Syllabus
by the Court.
A suit
the primary and only purpose of which is to establish a
forfeiture as matter of record and to cancel the thing
forfeited--in this instance a lease--is a suit to give effect
to, and therefore to aid in, the enforcement of a forfeiture
and the equity which it presents must be strong enough to
overcome the general indisposition of courts of chancery
towards granting such relief.
To
constitute "abandonment" in respect of property
there must be a concurrence of the intention to abandon, and
an actual relinquishment of the property, so that it may be
appropriated by the next comer. In determining whether one
has abandoned his property rights, the intention is the first
and paramount object of inquiry; for there can be no
abandonment without the intention to abandon.
Record
examined, and held that the judgment of the trial
court, canceling the lease for abandonment, is not supported
by the evidence, and the same is reversed and the cause
remanded, with directions.
Appeal
from District Court, Kay County; W. M. Boles, Judge.
Action
by Rose Whited against the Blackwell Oil & Gas Company and
another. Judgment for plaintiff, and defendants appeal.
Reversed and remanded.
JOHNSON
J.
The
record discloses that on June 10, 1907, Jacob K. Hines and
Rose Hines, his wife, leased to the Union Oil & Gas Company,
the northeast quarter of section 10, township 27 north, range
1 west, I. M.; that a short time prior to the execution of
the lease Jacob M. Hines deeded to Rose Hines the north 80,
and Rose Hines quitclaimed to Jacob M. Hines the south 80,
and some time after the execution of the lease the
above-named parties were divorced, and Rose Hines restored to
her maiden name of Rose Whited, who was plaintiff below in
this case, defendant in error here, and she still lives on
the property alone, never having married again; that some 2
or 3 years after the execution of the lease, J. W. Patterson
bought the south 80 from Jacob M. Hines. Original lease is
set out as Exhibit A to the petition, and was filed for
record in Kay county, on the 26th day of June, 1907.
The
lease recites a cash consideration of $1, and reserved to the
lessors a royalty of one-tenth of all the oil and minerals
produced on the premises, and contains the following
provisions:
"If gas only is found in quantities large enough to
transport, then parties of the first part are to receive
fifty dollars per year for the product of each and every well
so transported and also free gas for dwelling on the
above-described land for heating and lighting purposes.
If no well is commenced within sixty days from date of this
lease on the above land then this grant shall become null and
void. * * * This lease shall be operative for the period of
twenty years from date of this lease, or as long as gas or
oil is found in paying quantities in and upon said
land."
"It is understood between the parties to this agreement
that all conditions between the parties hereunto shall extend
to their heirs, successors, executors and assigns."
On the
15th day of May, 1917, and at the commencement of the trial
in the court below, the parties entered into the following
stipulation in open court:
"It is hereby stipulated, in open court, between counsel
for plaintiffs and defendants, that cases No. 5933, J. W.
Patterson, Plaintiff, v. Blackwell Oil and Gas Company et
al., Defendants, and case No. 5934, Mrs. Rose Whited v.
Blackwell Oil & Gas Company et al., in the district court of
Kay county, Okl., both being founded on the same lease, are
hereby consolidated, without prejudice to the rights of
either party, for the purposes of trial, and without
prejudice of the rights of the plaintiffs to present their
separate interests and claims, and that the evidence shall
all be introduced together and shall all be considered
together so
far as it is applicable to the rights of both and all parties
to the litigation.
The Court: The stipulation is approved with the understanding
that the agreement to consolidate shall not bar the rights of
either party, and all the evidence shall be considered as
applicable to either or both cases."
Thereafter
counsel for the plaintiff and defendant, respectively, made
an exhaustive opening statement, the essential portions of
which will disclose the theory upon which the case was tried,
and in substance, were, on the part of the plaintiff, as
follows:
"We have three distinct theories upon which we contend
this lease should be canceled: First. The surrender clause,
which gives the lessor the same rights as the lessee, after
having abandoned the well and no longer paying any rental.
