Duffield v. Hue

• Decision Date: 04 November 1889
• Docket Number: 455
• Citation: 18 A. 566,129 Pa. 94
• Parties: C. C. DUFFIELD v. E. P. HUE ET AL
• Court: Pennsylvania Supreme Court

18 A. 566

129 Pa. 94

C. C. DUFFIELD v. E. P. HUE ET AL

No. 455

Supreme Court of Pennsylvania

November 4, 1889

Argued May 8, 1889

ERROR TO THE COURT OF COMMON PLEAS OF WARREN COUNTY.

No. 455 January Term 1889, Sup. Ct.; court below, No. 34 September Term 1888, C.P.

On July 18, 1888, C. C. Duffield brought ejectment against F. P. Hue and D. L. Gerould, for a lot of ground in Clarendon borough containing about two acres, with three oil wells thereon part of tract 497, Mead township, bounded, etc., formerly occupied by saw mill and saw mill yard, and part of leasehold granted by Thomas and H. W. Brown to F. M. Pratt, January 20 1882.

Issue having been joined, on February 12, 1889, an agreement was filed waiving trial by jury and submitting the cause to the decision of the court, under the act of April 22, 1874, P.L. 109.

At the hearing before the court, the plaintiff offered himself as a witness, and also, F. M. Pratt, the lessee in the lease under which plaintiff claimed, the offer of Mr. Pratt being accompanied by releases executed severally by the plaintiff himself, E. O. Emerson and J. A. Neill, "of all liability upon any covenants that may be in his conveyance, or that he may have of any kind against witness by reason thereof."

Objected to, because of the fact that Henry W. Brown had died prior to the bringing of the suit.

The court refused the offer of the witnesses to testify as to any matters occurring in the lifetime of Brown.

The testimony of C. B. Crane and L. E. McNett was offered to prove declarations and admissions of Henry W. Brown, made subsequently to the date of the Pratt lease, as to the extent thereof.

On objection made, the court refused the offers. to

On March 19, 1889, the court, BROWN, P.J., filed a decision, which as added to or modified on March 27, 1889, after exceptions filed, was as follows:

FINDINGS OF FACT.

Thomas and Henry W. Brown were the common source of title. Before January 23, 1880, C. R. Elston had given to said Browns a lease for general purposes of the surface of certain land, including that in dispute. On January 23, 1880, William R. Elston and others, heirs at law of C. R. Elston, executed a lease to the said Browns, for the purpose of mining and operating for petroleum, of the same land included in the lease of the surface given by their ancestor. The last mentioned lease was for the term of twenty years, with the superadded agreement of "the right of renewal thereafter so long as oil should continue to be found in paying quantities."

The outlines of the two leases before mentioned, are represented in the map made by E. Gibbs, given in evidence by the plaintiff, to which reference is made; the boundaries being the diagonal line at the left hand of the map, the creek at the bottom, Main street at the top, and the line of R. Thompson and Lapham at the right hand, the R. Thompson line extending only from Main street to the railroad.

Some time before January 20, 1882, the Browns procured a survey to be made, dividing a portion of this before-mentioned territory into village lots. The lots thus surveyed were numbered, and a map of the same made, called the George O. Cornelius survey, to which map reference is made.

On January 20, 1882, the Browns made a lease to F. M. Pratt, of the "exclusive right and privilege of digging and boring for oil and other minerals," on the lands mentioned therein, for the term of fifteen years, to which lease, with its terms and conditions, reference is made. The number of the tract in the lease as 498, was an admitted mistake, and should be 497. The rights of F. M. Pratt, under this lease, by sundry conveyances and assignments became vested in the plaintiff, C. C. Duffield, on December 14, 1883.

At the time of the execution of the lease from the Browns to Pratt, the Browns had a saw mill, connected with which was a yard for the storage of logs and lumber, the mill and yard occupying about two acres of land, the same being bounded on one side by the railroad, on one side by the Plank road and Brown avenue, and on one side by Exchange street; the location of which two acres is indicated by the Gibbs map before mentioned. They had, so far as appears, no land or interest in the land south of Robert Thompson's line, or south of where an extension of that line across the railroad to the creek would be located. [See infra.]

This ejectment is for the land formerly occupied by the saw mill and saw mill yard. The plaintiff claims that the land described in his writ was included in the lease now held by him, given by the Browns to Pratt, and that he is entitled to the possession for the purposes of operating and procuring petroleum and other minerals under the terms of that lease.

