Fast v. Whitney

• Decision Date: 30 January 1920
• Docket Number: 918
• Citation: 26 Wyo. 433,187 P. 192
• Parties: FAST v. WHITNEY
• Court: Wyoming Supreme Court

187 P. 192

26 Wyo. 433

FAST v. WHITNEY

No. 918

Supreme Court of Wyoming

January 30, 1920

APPEAL from the District Court, Park County; HON.E. C. RAYMOND Judge.

Action by James M. Fast and others against F. A. Whitney and another to enjoin lessors from asserting a forfeiture of an oil lease and interfering with drilling operations of lessees. There was a judgment for defendants and plaintiffs appeal.

Reversed and remanded.

C. A Zaring and R. B. Landfair, for appellants.

The trial court, upon objections made by defendants to the introduction of evidence, ruled that the petition did not state a cause of action, dismissing plaintiff's action and entering judgment for defendants; the action was for injunction; it is a proper remedy where a lessor re-enters and claims forfeiture (Thornton on Oil and Gas, sec. 103; Gas Co. v. Poterie, 153 Pa. St. 10; Ohio Oil Co v. Hurlbut, 7 Ohio Cir. Dec. 321); in construing a lease the entire instrument will be considered to arrive at the intention of the parties (Oil Co. v. Kelly, 6 O. C. D. 470; Elliott on Contracts, 1515); the intent is the essence of every agreement (Lachmund v. Sing, 120 P. 598); a lease will be construed most strongly against the lessor (24 Cyc. 915); staking out a location, contracting for lumber for rigs and cutting timber, is a commencement of operations (Duffield v. Russell, 65 O. St. 605); lessors are estopped from declaring a forfeiture (Thornton O. & G. 257); forfeiture of a lease will not be permitted where lessor has expended or is expending money without an opportunity first given to more speedily develop the property (Oil Co. v. Hurlbut, supra, 60 O. St. 613); justifiable delay will not work a forfeiture (Longworth v. Taylor, 1 Ohio F. Dec. 643).

E. E. Enterline and W. L. Simpson, for respondents.

The court sustained a demurrer ore tenus to the petition; respondents have moved to dismiss the appeal on the ground that the record on appeal does not show that it was filed in the office of the Clerk of the Trial Court as required by laws of 1917, chap. 32, sec. 4-10. Statutes must be complied with (2 R. C. L. 73); the allegations of the petition are insufficient to show commencement of drilling operations; there is a distinction between a commencement of operations and a commencement of drilling operations; there was no waiver by the lessors; there can be no waiver of a non-existent or lost right (40 Cyc. 258; Inv. Co. v. Marrow, 108 Cal. 490, 41 P. 487; Ins. Co. v. Lbr. Co., 11 Okla. 585, 61 P. 938); there are no allegations of estoppel in the petition (10 N. C. L. 149; Hallick v. Bresnahan, 3 Wyo. 73); respondents had a right to declare a forfeiture and to have the title quieted in them (Thornton on O. & G. 782; Huggins v. Daley, 99 F. 606; Detler v. Holland, 57 O. St. 492, 49 N.E. 690; Oil Co. v. Oil Co., 34 S.E. 923; Federal Oil Co. v. Western Oil Co., 121 F. 674, 57 C. C. A. 428; Iron Co. v. Trout, 83 Va. 397); the judgment below should be affirmed.

POTTER, JUSTICE. BURGESS, District Judge, concurs. CHIEF JUSTICE BEARD and JUSTICE BLYDENBURGH being unable to sit in said cause, HON. JAMES H. BURGESS Judge and HON. CHARLES E. WINTER Judge were called in to sit in their stead. JUDGE WINTER Judge, did not participate in the decision.

OPINION

POTTER, JUSTICE.

This case is here on appeal. It is an action brought to enjoin the lessors from asserting a forfeiture of an oil lease and from interfering with the prosecution of drilling operations by excluding the lessees from the premises covered by the lease. The defendants having filed an answer and cross-petition, without previously objecting to the petition by demurrer or otherwise, interposed an objection on the trial to the introduction of any evidence by the plaintiffs on the ground that the petition does not state facts sufficient for a cause of action in favor of the plaintiffs or against the defendants. That objection was sustained; and thereupon the defendants introduced evidence in support of their cross-petition praying that their title to the premises be quieted as against any claim of the plaintiffs or either of them.

