Berline v. Waldschmidt

• Decision Date: 10 March 1945
• Docket Number: 36303.
• Citation: 156 P.2d 865,159 Kan. 585
• Parties: BERLINE v. WALDSCHMIDT et ux.
• Court: Kansas Supreme Court

156 P.2d 865

159 Kan. 585

BERLINE v. WALDSCHMIDT et ux.

No. 36303.

Supreme Court of Kansas

March 10, 1945

Appeal from District Court, Cowley County; Stewart S. Bloss, Judge.

Appeal from District Court, Cowley County; Stewart S. Bloss, Judge.

Action by Lee Berline against H. Waldschmidt and Ercell Waldschmidt husband and wife, to extend the term of a mineral lease which would otherwise expire, for such period as wartime regulations make it unlawful to drill a test well on real estate covered by terms of instrument under which plaintiff acquired his interest. From a judgment sustaining defendants' demurrer to the petition, the plaintiff appeals.

Syllabus by the Court.

1. When in an action to extend the term of a mineral deed, which would otherwise expire, for such period as war time regulations make it unlawful to drill a test well on the land covered by its terms, it appears from an examination of the petition and inferences properly to be drawn therefrom that the happening of the event relied on as the basis for such extension was not provided for by the terms of the instrument, and it further appears that such supervening event was one which could have been reasonably foreseen by the parties and provision made for therein, such petition fails to state facts sufficient to constitute a cause of action and a demurrer thereto was properly sustained.

2. The doctrine of commercial frustration is predicated upon the premise of giving relief in a situation where the parties could not reasonably protect themselves by the terms of a contract against the happening of subsequent events but it has no application to a situation where the event that has supervened to cause the alleged frustration was reasonably foreseeable and could and should have been controlled by provisions of such contract.

J. B McKay, of El Dorado, for appellant.

Kirke W. Dale, of Arkansas City (Albert Faulconer and Donald Hickman, both of Arkansas City, on the brief), for appellees.

PARKER Justice.

This was an action in which plaintiff sought to extend the terms of a mineral deed, which would otherwise expire, for such period as war time regulations made it unlawful to drill a test well on real estate covered by the terms of the instrument under which he acquired his interest.

The petition alleges that on May 27, 1939, the defendants, who were then the owners of the real estate therein described, executed and delivered a mineral deed conveying an undivided one-half interest in and to all of the oil, gas and other minerals in and under and that might be produced from a five acre tract of land, describing it, located to Cowley County, together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring for oil and gas and other minerals for a term of five years from date thereof, and as long as oil and/or gas were produced from the premises or the property was being developed or operated; that subsequent to the execution of such instrument the plaintiff acquired and became the owner of the interest to conveyed together with all rights thereunder and incidents thereto. It then states that on May 27, 1939, the five acre tract was subject to a valid oil and gas lease and that, since the deed was made subject to the terms thereof, the grantee therein and his successor in interest, had no right to develop or explore the five acres for oil and gas purposes until subsequent to its expiration on November 15, 1943. It further states that prior to that date and on December 23, 1941, it became and still is unlawful, under Federal laws and regulations, to secure or use material for the drilling of a well on a tract containing less than forty (later changed to twenty) surface acres; that either--and the averments are not definite on the point--subsequent to the expiration of the lease or in contemplation of that situation plaintiff made proper and reasonable application for an exception permitting him to drill a well on the tract which was denied and that he also attempted to consolidate it with adjacent premises in order to create a twenty acre drilling unit but his efforts in that respect, although other owners in the proposed consolidation area were willing, were frustrated because defendants refused to join in the proposed plan; that defendants have at all times refused and now refuse to so consolidate such land with other lands with the result they have made it impossible for plaintiff to create a drilling unit of such character. It next states that since the execution of the mineral deed there has never been a time the grantee therein or his successor, the plaintiff herein, could lawfully drill a well on the land covered by its terms notwithstanding the fact producing wells were drilled and completed in the nearby vicinity, that it now lies between two producing oil wells which were drilled and completed after its execution and that it has become apparent oil and gas in paying quantities underlies and can be procured from it. The petition further alleges that by reason of the facts therein set forth it has been and is legally impossible for plaintiff to bring about or procure the extension of the primary term of the deed and that unless such terms is extended or the running thereof suspended plaintiff will have been deprived of his property without compensation; that plaintiff is ready, willing and able, to drill a well on the five acre tract to test production as soon as one can be lawfully drilled thereon; that he is also ready and willing, and offers and agrees, to consolidate his interest in the tract for that purpose. It then states plaintiff has no adequate remedy at law and will suffer great and irreparable loss unless the primary term of such mineral conveyance is extended, or the running thereof suspended, until such time as a well can be lawfully drilled on the premises and prays for judgment resulting in relief of that character.

What we have just related is a summary of the essential facts to be found in the body of the petition. Attached to that pleading and made a part thereof was a copy of the mineral deed on which the plaintiff relied for his title. Most of the important terms of the instrument were pleaded and will not be repeated. However, on examination there appear several provisions not mentioned and to which reference should be made in order that the issues involved on appeal may be clearly presented. One such provision reads: 'It is understood and agreed that none of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said grantee and in the event that the above described lease for any reason becomes cancelled or forfeited then and in that event an undivided none of the lease interests and all future rentals and bonuses on said land for oil, gas and other mineral privileges shall be owned by the said grantee, now owning 1/2 of all oil, gas and other minerals in and under said lands, together with 1/2 interest in all future events.'

Another provides:

'* * * and grantors do hereby bind theirselves, their heirs, executors and administrators and administrators to warrant and forever defend all and singular the said property unto said grantee herein, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof * * *.'

For the same reason it should perhaps be also stated that the petition was filed May 25, 1944, two days before the plaintiff, under the terms and provisions of the mineral deed, would have lost all right, title and interest, in and to the five acre tract in question.

The defendants demurred to the petition on the ground...