440 N.E.2d 575 | Ohio Ct. App. | 1981
This is an appeal from a grant of summary judgment entered by the Court of Common Pleas of Lawrence County in favor of Columbia Gas Transmission Corporation (Columbia Gas) and Carl and Lillian Ruggles, defendants below and appellees herein, upon their motions for summary judgment and against Emogene and Larry Stapleton, plaintiffs below and appellants herein. The following errors are assigned:
"1. The Court erred in granting summary judgment in that there were some genuine issues of fact upon which there was no evidence and same [sic] upon which there was conflicting evidence.
"2. The Court erred in ruling that as a matter of law a purchaser of real estate upon which there is situated a house which house is using gas in violation of lease covenants is entitled to free gas rights in spite of a specific reservation in his deed denying him any rights to oil and gas.
"3. The Court erred in refusing to permit a lessor of oil and gas rights to recover damages due to unauthorized use by a subsequent owner of a portion of the surface of the land over and above the oil and gas rights.
"4. The Court erred in permitting a lessee of oil and gas rights to furnish free gas to a stranger to the lease and ownership of the gas and oil rights and further in failing to compensate the lessor for unauthorized usage condoned and contributed to by said lessee."
Appellants filed an amended complaint against appellees in the court below seeking, essentially, a declaration that they were entitled to free gas under a certain lease, an injunction against the Ruggleses and Columbia Gas prohibiting the use of the "free gas" by the Ruggleses, and monetary damages against Columbia Gas. After answering the amended complaint, appellees, by separate motions, moved for summary judgment relying on the lease, certain deeds attached to their motions, and a deposition of appellant Emogene Stapleton. The court below, on October 17, 1979, granted the motions.
The following pertinent facts appear in the evidentiary material in the record that may be considered for summary judgment purposes1: *17
(1) On March 12, 1930, Otho and Nettie Gillette entered into a lease granting to the Chartiers Oil Company the oil and gas in a ninety-eight acre tract located in Lawrence County, Ohio. The lease provided, inter alia, the following:
"If gas is found in paying quantities to the lessees and conveyed from the premises, the lessors may have gas free of cost by laying the necessary line and making connection at their cost at such point as may be designated by lessees for light and heat in the mansion house on said premises, to be used with economical appliances subject to approval of lessees. Said gas to be used at lessors' own risk, and lessees not to be in any way liable for insufficient supply of gas caused by the use of pumping stations, breakage of lines, or other causes, but nothing herein shall prevent the lessees from abandoning any well or wells and removing the pipe therefrom. The lessees agree to pay for all damages caused to growing crops by said operations.
"* * *
"It is agreed that all the conditions and terms herein shall extend to the heirs, executors, successors and assigns of the parties hereto."
(2) Columbia Gas is the successor to the original lessee, the Chartiers Oil Company.
(3) On September 14, 1945, the lessors, Otho and Nettie Gillette, conveyed to appellant Emogene Stapleton and her husband Hayden Stapleton, now deceased, the tract covered by the lease.
(4) In 1952 or 1953, the Stapletons began using the free gas for domestic purposes at their dwelling on the tract, although the free gas provision had not previously been exercised.
(5) On November 12, 1958, the Stapletons reconveyed forty acres of the original tract to the Gillettes, but, in the reconveyance, retained oil, gas and mineral rights.
(6) On May 12, 1958, the Stapletons conveyed to John and Mattie Stapleton a
(7) In 1959 John Stapleton extended a gas line from the residence of Emogene and Hayden Stapleton and also began using free gas to his newly built home on the
(8) On December 21, 1959, a conveyance of 0.28 acres was made by Emogene and Hayden Stapleton to Kenneth R. Hughes and Shelfie J. Hughes, the oil, gas and mineral rights being excepted and retained by the Stapletons.
(9) By deed dated May 2, 1961, Hayden and Emogene Stapleton conveyed a 50.14 acre tract to appellees Carl and Lillian B. Ruggles, excepting therefrom the prior conveyance of
(10) By deed dated May 15, 1961, John and Mattie Stapleton reconveyed the
(11) In 1975 or 1976 a dispute arose as to who was entitled to receive the free gas. In effect, Columbia Gas elected to allow the Ruggleses and not appellants free gas privileges.
