author: NORRIS, J.

text:
    JUSTICE OF THE PEACE.
    [Crawford (3rd) Circuit Court,
    January 28, 1908.]
    Norris, Hurin and Donnelly, JJ.
    E. and M. J. McGinniss v. Frank Dickson.
    Indefinite Continuance by Justice of the Peace at Request of Both Pabties not. Invalid.
    Continuance of the trial of an action by a justice of the peace for an in- . definite time at the request of both parties does not work a discontinuance of the case nor deprive him of jurisdiction; but he is vested with authority to later call up the case and fix a day certain for trial thereof, notwithstanding the time of adjournment exceeds that fixed by statute (Secs. 6534-6536 Rev. Stat., either upon the court’s own motion or request of one of the parties.
    ERROR to Crawford common pleas court.
    S. L. Americus, for plaintiffs in error.
    B. F. Long, for defendant in error.
   NORRIS, J.

This action was commenced on February 16, 1905, before a justice -of the peace of this county, by E. and M. J. MeGinniss against one David Yockey. The trial was set for February 25, 1905. David Yockey filed a counterclaim on the day preceding the trial day. Tbe counsel for tbe plaintiffs and the counsel for the defendant met at the office of the justice of the peace on February 24, 1905, and by the agreement of both parties the case was adjourned “indefinitely,” says the record of the justice of the peace. Up to about October 1, 1905, nothing had been done in the case. On this date, on application of counsel for the defendant, the case was by the justice of the peace set for trial on October 16, 1905. The justice of the peace, on October 1, 1905, notified the plaintiffs by letter that he had set the case for trial on October 16, 1905, at 10 o’clock a. mv It is conceded in the record that the plaintiffs received this letter and were therefore informed. On October 16, 1905, and at 10 o’clock a. m. of that day, the time fixed by the justice of the peace for trial, the defendant came, but the plaintiffs failed to appear, either in person, or by counsel, at the time set for the trial, or within one hour thereafter. Whereupon the justice of the peace dismissed the plaintiffs’ bill of particulars, and, on motion of the defendant, proceeded with the case on defendant’s counterclaim, and upon the evidence, and entered judgment for the defendant against the plaintiffs. On October 23, 1905, the plaintiffs’ counsel appeared and ordered a transcript of the findings to be carried up on error, says the record. I make these statements in preface and by way of introduction to the action in error, so that the facts recited hereafter may be more fully understood.

It appears that execution was issued in the aforesaid action from the justice of the peace’s court, on defendant’s default judgment against the plaintiffs, being obtained on defendant’s counterclaim. The constable, Frank Dickson, the defendant in error in this action, levied the execution. Thereupon, the plaintiffs in error commenced this action in replevin before a justice of the peace against Frank Dickson as constable, to recover possession of the property thus taken by Dickson. The case reached the common pleas court on appeal. The petition in the common pleas court does not seem to be an action against Dickson as constable, but against him personally. The petition claims that Frank Dickson wrongfully attached, etc., the property described in the petition to which the plaintiffs have the right of immediate possession, etc. The answer avers that Frank Dickson is constable, etc., and denies. The-reply admits that Frank Dickson claims the property as constable and avers that the execution upon which the property was taken is null and void — that the judgment of David Yockey against E. and M. J. Mc-Ginniss upon which execution issued is void. These issues in the action in replevin came on for trial in the common pleas court of this county on its merits and, at the close of plaintiffs’ evidence, on motion of defendant’s counsel, the court directed the jury to return its verdict for tbe defendant, and that at tbe commencement of this action tbe defendant bad tbe right of possession of tbe property described in tbe petition. Tbe plaintiffs’ motion for a new trial was overruled and judgment was .entered on the verdict for tbe defendant.

Tbe errors assigned in tbe petition in error for tbe reversal of the judgment and findings of tbe common pleas court, are:

(1) Error in directing tbe verdict for tbe defendant; (2) that the verdict is against tbe weight of tbe evidence, and contrary to law; (3) error in admitting evidence offered by defendant; (4) in rejecting evidence offered by plaintiffs; (5) in tbe charge; (6) that tbe verdict is for defendant when it should have been for plaintiffs; (7) in overruling the motion for new trial; (8) in entering judgment for defendant; (9) other errors apparent on an inspection of tbe record.

It is conceded that execution issued on a “purported judgment” in favor of David Yockey and against E. and M. J. McGinniss in the justice’s court. It is not disputed that defendant took possession of tbe property in. dispute under this execution. It is not disputed that tbe property levied on as tbe property of tbe plaintiffs, and the right of possession of defendant rests on tbe validity of the judgment and tbe execution under it. If tbe judgment is an invalid judgment, tbe execution and tbe possession of Dickson under it is improper and his detention of tbe property is wrongful detention. And this is tbe case, and tbe only question in it, as we view tbe case.

It is not contended but what tbe action of E. and M. J. McGinniss against David Yockey was properly commenced, and that tbe justice of tbe peace bad jurisdiction, in tbe beginning, of tbe person of tbe parties and of tbe subject-matter of tbe suit. It is however contended that tbe adjournment of tbe trial of the case “indefinitely” worked a discontinuance of tbe action and that the justice of the peace thereby lost jurisdiction.

While a justice of tbe peace would not have tbe right to adjourn a case on bis own motion for a longer period than that named in tbe statute, Secs. 6534 to 6536 Rev. Stat., and would not have tbe right to adjourn tbe trial at tbe request of one of the parties for a longer period than that fixed by statute, and to do so in either instance would deprive him of jurisdiction, and while a continuance for an “indefinite time” and not to a day certain on bis own motion, or at tbe request of one of tbe parties only, would mark a determination of tbe suit, we think that we are warranted in saying that at tbe request of both parties, an adjournment of tbe trial, or a continuance for an “indefinite period” does not work a discontinuance of tbe case, but vests tbe court with such authority that at a later period than that of the day of the original assignment, the court may fix a day certain for the trial. He still has the power to call the case up for the purpose of fixing a definite day for trial. We do not see anything unreasonable in this conclusion. The adjournment is the act of the justice of the peace at the request of both parties. The agreement of the parties that .a day certain should not be then fixed did not take from the justice of the peace the power to fix a day at a later period, but was an affirmance of the authority which the justice of the peace then had, to fix a day, and an agreement that he might at some future day name a date certain for the trial of the case.

This being our view, we find no error and so affirm the judgment at the cost of plaintiffs in error. Execution is awarded and the case is remanded for execution.

Hurin and Donnelly, JJ., concur.


source: Caselaw Access Project

author: HAYNES, J.

license: Public Domain

text:
    GAS AND OIL.
    [Wood (6th) Circuit Court,
    October 24, 1892.]
    Scribner, Bentley and Haynes, JJ.

      John Baker v. Hamilton H. Stow et al.
    1. Work on On. Lease Commenced withtn Six Months as Prerequisite to Extension, of Term by Payment of Rental.
    An oil lease providing that, “operations * * * shall be commenced and one well completed witbin six months from the date hereof, and in case of failure to complete one well within such time” the lessees promise to pay “ten dollars per annum within three months after the time for completing such wells, * * * until one well shall be completed, and a failure to complete one well, or to make such payment * * * renders this lease null and void,” requires the lessee to commence work upon the premises within such six months’ period; paying the stipulated sum per annum, without commencing operations to sink a well, does not give lessees the option to sink a well or not as they choose.
    2. Payment of Rental Extends Term one Year from Termination of Six Months’ Period.
    The provision of a gas and oil lease, that the annual rental shall be payable within three months after the six months during which a well was to be completed, extends the lease one year from the termination of the six months’ period, and not from the additional three months’ period.

      Seven important decisions of the Wood county circuit court determining controversies growing out of conflicting rights under gas and oil leases have been preserved by Ira C. Taber of the Toledo bar, formerly of the Wood county bar, and'are here published for the first time.

   HAYNES, J.

The petition in this case was filed June 9, 1890, for the cancellation of a certain instrument known as an oil lease ¡.afterwards on November 8, 1890, an amended petition was filed, setting up in detail the facts; relied upon by the plaintiff for its cancellation; it appears by this petition that there were really three papers that the plaintiff was seeking: to have cancelled. The first was a memorandum of agreement made on July 17, 1886, by one John Baker and E. A. James and J. Henline,, and purports to be a lease on the John Baker premises for oil purposes, or more properly speaking, an agreement rather than a lease. That paper had been assigned so as to come into the hands of some of the defendants as lessees.

