Kleppner v. Lemon

• Decision Date: 31 October 1900
• Docket Number: 84
• Citation: Kleppner v. Lemon, 197 Pa. 430, 47 A. 353 (Pa. 1900)
• Parties: Kleppner v. Lemon
• Court: Pennsylvania Supreme Court

47 A. 353

197 Pa. 430

Kleppner v. Lemon

No. 84

Supreme Court of Pennsylvania

October 31, 1900

Argued October 26, 1899

Appeal, No. 84, Oct. T., 1899, by defendant, from decree of C.P. No. 2, Allegheny Co., Jan. T., 1896, No. 188, overruling exceptions to master's report in case of John Kleppner v D. P. Lemon. Affirmed.

Exceptions to report of John S. Lambie, Esq., master. See previous report of the case in 176 Pa. 502.

The master found the facts to be as follows:

FINDINGS OF FACT.

1. The defendant had notice of the decree of the Supreme Court as made in the case within a very short time thereafter. The date when given is not clearly proven. There was no reason why the notice should not have been given within ten days after the making of the decree, and if not given within that time, it was the fault of the plaintiff. It is certain however, that notice was given within a reasonably short time, and for the purposes of this case, it may be treated as though given within ten days after the decree was made. The defendant never filed the declaration ordered by the Supreme Court, and never drilled a well at the point indicated by the court, or at any other place on the land, except the one which he had drilled in the spring of 1895, mentioned in the second finding of the court. He did nothing further to develop the land, except to pump the small well already mentioned.

2. The plaintiff did not himself do anything towards the further development of the land.

3. Referring to the third finding of the court, the master and examiner further finds that the well on the Stotler farm adjoining plaintiff's property, and within 157 feet of his (plaintiff's line) which was owned by the defendant and was commonly known as Stotler No. 2, continued to produce oil from the time it was completed in April or May, 1895, to May, 1897. No evidence was given as to the amount of its production from the time it was completed to July 1, 1895. From July 1, 1895, to May, 1897, the total production was 22,182.62 barrels. The production and royalty paid to Stotler, who owned the land upon which it was located constantly diminished from 2,358.72 barrels in August, 1895 to 374.16 barrels in April, 1897.

The defendant owned and operated other producing wells on other tracts adjoining the land of the plaintiff, but nothing was offered to show the amount of oil produced by them.

4. No oil was brought to the surface on plaintiff's land, except that produced from the well on the higher portion thereof, being the same mentioned in the second finding of the court.

At the average price the value of one eighth of the oil produced by the well known as Stotler No. 2, owned by defendant from July 1, 1895 to August 31, 1896, being thirty days after defendant could and should have had notice of the decree of the Supreme Court, computed at the average price of oil, is $3,088.33.

5. The plaintiff's land was oil producing land, and the well known as Stotler No. 2, and other wells in the vicinity, owned and operated by defendant, have continuously since April, 1895, to the present time, drawn oil from the plaintiff's land, and thereby greatly diminished the supply of oil on plaintiff's land to the great benefit of defendant, and to the great damage of plaintiff.

6. It was the duty of the defendant to have developed the plaintiff's land as soon as possible, after the making of the lease to him in June, 1894, and especially was it his duty to have sunk a well on plaintiff's land at the point indicated by the Supreme Court immediately after he struck oil at Stotler No. 2 in April, 1895; and that he has wholly failed and neglected to perform his duty in that respect.

7. It has not been possible at any time since April, 1895, when oil was struck at Stotler No. 2, to ascertain the quantity which might have been produced from plaintiff's land if defendant had complied with the obligation resting upon him. The failure of defendant to drill a well on the lower portion of plaintiff's tract, near the creek, and his continued operation of other producing wells on tracts near to and adjoining the tract which he leased from plaintiff, thereby draining oil from plaintiff's land, have rendered it impossible to ascertain the quantity of oil which might have been obtained from plaintiff's land, if he had developed it in good faith and according to the obligation resting upon him.

The master after citing 2 Kent's Commentaries, 364, Moore v. Bowman, 47 N.H. 494, Hart v. Ten Eyck, 2 Johnson Ch. 62, Lupton v. White, 15 Vesey, Jr. 432, Armory v. Delamirie, 1 Strange, 505, Attorney General v. Fullerton, 2 Vesey & Beames, 263, Diversey v. Johnson, 93 Ill. 547, Brackenridge v. Holland, 2 Blackford, 377, White v. Lady Lincoln, 8 Vesey, Jr. 364, Spofford v. True, 33 Maine, 283, Stephenson v. Little, 10 Michigan, 441, and Winlack v. Geist, 107 Pa. 297, concluded as follows:

In the light of the cases quoted the master is of the opinion that there has been such a course of conduct on the part of the defendant, and such an intermixture of the productions of the plaintiff's tract of land with the production of the adjacent tracts of land as to prevent the possibility of ascertaining the production of each and separating them; and that as a result John Kleppner, the plaintiff, is entitled to have and receive from D. P. Lemon, defendant, a royalty equal to one eighth of the production of Stotler No. 2 from July 1 1895 to August 31, 1896. The production of Stotler No. 2 between the dates mentioned was 18,803.66 barrels and the...