A beginning point in the resolution of this appeal is a determination of what the parties to the 1930 lease intended therein with respect to the free gas provision. Such provisions are not novel, are in general use and have frequently resulted in litigation, particularly in Kentucky and West Virginia. There is, however, a paucity of Ohio decisions.
Inasmuch as we view the provision in question as a covenant, the cardinal principle of interpretation is to ascertain the intent of the parties as that intention is reflected in the provisions of the instrument as a whole with resort, if necessary, to surrounding facts and circumstances at the time of execution. 15 Ohio Jurisprudence 2d Rev. 8, Covenants, Section 4.
We believe it self-evident that by the use of the term "in the mansion house" that only one such house was to receive free gas and it is not contended otherwise either below or herein.4
Accordingly, when the Stapletons began the use of the free gas in 1952 or 1953, no other house was entitled to free gas. Thus, the 1959 extension of the gas line to the house located upon the
Also necessary for resolution are the further questions of whether the parties to the lease intended the free gas provision to be personal to the lessors or whether it was intended to run with the land, and, if so, with the ownership of the surface or with the underlying oil, gas and mineral estate.
Outside Ohio such a provision as here considered is generally treated by the courts as a covenant which runs with the surface of the leasehold tract unless a contrary intention appears from the wording of the instrument. The theory upon which the covenant is held to run with the surface and not the mineral, gas and oil estate is that the surface owner of the house, or other building located thereon and entitled to free gas, is presumptively the one intended to be benefited. Warfield Natural Gas Co. v. Small
(1940),
An important factor in determining whether the parties intended the free gas provision to run with the land is whether the lease provides that the terms and conditions of the lease shall extend to the contracting parties' heirs, successors, personal representatives and assigns. Wagner v. Hamilton (1946),
While no Ohio case has been cited respecting a free gas clause in an oil and gas lease with respect to whether it is personal or real and runs with the land, basically, the Ohio courts make such determinations based upon the manifested intention of the parties and whether the covenant burden and benefits relates to and concerns the land and whether the covenant is consistent with public policy. 15 Ohio Jurisprudence 2d Rev., Covenants, Sections 14-16. It is not essential to the running of a covenant that the words "heirs, successors or assigns" be used; however, when they are so used, as here, it clearly reflects the intention of the parties in that respect. Peto v. Korach (1969),
In light of the above authorities, we hold the free gas provision here considered was a real covenant which ran with the surface ownership of the leasehold tract, and had appellant conveyed the whole tract the right to free gas would have run with the land and passed to the grantee. A different problem is, however, presented when, as here, less than the whole of the surface of the leasehold tract is conveyed.
Appellants assert that the right to receive free gas does not pass under a deed conveying the part of the surface tract upon which the house receiving free gas is located as long as any portion of the surface of the leasehold estate is retained by the grantor. Implied in such argument is that appellant Emogene Stapleton had the right, since no specific mansion house. is described, to transfer the free gas benefit to any portion of the tract to which she relocates her mansion house. Cf. Salisbury v.Columbian Fuel Corp. (Ky. 1965),
In the cause herein, Emogene Stapleton retained 0.25 acres and also claims the
Assuming the time of acquisition of the
Appellants further argue that the exception of the oil, gas and mineral rights in the Ruggleses' deed also excepted the right to free gas. We disagree by reason *20 of our prior conclusion that the free gas covenant ran with ownership of the surface and not the gas, oil and mineral estate. Since the right to free gas was not excepted from the deed to the Ruggleses, and since the deed conveyed the house receiving free gas, we hold that the right to free gas passed under the deed provisions conveying "all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof."
For the reasons above set forth, the first and second assignments of error are overruled.
The third and fourth assignments of error are dependent upon the validity of the first two assignments of error; and, concluding that the first two assignments of error are not well taken, it follows that no error intervened in the judgment insofar as it allows the use of free gas by the appellees and fails to award damages to appellants. Therefore, the third and fourth assignments of error are overruled and the judgment is affirmed.
Judgment affirmed.
GREY, P.J., and ABELE, J., concur.
Pursuant to Civ. R. 56 the court is required to construe the evidentiary material most strongly in favor of the non-moving party and may not weigh such evidence nor consider credibility of witnesses. Accordingly, the conclusions of the court will be considered insofar as they reflect the reasoning of the court with respect to uncontroverted facts. For a similar approach seeDeTar Distributing Co. v. Tri-State Motor Transit Co. (C.A. 10, 1967),