Boatman v. Andre, 1737

• Decision Date: 11 June 1932
• Docket Number: 1737,1740,1738,1739
• Citation: 44 Wyo. 352,12 P.2d 370
• Parties: BOATMAN, ET AL. v. ANDRE and three other cases
• Court: Wyoming Supreme Court

12 P.2d 370

44 Wyo. 352

BOATMAN, ET AL. v. ANDRE and three other cases

Nos. 1737, 1738, 1739, 1740

Supreme Court of Wyoming

June 11, 1932

APPEAL from District Court, Weston County; HARRY P. ILSLEY, Judge.

Suits by Deloss Boatman and another against Charles J. Andre trustee, by Lucinda H. Brown and Lydia E. Sackett against George W. Harris and another and such trustee, and by August Kraft against Allen H. McDougal and another and such trustee. From judgments in favor of plaintiffs against defendant Andre, he appeals.

Affirmed.

For the appellant there was a brief by C. J. Andre pro se, of St Paul, Minn., and Mr. C. R. Ellery, of Cheyenne, Wyoming, and oral argument by Mr. Ellery.

The burden was upon plaintiffs to establish abandonment by clear and decisive evidence. 1 C. J. 7; Hall v. McClesky (Tex.) 228 S.W. 1004-1007; McLellan, et al. v. McFadden, et al., (Me.) 95 A. 1025-1029; Wilson v. Colo. Mining Co., 227 F. 721-725 (8th Cir.); Harper & Bros. v. M. A. Donohue & Co., 144 F. 491-498; Doherty v. Russell, (Me.) 101 A. 305-306; Foulke v. New York Consol. R. Co., 127 N.E. 237-238. The finding of the trial court that the leases were abandoned is not supported by the evidence, and is contrary thereto. Phillips, et al. v. Hamilton, 17 Wyo. 41-47 et seq.; Chapman v. Ellis (Tex.) 254 S.W. 615-618; Hall v. McClesky, supra; Herbert v. Graham, et al., (Cal.) 237 P. 58-59; Luman v. Davis, et al., (Kan.) 196 P. 1078-1079; McCutcheon v. Oil Co., (W. Va.) 135 S.E. 238-240. The Kraft, Boatman and Brown leases, specify as the sole ground of cancellation or forfeiture, the failure of the lessee to commence operations by October 1, 1928. The record shows operations commenced prior to that date. Plaintiffs are not, therefore entitled to cancellation on the ground of an alleged breach of the implied covenant to reasonably explore. For such alleged breach, they are confined to an action at law for damages. Phillips v. Hamilton, supra; Harris v. Ohio Oil Co., (Ohio) 48 N.E. 502-506; Core v. New York Pet. Corp., (W. Va.) 43 S.E. 128-130; Lane v. Urbahn, (Tex.) 246 S.E. 1070-1073; Allen, et al. v. Colonial Oil Co., (W. Va.) 115 S.E. 842-843. Plaintiffs sought cancellation on an alleged breach of covenant to reasonably explore and develop, and it was therefore necessary, that notice of intention to bring suit for cancellation, to have been served on the lessee. There is no evidence of notice of intention to cancel, and the judgment is not supported by sufficient evidence. Leeper v. Lemon G. Neely Co., (6th Circ. ) 293 F. 967-970; Farmers Mut. Oil Leasing Co., et al. v. Bonneau, et ux., (Okla.) 237 P. 83-84; Herbert v. Graham, supra; Johnson v. Armstrong, (W. Va.) 94 S.E. 753-755; Pipes v. Payne, et al., (La.) 101 So. 144-146; Warren Oil & Gas Co., et al. v. Gilliam, (Ky.) 207 S.W. 698-699. The rule supported by the foregoing authorities applies to the Sackett case containing a clause against forfeiture if drilling is commenced within the specified time, and prosecuted with reasonable diligence. The following additional cases were cited during the argument on the question of abandonment. Transcontinental Oil Co. v. Spencer, 6 F.2d 866-868 (5th Circ.); Moore v. Sherman, (Mont.) 159 P. 966-967; Union Grain & Elevator Co. v. McCammon Ditch Co., (Ida.) 240 P. 443-445; Fisher v. Crescent Oil Co., (Tex.) 178 S.W. 905-907; United States v. Brown, (Okla.) 15 F.2d 585; Shank v. Holmes, (Ariz.) 137 P. 871-875; Wisconsin-Texas Oil Co., et al. v. Clutter, (Tex.) 268 S.W. 921; Tripp v. Silver Dyke Mining Co., (Mont.) 224 P. 272-274; Peachy v. Frisco Gold Mines Co., (Ariz.) 204 F. 659-668; Blackwell Oil & Gas Co. v. Whited, (Okla.) 196 P. 688-692; Dow v. Morley, (Okla.) 256 P. 56-60; Scott v. Price, (Okla.) 247 P. 103-105.

For the respondents there was a brief and oral arguments by E. C. Raymond, E. E. Wakeman and R. G. Diefenderfer, of Newcastle, Wyoming.

