Dark v. Johnston

• Decision Date: 17 January 1867
• Citation: 55 Pa. 164
• Parties: Dark et al. v. Johnston et al.
• Court: Pennsylvania Supreme Court

55 Pa. 164

Dark et al. v. Johnston et al.

Supreme Court of Pennsylvania.

January 17, 1867

March 27, 1867

1. Where a conveyance was to be made of land, if the vendee should find oil upon it, it is to be construed that oil must be found within a reasonable time.

2. Oil like water, is not the subject of property, except in actual occupancy.

3. A grant of water is not the grant of the soil on which it rests, and it passes nothing for which ejectment will lie.

4. It is essential to an easement that there should be both a dominant and servient tenement.

5. Generally a parol license is revocable at the will of the licensor; and it is revocable although a consideration has been paid for it.

6. Even a parol license executed, may become an easement on the land and where acts have been done in reliance upon a license, the licensor will be estopped from revoking it to the injury of the licensee.

7. A license is a personal privilege and is not assignable; an assignment by a licensee determines his right.

8. McGuire granted to Baird a right to sink one or more wells on his land; and agreed to convey to Baird, if oil was found also to grant him an exclusive right to sink wells on other land at $100 for every 10 years for every well Baird may continuously pump oil from; if he should fail to find oil, to have the right to remove his machinery, & c.; if oil were found, the right to pump to continue as the rent should be paid. Held, 1. To be a license to Baird. 2. That Baird having made improvements, McGuire could not revoke the license as to him. 3. That Baird having assigned the license it was determined.

Before WOODWARD, C. J., STRONG, READ and AGNEW, JJ.

THOMPSON J., absent.

Error to the Court of Common Pleas of Warren county.

This was an action of ejectment, brought September 17th 1864, by William F. Johnston, Isaac M. Pennock, N. P. Sawyer, William Bagaley and S. A. Baird, against John Dark, Carlton B. Curtis, and others, for 250 acres of land and an island.

On the 26th day of November 1859, Samuel McGuire, being the owner in fee of the land in dispute, made the following agreement with Samuel Baird, reciting:

" That the said McGuire is the owner of a farm in Tideoute, in Deerfield township, Warren county, Pa., of about two hundred and fifty acres, more or less, running on the Allegheny river, and along and on both sides of the course of McGuire run, about one mile and twenty-six rods; and also an island in said river, opposite the homestead, of about nine acres. On this land petroleum or mineral oil may exist, and said McGuire is desirous of having it explored, and agrees to and with said Baird as follows, viz.:

First. Said Baird, as full consideration for the right to sink one or more wells or pits on the island, and four trial wells or pits on the farm, pays to said McGuire one hundred dollars before commencing work; and should said Baird find oil on said island, then said McGuire agrees to sell to said Baird the above described island for the sum of five hundred dollars. The one hundred paid on commencing work to be part of said sum; the remaining four hundred to be paid on McGuire's giving him a warranty deed for said island in fee.

Second. Said McGuire covenants and agrees with said Baird to grant him an exclusive right to sink wells and pits for obtaining mineral oil over the rest of said estate, on the following terms and conditions, viz.: one hundred dollars for each and every period of ten years (ten dollars per year), for each and every well or pit that said Baird may continuously pump oil from; the continuous pumping of said oil to be the evidence that such wells or pits are used. The rent for each and every well shall be paid yearly.

It is understood and agreed, on the part of said Baird, that he will not, in boring or sinking such wells or pits, or in erecting the necessary buildings and apparatus to obtain, and refine or prepare for market said oil, injure any part of said farm valuable as pasture or tillable; and that any fences interfered with shall be restored into good condition.

It is further understood and agreed between the parties to this instrument, that in case the said Baird shall fail to find rock oil on either the island or farm aforesaid, then he shall be at full liberty to remove any buildings or machinery he may have put up, and the one hundred dollars paid to McGuire shall be in full of every demand.

And further, should oil be found, then the right to pump oil from the wells shall continue as the said rent is paid, as before mentioned. For and in consideration of the above premises, we hereby bind ourselves and our legal representatives for and to the full performance of the above agreement in every part."

On the 2d of April 1861 McGuire conveyed the land to C. B. Curtis, Josiah Hall, and others. Under this conveyance the defendants claim.

There was evidence by the plaintiffs that Baird went into possession of the land, and commenced a well on the main land; gave some twenty leases, at about seventeen of which boring was commenced; that some of the wells went down hundreds of feet, and that $20,000 or $30,000 had been expended in boring, building, & c. Curtis, in 1861, brought an ejectment against Baird, who received notice from Curtis to quit, and left in June 1861. Some of the lessees quit for the war, and at last all left.

On the 29th of June 1864 Baird conveyed his interest to the plaintiffs, who then brought this ejectment.

The ejectment brought by Curtis against Baird being on the trial list in December 1864, a nonsuit was taken.

