Funk v. Haldeman

• Decision Date: 07 January 1867
• Citation: 53 Pa. 229
• Parties: Funk <I>versus</I> Haldeman <I>et al.</I><SMALL><SUP>1</SUP></SMALL>
• Court: Pennsylvania Supreme Court

Page 229

53 Pa. 229

Funk versus Haldeman et al.¹

Supreme Court of Pennsylvania.

January 7, 1867.

THIS was an appeal, by A. B. Funk, the complainant below — from the decree of the Court of Common Pleas of Venango county, in Equity.

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The complainants were represented by Messrs. R. Biddle Roberts, Thomas M. Marshall, Eli K. Price and Hon. Walter H. Lowrie.

F. Carroll Brewster, representing one of the sub-tenants, was allowed by the court to take part in the argument.

The appellees were represented by Messrs. C. Heydrick, F. T. Backus and George R. Snowden.

The case was argued at Pittsburgh, November 9th 1866.

Thomas M. Marshall, F. Carroll Brewster and Hon. Walter H. Lowrie, for appellants, argued that the cases relied upon by the court below did not justify the decree entered. They referred to those cases, viz.: Lord Mountjoy's Case, 4 Leon. 147; Moore 174; Godbolt 171; And. 307; Co. L. 164 b; Cheetham v. Williamson, 4 East 469; Doe v. Wood, 2 B. & Ald. 724; Grubb v. Bayard, 2 Wal. C. C. R. 81; Id. v. Guilford, 4 Watts 223; Johnstown Iron Co. v. Cambria Iron Co., 8 Casey 241: and showed that they differed from this, for in those cases,

1st. No present consideration had been paid.

2d. There was no word excluding the grantor.

3d. There was no covenant binding the grantees to take ore.

4th. There was no reservation of a right of tillage, as here. Expressio unius exclusio alterius.

5th. There was no clause in any one of those cases under which the lands, as here, were to "revert back."

They further argued that this case was not to be ruled by Clement v. Walter, 4 Wright 341, for there the grantee had only paid a nominal consideration of $1. He had never put up the works, and "what he was bound to take, and when, was uncertain." And that Huff v. McCauley, antè, p. 206, decided by this court since this appeal, did not rule this case, for in that case there was merely a verbal agreement by McCauley that Huff should take as much coal from McCauley's land as he wanted for his salt-works.

They relied upon the recital of Funk's lease in the deed under which appellees acquired their title. They argued that Funk's rights were not those of a mere licensee, for, 1st. In a license there is no exclusive holding; here there is exclusion. 2d. A licensee is not bound to proceed; here, Funk was bound to use diligence.

But even if the court should construe this as a license, it could not be forfeited for doing that which the appellees had expressly permitted. That Funk's interest was expressly made divisible and exclusive in him and his assigns. If exclusive, there could be no surcharge, and no forfeiture for subdivision.

There is nothing strange or unusual in such a claim. Claims perfectly analogous to it abound in life and in juridical administration. Such are rights of coal, stone, gravel, salt, water, ways, pasture, fore-crop or prima tonsurâ, after-crop, fishery, oystery, ferry, water-power, flowage by drains, growing timber, growing crops, warren, turbary; — many of them are very common in our state. The right to the land may be in one and these other rights in any number of others. No special forms are necessary in assuring such rights. In some cases they are real and in others they are incorporeal. Trespass and ejectment will lie where the right is exclusive. Judicial sagacity never allows the rules of legal art to set aside the common sense of the people.

Here two-thirds of the oil belong to Funk, and one-third to the owners of the land. Oil, like water, is essentially indivisible, and taking it in one place draws it off from all others; and as the owner cannot take oil from our wells, he cannot steal the fluid rights by tapping at a distance.

They cited Wilson v. McKreth, 3 Burr. 1825; Caldwell v. Fulton, 7 Casey 476; Harlan v. The Lehigh Coal and Navigation Co., 11 Id. 287; 2 Washburn on Real Property 89; Woolrych 116, 117; 5 Burr. 2816; 2 W. Bl. 1151; 8 Q. B. 1000; Cro. Jac. 150; 7 East 200; 2 Wend. 524, 517; 17 Pick. 23; 9 Cow. 279; 17 Mass. 298; 8 Burr. 383; Angell 108; Butz v. Ihrie, 1 Rawle 218; 6 Cow. 677; 13 Pick. 323; 4 Id. 54; Tyler v. Williamson, 4 Mason 403; Bird v. Smith, 8 Watts 440; 14 S. & R. 267; 2 Story's Eq. § 927; Brightly's Eq. §§ 215, 296, 299, 300.

