Bailey v. Williams

• Decision Date: 19 May 1920
• Docket Number: (No. 6203.)
• Citation: 223 S.W. 311
• Parties: BAILEY v. WILLIAMS
• Court: Texas Court of Appeals

223 S.W. 311

BAILEY v. WILLIAMS

(No. 6203.)

Court of Civil Appeals of Texas. Austin.

May 19, 1920.

Appeal from District Court, Brown County; J. O. Woodward, Judge.

Action by Almeda Williams against D. R. Bailey. Judgment for plaintiff, and defendant appeals. Affirmed.

Wilkinson & McGaugh, of Brownwood, for appellant.

I. J. Rice, of Brownwood, for appellee.

JENKINS, J.

This case was tried before the district court without a jury. The nature of the case and the issues will appear from the findings of fact and conclusion of law, filed by the district court, which are as follows:

"Findings of Fact.

"I find that the lease plaintiff sues to cancel is in words and figures as follows, to wit:

"`The State of Texas, County of Brown.

"`Know all men by these presents: That I, Mrs. Almeda Williams, a feme sole, of Brown county, Texas, the party of the first part, in consideration of the sum of eighty-two and 50/100 dollars paid by D. R. Bailey, party of the second part, the receipt of which is hereby acknowledged, and the further consideration hereinafter mentioned, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns, all of the oil and gas in and under the following described land, together with the right of ingress and egress, at all times for the purpose of drilling, mining, and operating for gas, oil or water, and to conduct all operations, to erect storage tanks and other necessary structures, and to lay all pipes necessary for the production, mining and transportation of oil, gas and water, with the right to use sufficient water, gas or oil, to operate said property, and shall have the right to remove all machinery, fixtures and improvements placed thereon at any time, reserving however, to the party of the first part the equal one-eighth of all oil produced and saved upon said premises, to be delivered in any pipe line to which well or wells may be connected, to the credit of the party of the first part.

"`Should gas be found the party of the second part agrees to pay party of the first part $100 each year, payable quarterly for the product of each well on the premises, while same is being used; and party of the first part, by furnishing her own pipe connections, shall have sufficient gas, free of cost, for use in one dwelling house on the premises, so long as gas is utilized off the premises, at her own risk.

"`No well shall be drilled within 300 feet of any building on said premises without the consent of said first party. Said land being of the following description, to wit: The south 1/2 of the H., T. & B. Ry. Co. sec. No. 40, certificate No. 5/89, in the name of John C. Linsley, abstract No. 2037 and being the same land conveyed by John C. Linsley to T. S. Williams by deed dated April 15, 1911, and recorded in Book 102 at page 119 of the Deed Records of Brown County, Texas, to which reference is here made, containing 330 acres more or less, to have and to hold the above-described premises, unto the said party of the second part, his heirs and assigns, on the following conditions: In case operations for the drilling of a well either for oil or gas is not commenced and prosecuted with due diligence within six months from this date, then this grant shall immediately become null and void, as to both parties; provided, that second party may prevent any forfeiture from year to year for 4½ years, by paying to the first party the sum of fifty cents per acre for each year thereafter, until such well is completed, and it is agreed that the completion of a well shall operate as full liquidation of all rentals under this provision during the remainder of the term of this lease, which payments can be made at the Coggin National Bank of Brownwood, Texas, or be payable direct to the party of the first part.

"`In case the party of the second part should bore and discover either oil or gas, then, in that event, this grant, incumbrance or conveyance, shall be in full force and effect for twenty-five years from the time of the discovery of such product, and as much longer as oil or gas may be produced in paying quantities thereon.

"`This grant is not intended as a mere franchise, but is intended as a conveyance of the property above described for the purpose herein mentioned, and it is so understood by both parties to this agreement.

"`It is understood by and between all the parties to this agreement that all conditions between the parties hereunto shall extend to their heirs, executors, administrators and assigns.

                "`Witness our hands, this 10th day of July
                1917.              Mrs. Almeda Williams.'
                

"I find that neither defendant nor any one else made any development for oil, gas, or other minerals on the land covered by said lease, after the execution of said lease.

"I find that defendant paid plaintiff $165, which was the rental due by the terms of said lease for the year beginning with January 10, 1918, and ending January 10, 1919. I find that said rent was paid January 10, 1918.

"I find that defendant deposited the rental for another year, that is, for the year beginning January 10, 1919, and ending January 10, 1920, in the Coggin National Bank of Brownwood, Tex., to credit of plaintiff on the 24th day of January, 1919, and that plaintiff refused to accept it, and still refuses to accept it, for the reason she claimed the lease had expired on January 10, 1919, for failure to develop or pay the rent on or by said date.

"Conclusion of Law.

"I conclude from the facts stated above that said lease expired January 10, 1919, for failure to develop or pay the rental on or before said date."

Opinion.

There is no dispute as to the facts in this case, the only issue being as to the correctness of the conclusion of law reached by the trial...