The petition further states that on October 26, 1889, Baker made another agreement to one Aaron Therwecter of Toledo, which is an agreement for oil purposes of the same premises; that on said date there was an agreement made between the plaintiff and Hamilton H. Stow which agreement relates to the sinking of wells- and obtaining oil and gas upon the same premises. These papers it seems were held at the time of the filing of the suit by Yan Yleck and Stow, the real parties defendant.

The petition avers that the parties have wholly failed to perform upon their part the things by them to be done, and that the time within which the agreement was to be performed had expired; that the rights of the parties had terminated, and asks for the cancellation o£ the instrument and an injunction against the lessees from further entering upon the premises and sinking wells, claiming they were making threats to do so.

All three of the leases are upon the same form, and contain the same covenants, the difference being in the date and perhaps the time which they are to run; one being for three years and one for five: years on certain conditions. The defendants claim that they tendered; the amounts that are stated in the petition by way of rent, and that; they had the right to go on and sink wells.

Without going into a discussion of the material conditions of the covenants of the contract, I will say that they provide in substance», that in consideration of the covenants and agreements hereinafter named, the parties have granted, demised and let unto the parties of the second part, their heirs and assigns, for the purpose and with the exclusive right of drilling and operating for petroleum, oil and gas, all that certain tract or parts of land situate in Montgomery township» .Wood county, and the state of Ohio, giving boundaries and description? of the premises; tbe parties of the second part, their heirs and assigns, to have and to hold the said premises, for the said purposes only, for and during the term of five years from date hereof, and as much longer as oil and gas is found in paying quantities.

The said parties of the second part in consideration of the said grant and demise, agree to give to the party of the first part the full ■equal one-eighth of all the petroleum oil obtained or produced on the .premises herein leased, and to deliver the same in tanks or pipe lines <to the credit of the party of the first part; and further on,

“Operations on the above described premises shall be commenced and one well completed within six months from the date hereof, and in ease of failure to complete one well within such time, the parties of ■the second part agree to pay annually to the party of the first part for such delay, the sum of $10 per annum within three months after .the time for completing such wells as above specified, payable directly ■to the party of the first part; and the party of the first part agrees to accept such sum as full consideration and payment for such yearly •delay, until one well shall be completed, and a failure to complete one •well, or to make such payments within such time as above mentioned, ■renders this lease null and void and to remain without effect between The parties hereto.”

Now as to all these leases, it is admitted by the pleadings that no well was ever sunk upon the premises, and the simple question is, 'whether those leases are still in force and were, at the time the suit was commenced, which calls upon the court for a construction of ■those clauses that I have already read. We are very clearly satisfied that the true construction of this contract is, — That the parties are to commence a well within six months from the date of the contract. It is apparent from the reading of the contract that the parties were about to proceed to do that, which is, to a certain extent, uncertain as to results. It may be that no oil and gas will be found upon the property.

The testimony shows that the costs of sinking one of these wells is $1,000 to $1,500, or perhaps even more. If oil or gas is not found, of course that amount is lost to the party who sinks the well. There is a hazard in the business with reference to which the contract is undoubtedly made. The party who owns the land makes no expenditures, and he receives but a small portion of the oil that is found. From a reading of the contract, it is evident that the intention of the parties was that the work should commence in a short time, — the period fixed being six months.

It will be noted that ¡ the terms of the contract are, that he shall pay the sum of $10 per annum within three months after the time for •completing such well as above specified; and the party of the first part agrees to accept such sum as full consideration and payment for such yearly delay, until one well shall be completed, and a failure to ■complete one well, or to make such payments within such time as above mentioned renders this lease null and void. At the time they complete •one well the rent, of course, terminates. That is the understanding of the parties, and he stands then the same as if he had completed the well within six months, and his rights under the lease from that time, •depend upon the results of his investigations.

It will be seen that it is further provided that a failure to complete one well or to make such payment, renders this lease null and void. The construction claimed for this lease, as we understand it to be on the part of the lessees, is, that if they fail to sink a well within six months, by paying the sum stipulated in the instrument they have the right, — the option during the whole of the five years, — to commence work, or sink a well as they may choose; in other words that down payment of $10 a year for the use of these premises gives the lessees the option to sink a well or not as they choose.

We have held heretofore, and reiterate it in the present case, that the party must, in order to avail himself of his rights under the contract, commence work upon the premises within the period of six months.

If having done so, he shall fail to complete the well, then upon payment of the sum stipulated, he shall have the right to complete his well thereafter. That he shall proceed with reasonable diligence to finish his well — to carry out what is the intention of the parties. The intention of the lessor is to have his property investigated; to ascertain whether or not there is any oil on the premises so that he may have the benefit of it, and if there is not, that he may know it.

Now with that view of the case briefly stated: under the facts in this case, the two leases dated in 1888 are, in our opinion, in our judgment, null and void; ‘that the rights of the parties have terminated under them, and the plaintff has the right to have the lease cancelled, and the parties enjoined from attempting to enter upon the premises ■under these leases.

. The further question is made here upon the first lease, that is, the lease dated July 19, 1886, and was made originally between the plaintiff and E. A. James and J. Henline, which has been transferred from party to party until, I believe, it is now claimed to be held by Yan Yleek, the defendant in this ease.

In that ease there was no work commenced within the period of six months. The question in the ease arises upon the action of the parties after the expiration of the six months.

This lease appears to have been on May 14, 1889, assigned by Hen-line to a man by the name of Evans, and on December 30, 1889, to have been assigned to a man by name of Huffman; there are other assignments which are said to have been made, but they are not in the lease itself.

It appears, however, that on April 12, 1887’ that $10 was paid on the within lease as annual rental, and the receipt is signed by John Baker. Afterwards the defendant, Yan Yleek, had negotiations with some parties for the purchase of this lease and their rights under it. It not appearing that this annual rent had been paid, he said he would not purchase it until the rent was paid, and thereupon the parties went to Baker and received from him a receipt which reads as follows:

“January 4, 1890. I hereby receive $20 the rental in full to April, 1890, on the within lease, — signed,—John Baker and witnessed by John Edmonds and Almon Baker.”

It is said, however, that in fact no money was paid. Baker understood that this instrument was being assigned in order to enable the parties to negotiate the lease. They had then entered into negotiations to transfer the lease to Mr. Yan Yleek, and he testified that he paid them, and paid them without any knowledge that this money had not been paid, and with full belief that the money had been paid Baker, and we think he stands as a bona fide purchaser of the lease, relying upon this paper as being a genuine receipt.

Since that time, no rents have been received by Baker. The rents, have been tendered but he has declined to receive them.

This original suit was commenced June 9, 1890, for the purpose of cancelling this lease; now the question is, what are the rights of the' parties under this state of facts?

The lease was dated July 17, 1886. The six months within which the work was to be done would have expired on January 17, 1887. At that time the plaintiff had the right, if he chose, to declare the agreement null and void, and to enforce its cancellation.

The parties if they had commenced work would have had the right within three months to have made a tender of the yearly rental, and it appears that April 12, being six days prior to the expiration of the three months expiration of the six months, Baker received the $10: annual rental on the lease, and we think he must be held by so doing, to have waived to a certain extent the nonperformance of the agreement and the commencement of the work within six months. It appears that no rents were paid on the next year, and none were tendered,, but that on, January 14, 1890, the further sum of $20 was receipted for, and that the rental was to be to April 12, 1890. Now, right here, it appears that the parties were of the opinion that by the payment of' the rent instead of being extended from the expiration of the six months, would be extended for a year from the time of the ending of' the three months, or nine months from the expiration of the lease,, and hence, they have said that this lease was conditioned until April 12, 1891, but we think a fair construction of the lease is, that by the payment of the $10 that it extended it only for a year from the expiration of the six months; that the real fact is that the lease was extended simply and purely to April 12, 1890, and no longer. The effect of that, is to give them the right within a year to sink a well the same as if' they had a right to sink within six months. If the parties did not do> it within the expiration of the year, the lessor would have the right, to declare the lease null and void; if he received rent for another year,, he would have the right to extend it another year.

The lease was in fact kept alive until April 12, 1890, and no-longer, and inasmuch as no work was commenced prior to April 12, 1890, the party had his option at that date to either receive another year’s rent, or declare the lease null and void. He determined to declare the lease terminated and commenced suit to have the lease can-celled, and under this state of facts, we are of the opinion that he is; entitled to a decree cancelling the lease, and the decree may therefore; be entered accordingly, and the plaintiff recover his costs.

