Berry v. Frisbie

• Decision Date: 19 April 1905
• Citation: 120 Ky. 337,86 S.W. 558
• Parties: BERRY v. FRISBIE et al.
• Court: Kentucky Court of Appeals

86 S.W. 558

120 Ky. 337

BERRY v. FRISBIE et al.

Court of Appeals of Kentucky.

April 19, 1905

Appeal from Circuit Court, Bracken County.

"To be officially reported."

Action by H. D. Frisbie and others against Leander Berry. From a judgment for plaintiffs, defendant appeals. Reversed.

E. L Worthington and J. B. Clark, for appellant.

W. S Pryor and George Doniphan, for appellees.

O'REAR J.

Appellees are oil prospectors. Appellant is the owner of the land upon which appellees had taken options to prospect for oil, gas and other minerals. These options are identical in terms except descriptions, and read as follows:

"Know all men by these presents that Leander Berry for and in consideration of one ($1) dollar cash in hand paid, the receipt of which is hereby acknowledged, and for the consideration of the advantages to be derived by the said Leander Berry from the development of the mineral resources of the lands hereinafter described, have this day bargained and sold to H. D. Frisbie, J. T. Sharrard and their associates, to enter upon and prospect for coals, ores, oils, gases, and all other minerals, and to erect the necessary machinery and sink the necessary shafts, and do any and all other work necessary to carry out the objects of this grant, the right of dump, also the right of ingress and egress to and from said lands or any part thereof, but on the condition that said right is to be used in a reasonable and prudent manner so as to injure the said farm as little as possible.

"This sale is made upon these conditions: --Said H. D. Frisbie and his associates shall have four (4) months from the date of this contract to determine and say whether H. D. Frisbie and his associates will accept this grant, and will undertake, according to the terms of same, to locate and prospect for coals, ores, oils, gases and all other minerals on the said lands, and if within the said four months said H. D. Frisbie and his associates shall notify the said Leander Berry of their intention to accept the terms of this grant and prospect for coals, ores, oils, gases and other minerals, he and his associates shall have two years from the date of the acceptance of grant in which to prospect for and locate said minerals, ores, oils, gases, etc. Should minerals, coals, ores, oils, gases, etc., be found on the said land in quantities, which in the judgment of the said H. D. Frisbie and his associates or assigns will pay to work, the said Leander Berry will on demand make the said H. D. Frisbie and his associates or assignees a deed to the said mineral, coal, ore, oil and gas privileges on the following described land, with the privilege and right to open mines, or wells, and erect buildings and machinery and make roads or ways, such as in the judgment of the said H. D. Frisbie and his associates is necessary for the successful operation of the said mines or wells, and the said H. D. Frisbie and his associates will timber the said mines and pay to the said Leander Berry as compensation for the privileges granted ten per cent. of the minerals, etc., in the dump at the mine, or ten per cent. of the oils and gases, as nearly as it can be ascertained as it comes from the ground. [Description of land.] ***"

Within the four months mentioned in the options, appellees notified appellant that they accepted the "grant" by a written notice as follows: "Dear Sir: You are hereby notified that the undersigned accept the terms of your lease for the mineral privileges on your lands of date 19th Nov. 1901." Within two years thereafter they applied to appellant to make them a deed to the oil, gas, coal, and other minerals that might be contained in the land. Appellant refused to make the deed, and this suit was brought by appellees to compel its execution.

Appellees had upon an adjacent tract of land, which probably adjoined appellant's farm, sunk five wells, in which they claim to have found oil and gas in quantities which, in their judgment, would pay to work. There is some conflict in the evidence as to the extent of this find, but, be that as it may, appellees' contention is that they have by this manner of development demonstrated to their own satisfaction that there are oil and gas on appellant's nearby lands embraced in the options. Considerable testimony was adduced by appellees as to the manner in which they satisfied themselves of this fact. They undertook to show that appellee Frisbie was possessed of an unerring discernment in locating such wells, although he had been at the business only three or four years, and had never located any but the five wells above alluded to. He said he had a theory that had never failed to show where paying oil was, as well as where it was not. He did not...