Bettman v. Harness

• Decision Date: 25 November 1896
• Citation: 26 S.E. 271,42 W.Va. 433
• Parties: BETTMAN et al. v. HARNESS et al.
• Court: West Virginia Supreme Court

26 S.E. 271

42 W.Va. 433

BETTMAN et al. v. HARNESS et al.

Supreme Court of Appeals of West Virginia.

November 25, 1896

Submitted June 24, 1896

Syllabus by the Court.

1. Equity has jurisdiction, by injunction, to prevent acts of irreparable injury to land, even though there is controversy as to title between the parties, and, having jurisdiction on that ground, will go on to give full relief, though in so doing it be necessary to decide between two adverse titles.

2. The unlawful extraction of petroleum oil or gas from land, they being part of the land, is an act of irreparable injury. Equity will enjoin it.

3. A preliminary injunction must not do what can only be done after full hearing by final decree, as by changing the possession of realty, or depriving one in possession of its benefits, in any other respect than as to the wrongful act proper to be enjoined; the proper purpose of such injunction being to preserve the present status until a full hearing on the merits shall be had. An injunction as to so much of it as is excessive is void, and ought to be modified on motion.

4. A lease for oil and gas contains the clause. "To have and to hold the said premises unto said party of the second part during and until the full term of two years, and as much longer as oil or gas is found in paying quantities thereon or the rental paid thereon," and provides for a rent of one-eighth of the oil, and $250 per year for gas, and has a clause reading: "Operations shall be commenced and one well completed within one month, and, in case of failure to complete one well within such time, the party of the second part agrees to pay the parties of the first part, for such delay, fifteen dollars per month in advance after said time for completing such well as above specified, and the parties of the first part agree to accept such sum as a full consideration and payment for such delay until one well shall be completed; and a failure to complete one well or to make such payments for such delay is to render this lease null and void at the option of the lessor." The lessee, having failed to begin operations within the two years, has no right to continue the lease by payment of $15 per month, but the lease is ended.

5. The words "or" and "and" in a contract will be changed and read as "and" and "or" where it is plain they were so intended.

6. To bind one by estoppel in pais from statement or conduct, he must have stated, or led another to believe in, something as a fact, and that other must be ignorant of the contrary, and must rely on it, and act to his injury differently from what he would have done but for such statement or conduct.

Appeal from circuit court, Pleasants county.

Bill by Bettman & Watson against Thomas B. Harness and others. Decree for plaintiffs, and defendants appeal. Bill dismissed.

W. P Hubbard, H. P. Camden, and Weil & Thorp, for appellants.

Van Winkle & Ambler and J. G. McCluer, for appellees.

BRANNON, J.

Harness and wife made two leases giving Watson exclusive privilege to drill and operate for petroleum oil and gas on two tracts of land in Pleasants county, which he assigned to Marcus A. and David Bettman, retaining, however, some interest, the three claiming as partners under the name of Bettman & Watson. No possession was taken under these leases, and later Harness and wife, claiming that these leases had expired, made a lease for oil purposes of both tracts to Finnegan, under which possession was taken, and boring of a well for oil was begun, when Bettman & Watson obtained against Finnegan and others an injunction enjoining operations under this second lease; and, the judge having overruled a motion to dissolve this injunction, the defendants to the injunction appealed. Further facts are stated below in connection with the law points to which they relate.