Scribner and Bentley, JJ., concur.


author: PER. CURIAM.

text:
    GAS AND OIL.
    [Wood (6th) Circuit Court.]
    Scribner, Bentley and Haynes, JJ.
    Ruth M. Miller v. T. J. Vandergrift, Ohio Oil Co. et al.
    1. Lease not Extended by Lessor’s Using Gas Furnished by Lessees under Temporary Mutual Agreement.
    Lessor’s accepting and using gas for lighting and heating purposes, supplied by a gas company and paid for by lessees, in consideration for which the lessees are granted an extension of time to open a well, producing oil and gas which, by reason of the intermingling of the oil, and for want of marketable facilities of the oil was unprofitable to operate for either gas or oil, neither extend the terms of the lease nor waive conditions of forfeiture for noncompliance therewith, especially after the expiration of the term contracted for and in the absence of a well profitably producing either. Nor is lessor required directly to notify lessees to shut off the gas from the house after giving general notice of expiration of the lease.

      2. Oil and Gas Lease Held a Sale oe Petroleum Products.
    A contract to drill and operate gas and oil wells for a royalty or fixed compensation for the gas or oil produced, with time limit within which wells are to be completed and extensions of the term granted in case profitable ' wells are developed, and upon failure to complete wells within stipulated periods, subject to rental at a stipulated sum per acre or forfeiture of' lease of lands for the term, is not a lease within the ordinary acceptation of the term but is a sale of petroleum products.
   PER. CURIAM.

This is an action regarding a so-called oil lease, or gas contract. The petition recites that Mrs. Miller is the owner of certain lands in this county, and July 29, 1886., entered into a contract with one T. J. Vandergrift regarding the production and disposition of the oil and gas under the lands.

The general nature of these oil and gas leases, as they are generally called, has been indicated by this court so many times, that we will not now repeat our views upon that subject. It is sufficient to say that we regard them as not leases in the ordinary acceptation of the term, but .as a sale of the oil and gas under certain stipulations and provisions embodied under a contract.

This contract provides in the forepart of it as follows:

“That the said party of the first part for the consideration of the •covenants and agreements hereinafter mentioned, has granted, demised and let unto the party of the second part, his heirs or assigns, for the purpose and with the exclusive right of drilling and operating for petroleum and gas, all that certain tract of land. (Here follows a description •of lands.) The following clause also gives the party of the second part the right of using sufficient water for their operations upon the land; the right to lay pipes and convey oil and gas, and the right to remove ^.ny machinery or fixtures on said premises for, and during the term of, three years from the date hereof and as much longer as oil or gas is found in paying quantities thereon.”

The next clause provides for the payment of, and delivery to the party of the first part, a certain share of the oil which shall be found on the premises, which is to be delivered to her free of expense into tanks or pipe lines to the credit of the first party, and should gas be found in sufficient quantities to justify marketing the same, the consideration in full to the party of the first part, shall be $300 per annum for the gas from each well so long as it shall be sold therefrom.

It is further agreed -that the party of the second part shall complete a well on the above described premises within six months from the date hereof and in ease of failure to complete such well within such time, the party of the second part agrees to pay to the party of the first part for such delay a yearly rental of one dollar per acre on the premises herein leased from the expiration of said six months until such well shall be completed; the said yearly rental amounting to $80, shall be -deposited to the credit of the party of the first part in the Farmer’s National Bank in Findlay, or be paid direct to first party. And a failure to complete such well or to make such deposit or payment as above mentioned, shall render this lease null and void and to remain without ■effect between the parties hereto.

The next clause provides for the damages to growing crops or timber) and the next clause is as follows:

“The party of the first part shall locate the first well. After the ■completion of the first well, no further operations to sink a second well for six months thereafter, shall render this lease null and void.”

The petition avers that the Ohio Oil Company claims the title which was originally granted to Yandergrift by a certain assignment, but for certain reasons, the assignment is of no effect and the Ohio Oil Company really has no such right as it claims.

The petition alleges that a well was completed on the premises within one year from the date of the contract, — not within six months as provided, but within one year. The petition also states that the term ■of three years has fully expired, and neither gas nor oil is now being produced or found in paying quantities or in any quantity whatever on said lands, and neither has gas or oil been found or produced in any quantity whatever on said premises by the defendants or either of them at any time since the completion of said first well. That said first well was completed within one year after the date of said lease, yet neither* said lessee nor any of said defendants have commenced operations to sink a second well on said premises and that by reason of this failure the lease and contract have become void. The petition further avers that the Ohio Oil Company by its employes has entered upon said'premises and placed thereon certain timbers and machinery without any authority or right whatever, and unless enjoined by this court will proceed to-possess and occupy said lands to the great and irreparable damage and injury of said plaintiff, “and the plaintiff prays an injunction restraining the defendants and each of them from asserting any further right,, title or interest in said lands under said contract, or from molesting or disturbing the plaintiff in the free and uninterrupted use and possession of said lands themselves or by their employes, to erect‘derricks, plant machinery, lay pipes or drill oil or gas wells, or commencing so to do under said contract, and that on the final hearing of this cause, the said written contract may be found, held and adjudicated to be of no binding force or efficacy and that the same be declared to be forfeited, annulled, cancelled and held for naught and for all proper relief. ’ ’

The Ohio Oil Company filed an answer alleging the proper transfer by T. J. Vandergrift to it of his rights under the said contract and alleging that this company drilled a well upon the premises at an expense to them of about $1,500. That at the time this lease was completed and delivered and when the well was being drilled, although it provides for both oil and gas, neither party had any idea that any oil would be produced on these premises; that really as the parties understood, gas, and gas alone, was expected, when, to the surprise of all parties, the well proved to be an oil well. The answer does not allege whether or not the well produced oil in paying quantities, but alleges certain reasons-to show that the marketing of the oil was not convenient or practical at the time, that no pipe lines were then within any reasonable distance, and that the parties could not have operated the well with profit to-either party, and then follows this averment:

“That thereupon, by mutual agreement of the parties, the lessees, undertook for themselves and their assigns to supply, and did supply, gas from the gas line of the North Western Ohio Natural Gas Company to heat the dwelling house of plaintiff on said lands. That said lessees and their assigns have ever since so furnished, and are still furnishing gas at their own expense and free of expense to her, in lieu of operating said well and of drilling a second well on said lands within the time prescribed in said lease; and that defendants at an expense to themselves.. of $116.10 and without expense to plaintiff, piped such gas from the •gas line aforesaid to plaintiff’s dwelling house and made the connections with her stoves therein; all of which she received as full compensation for rental and delay in drilling said second well. That until defendants began to furnish gas as aforesaid the cash rental provided for in said lease was fully and promptly paid; ’ ’ and it then proceeds to make certain allegations to show that the failure to operate this well or to drill other wells, did not result in actual harm to plaintiff as her lands are not drained, that the price of oil has advanced since that time and the plaintiff has lost nothing, but, on the contrary, has been the gainer by the fact of said lands not being operated.

The answer also alleges:

“That at the commencement of this action it was the purpose and intention of defendants to operate said well and drill and operate other wells on said lands, pursuant to, and under said lease, and that but for this injunction, additional wells would now be completed and in operation on said lands, and the plaintiff would be receiving her royalty on the production thereof, provided for in the said lease. ’ ’

Now, at the time this action was begun, July 14, 1890, it will be ■seen that the original three-year term of the lease had long since expired ; that if the lease were continued under this contract, it would result from that clause in the lease which was to extend it in ease oil ■or gas is produced or found in paying quantities thereon. Evidence was introduced by the defendant in support of these allegations of its answer. Quite an amount of evidence was introduced to indicate that, ■considering the way the parties were situated, the oil which this well would produce could not be marketed so as to make it a paying thing either to the company or to the plaintiff, and while the well did produce oil, and some gas, the amount was not more than about 5 to 150 barrels per day, and that the gas was so intermingled with the oil, that as a gas well it would amount to nothing, and that the pipe lines were so distant, that to market this oil would not pay in the quantities produced •by the well. It was conceded by the defendant that, in a general way, where there were the usual facilities, a well producing this amount of ■oil would be regarded as producing in paying quantities. It is conceded by all that no second well was drilled or begun. When this well ■came in, it was shut off, and remained in' that condition, and in fact, is in that condition now.

