Jewett v. The Coffeyville Vitrified Brick and Tile Company and H. C. Ewers

• Citation: 251 P. 1110,122 Kan. 287
• Decision Date: 08 January 1927
• Docket Number: 26,961
• Parties: MARY S. JEWETT, as an Individual and as Guardian of STELLA CHRISMAN, a minor, Appellee, v. THE COFFEYVILLE VITRIFIED BRICK AND TILE COMPANY and H. C. EWERS, Appellants
• Court: Kansas Supreme Court

251 P. 1110

122 Kan. 287

MARY S. JEWETT, as an Individual and as Guardian of STELLA CHRISMAN, a minor, Appellee, v. THE COFFEYVILLE VITRIFIED BRICK AND TILE COMPANY and H. C. EWERS, Appellants

No. 26,961

Supreme Court of Kansas

January 8, 1927

Decided January, 1927.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MINES AND MINERALS--Oil and Gas Leases--Forfeiture for Nonuse After Expiration of Term--Duty to Execute Release. Under an oil and gas lease for a term of five years and as long thereafter as oil or gas was produced in paying quantities in which the lessor was to pay an annual rental and also a royalty of one-eighth of the product as well as gas for domestic purposes of the lessor, the lessee drilled three wells, two of which produced some gas which was measured and utilized, but after the term of the lease had expired and gas was not then produced in paying quantities, the lessor demanded the cancellation of the lease, and that the lessee clear the record of the recorded lease, which demand was refused, held, the lease was subject to forfeiture, although annual rentals had been paid or tendered, and it then became the duty of the lessee to execute a surrender and release of the recorded lease.

2. SAME--Failure to Clear Record of Forfeited Lease--Damages. In that situation the lessor was entitled to the damages sustained by reason of the refusal of the lessee to clear the record of the forfeited lease.

3. SAME--Sufficiency of Evidence to Sustain Award of Damages. The testimony examined and held to be sufficient to uphold the damages awarded by the jury resulting from the refusal to rid the record of the lease.

W. E. Ziegler, Carl E. Ziegler, both of Coffeyville, E. H. Henning and A. M. Etchen, both of Kansas City, for the appellants.

Sullivan Lomax and Otho W. Lomax, both of Cherryvale, for the appellee.

OPINION

JOHNSTON, C. J.:

Mary S. Jewett, for herself and as guardian of Stella Chrisman, brought this action against the Coffeyville Vitrified Brick and Tile Company, to cancel an oil and gas lease and recover a penalty and damages. Upon a trial plaintiff prevailed and defendant appeals.

On January 25, 1917, G. A. Chrisman and wife, parents of the plaintiffs, since deceased, executed an oil and gas mining lease upon a tract of real estate which has since become the property of the plaintiff. The lease provided that the lessor would be entitled to one-eighth of the oil realized from the premises and also gas for domestic purposes, together with an annual rental of $ 1 per acre. The term of the lease was fixed at five years and as long thereafter as oil or gas was produced in paying quantities. During the year 1917 the defendant drilled a well in which gas was found. A second well was drilled thereafter which was found to be dry. Later, and in 1922, another well was drilled by defendant on the premises, which proved to be a producing gas well. These gas wells were connected up with pipe lines leading to the defendant's brick plant. Rentals and royalties were paid until February 15, 1924. Free gas for domestic use was also furnished for plaintiff's home. When the gas wells were connected up with the pipe line a meter was placed on the line to measure the gas produced by the two wells. Production was so reduced, however, that the meter was taken off sometime after the five-year period of the lease had expired, and before June 28, 1924, and when inquiry was made of the defendant as to the removal of the meter a letter was written by defendant stating that, "the one-eighth royalty was averaging, while we had a meter on it, about $ 1.50 per month. The wells being so very small, we took the meter off the lease and are holding your lease solely for the purpose of prospective value in the deeper gases which may be drilled later on. The purpose of this letter is to make it plain why we took out the meter, and further, the lease up to the present time has not been a profitable one for us, and we are holding it only for the deeper strata values."

In the latter part of 1924 the plaintiff demanded a release of the record of the forfeited lease, but the demand was refused. It was alleged that plaintiffs had opportunities to lease the land to others which was frustrated by the refusal of the defendant to release and rid the records of the defendants' lease, and that by reason of the refusal they were prevented from leasing the land at a rental of $ 10 per acre and thereby sustained damages in the sum of $ 1,010.

The jury found that rent was paid to January 25, 1922, and royalties were paid to February 25, 1924; that gas for domestic use to plaintiff's home was furnished...