Will equity entertain this suit? Counsel for appellants ably insist that the acts enjoined are but trespass to realty reparable in damages in a court of law; that no injunction lies; and that, under cover of injunction, it is an effort to try title to land in equity, when the law court is open for adequate remedy by ejectment, both to recover possession and damages. Clearly, the general rule is that equity will not restrain a mere trespass to land, and, under the guise of so doing, try title to land, by entertaining what may be called an "ejectment bill"; but that rule has been found in later years not to answer fully the needs of men in their changing multifarious wants in the calls of life, and we find exceptions fastened upon the rule fixed as the rule itself. The last case decided by the great Chancellor Kent, driven from the bench in the meridian of his greatness by the constitution of New York because he had attained the age of 60 years, tells us of this change of the old rigor of the rule. Jerome v. Ross, 7 Johns. Ch. 315. The rule there stated is that "an injunction is not granted to restrain a mere trespass, where an injury is not irreparable, and destructive to the plaintiff's estate but is susceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law. It must be a strong and peculiar case of trespass, going to the destruction of the inheritance, or where the mischief is remediless, to entitle a party to an injunction." Judge Story, after a review of the cases, says in 2 Eq. Jur. § 928: "If the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly, indeed, they were extremely reluctant to interfere at all, even in regard to repeated trespasses; but now there is not the slightest hesitation, if the acts done, or threatened to be done, to the property, would be ruinous or irreparable, or would impair the just enjoyment of the property in future. If, indeed, courts of equity did not interfere in cases of this sort, there would be a great failure of justice in the country." In trespass to mines there is greater liberality in allowing injunctions than in ordinary trespass to land, since the injury goes to the destruction of the minerals,--the chief value. 1 High, Inj. § 730. These principles have been followed in America in cases too numerous to cite here. For some of them, see note to Jerome v. Ross, 11 Am.Dec. 498, 500; Indian River Steamboat Co. v. East Coast Transp. Co. (Fla.) 29 Am.St.Rep. 258, 277, 10 So. 480; Carney v. Hadley (Fla.) 37 Am.St.Rep. 108, 14 So. 4; note to Smith v. Gardner (Or.) 53 Am.Rep. 346, 6 P. 771. 2 High, Inj. § 697, emphasizes this exception of irremediable injury. Decisions binding us as authority do not oppose, but recognize, this exception. Anderson v. Harvey's Heirs, 10 Grat. 386, 398, pointedly recognizes it. There an injunction was sustained against one who, under color of adverse title, was taking out iron ore. In the cases of this state cited by counsel against jurisdiction in equity for this case (McMillan v. Ferrell, 7 W. Va. 223; Cox v. Douglass, 20 W.Va. 175; Schoonover v. Bright, 24 W.Va. 698; Cresap v. Kemble, 26 W.Va. 603; Watson v. Ferrell, 34 W.Va. 406, 12 S.E. 724), this exception of irreparable damage is definitely admitted. They were cases of mere naked trespasses, and the omission of this averment was mentioned as a want of the bills. Christian v. Vance, 41 W.Va. 754, 24 S.E. 596, and Moore v. McNutt, 41 W.Va. 695, 24 S.E. 682, do not bear on this matter, but on the principles of jurisdiction in equity to remove cloud on land title. The jurisdiction for this case is not claimed to rest on the right to remove cloud on title, but on irreparable injury, and that, jurisdiction being warranted on that ground, the court will go on to adjudicate on the rights of parties, as it has jurisdiction for one purpose.

It makes no difference, if the elements of irreparable injury be present, whether the party doing it be solvent or insolvent. 1 Beach, Inj. § 35. Such being the rule, the question--often of difficulty--is one of its practical application. What is irreparable injury? It is impossible to define it inflexibly. Rights of property and its uses change so; so many new rights of property with new uses arise as time goes on. Here is the right to oil and gas a few years ago unknown; the right sometimes in the owner of the soil, sometimes in separate ownership. The word "irreparable" means that which cannot be repaired, restored, or adequately compensated for in money, or where the compensation cannot be safely measured. The courts have generally regarded as irreparable injuries the digging into mines of coal, iron, lead, and precious metals, and, as such injuries subtract from the very substance of the estate, and tend to its ultimate destruction, equity is s aid to be prompt to restrain them. Rock, if of special value, comes under this rule. See U.S. v. Gear, 3 How. 120, and other cases cited in note to Jerome v. Ross, 11 Am.Dec. 501; note to Smith v. Gardner (Or.) 53 Am.Rep. 347, 6 P 771; 1 Beach, Inj. § 35; 1 High, Inj. § 730. We know but little of petroleum oil and gas hidden far in the bowels of the earth, but from that little we can say they are of great value, and are exhaustible, and, when exhausted in a locality, cannot be restored by the art of man, and perhaps never even by the mysterious alchemy of nature. Surely, they fall under the rule which considers the subtraction of precious things from under the soil as working irreparable injury, as much as iron ore in Anderson v. Harvey's Heirs, 10 Grat. 386, to which I refer as decisive and binding under this branch of this case. We know that these substances are the sole property and value of the plaintiffs' estate under their lease,--the only object of...