The main reliance of the defendant to sustain its position and its rights to continue operations upon this land seems to arise upon this .alleged contract that was made regarding the use of gas, and its true interpretation. The evidence shows this to have been the arrangement: This well having been completed in April or May, 1887, in the Fall of that year, the plaintiff getting no advantage from the well or the defendant either, and being anxious to get gas to use in her house, made application, once by letter and once after verbally, to the representative of the company regarding the supplying her with gas, and told them that if they would procure gas from the gas company’s line that ran through the neighborhood, and furnish her with gas for the house, she would not hurry them in opening up that well. The testimony upon the making of this arrangement is not specially conflicting. Arrangements were made with the gas line company whereby that line was attached, at the expense of something over $100, pipes laid to the plaintiff’s house and the gas turned on, and she began using it. No bills for the use of that gas were sent by any person to her and she paid nothing. She continued to use it, and the defendant continued to pay the bills which were rendered to it by the gas company for the gas, amounting to something over $100 per year.

It is proof, however, that some time prior to the beginning of this action, she caused the defendant company to be notified that she regarded the lease as terminated and that they should proceed to take their “stuff” off the premises. There is a conflict in the testimony as to when this notice was given. It was given, it seems to a Mr. Donnell, a representative of the defendant company. He admits it was given, but the conflict is as to the time. He says in his testimony it was only about sixty days before the beginning of this action; on the other hand, the plaintiff testifies that she instructed her son, a young man about twenty-eight years of age, to give this notice of her claim that the lease was forfeited, more than a year before the beginning of this action, and her attention being called to some circumstances upon the day of these instructions to her son, and her son’s testimony as to the time, she gets at it in two or three different ways which all point to this item, so far as'her testimony goes. The young man to whom the instructions were given died before the trial of the case in this court, and after the trial in the common pleas court, and his evidence was read before us. In that, testimony he says that he received these instructions from his mother a year before this suit was begun and that he notified Mr. Donnell a year before this action was begun; he repeated that statement several times in his examination in chief. His cross-examination is quite brief, but after making this statement, it also contains this, “The talk I had with .Donnell was a little over a year before they went on with their machinery, it was three years and six months after the date of the lease. ’ ’ This, last statement would seem to apply to that notification, would seem to make tbe notification somewhat less than a year, before the beginning of the action, — sis months perhaps; but from the testimony we have to balance these probabilities, we think that this notice was given about six months before the beginning of this action, and the question remains, what was the consequence of this notice under these circumstances ?

It is to be remarked that the plaintiff never gave the defendant any direct notice to shut off this gas, or that she would no longer receive the gas; neither did she turn the gas off herself, but simply gave this general notice that she regarded the lease as having expired and the defendants were ordered to take their property off the premises. The defendant argues that as long as she continued to use this gas and did not turn it off, and did not notify them to turn it off, that she must be held, notwithstanding her general notice, as receiving the fruits of this contract, and the extension of the time provided for in the verbal contract, must be held as continuing as long as she is using this gas. Well, now, while the testimony does not indicate that she gave any direct notice to the defendant to shut off this gas, yet her general notice has, we think, covered this, and was sufficient for that purpose. When she notified them that the lease, the whole contract under which they were operating, she considered as at an end and that they .were required to take their property off her premises, and did all those things, we think it was sufficient notice to them to terminate everything under the contract.

Now there is no proof that she had any arrangement herself with this gas company. She did not make the contract with this gas company to have her house supplied with gas from it. She did not order it turned on. The whole arrangement was brought through the defendant’s agents. It would not be expected that she would go to this gas ’ company, itself, but it would be expected that she would apply to the defendant, its agent. There is no proof that she, herself, could have turned this gas off. We know something of the general nature of this; gas, and it does not appear, from the testimony at least, that she had any facilities herself for turning it off, or that she could have done so, and it would seem fairly to be implied that as long as it was delivered! at the house, to her stoves, she could not very well make other arrangements for heat in place of the use of the gas, and that as long as the defendant, with notice, allowed that gas to be run into the house, she . did not alter her position to them, by using it. That unless they had made some contract by which she was held bound to use this gas, this, general notice of hers was sufficient to terminate that arrangement.

It is conceded by the defendant that this arrangement regarding the nse of the' gas was in lieu of the rental and the further operations under the lease and drilling of another well, etc. The testimony does not indicate that this was a fair interpretation of this arrangement. If it was made in lieu of rental, it would not be expected that the defendant would afterwards pay rental in money, and yet it is substantially uncontradieted that this arrangement was made in the Fall, and that following that, a month or so, a rental of $80 was paid by the defendant which would extend the matter a year perhaps from January, 1888 to 1889. The first rental seems to have been paid according to the testimony, late in the Fall of 1886, or probably January, 1887, and the next rental in January, 1888. Now we regard this arrangement as to furnishing gas as a sort of temporary make-shift between the parties to extend the time for the opening up of the well and the further proceedings under the lease. That it was not in its nature'terminated, ■or not to be extended over a long period of time; that it was such an arrangement that might be terminated by the parties at the end of any reasonable time. The contract in this case was for gas and oil and it was understood that gas alone was expected. In ease gas had been found, then plaintiff would have received $300 per year from each .gas well drilled on the land. She had provided for two wells, and she was getting no gas, and was getting no revenue at all except the furnishing of gas to her house in this way.

Now we think, to hold, that, after she saw fit to terminate that verbal arrangement by notice, these parties might omit to open up that well •or to drill another, would be doing violence to the fair interpretation •of that contract, and would result in unfairness to her, considering the contract she had made. We think that when this notice came to these parties, it was incumbent upon them to proceed, at least within a reasonable time, to go on with this work, — to finish the well and to drill the other well. We think they wholly failed and omitted to do that for an unreasonable length of time, and that the plaintiff availed herself -of the right which she had to commence this action to terminate the whole arrangement.

In that view of the case, of course the plaintiff’s petition must be sustained and the injunction which is prayed for by her, granted, and that will be the decree of this court, and costs will be awarded against the defendant as usually follows in such cases.


author: BENTLEY, J.

text:
    GAS AND OIL.
    [Wood (6th) Circuit Court,
    October 28, 1892.]
    Scribner, Bentley ■ and Haynes, JJ.
    North Western Ohio Nat. Gas Co. v. Isaac Whitacre et al.
    'CONTRACT FOR PRODUCING OlL WELLS NOT EXTENDED BEYOND TERM BY PAYMENTS on Nonproducing Well.
    A contract, granting the exclusive right to drill and operate gas and oil wells for the term of three years from the date thereof and as much longer as gas and oil are found in paying quantities, in consideration for which the operators were to pay a royalty on oil produced and $300 per well for gas, and in case no well be drilled within the first six months, a stipulated rental per year, terminates upon the expiration of three years unless oil or gas is produced in paying quantities; payment of yearly rental and tender of $300 per year for a nonproducing gas well will not effect an extension of its terms. Neither will a separate agreement upon consideration three years and eight mpnths after the date of the contract, granting an extension to a fixed date more than á year in the future, the terms of which are endorsed on the original agreements, continue the original contract in force beyond such fixed date, especially since no new or further efforts were made to develop oil or gas on the premises.
   BENTLEY, J.

This case has been submitted to ns upon the pleadings and the testimony. The action was brought by the plaintiff, the gas company, to enjoin the principal defendant, Priddy, from drilling wells on a certain farm of Isaac Whitacre for the purpose of obtaining gas or oil; the gas company claiming that by a prior grant to one Yandergrift, Mr. Whit-acre had granted the exclusive right to bore for gas and oil upon his farm and that that right by assignment had come to the plaintiff, the gas company.

It will be necessary to consider briefly the contract upon which the plaintiff relies. The contract was made July 16, 1886, between Isaac Whitacre of the first part and T. J. Yandergrift of the second part, and I will read certain of the paragraphs which will bear upon the discussion arising in this action. The contract reads:

‘ ‘ That the said party of the first part for the consideration of the covenants and agreements hereinafter mentioned, has granted, demised ¡and let unto the party of the second part, his heirs or assigns, for the purpose and with the exclusive right of drilling and operating for petroleum and gas, all that certain tract of land situated in Bloom township, Wood county, Ohio,” — and here follows a description of the land, containing seventy-two acres be the same more or less; together with the right to use sufficient water therefrom necessary to the operation thereof.

The right of way over said premises, the right to lay pipes to convey oil and gas, and the right to remove any machinery or fixtures placed on said premises by,the party of the second part.

The party of the second part, his heirs or assigns, are to have and to hold the said premises for and during the term of three years from the date hereof and as much longer as oil or gas is produced or found in paying quantities thereon.

In consideration of said grant the said party of the second part agrees to give or pay to the said party of the first part, the full equal one-eighth part of all the petroleum, or rock oil produced or found on said premises, and to deliver the same free of expense into tanks or pipe lines to the credit of the first party. And should gas be found in sufficient quantities to justify marketing the same, the consideration in full to the party of the first part shall be $300 per annum for the gas from each well so long as it shall be sold therefrom.

