Jennings v. Elliott

• Decision Date: 19 December 1939
• Docket Number: 29387.
• Parties: JENNINGS et al. v. ELLIOTT et al.
• Court: Oklahoma Supreme Court

97 P.2d 67

186 Okla. 285, 1939 OK 554

JENNINGS et al. v. ELLIOTT et al.

No. 29387.

Supreme Court of Oklahoma

December 19, 1939

Syllabus by the Court.

1. A restraining order is merely an order intended to preserve the present status of matters in litigation concerning which it is directed until a hearing may be had upon a pending application for a temporary injunction. When the court acts with reference to the application for temporary injunction the restraining order loses its force.

2. The owner of land covered by an existing oil and gas lease has the right to execute a second lease covering the same land. An application for a temporary injunction against such owner by the lessee under the prior lease, which merely states that applicant is the owner of such prior lease and that defendant threatens and is about to execute a second or "Top" lease, to the damage of applicant, states no valid ground for a temporary injunction.

3. It is not error to grant a temporary injunction upon a duly verified application, sufficient on its face to state a cause for injunctive relief, without hearing evidence in support thereof where due and proper notice is given and the parties are present before the court, and defendant makes no request for leave to present evidence, offers no evidence, and there is no pleading of any kind denying the allegations contained in the application.

Appeal from District Court, Lincoln County; Kenneth Jarrett, Judge.

Action by O. C. Elliott and others against R. G. Jennings and Fred J. Galloway for cancellation of oil and gas lease. From an order granting a temporary injunction to the plaintiffs, and from an order denying a temporary injunction sought by the defendants, the defendants appeal.

Affirmed.

H. O Bland and Milton W. Hardy, both of Tulsa, for plaintiffs in error.

P. D Erwin, of Wellston, for defendants in error.

RILEY Justice.

This is an appeal from an order granting a temporary injunction, and from an order denying a temporary injunction sought by plaintiffs in error.

Defendants in error were plaintiffs and plaintiffs in error were defendants below. The parties will hereinafter be referred to as plaintiffs and defendants as in the trial court.

Plaintiffs commenced this action June 3, 1939, seeking the cancellation of an oil and gas lease. They alleged ownership as heirs of A. J. Elliott, deceased, and possession of the real property covered by the lease, and that defendants claimed some interest under said lease executed by A. J. Elliott and L. C. Elliott to R. G. Jennings of Pittsburg, Pennsylvania.

The lease in question was the ordinary 88 form in use at that time. The term was for five years from date of lease, "and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee". As grounds for cancellation plaintiffs alleged:

"R. G. Jennings drilled a shallow well upon said premises to a depth of approximately 2600 feet, from which well gas was produced for a number of years in small quantities; that no other well has ever been drilled upon said premises; that the development in nearby territory has indicated that production might be obtained at greater depths; that the production of gas from the said well for ten or fifteen years preceding the first of March, 1938, was very small; and that no gas or oil has been produced or sold therefrom since on or about the 1st day of March, 1938.

That the defendants just mentioned have never reasonably or properly developed the said lease, although requested so to do, and have entirely abandoned the same; that the said lease has been thereby forfeited; and that the same should be cancelled and set aside as a cloud upon the title of the plaintiffs."

Defendants on June 30, 1930, filed their motion to require plaintiffs to make their petition more definite and certain. July 5, 1939, plaintiffs filed an "Amendment to Petition", alleging:

"That since the commencement of this action and on or about the 29th day of June, 1939, the individual defendants, or a part of them, wrongfully and unlawfully and without notice to or consent of the plaintiffs, entered and trespassed upon the premises described in the petition, opened up old gas well located thereon, and have demanded and obtained connection with the pipe line of Oklahoma Natural Gas Company and are producing gas therefrom and selling it to said Company.

* * * * * *

That each and all of the individual defendants are nonresidents of the State of Oklahoma; that plaintiffs will be greatly, materially and irreparably injured and damaged unless the defendants are restrained from operating said well or making further trespass on said property; and that the plaintiffs have no adequate, speedy or complete remedy at law."

They prayed for an injunction restraining defendant from entering and trespassing upon said premises, and from taking or producing gas from said well, and from injuring or destroying the well or pulling casing therefrom, and for all other proper and equitable relief.

A temporary restraining order was issued restraining defendants as prayed for in the amendment to the petition until further order of the court.

In the same order the court set the application for a temporary injunction for hearing on July 12, 1939, and ordered that defendants be given five days notice of such hearing.

On July 12, defendants filed an application for restraining order and temporary injunction against plaintiffs, and for a permanent injunction against plaintiffs.

They alleged in substance that they were the lessees of and producing gas on the land, and that they claimed right, title and interest under the lease set out and attached to plaintiff's petition, and that plaintiffs: "are about to enter on and dispose of the mineral rights in and to the above described property, to the attempted exclusion of these defendants, unless the plaintiffs are restrained from alienating or disposing of said oil and gas mineral rights in and to said property to the irreparable injury and damage of these defendants, and that these defendants have no plain, speedy, adequate, or a complete remedy at law."

They prayed a temporary restraining order, and upon hearing for a temporary injunction, and upon final hearing, for a permanent injunction, restraining and enjoining plaintiff from "alienating or disposing of the oil and gas mining rights conveyed under said oil and gas lease to these defendants, so long as these defendants and each of them, have the right to operate and produce oil and gas under said lease, * * *."

On the same date defendants filed a motion to dissolve the restraining order theretofore issued; and another motion to require plaintiffs to make their petition more definite and certain, and to strike the amendment to plaintiff's petition.

On the same day plaintiffs filed a motion to strike the application of defendants for a restraining order, and temporary injunction.

It appears from the record that the matter was first called for hearing on the 12th day of July when the court was in session for hearing the regular motion docket. At that time only the application of plaintiffs for a temporary injunction and the motion of defendants to make plaintiffs' petition more definite and certain, had been filed. As to what was then done the minutes of the Clerk show:

"The Court: All right, the case of Elliott v. Jennings.

Mr Erwin (counsel for plaintiffs) Your Honor, that is our application for a temporary injunction and will probably require some evidence and as I understand the custom of the court, he usually passes these matters...