High Gravity Oil Co. v. Southwestern Petroleum Co.

• Decision Date: 06 March 1923
• Docket Number: 3686,3687.
• Citation: 290 F. 370
• Parties: HIGH GRAVITY OIL CO. v. SOUTHWESTERN PETROLEUM CO. et al. HUDSON et al. v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

290 F. 370

HIGH GRAVITY OIL CO. v. SOUTHWESTERN PETROLEUM CO. et al. HUDSON et al. v. SAME.

Nos. 3686, 3687.

United States Court of Appeals, Sixth Circuit.

March 6, 1923

Lawrence Maxwell, of Cincinnati, Ohio, and Ed. C. O'Rear, of Frankfort, Ky. (O'Rear, Fowler & Wallace, of Frankfort Ky., E. L. McDonald, of Lexington, Ky., and Martin T. Kelly of Frankfort, Ky., on the brief), for appellants.

Robert H. Winn, of Mt. Sterling, Ky., and LeWright Browning, of Maysville, Ky. (Worthington, Browning & Reed, of Maysville Ky., and John A. Judy, of Mt. Sterling, Ky., on the brief) for appellees.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

These are appeals from decrees in favor of the defendants in two suits brought by the appellants, referring to adjacent parcels of real estate, the purpose of which suits was to enjoin the further extraction of oil by defendants, to procure an accounting for what had been taken, and to establish plaintiffs' title. Prior to 1888 David Pryse had the legal title to all the land in controversy. In that year he made a deed to Simpson Crabtree. The easterly line of what he conveyed, being the westerly line of what he kept, and along that portion now in dispute, was described as 'thence with the cliff' in a generally northeasterly direction, by stated courses and distances. As is common, some of the courses and distances as recited turn out to be impossible of acceptance, and the location of the line depends upon the interpretation of the phrase 'with the cliff.'

In the general locality of this line there was a sharp ridge running northerly, with a bend toward the east. Along this ridge for the greater part of its course there is a sheer cliff facing easterly, and another one facing westerly. At places they are not more than 100 feet from each other; at other places they are further apart; and the ridge carries similarly cliff-faced spurs on both east and west. The summit of the ridge lies approximately midway between the faces. Upon its westerly face, toward Crabtree, the lower cliff, while sheer in places, in other places is broken or sloping, and above it with more or less interruption are second and third upstanding ridges of rock, which might or might not be considered part of the cliff face. As soon as the Pryse-Crabtree deed is read and the reader is informed as to the general topography, the description becomes sharply ambiguous. 'With the cliff' may mean with the summit of the cliff ridge, or it may mean with the westerly face of the cliff, and, if it has the latter general meaning, then whether it runs with the bottom of the first cliff, with its top, or with the upper ridges of rock, and where it goes in the places where the cliffs are broken, and whether it goes around or across the westerly spur from the ridge, all are uncertain.

Until recently the narrow strip of land between the two lines-- the center and the edge, containing only a few acres in total area-- was of no practical value, except for a small amount of timber. There is testimony tending to show that claimants under Pryse cut timber from the east over to the edge of the cliff, and this with Crabtree's acquiescence, and that claimants under Crabtree cut timber from the west up to the center line with the acquiescence of Pryse's grantees; but with the discovery of oil the strip became valuable, and this litigation has resulted.

The Southwestern and Cliff Companies, the defendants, were lessees, claiming under Pryse's grantees by leases which were said to carry their rights westerly to the top edge of the bottom or main cliff, and running the whole length of the cliff line in question. Crabtree had divided his land west of the cliff ridge, giving the northern part to one daughter and the southern part to another. Whether the deeds of conveyance to them are bounded on the east by the cliff face, or by the center of the ridge line, is wholly impossible to tell from the papers, or without knowledge outside of the record as to stated monuments, and perhaps it would not be possible even then. Thereafter plaintiffs Hudson and Collins acquired a lease of the southern part from one daughter, and plaintiff High Gravity Oil Company and another corporation, the Swiss Oil Company, acquired from the other daughter a joint lease of the northern part. In each lease the territory covered was described in the same unintelligible way (as to its eastern boundary) as in the deeds from Crabtree to his daughters.

Hudson and Collins and the High Gravity Company drilled wells upon their properties west of the cliffs, but took no possession of anything on top of the cliffs. Later the Southwestern and Cliff companies drilled wells upon the disputed strip itself on top of the cliff, and this was the situation when these suits were brought.

The question to which attention was chiefly given below, and which was first argued in this court, was as to the rightful location of the cliff line contemplated by the Pryse-Crabtree deed. Plaintiffs' contention that it should be located along the top of the ridge was based largely upon the claim that it was in fact so run and marked by the surveyor at the time, with the further contention that the stated courses and distances in the deed, when modified and corrected according to established Kentucky rules, do accommodate themselves substantially to the summit line of the cliff ridge, but cannot be applied even approximately to the cliff face line. The defendants contended, not only that the deed unambiguously called for the face of the cliff, but that, if there was ambiguity, it was upon the facts to be solved on that theory. The District Judge considered this question only, and held with the defendants upon its merits. Our examination of the record has induced substantial doubt whether this conclusion was correct; ^[1]but, without undertaking to reach a decision upon that subject, we observed that the record also tended to show another sufficient defense. Accordingly we asked for further briefs from counsel thereon, and such briefs from both sides have now been filed.

It is a well-established rule in Kentucky that where there is a dispute, or even uncertainty, as to the dividing line between adjoining owners, and they orally agree that a particular surveyor may fix the line, and he does so, and they thereafter execute the agreement, either by marking the new line, or by taking possession up to such line, the line so fixed, called sometimes in Kentucky a 'conditional line,' becomes the true boundary. Garvin v Threlkeld, 173 Ky. 262, 266, 268, 190 S.W. 1092; Wisconsin Steel Co. v. Lewis, 178 Ky. 765, 768, 199 S.W. 1068; Turner v. Bowens, 180 Ky. 755, 758, 203 S.W. 749. If Amburgy v. Burt, 121 Ky. 580, 89 S.W. 680, is to be taken as requiring mutual concessions, it is inconsistent with the later cases. ...