It is further agreed that the party of the second part shall complete a well on the above described premises within six months from the date hereof, and in case of failure to complete such well within such time, the party of the second part agrees to pay to the party of the first part for such delay, a yearly rental of one dollar per acre on the premises herein leased from the time of completing such well as above specified until such well shall be completed, the said yearly rental amounting to. $72 shall be deposited to the credit of the party of the first part in the Farmers ’ National Bank of Findlay, Ohio, or be paid direct to said first party. And a failure to complete such a well, or to make such deposit, or payment as above mentioned, shall render this lease null and void and to remain without effect between the parties hereto.”

There are certain other clauses in the contract which are not necessary to the understanding and disposition of the case here.

This well, which the lease provides should be completed within-six months or a payment made, was not completed within the six months, but before the six months expired, the alternative was acted upon:— the $72 rental was paid to Mr. Whitacre, — that being paid in January, 1887, and before the six months had expired. A well, however, was: completed upon the premises about May, 1887, before a year from the date of the lease had expired. When that well was “drilled in,”' as the saying is, it seemed to furnish quite a quantity of gas, but with the gas, a small quantity of oil so as to practically destroy the utility !o£ the gas. The gas however was turned into the company’s gas line a few hours one evening when an illumination was being held in Toledo, and the gas was used for that purpose a few hours, and was then turned off. The gas has never been used from the well since that time.

In the Fall of that year the well was drilled deeper and produced perhaps another supply of gas, — the quantity is not shown with any degree of certainty, — and the well drilled still deeper until a vein of salt water was struck. That was in the Fall of 1887. Shortly after, the casing was pulled out which let surface water into the well, and the gas was sufficient in the well it seems, to throw the water out of the well, — the water being projected in such quantities that it flooded a portion of Mr. Whitacre’s land, and some complaint seems to have been made regarding it, and the assignees of the contract attempted to shut off the water. They attempted to shut off the salt water by a lead plug and perhaps were reasonably successful in that, but the other water being furnished in such quantities, caused, it was claimed by the Whit-acres, some damage, and they attempted to shut this off by putting stones in the well and pounding them down; that seemed of no avail, so at last they put the casing back into the well. It would appear for the purpose of enabling them to shut off this water more effectually, more or less stone was put into the well' to stop the flow of water, and the well has remained substantially in that condition ever since; the-gas not being used and no attempt being made to use it, the gas company-left it in that way.

That substantially states the situation of this well and the operations upon that farm under this contract, until March 22, 1890. It will' be noticed that this was three years and eight months after the date of. the lease, the original lease being for three years with this contingency for an extension. Eight months after that definite date had elapsed,, a further arrangement was made between the parties. On the date I have last mentioned, the owner of the land, Mr. Whitacre, and the gas-, company entered into this arrangement: The company paid him $175. for an extension of the lease and he granted and consented to an ex•tension in these words:

“March 27, 1890'. In consideration of the sum of $175 to me in-hand paid by The N. W.' O. N. Gas Co., I hereby agree to the extension of the within lease for and until the first of May, 1891. Signed,, Isaac Whitacre.”

The extension was written at the same time upon each of the duplicates of the contract or upon the contract, and the copy and is substantially the same, possibly, with the variation of a word or two which is not material.

Nothing was done further regarding this matter between the parties after this extension to May 1, 1891, until May 10, 1891, when the company by its agent tendered to Mr. Whitacre $300 in money for the rental for the gas mentioned in the contract, — the contract providing for $300 each year for gas which should be produced and sold. Mr. Whitacre refused this tender, claiming that the contract had expired. •On July 29, 1891, Mr. Whitacre granted another contract or oil lease, ■covering the same premises, to the defendants, Priddy and brother. They immediately proceeded to erect their rig and began to drill a well on the premises, until they were stopped by the commencement of this action, and an injunction obtained thereunder; the petition being filed September 15, 1891, and the injunction being served either that day, ,or the day following. All operations were suspended for a time, and on April 19, 1892, the plaintiff again tendered to Mr. Whitacre the .$300 for the gas, as he claimed, which Mr. Whitacre again refused.

On that state of facts it is claimed by the plaintiff that this injunction should be made perpetual. On the part of the defendants, that its lease had expired before the beginning of this action and that Mr. Whitacre had released the premises and had elected to treat the .contract as at an end, and the answer of Mr. Whitacre as well as the answer of the Priddys asks that the Priddys’ exclusive right to drill .and operate for oil and gas be adjudged to them and that their title be quieted.

Naturally the inquiry is suggested here, and the question is presented, what were the rights of the Natural Gas Company, assuming now for the moment that it acquired all the rights that were originally granted to T. J. Yandergrift at the time this extension was made, and before the extension was made, and then again what rights did that extension give them?

At the time this extension was made, the well had been completed and the $72 had been paid, so the whole matter had been disposed of. There is nothing in the lease which would forfeit it for the noncompletion of that well, or the nonpayment of the rental; the rental had been paid and the well completed. At the expiration of the three years as the lease stated, it would seem clear that the contract and lease terminated unless at that time there was gas or oil produced or found in such paying quantities on the premises as would extend it under the clause of the lease providing that it shall extend as much longer as oil or gas is produced or found in paying quantities thereon.

That in fact this well produced oil or gas in paying quantities, there is no proper proof, We think it follows under the rulings of the Supreme Court in the cases of Scioto Fire Brick Co. v. Pond, 38 Ohio St. 65, and Cook v. Andrews, 36 Ohio St. 174, that if plaintiff desired to found any right upon the fact that oil or gas was produced in paying quantities, it was bound to furnish that proof, — the burden of proof being upon it. So, I say, there is not furnished us proper proof that at the time of this extension the original lease did continue in force by reason of that alternative presented by the original contract, that is, the three years had expired, and gas or oil not shown to be produced or found in paying quantities so as to extend the lease. Practically under the terms of the lease, the rights of the parties had ended at the time of this extension. But this extension, so made, did extend the lease until the first of May, 1891, but we think this can be scarcely said to extend the provisions of the six months’ clause of the lease, because the first well had been drilled and the rental paid to excuse it being drilled, within six months. We think this term “First of May, 1891,•” fixes the terms of the lease as being this date and not three years from the original date which had been originally fixed. That the lease should be considered now as if it originally read “That it should expire by the first of May, 1891.”

It is argued, and not without force, by the defendant’s counsel, that, whereas the original contract presented one term for three years and another conditional term dependent upon the production of oil or gas in paying quantities, the parties by this extension waived all the conditional terms and should fix it so that it would expire in May, 1891. While, as I say, that argument is not without force, yet, we are inclined to think that this should stand and be considered as m place of three years, and this would extend the lease to May, 1891, and if by that time, oil or gas had been produced in paying quantities, under the original terms of the lease, the right shguld be considered as extended as long as the gas or oil was produced in paying quantities upon the land. Now was it?

There was nothing’ by way of operation done at this time, May, 1891; but it is argued as perhaps the principal basis of the plaintiff’s right, that, whereas the contract was extended to the first of May, 1891, and whereas there was a well on the premises producing sprue gas, it would make no difference to the landowner whether the gas has in fact been found by the producer or not, as long as the producer was willing. to pay the price of it, — $300 a year; and as he was willing, and tendered that price, it continued the lease in force as if another well had been drilled and completed prior to the first of May, 1891. Now, if this position of the plaintiff’s counsel should prevail, it would result in this: that as long as $300 was paid by the plaintiff, the exclusive right to drill for oil and gas on the premises was continued in the plaintiff, and that without any limit; — no limit at all of any number of years or any circumstances, except the will of the plaintiff as long as he would pay. By the original lease, however, while the term was undeterminate if gas or oil was produced, yet, the landowner had seen fit to provide that this should continue as long as gas or oil was produced in paying quantities. There was a circumstance that he had a right to rely upon, that at some time he could terminate the lease. It might be said that gas ■or oil could not last forever and that when it ceased, it would determine the contract, — but if the contract and condition are to be enlarged, there would be no limit in that regard. We think that he has a right, and has an interest in knowing the fact itself, whether oil or gas is to be found in paying quantities, and that his lease cannot be indefinitely extended by the mere will of the plaintiff company in paying him $300 a .year.