Second. The second theory is on the straight theory of
abandonment; that they abandoned the well and refused to pay
anything further on it, and the evidence will further show
that they not only abandoned the well, but that they pulled
the casing and removed everything from it. There is nothing
there now but a hole in the ground, all caved in; and our
third theory is this: That the provision that this lease
shall be for 20 years or as much longer as oil or gas is
found in paying quantities. The words, 'or as much longer
as oil or gas is found in paying quantities' are words of
limitation on the 20 years. That when they once produce oil
or gas in paying quantities, then the term of the lease will
be not 20 years, but as much longer as oil or gas is found in
paying quantities, and when oil or gas is no longer found in
paying quantities, or, as in this case, the well exhausted,
which they admit in their answer was some 4 or 5 years ago,
and they abandoned the premises, that unless oil or gas was
longer found in paying quantities, that terminated the lease
by its own terms.
The Court: I understand your proposition.
Mr. Bellatti: Upon showing this state of facts, we will
desire to have the lease canceled."
Counsel
on behalf of defendant, in substance, stated:
"The lease provides for the furnishing of free gas to
the lessor for heating and lighting purposes, and the
evidence will show that the residence on this tract of land
is located on the north 80, and that the residence is now
occupied by Mrs. Hines, or Mrs. Whited, Mrs. Whited being the
same person as Rose Hines, the party signing the original
lease as the wife of Jacob M. Hines, and that she has at all
times been furnished gas free of charge for her use at her
residence in the north 80, and that, so far as we know, she
is receiving it now; that we have done nothing to prevent her
from receiving it; that there is a line running from the pipe
lines of the Blackwell Oil & Gas Company to the residence of
Mrs. Whited; that after the well ceased to be used which was
located on these premises, then her residence was connected
with the gas pipe line of the Blackwell Oil & Gas Company
and that she has free access to that gas at all times; and
that proof will show that she has at all times been using and
accepted the gas under the terms of the lease, and that after
Mr. Patterson became the owner of the fractional south 80, he
was furnished free gas for his own use in the city of
Blackwell, and has at all times and is now using gas for his
residence in the city of Blackwell in any quantity or in any
amount that he can use or will use for all of his stoves and
lights in his residence, and that this lease became a fully
performed lease by the action of the Union Gas and Oil
Company in drilling this gas well.
And the evidence will further disclose that neither Jacob M.
Hines, Rose Hines, or Whited, nor J. W. Patterson, either by
themselves individually or through others for them, ever
requested or demanded or asked that either the Union Oil & Gas Company or the Blackwell Oil & Gas Company or the Duluth & Oklahoma Oil Company make any other or further development
on the premises, and that the first notice that either of the
companies ever had of any dissatisfaction on the part of the
landowners was upon the receipt, some time last winter, of a
notice signed by the respective owners of these lands,
notifying the company that the lease was terminated by the
act of the lessors, which, of course, the lessees did not
agree to or in any way concur, but were willing to and did
thereafter continue to furnish gas under the terms of the
lease, which shows clearly and plainly that none of the
lessees had any intention of abandoning the lease, and that
Mr. Patterson, when he accepted gas free of cost at his
residence in the city of Blackwell, did so at that time in
lieu of any further development. That at that particular time
there was no development which would have warranted under the
conditions of the field known as the Blackwell Oil & Gas
Field further prospecting on this land.
The evidence will further show that the Blackwell Oil & Gas
Company and the Duluth & Oklahoma Oil Company have spent
several hundred thousands of dollars in what is known as the
Blackwell oil and gas territory; that no oil in paying
quantities has ever been found and produced in the near
neighborhood of this tract of land; that the Blackwell pool
was originally discovered in what is known as the Swenson and
Alberti wells, some 10 or 11 miles to the northeast of this
tract of land, and the Alberti well, I believe, was brought
in in the year 1915, and that these companies since that time
have been developing out
and prospecting from the oil discovered in that well for the
purpose of ascertaining the limits of that pool of oil, and
for that purpose have spent, as
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