rymer, into the pipe lines of the Eureka Pipe Line Company, which was directed to credit same to said Frank L. Rymer.
The errors complained of by the appellants, Elizabeth Boyers and Susan Smith are, first, the overruling of the demurrer of the South Penn Oil Company, and, second, overruling their objections and exceptions to the depositions and testimony of witnesses C. Y. Bencdum, J Traugh and T. PL Plarter, so far as the same tend to set up a new agreement between H. A. Rymer in his lifetime and the plaintiff touching the lease of the lands in controversy, and in so far as the same relate to state
I-I. A. Rymer, and Prank L. Rymer were the owners in, sever-alty of contiguous tracts of land, the former two hundred and forty-five acres, the latter one hundred and fifteen acres, making together three hundred and sixty acres. They executed together a lease of the whole three hundred and sixty acres whereby they sold seven-eights of the oil underlying said land to the lessee in consideration of one-eiglith of all the oil to be produced therefrom to be delivered as produced, but their contract of lease or sale is entirely silent as to the division between them of the consideration so to be paid in oil. It is not disputed that the oil underlying the several tracts is the property of the respective owners of said tracts, a part of the realty itself, and when they receive, each that which is produced from his own land he is but receiving his own, the subject matter of the contract between the lessors and lessee, now in controversy between the, plaintiff Prank L. Rymer and the heirs of H. A. Rymer, is the sole property of Prank L. Rymer. The contract of lease of August 24, 1897, having no provision as to the distribution of the royalty oil between the parties of the first part parol testimony tending to show the intention of the lessors as to such distribution, as evidenced by the declaration of the parties at the time of executing the lease, as well as the subsequent declarations of II. A. Rymer are competent evidence to aid in arriving at a proper conclusion as to such distribution. It is shown by the testimony of C. S. Stealey that the rental of $125 per quarter paid prior to the completion of the first well was placed in his hands for distribution, and when asked who placed the rental in his hands, answered: “Well, Í think Mr. Prank L. Rymer did part of the time and I know Frank Hix did once”_
It is insisted by appellants that “the weakest of all human testimony is that of witnesses who testify to the declarations of the dead” and cite “Justice Manning in Succession of Pifiiet, 37 La. Ann. 873,” and also cito 1 Grecnlief on Evidence, section 200, which treats of the uncertainty of such evidence, and says: “It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement, completely at varienco with what the party actually did say;” and adds, “But where the admission is deliberately made and precisely identified, the evidence it affords is often of the most satisfactory nature.” The evidence in this case, is of such a character that tírese uncertainties are not likely to exist and it depends more upon the credibility of the witnesses than of their recollection, as to certain and definite statements made by the parties, and no effort was made to impeach the witnesses, or otherwise discredit them, further than the criticism of their tetstimony by counsel in their briefs. When the contract of lease was drawn, according to the evidence of Bene-dum, he suggested that they make the lease in one; when he says that they explained to him, as best they could, that each of them, owned in fee land in the Jug; that these lands were adjacent to each other, and that they would lease them in a joint lease, providing that each party should secure his own royalty. The witness, J. Traugh, states that he and H. A. Rymer, in 1897, both lived in the town of Middlebourne; that he had a conversation with H. A. Rymer in front of the latter’s house.
Appellants claim that their proposition is fully sustained by the decision in Higgins v. Patrolcum-Asphalt Company, 109 Cal., 304; 41 Pac. Rep. 1087. In that case Higgins and one Mary A. Ashlej’’ owning contiguous tracts of land underlaid with a deposit of bituminous rock and also deposit of liquid asphaltum, executed a lease to Joseph Sheerer for the term of twenty years, in consideration of the lease, among other things, the lessee promised to pay “to the parties of the first part,” lessors, on the first day of each and every month thereafter during said term, “the sum of fifty cents per ton for each ton of bituminous rock and liquid asphalt which he may have mined, taken or removed from said premises during the calendar month then next preceding, and at the same time and place of such payment to deliver to the said parties of the first part, a full and true statement in writing of the number of gross tons of bitumuous rock and liquid asphalt mined, taken or removed from said premises during the calendar month for which such payment is then made,” with right of ingress and egress to and from said deposits over the lands owned by the said lessors as might be agreed upon between the parties to the lease, with privilege to the lessee of erecting such building upon the land adjacent to such deposit as might be necessary for the accommodation of his workmen
The appellants claim that the case of Wettengel v. Gormley, 160 Pa. St. 559, 28 Atl. Rep. 934, settles the principles involved in this case in favor of the appellants. James Gormley owned three contiguous farms containing together about six hundred acres. In July, 1888, he made an oil lease on the whole of the six hundred acres as one tract, to run fifteen 3>ears, and reserved the usual royalty of one-eighth of all the oil produced under the lease. The lease gave the lessee the usual privilege upon the land among which was the right to take water from any part of it and for any extent needed, a right-of-way into and over the land; a right to lay pipe lines etc. The lease concluded with tire following stipulation: “It is understood between the parties to this agreement that all conditions between the parties hereto shall extend to their heirs, executors and assigns.” The lessor died in 1890. By his will he gave one of the farms to each of his three children in fee, making no mention of the lease, which included them all. The devisees entered into possession of their respective farms as held in severalty. “The holder of the oil lease has, in the meantime, put down several oil wells, and is producing oil therefrom.” It does not appear from the opinion clearly
“1. During the term of an oil lease of three contiguous farms, embracing six hundred acres the lessor died, having devised the farms to three different persons. The lease provided that all its conditions should extend to the parties’ heirs, executors and assigns. Held; that each devisee was entitled to share in the royalties in the proportion that the land devised to him bears to the whole tract, though the wells were all on one farm.
“A In such case the loss of rental value of one of the farms, caused by operation of the wells, should be deducted from the three devisees in proportion to their ownership- of the surface.”
If the wells drilled under the lease in case at bar had been upon the land of the testator, Henry A. Rymer, instead of the plaintiff, Frank L. Rjnner, the cases would have been exactly parallel -as the appellants and plaintiff are all devisees of II. A. Rymer. As that precise question does not- plainly arise in this case it is not necessary to decide it here.
The case of Natural Gas Company v. Ullery, (Ohio.) 67 N. E. Rep. 494, where it is held: “Where an oil and gas lease is made by one party to another covering two or more separate tracts of land, and is made to extend to the heirs and assigns of the pax-ties, and different persoxxs become the owners of such different tracts, each owner is entitled to the oil and gas produced on his tract, and to the royalty and rental arising from such tract,” seems to be a case quite similar to the one at bar and in harmony with the rulings of this Court, and fully sus
There is no error in the decree and the same is affirmed.
Affirmed.