Now the fact is, as we think it clearly established by the defense, that this gas was not being produced in paying quantities, and he, having the right to have his rights determined as to that fact, finds, that this extension to May 1, 1891, was not continued further by the fact of his having obtained or rather by the fact that the plaintiff was willing to treat it as if it had been obtained in paying quantities, and paid for it, so that when in July, 1891, after May 1, 1891, extension has elapsed, this owner’s rights to his premises had been restored to him, and he had the right and authority to grant the right to other parties, and it seems that he did so.

We think the rights of Priddy as claimed in the case must prevail over the alleged rights of the plaintiff; that plaintiff’s petition must be dismissed at its costs and that as to the prayer that the rights of the Priddys be quieted, we see no reason why that prayer should not be granted, and an order will be made accordingly. There will be a special mandate to the court of common pleas for execution and costs.

Scribner and Haynes, JJ., concur.


author: SCRIBNER, J.

text:
    DEEDS — GAS AND OIL-LIFE ESTATES.
    [Wood (6th) Circuit Court,
    October 28, 1892.]
    Scribner, Bentley and Haynes, JJ.
    Dora H. Wollam et al. v. George H. Van Vleck et al.
    1. Grant to Heirs of a Son of Testator without Words of Perpetuity is no More ti-ian a Life Estate.
    A deed granting a life estate to a daughter of grantor and her husband with a covenant that after the death of the life tenants that the premises “shall vest in and become the legal property of the heirs” of grantor’s son, in the absence of words of perpetuity; is simply a grant that the grantees shall take an estate in fee or other than one for life, and, therefore, grants no more than a life estate to such heirs nor entitles them to relief against lessees of the first life tenants under a gas and oil lease. ,
    2. The Word “Forever” Adds Nothing to Estate Granted.
    The words “forever” or “to one and his assigns forever” add no force to a grant of, or estate in, lands.
    Appeal from Wood common pleas court.
   SCRIBNER, J.

It appears from tbe evidence and proof in the case that Benjamin Wollam in his lifetime was the owner of certain lands which are described in the petition, and in regard to which the controversy here arises.

The said Benjamin Wollam had two children, both now living; one Leah Crowell, wife of the defendant, Agustus Crowell; the second William M. Wollam, one of the defendants in this action. The said William M. Wollam has three daughters, the plaintiffs herein, viz., Dora H. Wollam, Laura S. Wollam and Loraine Yambert.

July 16, 1883, the said Benjamin Wollam executed and delivered the deed which is involved in this controversy; this deed was delivered for record, July 7, 1884; afterwards, and before the commencement of this suit, the said Benjamin Wollam died intestate. An oil and gas lease of the premises in question was executed by Leah and Agustus Crowell, the grantees for life named in the deed, to Frank Drake, May 14, 1890. This lease was afterwards assigned to the defendant, Van Vleck, who is asserting his right to proceed thereunder, and with the defendant, Jesse Graham, threatens to enter and drill oil wells upon the premises in question, appropriating the oil and gas underlying the same to their own use. It is alleged that these threatened acts on the-part of Van Vleck and Graham will operate to the waste and injury of the premises.

The material allegations in the petition in this regard are as follows:

“That on said last-named date, said Benjamin Wollam, designing and intending to convey to the defendants, Leah and Agustus Crowell, an estate for life of each of them in said lands, and designing and thereby intending to convey the estate in remainder therein to these plaintiffs, procured a scrivener to prepare such deed and directed and instructed him to write in said deed a grant of said lands to said Leah and Agustus Crowell during the life of them and of the survivor of them, with the remainder over to the children of the defendant, William M. Wollam; that thereupon said scrivener did prepare said deed granting said life estate as directed, but by mistake, he wrote in said deed that said estate in remainder should vest in the heirs of said William M. Wollam instead of writing therein that the same should vest in the children of said William M. Wollam as he was instructed to do. And said deed as thus prepared with said mistake and incorrect provision was, through inadvertence and mistake, executed and delivered by said Benjamin Wollam, and was on July 7, 1884, duly filed for record and recorded in Vol. 73, p. 265 of the record of deeds of Wood county. That at the time of the delivery and acceptance of said deed, said grantees and each of them knew and understood said design, intention, and purpose of said grantor as hereinbefore stated, and accepted said conveyance with full understanding that they thereby acquired respectively the estate which said grantor designed to convey and directed should be written in said deed. That thereafter, and before the commencement of this action, said Benjamin Wollam died intestate, leaving as his sole heirs at law the defendants, Leah Crowell and William M. Wollam, both of whom still survive him.
“Plaintiffs aver that said deed by the intention of the parties and upon a fair and reasonable construction thereof, conveyed to plaintiffs and vested in them an estate in remainder in said lands, after the-termination of said life estate, but if said deed does not in fact and in law in its present form convey said estate in remainder to plaintiffs, it is the cause of the mutual mistake of the parties thereto, and of the scrivener who prepared the same as hereinbefore stated, and said deed should be corrected so as to convey said lands according to the true-intent and direction of said grantor and the other parties thereto as hereinafter prayed. Wherefore, plaintiffs say and aver that said defendants, Leah and Agustus Crowell, have an estate for life in said land, and that plaintiffs are the owners in fee of an estate in remainder in said lands, after the termination of the life estate of said defendants, Leah and Agustus Crowell.
“Plaintiffs further aver that said lands contain and are under-laid at great depth, with valuable deposits of petroleum oil. That said defendants, Leah and Agustus Crowell, having no other or further interest in said lands than their said life estate, did on May 14, 1890, execute and deliver to one Frank Drake a certain instrument of lease purporting to grant to said Frank Drake, his heirs and assigns, the right to enter upon said lands and drill and operate for, and remove therefrom the oil contained therein. That subsequently said Frank Drake assigned the said instrument and all the rights therein purported to have been given to the defendant, George H. Van Vleck, who now holds the same and is asserting his rights to enter upon said lands and drill wells for oil therein. That on October 21, 1890, plaintiffs notified said defendants, George H. Van Vleck and Jesse Graham, of plaintiffs' interest in said lands and warned said defendants not to enter thereon and not to drill any wells therein.”

The petition then proceeds to aver, that “The defendants, George H. Van Vleck and Jesse Graham, are threatening to commence drilling an oil well on said lands, and are now - placing lumber, timbers and material thereon for the purpose of erecting a derrick on said lands, and are threatening to drill a well therein to a great depth to reach the oil bearing rock which underlies said lands and to draw therefrom the valuable deposits of oil therein contained, and to take and appropriate said oil and to wholly deprive the plaintiffs of the benefit thereof.”

The petition then proceeds to aver that this threatened action on the part of Van Vleck and Graham will operate to the waste and injury of the estate of the plaintiffs in the lands; and they aver that the lease is absolutely void and conveys no right upon Van Vleck and Graham to enter upon said premises and operate for oil. Wherefore, plaintiffs pray that the said deed of conveyance from said Benjamin Wollam may be decreed to convey to plaintiff an estate in remainder in said lands-Or if said court shall be of the opinion that in the present form of such deed, such decree ‘can not be made, plaintiffs pray that the said deed may be so corrected and reformed as .to accord with the true intent, and direction. of the parties thereto, by substituting the word ‘ ‘ children” for the word “heirs” in the grant of said estate in remainder, so that said portion of said deed shall read: “It is further covenanted! ■by and between the parties to this conveyance that after the death of ■both of the above named grantees, the within described premises shall vest in and become the legal property of the children of one William M. Wollam who is the son of the grantor hereof,” and for a decree enjoining the defendant Van Vleck and Graham from proceeding to enter and drill upon said premises.

Upon the trial of the case, there was given, subject to objections, testimony tending to show that the draughtsman of the deed was instructed to insert the word “children” where the word “heirs” appears therein as alleged in the petition and he substituted the word “heirs” for the word “children” because as he understood it, it was a more ■comprehensive term and equivalent.

There were answers and replies thereto, filed in the case and the question substantially is whether or not the plaintiffs are entitled to have the deed reformed as claimed by them.

Now the deed reads as follows:

“Know all men by these presents that I, Benjamin Wollam of the village of Rising Sun, 0., for the consideration of $3,000 received to my full satisfaction of Leah Crowell and Agustus Crowell the grantees, •do give, grant, bargain, sell and convey .unto the said grantees (the words “heirs and assigns” being run through with red ink) the following described premises;” then follows the description of the lands, and then comes this clause in the deed: “It is further covenanted by and between the parties to this conveyance that after the death of both of the above named grantees, the within described premises shall vest in and become the legal property of the heirs of one William M. Wollam who is the son of the grantor hereof.”