Judgment was rendered in favor of the defendants, whereby it was ordered that the plaintiffs take nothing in the action, that their petition be dismissed, and that the title of defendants to the premises covered by the lease be quieted as against the plaintiffs. The rulings of the court excluding all evidence by the plaintiffs, permitting evidence to be introduced in support of the cross-petition, and rendering judgment for the defendants, are specified as error. But the record does not show any exception to the ruling allowing the introduction of evidence under the cross-petition. An exception is shown to the ruling sustaining the objection to the introduction of any evidence by the plaintiffs, and also to the findings, decision and judgment. And the only questions presented here by the briefs relate to the sufficiency of the petition to state a cause of action.

The petition sets out the lease in haec verba, together with all endorsements thereon, and alleges that the plaintiffs, James M. Fast, R. B. Landfair and J. C. Reese are the owners and holders of said lease entered into between the defendants, F. A. Whitney and Leona G. Whitney, his wife, and J. C. Reese, on August 14, 1916. The premises, as described in the lease, are located in Park county, in this state. By the terms of the lease the lessor grants, demises and leases unto J. C. Reese, "all the oil, petroleum, gas, hydro-carbons, water and minerals of every kind and character whatsoever in or under said lands and the right to sever and remove the same; also the right to construct and maintain telegraph, telephone, pipe lines, roadways from adjoining lands on or across the demised premises; the right to construct and maintain buildings, derricks, tanks and other structures used or necessary for the boring or excavating, preserving and handling of oil, gas, hydro-carbons, water and other minerals produced on the demised premises. To have and to hold the same unto the said lessee for the full term of 5 years from and after the date hereof, and as much longer as either oil, gas, hydro-carbons, water and other minerals in paying quantities are produced, provided that all covenants and conditions hereof are fully kept and performed by the said lessee. Provided: The said lessee commences drilling on said lands or within a radius of one mile from said property within 60 days from the date hereof and carry forward the work of completion with all reasonable dispatch unless prevented by strikes, the elements, unavoidable accidents or causes beyond the control of the lessee."

The lease contains also the following material provisions, stated in the order in which they are expressed in the lease: "In case no well be commenced at the place and within the time provided for herein, this lease shall become null and void and without any further effect whatever, unless lessee shall pay for the delay at the rate of....cents per acre for each and every twelve months thereafter or until a well is commenced as provided for herein, or this lease be surrendered. Such payment may be made to the lessor at his address or be deposited to his credit in the First National Bank of Meeteetse, Wyo." "The lessee further agrees that drilling operations shall be commenced and diligently prosecuted on the lands specified in this agreement within 60 days from the date of this lease." The lease further provides that the lessee shall have the right and privilege at any time to assign, transfer or sublet the lease or any part thereof.

After setting out certain endorsements on the lease, alleging that the lease bears such endorsements, extending the lease, first, for 30 days from the date of the lease, and second, to December 14, 1916, and assigning one-third of the interest of the lessee, Reese, in the lease to R. B. Landfair and one-third to James M. Fast, and alleging that the lease, together with said endorsements, was filed for record in the office of the county clerk of Park County on December 16, 1916, the petition alleges as follows:

"Plaintiffs say they have performed each and every obligation of the said contract on their part to be kept and performed; that on the 12th day of December, 1916, the plaintiffs, together with the defendant, F. A. Whitney, proceeded to the premises described in said lease and set a 'stake' for the location of the first well on said premises; that on the 13th of December, 1916, plaintiffs caused to be placed on said premises lumber for the repair and addition of a derrick, for drilling purposes, that plaintiffs had contracted to be torn down from another location, about three miles away, and moved, and to be erected on the lands of the defendants.

"That the premises of defendants described in the contract of lease are about six miles up the Greybull River from Meeteetse Wyo., and about 41 miles from a railroad. That during the month of December and after the commencement of the drilling operations herein set forth there was a great amount of snow on the ground for miles around Meeteetse, Wyo., and in and around the premises of the defendants and the hauling of material was almost impossible and it was difficult for workmen to get in and around said premises, but that on or about the 24th and 25th day of December, 1916, the plaintiffs caused said derrick, about three miles away, to be torn down and contracted with a teamster at Meeteetse, Wyo., to haul same to the premises of the said defendants. That arrangements were made about the 12th day of December, 1916, with the defendants to take care of the teamsters at their said premises and to take care of the rig builders. That the defendants, when the teamster...