Harris v. Cobb
| Decision Date | 23 March 1901 |
| Citation | 38 S.E. 559,49 W.Va. 350 |
| Parties | HARRIS v. COBB et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. M and husband conveyed by deed to H. 52 acres of land in fee which deed contained this provision: "The parties of the first part reserve unto themselves, and do not convey by this deed, the equal one-half part of the usual royalty of one-eighth of all the petroleum or oil in and underlying the tract of land hereby conveyed." Held to be an exception from the operations of said deed reserved to the grantors, of the title in fee to the one-sixteenth of the oil in place in and underlying said tract of land, and to be delivered to her when produced as royalty, without expense to her for production.
2. H afterwards leased said tract of land to L., with the exclusive right to operate and drill for oil and gas, reserving one-eighth part of all the petroleum obtained from said premises as produced in the crude state, to be set apart in the pipe line running said petroleum to the credit of lessor. Held to be a reservation to the lessor of the one-eighth of the oil which was vested in her, and did not refer to or include the one-sixteenth which was outstanding in M.
Appeal from circuit court. Tyler county; G. W. Farr, Judge.
Bill by Elizabeth J. Harris against Eugene M. Cobb and others. Decree for plaintiff, and defendants appeal. Affirmed.
P. A. Shanor, A. B. Hunt, and David Sterrett, for plaintiffs in error.
T. P. Jacobs and E. L. Robinson, for defendant in error.
By deed dated July 25, 1896, Rachel A. Myers and James Myers, her husband, conveyed with general warranty to Elizabeth J Harris, the wife of B. F. Harris, a tract of about 52 acres of land in Tyler county, which deed contained the following clause: "The parties of the first part reserve unto themselves, and do not convey by this deed, the equal one-half part of the usual royalty of one-eighth of all the petroleum or oil in and underlying the tract of land hereby conveyed;" which deed was recorded in the clerk's office of the county court of Tyler county on the day of its date. On the 23d day of January, 1897, Elizabeth J. Harris and her said husband, by deed of lease of that date, granted to James Lowry the exclusive right to operate and drill for petroleum and gas, to lay pipe lines, etc., on the said tract of land, for the period of five years from the date of the lease, and so long thereafter as oil or gas could be produced in paying quantities. "The party of the second part (James Lowry), his heirs or assigns, agrees to give the party of the first part one-eighth part of all the petroleum obtained from said premises as produced in the crude state, the said one-eighth part of the petroleum to be set apart in the pipe line running said petroleum to the credit and for the benefit of the said party of the first part." James Lowry, by deed of assignment, transferred and conveyed the same to James S. Glenn and Eugene M. Cobb, who assigned a portion thereof to L. E. Mallory. The last three named took possession and operated said leasehold, and produced oil in paying quantities. On the 29th of January, 1898, Elizabeth J. Harris, L. E. Mallory, E. M. Cobb, and James S. Glenn executed a division order, whereby they certified their ownership of the wells on the said leasehold, and authorized the Eureka Pipe-Line Company until further notice to receive for transportation and storage oil from said wells for said parties in the proportions named, to wit, to Elizabeth J. Harris 1/8 royalty, to L. E. Mallory and E. M. Cobb each 7/32, and James S. Glenn 14/32, subject to their usual terms and conditions. Elizabeth J. Harris filed her bill in the circuit court of Tyler county against Eugene M. Cobb, James S. Glenn, L. E. Mallory, Rachel Myers, James Lowry, and the Eureka Pipe-Line Company, alleging the facts aforesaid, claiming under the reservation or exception in the said lease the one eighth of all the oil produced in the crude state, to be set apart in the pipe lines to her credit; that by the reservation in the said deed from Rachel A. Myers and husband the said Myers is entitled to another one-sixteenth of all the oil produced or to be produced from said tract of land; that, notwithstanding her right to receive the full one-eighth of all the oil so produced, and notwithstanding the division order in which said Cobb, Glenn, and Mallory agreed that she should receive the one-eighth, yet they have not delivered the same to her, nor have they permitted the Eureka Pipe-Line Company to deliver the same to her, but have induced said company to refuse to so deliver it to her; and prays that the defendants Cobb, Glenn, and Mallory, and each of them, be required to answer her said bill, and be required to discover, say, and disclose, how much petroleum oil has been produced from said tract by them, or either of them, and the value thereof at the respective times when produced and run into the pipe lines of said company, and that they, and each of them, may discover, say, and disclose to the court the amount of the royalty oil, to wit, the one-eighth royalty and the value thereof, belonging to plaintiff, produced and run into said pipe lines, and which they refuse to deliver, that she have a decree therefor; and that said defendants be required to perform, abide by, and execute the covenants and agreements contained in said lease; and that a special receiver be appointed, if necessary, to receive and take charge of said royalty oil under the direction of the court; and for general relief,--which bill was sworn to. The defendant Lowry demurred to the bill, and filed his answer, and defendants Cobb, Glenn, and Mallory filed their joint demurrer and answer, and Rachel A. Myers filed her demurrer and answer, in all of which demurrers plaintiff joined, and to the answers replied generally. The deposition of B. F. Harris was taken and filed on behalf of plaintiff, and on the 17th day of August, 1899, the cause was heard upon the said pleadings, the bill taken for confessed as to Eureka Pipe-Line Company, when the court overruled the demurrers, and ascertained that by the deed of July 25, 1896, the defendant Myers, in conveying the tract of about 52 acres of land to plaintiff, Harris, excepted and did not convey the equal one-half part of the usual royalty of one-eighth of all the petroleum or oil in and underlying the said tract of land; that plaintiff, Elizabeth J. Harris, by her lease of January 23, 1897, to James Lowry, leased and demised to said Lowry the said tract of land for the purpose of drilling and operating the same for the production of petroleum oil and gas, in which she reserved, and the said Lowry agreed to give and yield to her, the one-eighth part of all the oil produced and obtained from said land as produced in the crude state, to be set apart to her credit in the pipe lines; that said Lowry assigned and transferred said lease to the defendants Cobb and Glenn, and subsequently, and before this suit, said Cobb and Glenn assigned and transferred an interest therein to said Mallory, and that the three last-named defendants, in pursuance of said lease, entered upon and developed said tract, and produced therefrom oil in paying quantities; that said operators have never delivered or paid any royalty of such oil to any one, and ascertaining that of the oil produced and to be produced from said land Rachel A. Myers is entitled to the 1/16, the plaintiff, Elizabeth J. Harris, to 1/8 of 15/16, and the defendants Cobb, Glenn, and Mallory to the remainder thereof,--that is to say, that Rachel A. Myers is entitled to 8/128 of such oil, plaintiff to 15/128, and the said Cobb, Glenn, and Mallory together to 105/128,--and decreed its distribution accordingly; and it was decreed that the Eureka Pipe-Line Company deliver and pay over to said parties in said proportions the oil hereafter to be run into said pipe lines, and that of the royalty oil now in the pipe lines said company should deliver to plaintiff an amount equal to 15/128 of all oil produced from said land and run into said lines, and shall then pay and deliver to said Rachel Myers the remainder, or 8/128, of the whole of said oil, if there be so much in the pipe lines, it being intended to dispose of the royalty oil accumulated during the pendency of the suit. The cause was referred to a commissioner to ascertain and report the amount of oil produced from said land and run into the pipe lines, the value thereof, and to whom the same has been paid and delivered, and in what proportions, and, on motion of plaintiff, K. S. Boreman was appointed a special receiver of the royalty oil, 8/16, to take charge of and sell the same at the best price obtainable, when and as often as, in...
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