This conveyance is made upon the express condition that the said grantees shall take, keep and care for said grantor, during his natural lifetime or any part thereof at his option, providing him, the said ■grantor, with an agreeable and pleasant home, together with all things necessary for his health and comfort. The evidence tends to show that these stipulations providing that the grantees for life shall provide for the grantor, constitute the only valuable consideration upon which this instrument was executed and delivered. It then proceeds,

“To have and to hold the above granted and bargained premises with the appurtenances thereunto belonging unto the said grantees (heirs and assigns erased by red ink) forever. And I, the grantor, do for myself and my heirs, executors and administrators, covenant with the said grantees (heirs and assigns again erased by red ink) that at .and until the ensealing of these presents, I am well seized of the above described premises as a good and indefeasible estate in fee simple, and have a good right to bargain and sell the same in manner and form as above written; that the same are free, clear and unincumbered except as above written, and that I will warrant and defend said premises with the appurtenances thereunto belonging, to the said grantees (heirs and assigns again erased in red ink) forever against all lawful claims and demands whatsoever, except as aforesaid.”

■ Now it may be noted in this connection that according to the law as laid down in 1 Washburn, Real Prop. 156, according to the views there expressed, the words “forever” or “to one and his assigns forever” adds no force whatever to the grant. It adds nothing, I should say to the estate granted. The addition of these simple words as they appear here, “To have and to hold the above granted and bargained premises with the appurtenances thereunto belonging untó said grantees forever,” so far as force and effect are to be given to the conveyance, is precisely as if the word “forever” is not here added.

We adhere to the opinion expressed on the hearing that no case is made under the pleadings for a reformation of this instrument.

The rights of the parties are to be determined upon'a proper and reasonable construction of the language'- used in the deed itself. If in fact a life estate only is conveyed, the plaintiffs are not entitled to relief, as was conceded in the argument, when the owner of the life estate has any such interest in the lands conveyed as entitles such ■owner to quarry or open mines or to drill for gas or oil, has any interest in the substance underneath the surface, whether in mines already down or not, and cannot therefore complain that the owner of the preceding life estate is committing waste in opening mines or drilling for any underlying substance.

One of the principal questions arising in the case is occasioned by the fact that no words of perpetuity are contained in this instrument so far as any of the parties to the controversy are concerned. Plainly and clearly the grant to Leah and Agustus Crowell is of a life estate. If the covenant contained here, viz., “It is further covenanted by and between the parties to this conveyance that after the death of both of the above named grantees, the within described premises shall vest in and become the legal property of the heirs of one William M. Wollam who is the son of the grantor hereof;” if these words are to be construed into a grant to the heirs of William M. Wollam, — so far as it at present appears, there are no words of perpetuity; it is simply a grant, if it be a grant at all, that the grantees shall take an estate in fee, or an estate other than one for life.

In some states, by statute it is provided, or the same provision is made, in regard to tbe construction of deeds as is made in regard to the construction of wills. This is so in Alabama, Arkansas, Georgia, Iowa, Kentucky, Tennessee, New York, Texas, Virginia, Maryland and perhaps in some other states, but no such provision is contained in any statute in Ohio, and Mallon in his work takes occasion to express dissent as to legislation of this character, and I may say in this connection that many of the decisions cited in the argument in this case for the plaintiff in error, are from the courts of states where statutes such as I have mentioned are in force.

Now as bearing upon the case here presented, I will refer to the case of Ford v. Johnson, 41 Ohio St. 366, the syllabus of which reads,

“In a deed of bargain and sale, the grant was ‘unto said Charles Cline and to his lawful issue, to go to his surviving brother or brothers and to their heirs and assigns,’ ” — Martin J., says,
‘ ‘ The original action was brought by Ford and others, the children and grandchildren of one Cline, to recover possession of land in Clinton county. The case is this: In September, 1824, Salters, 'by deed of bargain and sale conveyed the premises to Cline. The grant is ‘unto the said Charles Cline and to his lawful issue, and in case he should die without leaving lawful issue to go to his surviving brother or brothers and to their heirs and assigns.’ ” It would seem beyond question the words “lawful issue” are equivalent to the word “children” as it is claimed to have been written in this deed. “The habendum, runs ‘unto the said Charles Cline and his lawful issue, to the only proper use of the said Charles Cline and his lawful issue (as above mentioned) forever.’ There are covenants of seizin, of quiet enjoyment and against incumbrances which are with ‘the said Charles Cline and his lawful issue.’ These are the material features of the deed;” and the court comes to the conclusion that the grant to Cline and his issue, they to hold forever, conveyed to Cline nothing but a life estate.

In Brown v. Bank, 44 Ohio St. 269 [6 N. E. Rep. 648], the Supreme Court laid down a more liberal rule as to the proper interpretation of the terms of a mortgage; they say: “By a well established general rule the use of the word ‘heirs,’ or other appropriate words of perpetuity in a mortgage or other deed of conveyance of lands, is essential to pass a fee simple estate; but this is not an inflexible rule admitting of no exception or qualification.

“Where the language employed in, and the recitals and conditions of, a mortgage plainly evidence an intention to pass the entire estate of the mortgagor as security for the mortgage debt, and the express provisions of tbe instrument cannot otherwise be carried into •effect, it will be construed to pass such estate, although the word ‘heirs’ ■or other formal word of perpetuity is not employed.
“A mortgage was executed in Indiana upon lands In Ohio. By the terms of the mortgage the mortgagors ‘mortgage and warrant’ the lands to the mortgagee (without the usual words .of succession or perpetuity) to secure the payment of negotiable notes, and provide that upon default of payment they are to be ‘collected by foreclosure of the mortgage or otherwise.’ By virtue of an Indiana statute, the words ‘mortgage and warrant’ are operative to pass a fee simple estate in the lands mortgaged. Held, the mortgage security does not terminate with the death of the mortgagee; but upon a foreclosure proceeding, after ■the death of the latter, a sale of the mortgaged premises in fee simple is authorized. ’ ’

There is a very interesting discussion in that case, but the decision goes mainly upon the provision that the strict rule of law is to be recognized in cases where mortgages are given for security as payment ■of a debt.

In the case of Smith v. Block, 29 Ohio St. 488, the syllabus reads:

“Real estate was conveyed to C for life, and after her death to her -children by E, during the life of each of the children, and after their ■death to E and to his heirs, habendum to C during life, and after her •death to the ‘said surviving children,’ and after the death of each of them to E and his heirs: Held,
“ (1) That the provision for the children was contingent upon their surviving their mother, and only such of the children as survived hei took the estate.
“ (2) That E took a vested remainder in fee, subject to the intervening contingent estate of the children.”

The application of the rule there is, that the devise being to the -children of C, the life estate having been conveyed to C with a provision for the children, was contingent upon the death of the mother to whom the life estate was given.

Now upon these authorities and upon the general doctrine of the hooks, we are clearly of the opinion that even if any estate be granted to these plaintiffs, by this deed, it is an estate for life only. We do not undertake to decide that they took an estate for life, but if they ■did take anything, it is simply an estate for life.

The result in that case would be that the two children of Benjamin Wollam, Mrs. Crowell and William M. Wollam, took the fee simple in remainder. These plaintiffs as life tenants would have no right to the relief which they pray for in their petition, and the judgment of the. court is that the petition be dismissed with costs.

Bentley and Haynes, JJ., concur.


text:
    GAS AND OIL — INJUNCTIONS.
    [Wood (6th) Circuit Court,
    October 29, 1892.]
    Scribner, Bentley and Haynes, JJ.
    Henry Deihl v. Ohio Oil Co.
    Lessee Haying Completed Nonpeoducing Well Witiiin Stipulated Time Held-Entitled to Reasonable Time to Develop Fukthee Wells.
    Upon completion of an oil well within a year, conformably with the terms, of gas and oil lease in which no time of expiration is designated save that it shall terminate upon failure to produce gas and oil in paying quantities, lessor is not entitled to rental in lieu thereof, payment of which was to be made if not completed within the designated time. Hence, where lessees have made a cash payment of $1,500 upon the date of the contract, and expended $2,200 in developing a well within the designated, time, though not a paying producer, they are entitled to a reasonable extension of time to make further search for oil and gas in paying quantities, and injunction will not lie within five months of the completion of such well, upon refusal to pay such rental, to restrain them from entering upon the premises and operating the same for gas and oil.
    Appeal from Wood common pleas court.
    James & Seney, for plaintiff.
    Cook & Troup, for defendant.
   SCRIBNER, J.