F. T. Backus and C. Heydrick, for appellees, argued that the admiration of the appellants' counsel for the opinion delivered by Judge Campbell, had led them into error. The indenture of March 29th 1860 had been confounded with the indenture of March 26th 1860. The indenture of March 26th 1860 related to a tract in Cornplanter township. The indenture of March 29th 1860 related to a tract in Cherry Tree township.

Two questions arise out of the several agreements: —

1. Were the privileges granted to Funk exclusive of his grantors, or to be enjoyed in common with them: and

2. If not exclusive, were they divisible as to the Cherry Tree township tract beyond the extent of the liberty expressly granted in the indenture of March 29th 1860.

The first question is common to all the agreements or deeds; the second arises only under the indenture of March 29th 1860.

1. As to the Cornplanter township tract. This was the only tract covered by the agreement of October 8th 1859 and the indenture of March 26th 1860. There was therein no grant of the oil or minerals and nothing to exclude the owner of the soil from searching and experimenting there also. The language does not even purport to grant the right to take any oil out of the earth. It is but a liberty to experiment and strictly an incorporeal hereditament: Johnstown Iron Co. v. Cambria Iron Co., 8 Casey 246.

The grant of the exclusive use of one acre of land, around each well, does not enlarge the privileges before granted. The previous grant would carry with it the right of ingress and egress and the exclusive use of a reasonable curtilage appurtenant to each well. The exclusive enjoyment was to be after appropriation, but before that, the privileges were to be in common. Looking at all the parts of the agreement, we have a grant of the privilege of making an experimental search for oil in consideration of $200, and constructively — not expressly — a grant of the privilege of taking any oil the grantee might find for another consideration, to wit, one-third part of all that he might under the liberty granted find and take out of the earth and no more. The title to the oil did not pass in fee under this grant. The $200 was no part of the consideration for the oil, it was intended as compensation for disturbance arising from the exercise of the license to search and dig. In this the court below are sustained by Grubb v. Guil ford, 4 Watts 423. The agreement does not require Funk to take any oils out of the earth, and after boring one well he might have refused to proceed. So, too, after having operated with one engine, he could not be required to multiply his operations.

He is the judge of the indications which are to justify him in operating and of the circumstances under which the enterprise might be abandoned as provided for in the agreement.

It is, therefore, manifest that Funk's covenant does not require him to take all the oil, and, therefore, he is not bound to pay for all. If McElheny then sold all the oil it would be "a sale without consideration," and, as such, "is not to be held as intended by the parties, unless the language of the instrument shuts us up to such a conclusion:" Clement v. Youngman, 4 Wright 346.

Oil is not the subject of grant as a corporeal hereditament. It is a movable, wandering, fugitive thing in the bowels of the earth, and must, of necessity, continue common like water, so that one can only have a usufructuary property therein: 2 Blackst. 18. Lord Mountjoy's Case, 4 Leonard 147, is in close analogy to this case, but stronger in favor of an exclusive right. In Cheetham v. Williamson, 4 East 469, the grant is quite as comprehensive as to the one under consideration and similar to it. Doe v. Wood, 2 B. & Ald. 724, has been misunderstood by appellants' counsel. See also, Grubb v. Bayard, 2 Wall. Jr., 96; Gillett v. Treganza, 6 Wisconsin 343. Caldwell v. Fulton, 7 Casey 476, sustains the appellees. The other cases cited are inapplicable,

1. Because the deeds purport to demise the land.

2. Because the landlord was necessarily excluded.

3. Leases for tillage are favorably construed on grounds of public policy.

They further cited Bittinger v. Baker, 5 Casey 66. Funk could not divide any lot and assign the smaller lot. This is shown by the cases already cited and by Van Rensselaer v. Radcliff, 10 Wend. 639; Leyman v. Abeel, 16 Johns. 30.

It is no objection to the decree on the cross-bill that it enforces or declares a forfeiture: 1 Smith's Ch. Pr. 460; Story's Eq 389, 391; 3 Daniel's Ch. Pl. and Pr. 1744-45; Del. & Hud. Canal Co. v. Penna. Coal Co., 9 Harris 131-146.

The opinion of the court was delivered, January 7th 1867, by WOODWARD, C. J.

These cases are a bill in equity and a cross-bill, which are founded upon the respective titles of the parties to valuable oil lands on Oil creek, in Venango county.

The first remarkable feature of the case (for the two bills constitute, essentially, but one case) is the magnitude of the conveyancing that has taken place. Not less than twenty deeds and agreements are presented in our paper-books as bearing more or less directly upon the questions discussed, all of which have been made since 1859, when the right of the present parties first attached. It probably will not be necessary to notice particularly all of these conveyances, but several of them must be carefully analyzed and their legal effect fully stated, for in them the rights of the respective parties are rooted. And the principles of law appropriate to the case, and the mode of their application, are to be discovered only by a patient examination and comparison of the...