Derrickson, A. J., charged the jury:--

" The point is, will the lease of McGuire to Baird warrant the bringing of an ejectment? It is dated November 24th 1859, and gives to the latter the exclusive right to explore and bore for oil on the other's farm and island. The lessee entered upon the land and commenced operations, which were continued until he left, under circumstances hereafter mentioned under the remaining question. Had there been no possession taken, it is more than questionable whether the ejectment could be sustained on the bare lease itself. But possession was essential to the lessee's discharge of what was required of him; and with it no interference of the lessor, or others under him, could deprive him of it, at least not until ample experiments had tested the non-existence of oil on the premises; or if he was interfered with improperly, and got out of possession, he could regain it by virtue of his lease and prior possession under it. * * * *

With the lease, then, and the possession under it, and nothing else to prevent it, we charge that the plaintiffs are entitled to recover.

It is contended, however, in the second place, that although the lessee commenced and continued his operations till the summer of 1861, he then left and abandoned the land, and has remained therefrom ever since. If he did voluntarily abandon the land and yield his rights under the lease, he is precluded now from regaining them; and this is for the jury to determine under the evidence." * * * * * *

The jury found for the plaintiffs, and the defendants assigned the following error, amongst others:--

4. The judge erred in charging the jury that " with the lease, then, and the possession under it, and nothing else interfering to prevent it, we charge that the plaintiffs are entitled to recover."

S. Dickson and Brown & McKelvy, for plaintiffs in error, cited Kier v. Peterson, 5 Wright 357; Caldwell v. Fulton, 7 Casey 475; Doe v. Wood, 2 B. & Ald. 719; Grubb v. Bayard, 2 Wall. 81; Riddle v. Brown, 20 Ala. 412; Chetham v. Williamson, 4 East 469; 1 Smith's Lead. Cas. 278; Norway v. Rowe, 19 Vesey 158; Hanley v. Wood, 2 B. & Ald. 724; Barrs v. Lea, 10 Jur. N. S. 996; Thomas v. Sorrell, Vaugh. 351; Wood v. Leadbitter, 13 M. & W. 838; Cort v. The Railway Co., 17 Q. B. 127 (79 E. C. L.); The R. W. Co. v. Xenos, 11 J. Scott N. S. (103 E. C. L.) 152; Herbert v. Laughlayn, Cro. Car. 492, S. P.; Molineux v. Molineux, Cro. Jac. 146; Waddy v. Newton, 8 Mod. 278; Loux v. Buel, 9 Johns. 298; 16 Id. 184; Co. Litt. 184; Rex v. The Inhabitants of Old Alresford, 1 Term Rep. 358; Smith v. Barratt, Sid. 161, 1 Lev. 114; South v. Alleine, 1 Salk. 228; Cro. Eliz. 190; 3 Kent 452; Wood v. Lake, Sayers 3; Webb and Paternoster, Palm. 71; Howes v. Ball, 7 B. & C. 481; Jamieson v. Milleman, 3 Duer 257; D'Arnay v. Chesneau, 13 M. & W. 808; Short v. Kalloway, 11 A. & E. 28; 8 Metc. 34; 15 Ills. 397; Wallis v. Harrison, 4 M. & W. 538; Coleman v. Foster, 37 E. L. & E. Rep. 489; Prince v. Case, 10 Conn. 375; 2 Am. L. C. 728; Cook v. Stearns, 11 Mass. 533; Emerson v. Fisk, 6 Greenl. 200; Vandenburgh v. Van Bergen, 13 John. 212; Co. Lit. 45 ( a ) and Heyward's Case, 2 Rep. 36, a, b ; Note to Prince v. Case, 2 A. L. C. 737; Jackson v. May, 16 Johns. 184; 32 H. 8, c. 7; 3 Bl. Com. 206; Newman v. Holdmyfast, Sh. 54; Stephens N. P. 1392.

T McConnell, R. Brown and Wetmore & Clark, for defendants in error, cited Kier v. Peterson, 5 Wright 362; Caldwell v. Fulton, 7 Casey 475; Caldwell v. Copeland, 1 Wright 427; Jackson v. Buel, 9 Johns. Rep. 298; King v. Old Alresford, 1 Term Rep. 358; King v. Stoke, 2 Id. 451; Streatfield v. Halliday, 3 Id. 772; King v. Tolpuddle, 4 Id. 671; Millington v. Goodlittle, And. 106; Bryant v. Whipple, 1 Esp. 360; Burges v. Purvis, 1 Burr. 326; Drapers' Co. v. Wilson, 2 Starkie 477, 3 E. C. L. R. 495; Remington on Ejectment 432; 1 Coventry and Hughes' Digest, Ejectment V. b. 1; Smith v. Barrett, 1 Lev. 114; Portman v. Morgan, Cro. Eliz. 465; Booth v. Lord Cromwell, Sayer 28; Moore v. Van Bergen, 1 John's Cases 101; Seward v. Jackson, 8 Cowen 127; Paine v. York, 10 Humph. Tennessee Reps. 340; Tillinghast's Adams on Ejectment 21; Turner v. Reynolds,...