It appears that on July 26, 1890, the plaintiff, Deihl, being the owner of certain lands situate in Wood county, more particularly described in the petition in this case, executed and delivered to one William Fleming the instrument of which the following is a copy:

‘•‘In consideration of the sum of eleven hundred dollars, the receipt of which is hereby acknowledged, Henry Deihl of Pemberville,. first party, hereby grants unto William Fleming of Oil City, Pennsylvania, second party, his heirs and assigns, all the oil and gas in and under the following described premises, together with the right to enter-thereon at all times for the purpose of drilling and operating for oil, gas or water, and to erect and maintain all buildings and structures, and lay all pipes necessary for the production and transportation of oil, gas or water, taken from said premises. Excepting and reserving to first party the one-sixth part of all oil produced and saved from said premises, to be delivered in tbe pipe line, free of cost witb which second party-may connect his wells, namely: (Here follows a description of the-land.) To have and to hold the above premises on the following conditions :
“If gas only is found, second party agrees to pay $300 each year-in advance for the product of each well while the same is being used-off the premises and first party to have gas free of cost to heat three-stoves in dwelling house during same time.
“Whenever first party shall request it, second party shall bury all oil and gas lines and pay all damages done to growing crops and1 tiling by reason of burying and removing said pipe lines or otherwise, said lines to be put below plow depth, the damages to be decided by three disinterested parties.
“No well shall be drilled nearer than three hundred feet to the-orehard, house or barn on said premises, and no well shall occupy more, than one acre.
“In case no well is completed within one year from this date, them this grant shall become null and void, unless second party shall pay to first party, twelve hundred and sixty dollars, in advance, for each-year such completion is delayed, the rental to continue until the oil is: marketed, if produced in paying quantities.
“The second party shall have the right to use sufficient gas,, oil or water, to run all necessary machinery for operating said wells,, and also the right to remove its property at any time.
“It is understood and agreed that the second party is to keep all gates closed going to and from the place of operation. If oil or gas cannot be found in paying quantities then this lease shall be returned to first party.”

Then follows some stipulations in the lease as to having the agreement and conditions extend to the heirs, executors and assigns of the-respective parties.

The statement in this lease is that the grant is made by Deihl the-owner of the land in consideration of $1,100, while the proof shows. there was, in fact, paid to him, $1,500.

By its provisions, as will be seen, one well was to be completed within one year, that year would expire on July 26, 1890. One well' was completed on June 20, 1890, which was within the time limited. This ■ well was drilled, as shown by the testimony at an expense of about $2,200. It produced oil, but not in paying quantities. A tank was ■built and connected with the well, but not with any pipe line. The .oil, to the extent of about twenty-six barrels was saved and removed. about the month of October, 1890. The testimony on behalf of the defense tends to show that a check for the portion due this plaintiff for oil, was tendered to him. The plaintiff denies, however, that any such tender was made. Nothing further was ever done with this oil.

On August 12, 1890, which was less than a month after the expiration of the year, and again on the twenty-fifth of the same month, and on the first of October, 1890, according to the testimony of the plaintiff, he demanded that either the rental of $1,260, which he •claimed was due him, should be paid, or his lease should be surrendered. The lease, I should say, by assignment became the property of the defendant, the Ohio Oil Company, and all that was done under the lease was done by that company.

The latter company refused to pay the rental, claimed, and also refused to return the lease, and the plaintiff on November 27, 1890, brought this suit. This was about four months after the expiration of the first year mentioned in the lease within which the first well was to be .sunk.

The «plaintiff in his petition in this case sets out in substance as I have stated, the lease, the demand that was made, the refusal to pay the $1,260 or return the lease, and avers, in conclusion, that the defendants still claim to have some beneficial right or interest in said lands under said lease, and by asserting and threatening the same, cast •a cloud upon the title of plaintiff in the peaceable use and occupation ■of said lands thereby greatly diminishing the value thereof and causing great and irreparable damage, loss and injury to the plaintiff. That the defendant still claims the right under said contract to enter upon said lands, to erect derricks, drill wells, lay pipes and remove ■oil and gas therefrom, and will, unless restrained by this court, enter thereon for such purposes and carry the same into execution, thereby •causing plaintiff great and irreparable damage, injury and annoyance.

Wherefore plaintiff prays for an injunction restraining the said ■defendant from asserting any further right, title or interest in said lands under said contract, or otherwise from entering upon said lands, and from proceeding further to erect derricks, drill wells, lay pipes, ■ or in any way molest or disturb plaintiff in the peaceable possession and enjoyment of said lands; that the lease may be declared null, void and forfeited, that the same may be surrendered to plaintiff and the order of this court may cancel the same of record; and that the plaintiff may have all other and further relief in the premises.

It will be noticed that there is no limitation contained in this lease ■as to time. That is, so far as these provisions are concerned, the lessee may operate upon the lands under its terms except when oil or gas cannot be found in paying quantities, then this lease shall be returned to the first party. The only other stipulation, relating to the termination of the lease, is found in this clause:

“In case no well is completed within one year from this date,' then this grant shall become null and void,. unless second party shall pay to said first party twelve hundred and sixty dollars, in advance, for each year such completion is delayed, the rental to continue until the oil is marketed, if produced in paying quantities.”

The consideration to the lessor, the plaintiff, is first, the sum of $1,500. An absolute payment of $1,500 in cash on the day the contract was entered into. Further down there is reserved to the plaintiff, the lessor, the 'one-sixth part of all the oil produced and saved from said premises to be delivered in the pipe line free of cost, to which second party may connect its wells.

These are the two items of compensation for the privileges granted, provided for in the lease. First, $1,500 cash, and second, the reservation of one-sixth of the oil to be delivered in tanks or pipe lines, and third, if gas only is found the second party is to pay $300 for the product of each well and first party to have gas free of cost.

These are the considerations moving to the plaintiff, the lessor provided in the lease.

First: The consideration of $1,500 paid for the grant. The reservation to the plaintiff of one-sixth part of the oil to be delivered in tanks. Then it is further provided, and this is the only other provision relating to compensation:'

“In case no well is completed within one year from this date, then this grant shall become null and void, unless second party shall pay to said first party twelve hundred and sixty dollars, in advance, for each, year such completion is delayed, the rental to continue until the oil is marketed, if produced in paying quantities.”

Now there was a well completed within one year. The lessees, strictly in compliance with the terms of their contract, and at an expense of about $2,20’0 went forward and drilled, and completed, a well within the time stipulated in the contract. It follows in our judgment that this rental of $1,260 is not due under this stipulation in the contract.

It was to be paid on condition, or in case no well is completed within one year; but a well was completed within one year. In case it was not completed within a year, then this rental was to be paid each year such completion was delayed. That rental was the condition in the lease, one condition for the payment of this rental was not only that the well should not be completed, but that oil should not be produced, or at least the continuance of the payment of this rental was to-depend upon the production of oil in paying quantities; then in case oil and gas cannot be found in paying quantities, then this lease is to-terminate.

Now we are clear that this plaintiff, this lessor, has a right within a reasonable time to make his election, but it would depend very much upon the circumstances to put an end to this lease provided the lessee does not proceed to perform the stipulations of the contract relating; to him; but now the year within which time this well was to be completed extended until July 26, 1890, and June 27, 1890, a well had been completed at a large expense, — and on the twelfth of August, on the twenty-fifth of August and in the month of October of the same year, all within four or five months from the sinking of the first well, this plaintiff is demanding that he shall be-paid the sum of $1,260 or the lease should be surrendered to him.

Now upon careful consideration of the terms and conditions of this lease we are of, the opinion that he was not entitled to compliance with either of these demands. He was not entitled to the payment of the $1,260, because the completion of the well had not been delayed,— and he was not entitled to the return of the lease because the lessee had .a reasonable time to make a further effort to find oil or gas; and we think to require the lessee to proceed within four or five months from the time of sinking the first well and deprive him of further right to search for oil or gas, would be an unreasonable application of the right claimed by the plaintiff in the contract to terminate the lease.

The defendant’s witnesses testify that shortly before the bringing of this suit they were about to proceed, and plaintiff in fact alleges that they are about to proceed to make a further search for oil or gas, and alleges that unless prevented by the injunction of the couft, they will enter upon this land and make further search for oil or gas.

Now in view of all the circumstances, we are of the opinion that the company has a right to reasonable further time to enter upon the land and prosecute this work; that having expended $1,500 first, and then expending $2,200 oh this lease, that they ought not to be shut off from proceeding with their work,' and certainly not on the ground that the defendant has not paid $1,260 which we do not think it should pay, and our conclusion is, that the equity of the case is with the defendant, and the petition must be dismissed at the plaintiff’s costs.

Bentley and Haynes, JJ., concur.