Hays v. Kentucky West Virginia Gas Co.

• Decision Date: 13 March 1942
• Citation: 290 Ky. 174,160 S.W.2d 376
• Parties: HAYS et al. v. KENTUCKY WEST VIRGINIA GAS CO. et al.
• Court: Kentucky Court of Appeals

160 S.W.2d 376

290 Ky. 174

HAYS et al. v. KENTUCKY WEST VIRGINIA GAS CO. et al.

Court of Appeals of Kentucky

March 13, 1942

Rehearing Denied April 24, 1942.

Appeal from Circuit Court, Knott County; Henry Stevens, Judge.

Action by Hattie Sturgill Hays and others against Kentucky West Virginia Gas Company and others to recover damages for appropriation by named defendant of gas extracted from a well on land which allegedly belonged to plaintiffs, and to enjoin further operation of the well by named defendant, wherein two parties named as plaintiffs prayed that their names be stricken as plaintiffs in the action and that they be made defendants. From a judgment of dismissal, plaintiffs appeal.

Judgment affirmed.

Clark Pratt, of Hindman, and T. E. Moore Jr., of Hazard, for appellants.

Combs &amp Combs, of Prestonsburg, for appellees.

THOMAS Justice.

The sole question involved in this case is the correct interpretation of a writing executed by Charley Sturgill to his wife, Frankie Sturgill, and others (but who the latter are is the question) on May 13, 1918, which writing purported to convey the tract of land owned by Charley Sturgill in Knott County, which it is stated in the record at one place as containing 200 acres and at another as containing 250 acres. At that time the vendor, Charley Sturgill, had living adult daughters, each of whom had married, and two living sons; also a granddaughter, the only heir of a deceased daughter. One of the sons was named Pearl Sturgill, and the other one Beckham Sturgill, the first of whom, it appears was occupying some portion of the entire tract at the time the writing was executed. It is so inartistically drafted and so fails to follow the ordinary forms of inter partes conveyances of land that we feel it to be essential--in order to place before the reader the exact situation--to set out the entire instrument as a part of this opinion, since our conclusion (as will later appear) is based upon its entire phraseology viewed from its "four corners." Omitting signature, attesting clauses, etc., the writing is thus phrased:

"This Indenture, made and entered into, this the 13th., day of May, 1918, between Charley Sturgill of the County of Knott, and State of Kentucky, of the first part and Frankie Sturgill and her heirs, of County of Knott, and State aforesaid, of the second part,

"Witnesseth: That the party of the first part, for and in consideration of the sum of One Dollar in hand paid, and for the Love and Affection I have for my wife and children, and the party of the first part is to stay on said land and control and cultivate the same during his lifetime, and at his death, this deed is to remain in full force and effect. I bequeath that Rosa Branham has already had her part of my estate, the receipt of which is hereby acknowledged, have bargained, sold, and by these presents do bargain, sell and convey unto said parties of the second part a certain tract or parcel of land lying in Knott County, Kentucky, and described as follows:

"Lying and being on Jones Fork of Right Beaver Creek and bounded as follows: On the North by the lands of Riley Casebolt, and on the West by the lands of Andy Watson and J. M. Gibson; on the South by J. M. Gibson and Lark Slone; on the East by the lands of Riley Casebolt and Isom Gibson, containing 200 acres.

"I want Pearl Sturgill to have the land where he now lives at our death and for Pearl to pay the rest of the heirs what he thinks is right at our death, and I want Beckham Sturgill to have the old home place and help pay the rest of the heirs in proportion. I want Violet Sturgill to

have an equal part with the rest of the heirs, being the same land conveyed by Charley Huff to grantor herein by deed, dated Jan. 22, 1901, and recorded in Deed Book No. 9 at page 106, records of the Knott County Court Clerk's Office.

"To Have and to Hold said tract of land, with the appurtenances thereunto belonging, unto the parties of the second part, their heirs and assigns forever, with covenants of General Warranty." (Our emphasis.)

The grantor, Charley Sturgill, died intestate a resident of Knott County in 19--, but his wife, Frankie Sturgill, survived him until her death in 1939. Before the death of Charley Sturgill, and on November 30, 1926, he and his wife jointly leased the land referred to in the paper he executed on May 13, 1918, to the Ivyton Oil and Gas Company "for the purpose of operating, producing and marketing oil and gas therefrom" together with the usual mining rights, which lease was placed of record, and it was afterwards extended by some of the Sturgill heirs joining in the extension, and while in force it was acquired from the then lessee by the appellee, and a defendant below, Kentucky West Virginia Gas Company. After so acquiring the lease, and while it was still in force, it sunk and developed a more or less paying gas well on the land, from which it extracted and appropriated the flow of gas therefrom for more than three years before the filing of this action in the Knott Circuit Court against it and others on June 6, 1940.

The petition as originally drafted and filed named all of the heirs of Charley Sturgill and wife as plaintiffs, and it alleged that they jointly owned the fee in the land from which the defendant, Kentucky West Virginia Gas Company, had extracted gas from the well it developed and produced, and that the said defendant had no right to take any mineral or other part of the land and appropriate it to its own use; that in doing so the defendant was a trespasser and had thereby appropriated the mineral it had extracted to the value of $20,000, for which sum plaintiffs prayed judgment against that defendant, and that it be enjoined from future operation of the well and be required to abandon the premises.

After the action was filed, the two sons of Charley Sturgill--Pearl and Beckham--appeared and moved the court that their names be...