184 Pa. 354 | Pa. | 1898
Opinion by
These cases depend upon the same question. The parties were before us on tliat question in 1893, and the ease is reported in 160 Pa. 559. It is frankly conceded by counsel for defendants that if the rule laid down in that case is to be adhered to it rules these. In deference to the decided views of the learned judge of the court below, and the earnest request of counsel, we have listened to what is substantially a rearguinent of Wettengel v. Gormley, 160 Pa. 559, and have undertaken to reexamine the reasons on which our decision in that case rests. The facts upon which the controversy arises are in no doubt, but need to be stated in order tbat the precise point in question may be seen. In July, 1888, James Gormley was the owner of three contiguous farms, containing together nearly six hundred acres of land. He made an oil and gas lease of the six hundred acres as a single body to Tomlinson, for the term of fifteen years, reserving a royalty of one eighth part of the oil produced. This lease gave Tomlinson the exclusive right to bore and operate for oil upon the entire six hundred acres during the term of fifteen years, and hound him to conduct operations under the lease in such manner as to interfere as little as possible with operations by tlie lessor and his tenants in the cultivation of the surface. It closed with a stipulation providing that “ all conditions between tlie parties liereto shall extend to their heirs, executors or assigns.” The legal operation of tliis lease, as between the lessor and tbe lessee, “ tlieir heirs, executors or assigns,” was to sever the leasehold from the freehold estate. Thereafter the exclusive right of access to the oil bearing stratum was in the lessee, whose duty it was to develop and operate the leasehold estate for oil and gas. The exclusive right to cultivate the surface, subject to the easement created upon and over it in aid of the operations of the lessee, was in the lessor and his tenants. A sale of the freehold to any person having notice, actual or constructive, of the lease would have been subject to its provisions, and would in
There is no escape from this proposition. The cleaver of the testator applied by the terms of his will for the division of the lands between his children made a clean cut separation of the shares of each down till the leasehold was encountered. There its descent was arrested until the term created by the lease
There is however one new question raised in these cases. It is whether the injury done to any one of these devisees upon whose surface the wells may happen to be should not be borne as the benefit is shared, in equal proportions by the three devisees of James Gormley. The learned judge of the court below so held. He found as a fact that the injury done the defendant in the reduction of the rental value of his part of the six hundred acres was $¡200 per annum, and had been for three years prior to his decree ; and he found as a conclusion of law that this sum of §600 for three years’ loss upon rentals should be deducted from the royalties before division. This conclusion we are not disposed to disturb. It is equitable in its operation. But the defendant has his share of the benefit arising from the production of the oil, and should bear his share of the loss of rental resulting from its production. As to the finding that “ It will require time and expense depending largely upon the number of wells that may have been drilled ” to restore the surface to a proper condition after the lease has ended, we see no reason to doubt that the learned judge is correct; and it may be that the sum he fixes upon, viz: §200 per well will be required for this purpose, but it is certainly not demandable now. The lease has some years to run. Meantime the defendant will be fully reimbursed for any loss he sustains because of the operations under it by the allowance for loss of rental resulting from such operations. The cost of repairing injuries to the realty can be considered when the time for entering on such repairs approaches.
The decree requiring an account for royalties is affirmed. The calculation should be modified to meet the requirements of this opinion. The §600 loss of rental should be deducted from the three devisees in proportion to their ownership of the surface, and the cost of repairs omitted from the calculation until such time as the approaching termination of the lease makes it possible, intelligently, to consider the subject.