The defendants claim that the Pratt lease does not include the land for which the ejectment is brought, and assert their right of possession under the following facts, viz.:

Henry W. Brown assigned his interest in the lease of Wm. R. Elston et al. to Thomas and himself, to Thomas Brown. Afterwards, on judgments against Thomas, executions were issued. On these executions said lease was levied upon with other property, and on June 8, 1885, the personal property, including the lease, was sold at sheriff's sale. The return of the sheriff set forth that he had sold the personal property as per levy to "sundry bidders" for an aggregate sum. From parol evidence introduced by defendants, it is found that the lease in question was sold by the sheriff to L. Rosenzweig. On January 16, 1886, L. Rosenzweig executed a lease to the defendants, F. P. Hue and D. L. Gerould, for oil and mineral purposes, which lease is for the two acres, the land in suit, and under which defendants are in possession and reference to which lease is made.

Defendants further claim, that if the land in dispute is, as claimed by the plaintiff, included in the lease from the Browns to Pratt, Pratt and the plaintiff under him have, under the terms of the lease, forfeited all right to that portion of the territory which is in controversy in this suit, by failure to drill or bore the seventh well as provided by the lease. As bearing on this claim, it is found as a fact that said seventh well was not put down or commenced until about the spring of 1886, and after the defendants had commenced operations under their lease from Rosenzweig; and we fail to find that either the Browns or Rosenzweig said or did anything waiving their right to claim a forfeiture. [See infra.]

During the year 1882, and continuously since, paying, producing oil wells have been in operation on the premises mentioned in the lease to Pratt. Six wells were put down by Pratt or his grantees before the sheriff's sale of June 8, 1885, when Rosenzweig became the purchaser of the lease, but none of those wells were on the land in controversy. Excepting the testimony of F. M. Pratt and the plaintiff Duffield, as to transactions between them and Henry W. Brown, in his lifetime, there is no evidence that any one of the six wells was drilled after the time stipulated in the lease. [See infra.] Henry W. Brown died about the month of August, 1885.

[March 27, 1889.]

At the request of plaintiff the following additional facts are found:

1. That the lease from Thomas and Henry W. Brown was written on a printed blank used by Thomas Brown in making leases on No. 498, which said Thomas owned.

2. The finding of fact that Thomas and Henry W. Brown, at the time of the lease to F. M. Pratt, "had, so far as appears, no land or interest in land south of Robert Thompson's line, or south of where an extension of that line across the railroad to the creek would be located," is modified to read as follows, viz.: They had, so far as appears, no land or interest in land south of Robert Thompson's line, adjoining the Cornelius survey, or south of where an extension of that line across the railroad to the creek would be located; but they did have land lying south of the Thompson land and south of Erie street, as represented on the Gibbs map, given in evidence by the plaintiff, on which they had oil wells.

3. So much of the findings of fact as says, "we fail to find that either the Browns or Rosenzweig said or did anything waiving their rights to claim a forfeiture," and so much as says, "excepting the testimony of F. M. Pratt and the plaintiff, Duffield, as to transactions between them and Henry W. Brown in his lifetime, there is no evidence that any one of the six wells was drilled after the time stipulated in the lease" are stricken out.

4. We find that two, and probably three of the six wells, put down by F. M. Pratt and his grantees, were put down after the time stipulated in the lease; and there is no evidence showing any claim of forfeiture by the lessors by reason of the failure to comply with the terms of the lease in that respect.

5. Some of the wells drilled by the lessees were not on the village lots mentioned in the lease, but were changed to other localities, either by agreement, or by the act of the lessee, acquiesced in by the lessor.

6. By agreement of counsel, the testimony of F. M. Pratt, taken before the master in the equity case between the parties, is to be treated as if taken after the execution of the releases given in evidence by the plaintiff.

At request of defendants the following additional facts are found, viz.:

On February 13, 1886, L. Rosenzweig gave to the plaintiff verbal notice that in consequence of the non-performance of the covenants in the lease from the Browns to F. M. Pratt, the right of the plaintiff to put down more wells had ceased. This was on the day that the lease from Rosenzweig to defendants was acknowledged, and on March 16, 1886, he gave him a written notice not to drill any other or further...