Aden v. Dalton

• Decision Date: 30 July 1937
• Parties: Frank Aden, Rena Aden, J. W. Kearbey and Blonde Kearbey v. G. W. Dalton, John R. Boyden, and Bank of Poplar Bluff, Appellants
• Court: Missouri Supreme Court

107 S.W.2d 1070

341 Mo. 454

Frank Aden, Rena Aden, J. W. Kearbey and Blonde Kearbey v. G. W. Dalton, John R. Boyden, and Bank of Poplar Bluff, Appellants

Supreme Court of Missouri

July 30, 1937

Appeal from Butler Circuit Court; Hon. Robert I. Cope Judge.

Reversed and remanded (with directions).

Abington & Freer, Phillips & Phillips and Lawrence E. Tedrick for appellants.

(1) The testimony fails to show a nonuser of the leased property, but to the contrary established the fact that it was mined at all times, that defendants had orders sufficient to justify it even if there had been a nonuser of the property; that alone and of itself would not constitute an abandonment. In addition to nonuser, intent to abandon must also be shown in order to establish abandonment and plaintiffs entirely failed to show such intent. The sale of the lease interest by defendants to Missouri Mining Company was not an abandonment. 1 C. J. S., sec. 1, p. 6. "Abandonment involves an intention to abandon, and an act or omission by which such intention is carried into effect. In order that there may be an abandonment, these elements must concur." 1 C. J. S sec. 2, p. 8. "An intention to abandon is an essential element of abandonment, and there can be no abandonment without such intention." 1 C. J. S., sec. 4, p. 11. "Abandonment will ordinarily not be presumed; the burden of proving an abandonment is on one asserting it." 1 C J. S., sec. 7, p. 15. In the case of Blackwell Oil & Gas Company v. White, 196 P. 692, the Supreme Court of Oklahoma said: "The officers of the defendant testified that they had no intention of abandoning the premises. This testimony was competent." Association v. Hetsel, 103 Pa. 507, it was said: "Under the rule admitting parties to testify in their own behalf where the character of the transaction depends on the intent of the party, it is competent for him to testify what his intention was." 1 Thornton on Oil & Gas, sec. 155 (3 Ed.); Lowther Oil Co. v. Miller-Sibley Oil Co., 53 W.Va. 501, 44 S.E. 433, 97 Am. St. Rep. 1027; Phillips v. Hamilton, 95 P. 846. Nonuser, without intention to abandon oil lease, does not constitute abandonment. Herbert v. Graham, 237 P. 58. Actual relinquishment and intentional abandonment necessary to forfeit oil and gas lease by failure to operate. Cadillac Oil & Gas Co. v. Harrison, 244 S.W. 669. Intention to abandon and actual relinquishment essential to "Abandonment of lease." Abandonment of lease question of intention. "Abandonment of an oil and gas lease is a question of intention." Wisconsin-Texas Oil Co. v. Clutter, 258 S.W. 265. To establish abandonment of lease, both intention and act must be shown. Hall v. McClesky, 228 S.W. 1004. The point which we think is conclusive, that the defendants did not intend to abandon their rights under the lease, is shown by the fact that they are contesting this lawsuit, instead of letting it go by default, which they would likely do, if they in truth and in fact intended abandoning their rights. West Digests "Mines and Minerals," Key No. 77. (2) Where lease is executed. Although a lease may be void in the beginning for want of mutuality, it will not be held void for want of mutuality, if the lessee has executed the contract, by entering upon the land and exploring for oil and gas, and by drilling a productive well at considerable expense. Von Hatzfeld v. Haubert, 224 S.W. 220; 40 C. J., pp. 1049, 1050.

David W. Hill and Orville Zimmerman for respondents.

