Eaton v. Allegany Gas Co.

• Decision Date: 02 December 1890
• Citation: 122 N.Y. 416,25 N.E. 981
• Parties: EATON et al. v. ALLEGANY GAS CO., Limited, et al.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 416

25 N.E. 981

EATON et al.

v.ALLEGANY GAS CO., Limited, et al.

Court of Appeals of New York, Second Division.

Dec. 2, 1890.

Appeal from an order of the general term of the supreme court of the fifth department, which reversed a judgment dismissing the complaint, without costs, and was entered on the report of a referee.

Since 1880, Harvey C. Foster has been the owner in fee of the land described in the written contract entered into under seal, by him with Walter A. Wilcox, Amos D. Wheeler, and William T. Eaton, dated April 27, 1881, and acknowledged May 9, 1881, the material parts of which are as follows: ‘Agreement made this 27th day of April, 1881, between Harvey C. Foster, party of the first part, and W. A. Wilcox, A. D. Wheeler, and W. T. Eaton, party of the second part, witnesseth: That the said first party, in consideration of the sum of one dollar, to _____, paid by the second party, the receipt of which is hereby acknowledged, and of the agreements hereinafter mentioned, to be kept and performed by said second party, have granted, leased, and demised, and do hereby grant, lease, and demise, unto the said second party, their heirs, and assigns, all that tract or parcel of land situate in the town of Wirt, described as follows, to-wit, [here follows a description of fifteen acres of land,] with the exclusive right to dig, bore, and mine for, and gather, all oil or gases found in and upon the aforesaid premises, to have and to hold the same for the term of twelve years from this date, or as long as oil is found in paying quantities; also the right of way to enter upon said premises, for the purpose of operating, mining, or removing said oil or gases therefrom, and full power to erect all necessary buildings and tanks upon said premises, for the purpose of procuring or storing said oil or gases, with the full right to said second party of appropriating to their own use all the oil or gases found upon said premises during said term. In consideration whereof the said second party agrees to give the said first party one-eighth part of the oil produced and saved from said premises, to be delivered on said premises to the party of the first part. The first party has the right to use, for agricultural purposes, whatever portion of said premises second party does not use and need for said oil, and other purposes herein stated. The party of the second part covenants to commence operations for said mining purpose, and prosecute the same on some portion of the above-described premises, within two years from this date, or, thereafter, pay to the party of the first part _____ dollars per _____, until work is commenced. This lease shall be null an void, and at end, unless said second party shall, within six months from this date, commence and prosecute with due diligence, unavoidable accidents excepted, the sinking and boring of one well on or in the vicinity of this lease, to a depth of 1,200 feet, unless oil in paying quantities is sooner found. * * * Said second party shall have the right and power to remove their machinery, derricks, tools, and fixtures, or any other property, at any time, from said premises. If the party of the second part fails to keep and perform the covenants and agreements by him to be kept and performed, then this lease shall be null and void, and surrendered to the party of the first part. It is agreed that the foregoing stipulations and agreements shall apply to and bind the heirs, executors, administrators, and assigns of the respective parties hereunto.’ The contract is partly written and partly printed, the written words being italicized in the copy above set forth. When this action was begun, William T. Eaton...