Cameron v. LeBow
| Decision Date | 14 December 1962 |
| Parties | H. B. CAMERON et al., Appellants, v. Simon LEBOW et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Sandidge & Sandidge, Thos. E. Sandidge, Owensboro, for appellants.
William G. Craig, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellees.
This is the sequel to Cameron v. Lebow (1960), Ky., 338 S.W.2d 399, wherein we reversed a judgment entered on the pleadings under CR 12.03 and concluded that both issues of law and fact were presented which required development In the present appeal the trial court had found that the lessees, Cameron, et al., appellants and plaintiffs below, had abandoned their 1939 lease, and that Lebow, et al., appellees and defendants below, holders of a later (1956) lease on the same property, had acquired their lease as bona fide purchasers. It is the appellants' contention that the trial court's finding of facts and conclusions of law are clearly erroneous.
In our previous opinion we pointed out 'that a chronic source of difficulty is a finding of an intention to abandon, but this is likewise a question of fact which may be inferred from the acts of the parties' and that 'mere lapse of time and nonuser, unaccompanied by any other evidence showing intention, as a general proposition may not of itself be enough to constitute abandonment' yet, 'in view of the nature and purpose of an oil and gas lease and the practical necessities for expeditious development, the fact of abandonment may be more readily found than in other legal relationships,' citing authorities. With these general criteria to steer by and bearing in mind that the burden of proof is upon the party relying on abandonment, let us see how the evidence here persuades us.
In 1938 a gas and oil lease upon three adjoining tracts of land comprising 160 acres was executed by the owners to A. D. Shaffer who assigned the lease interest in approximately 55 acres which assignment, by mesne conveyances, became the property of the appellants in 1939. In that year the appellants drilled a dry hole on their 55 acres of the leasehold at an expense of about $8,000. Later in 1939 four producing oil wells were drilled on the remaining 105 acres by the holders of the lease interest on that portion and oil in commercial quantities has been produced thereon ever since. On the basis of the terms of the particular lease here involved and after an extensive analysis of decided cases, we concluded in our former opinion, Cameron v. Lebow (1960), Ky., 338 S.W.2d 399, 405, that the production on the 105-acre portion absolved the appellants (Cameron, et al.) from pursuing development on their 55-acre portion unless notice and demand therefor were made upon them by the lessors, and that their failure to pursue development did not constitute a forfeiture of their interest in the circumstances. No such demand was ever made upon them, so the key question remaining is whether the appellants abandoned their interest by not developing it for sixteen years.
Since the intention to abandon must be shown by 'clear, unequivocal and decisive evidence' in order for an abandonment to be established, Hoff v. Girdler Corporation (1939), 104 Colo. 56, 88 P.2d 100, it necessarily follows that the attitudes of the original lessor and his successors in interest as well as the attitude and conduct of the appellants (lessees) concerning their assigned interest in the lease are most relevant. We have said that 'abandonment of a mineral lease consists of surrender of the property, coupled with an intention to relinquish the lease and is, in fact, to be determined in each case upon the surrounding facts and circumstances.' Browning v. Cavanaugh (1957), Ky., 300 S.W.2d 582.
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