(1) Appellants' assignments of error cannot be broader than their motion for a new trial, which contains the following assignments, "First. The judgment of the court is for the wrong parties. Second. The judgment of the court should have been for the defendants and against the plaintiffs. Third. Under all of the evidence and the law under the evidence the judgment should have been for the defendants. Fourth. The court erred in admitting incompetent, irrelevant and immaterial evidence offered by the plaintiffs over the objection of the defendants. Fifth. The court erred in rejecting competent, relevant and material evidence offered by the defendants." Kansas City Ry. v. Hooke, 53 S.W.2d 894; Whitehead v. Natl. Bank, 56 S.W.2d 834. (a) Assignments of error not in motion for new trial cannot be urged on appeal. Grant v. Meinholtz, 289 S.W. 22; Wilhite v. Armstrong, 43 S.W.2d 422; Blackwill v. Frank, 49 S.W.2d 211; Hogan v. K. C. Pub. Serv. Co., 62 S.W.2d 856, 333 Mo. 698. (b) Assignments "First," "Second" and "Third" in appellants' motion for a new trial are too general and indefinite to constitute any ground for convicting trial court of error. DeMaria & Joussen v. Baum, 52 S.W.2d 421; Band v. Williams, 275 Mo. 215, 227, 16 A. L. R. 755; Bales v. Krey Packing Co., 296 S.W. 157; Wampler v. Railroad, 269 Mo. 465, 190 S.W. 908; Williams v. Jenkins, 32 S.W.2d 580; Municipal Sec. Corp. v. Kennedy, 177 S.W. 858; Waters v. Gallemore, 41 S.W.2d 872; Berry v. Rood, 209 Mo. 673; Belcher v. Haddix, 44 S.W.2d 178. (2) The court found: (a) The allegations of plaintiffs' petitions to be true; (b) Found the issues for plaintiffs; (c) That leases are null and void and should be canceled. The leases were abandoned by nonuse, and removal of mining equipment as alleged by plaintiffs and found by the court. The Aden lease was not worked from 1930 to filing of suit in 1934. The Kearbey lease was not worked from January, 1931 (1930) to filing of suit. The mining company stopped on Kearbey lease for the declared purpose of keeping from paying royalties, the only thing they admit they should do, rendering the lease ineffective. No option to defer mining operations for a twelve-month period (after five-year period) was ever exercised, and no rental (25c an acre) was ever paid or offered for privilege of deferring mining operations on either lease. There was substantial evidence to sustain a finding by the court of abandonment of leases and this court will, in the face of such testimony, defer to the finding of the chancellor. Jones v. Peterson, 72 S.W.2d 76; Voelpel v. Unenche, 74 S.W.2d 14; Baker v. Fox, 70 S.W.2d 72; In re Cooper County State Bank, 67 S.W.2d 109. Under appellants' contention the leases do not require: The carrying on of mining operations after mining has begun; No prescribed manner or time in which mining shall be carried on; No payment of rental for "deferring commencing of mining or mining operations" if work starts on any acre in four thousand acre tract of land; The right to hold the property as long as "mineral or mineral products (not in paying quantities) or either of them is found" on any of the lands. The doing of nothing except pay a stipulated royalty, after the clay is sold, with no limitations as to time, etc. Under such contentions, respondents urge that a fair construction of the leases, and the language used therein, would require the payment of rental on leases if mining operations once begun are stopped or deferred and that a failure to so pay would operate as a breach of the contracts as the trial court did find along with other facts. Myers v. Union E. L. & P. Co., 66 S.W.2d 565; Bartlett v. Finance Corp., 73 S.W.2d 451; Fulkerson v. Great Lakes P. L. Co., 75 S.W.2d 844; Thomas v. Utilities Bldg. Co., 74 S.W.2d 578; Home Trust Co. v. Shapiro, 64 S.W.2d 717. (3) It was proper for the court to permit explanation of consideration actually paid. Finley v. Williams, 29 S.W.2d 106, 325 Mo. 688; Chambers v. Chambers, 227 Mo. 287; 137 Am. St. Rep. 567.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

The Adens and Kearbeys filed separate suits to cancel mining leases. The two leases involved, and the pertinent facts, are practically identical, except as to names and description. The causes were consolidated below and tried as one and a single judgment entered, canceling both leases. From this judgment defendants appealed. Hereinafter, the term defendants has reference to defendants Dalton and Boyden.

The Aden lease covers forty acres in Butler County, Missouri, and was executed October 27, 1920. Plaintiffs, Frank Aden and his wife, Rena, are lessors of this lease and G. Earl Doane and defendant Dalton, are the lessees, but later, defendants became the sole owners. The Kearbey lease covers eighty acres in Butler County, and was executed March 15, 1921. Plaintiffs, J. W. Kearbey and his wife, Blonde, are the lessors in the Kearbey lease; defendants and G. Earl Doane and D. H. Doane are the lessees, but defendants later became the sole owners of the Kearbey lease. The primary purpose of both leases was prospecting for and the mining of a valuable clay, if found in paying quantities, but the leases included all kinds of mineral and mineral products. The consideration in each lease was one dollar, receipt of which was acknowledged, and "the covenants and agreements hereinafter contained on the part of the lessee to be paid, kept and performed." Each lease was for a term of five years from and after the date thereof "and as much longer thereafter as mineral or mineral products, or either of them, are found on the property covered by this lease or block of leases" in Butler County, Missouri. The land covered by the Aden lease was a part of "a block of land or leases" in a five-mile radius from the Good Hope School House, and the Kearbey lease was a part of "a block of land or leases" in a five-mile radius from the Rushville School House. Each lease provided that "the lessee in coming to this district for the purpose of developing it, will manifestly find it impossible to actually mine, drill or operate each tract of land within the district; therefore, for the period of five years, the lessor hereby agrees that if said lessee is actually operating within or on any of the land" within the...