The cases were consolidated by the trial court. The actions were similar and seek decrees quieting title on grounds of abandonment. Abandonment is applied to oil and gas leases more readily than in other cases. Hall v. Augur, 256 P. 232; Harris v. Riggs, 112 N.E. 36. It has been defined by this court in the well considered case of Phillips v. Hamilton, 17 Wyo. 41. It is a question depending upon intention and conduct. Rawlins, et al. v. Armel, et al., 79 P. 683. Intention is a question of fact for the jury. Thornton Oil & Gas, (4th Ed.) Vol. 1, p. 461; and abandonment will be presumed where the party leaves no property or improvement to indicate his intention to return and resume operations. Burke v. Hammond, 76 Pa. 172. Appellant had no vested interest in the land until discovery. Fisher v. Crescent Oil Co., 178 S.W. 908. As assignee, appellant was bound by acts of the Osage-Wyo. Oil Co., Thornton Oil & Gas., (4th) p. 632, 18 R. C. L. 1217. The trial court found an abandonment under the facts in this action. This court will not disturb findings where there is substantial testimony to support the judgment. Conway v. Smith Merc. Co., 6 Wyo. 468, 46 P. 1084; Patterson v. Hardware Co., 7 Wyo. 401, 52 P. 1085; Columbia Min. Co. v. Duchess Min. Co., 13 Wyo. 244, 79 P. 385; Phelan v. Brick Co., 26 Wyo. 495, 188 P. 354, 189 P. 1103; McFadden v. French, 29 Wyo. 401, 213 P. 760; Edwards v. Willson, 30 Wyo. 275, 219 P. 233; Sims v. So. Surety Co., 38 Wyo. 165, 265 P. 450.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

These four cases are here by direct appeal to review judgments rendered in each of them by the District Court of Weston County. All the actions as instituted in that court were suits to quiet title of the several plaintiffs to certain lands owned by them as against the claims of some interest in said lands on the part of the several defendants. In the court below, by the stipulation of the parties, the suits were tried as one proceeding and it was agreed, in effect, that the transcript of testimony thereafter made up by the court reporter should stand as such in each. The several appeals were argued together in this court and may properly be disposed of by one opinion.

The defendant and appellant Andre, Trustee, answered and filed a cross-petition in each of the suits alleging that he was the owner by assignment of an oil and gas lease given by plaintiffs covering the lands described in their petition, the conditions of which lease, he and his predecessors had duly performed and which had never been terminated. To these answers and cross-petitions, the plaintiffs replied and answered, admitting Andre's ownership of the several leases pleaded by him, but denying that he and his predecessors in interest had performed as required by their terms and alleging the abandonment of drilling operations and also, the leases.

The cases were tried to the court without a jury with the result that, in each one, there was entered a judgment and decree finding generally for the plaintiffs and against the defendant Andre upon all the issues therein and adjudging that plaintiffs' title to the several premises be quieted and that the said defendant had no interest in them.

It is assigned as error that the judgments are unsupported by sufficient evidence and are contrary to law. The matter chiefly argued by the parties is whether the trial court was, in that respect, wrong in finding that the defendant Andre had abandoned the four leases and this appears to be the controlling question submitted for our determination. An examination of the record discloses substantially the following facts:

The Boatman, Kraft and Brown leases are similar in form and each, with variation as to the amount payable under the last paragraph in the quotation given below, contained this language:

"If no well is spudded in or no drilling machine is on said ground within ___ from this date, then this grant shall be null and void unless second party shall pay to first party ___ Dollars for each ___ thereafter that such spudding or moving a drilling machine on said ground is delayed.

"The terms of this instrument shall be for Five years from date hereof, and so much longer as oil or gas shall be found in paying quantities. In case no well is drilled and no rental paid, as above specified, then this instrument shall be void and terminate at the option of either party.

"If operations are not started on or before October 1st, 1928, within one mile of said lands with a Standard drilling rig, capable of drilling to a depth of 4000 feet, this grant shall be null and void, unless second party, his successors or assigns, shall pay to the first party the sum of $ 480.00 per annum, payable quarterly, to-wit $ 120.00 per quarter, in advance."

The Sackett lease contained, among other provisions, these:

"6. IT IS UNDERSTOOD AND AGREED that operations have been started on and before October 1, 1928, for the drilling of a well for oil and gas on Lots three (3) and four (4) and the east half of the southwest quarter (E 1/ 2 SW 1/4) of Section 19; Lots one (1) and two (2), East half of Northwest Quarter (E 1/ 2 NW 1/4) of Section 30, Township 46 North, of Range 64 West of the Sixth Principal Meridian, Weston County, Wyoming, and if said operations and drilling are not continued thereon within 1/2 miles of the land herein described with a standard rig capable of drilling to a depth of four thousand feet, this lease shall terminate as to both parties and this grant shall be null and void, * * *

"16. IT IS UNDERSTOOD AND AGREED that failure on the part of the lessee to comply with all and several of the terms of this grant shall not thereby render this lease null and void, but in such case the lessors shall notify said lessee of such breach by registered mail, or personally immediately upon receipt by lessors of...