Koen et al. v. Bartlett et al.

• Decision Date: 11 December 1895
• Court: West Virginia Supreme Court
• Parties: Koen et al. v. Bartlett et al.

41 W.Va. 559

Koen et al.

v.Bartlett et al.

Supreme Court of Appeals of West Virginia.

Submitted June 12, 1895.

Decided Dec. 11, 1895.

Tenant for Life Oil and Gas Lease Royalty. An owner in fee simple makes an oil and gas lease for a term of five years, and as much longer as the premises are operated for oil and gas, or the rent for failure to commence operating is paid, for, among other things, one-eighth part of all oil produced and saved, to be delivered in the pipe lines to the credit of the lessor. The lessor then sells and conveys one undivided moiety of the one-sixteenth part of all the oil produced and saved. Af terwards, but before any oil is bored for or produced, the lessor sells, grants, and conveys the land in fee simple to his six children, to each one a part, by metes and bounds, in consideration of natural love and affection, by deed of general warranty, "except that the party of the second part takes the same subject to any lease for oil or gas made by the party of the first part or any sale of royalty for oil or gas made by him and, by the same deed he retains full control of said land in all respects, and for all purposes, during bis lifetime. Soon thereafter oil wells are bored, and oil produced, saved, and put in the pipe lines in large quantities. Held, the one-eighth royalty goes of right to the tenant for life, and his grantees, during the continuance of the estate for life, and not to the owners in fee of the estate expectant thereon.

2. Tenant for Life Oil and Gas Lease Royalty.

The tenant of an estate for life, unless restrained by covenant or agreement, has a right to the full enjoyment and use of the land and all its profits during his estate therein, including mines of oil or gas open when his life estate begins, or lawfully opened and worked during the existence of such estate.

Alfred Caldwell and W. P. Hubbard for appellants:

I. Construction of Deeds. 2 Lomax Digest, top paging 253; 1 Chitty on Contracts (16th Am. Ed.) 105 note, s. 106 note a, 107 note c, 117 note y, 117 note x, 117 U. S. 437; 19 W. Ya. 483; 26 W. Ya. 469.

II. The rule that a deed is to be construed most strongly against the grantor is seldom to be relied upon. 1 Chitty on Contracts (16th Am. Ed.) 136, 137 and 138; 2 Parsons on Contracts, 506 et seq. and notes.

III. The life estate of Elijah Kearns is 'without impeachment for waste. 69 Mich. 259; 11 East, 220; 33 1ST. II, 18; 2 Minor's Inst. 100; (75 Eng. C, L. 122); 2 B. & Ad. 437.

IV. The life tenant Kearns or his assigns can work mines to exhaustion. 1 Rand. 258; 6 Munf.143; 110 Pa. St. 473; 19 Pa. St. 323; 24 Pa. St. 167; 85 Pa. St. 344; 10 Pick. 461; 31 Beavan, 334; 9 Jur. N. S. 9; 31 L. J. Ch. 809; 138 Pa. St. 606.

Y. The wells are to be regarded as open mines at the commencement of the life estate, and the royalty belongs to the life tenant and his assigns. 103 Pa. St., 300; 106 Pa. St. 392; 34 Beavan 114; 41 Pa. St. 357; 150 111. 560; L. R. 8 App. Ca. 641; 2 P. Wms. 388; L. R. 4 App. Ca. 454; L. R. (1892) 2 Ch. 211.

VI. The oil lease was a sale of the oil in situ. 31 Pa. St. 483; 123 Pa. St. 241; 109 Pa. St. 583; 105 Pa. St. 472; 94 Pa. St. 22; 4 W. Va. 543; 35 W. Va. 473; 57 Pa. St. 83; 1 Loraax Digest, 2; 53 Pa. St. 287; 2 Washburn on Peal Prop. 347; 10 East. 273; 12 Q. B. 739; 3 Washburn on Peal Prop. 338, § 31 and cases in notes; 38 W. Va. 681.

VII. The reservation of the royalty is reserving a rent. 44 Ohio St. 604; Woodfall's Land, and Tenant, side p. 375, 376; Taylor on Land, and Tenant, § 132; 10 Q. B. 173; 6 Q. B. 145; Woodfall's L. & T. 382.

VIII. This is not a case of waste, as the production is lawful and the whole of the oil is the property of the producer. A mere personal action is the only remedy of the owner of the royalty. He owns no oil for which trover would lie. 41 Pa. St. 357; 1 Chitty on Pleading 160; 121 Pa. St. 495.

W. S. Meredith and John Bassel also for appellants, cited 7 W. Va. 289; 55 Cal. 267; Tied. Real Prop. § 72; 8 Min. 594; 19 S. E. Rep. 441; 14 Am. St. Rep. 663, note; 1 Rand. 258; 6 Munf. 143; 2 Rob. 507; 24 Am. Rep. 263; 150 111. 560; Bouv. Law Diet, word "'Profits."

Raphael Hayden and Frank Hayden also for appellants, cited 130 Pa. 235, 250; 152 Pa. 251; 7 W. Va. 289; Preston on Estates 66, 72; 9 Atl. Rep. 255; 39 W. Va. 231; 2 B. & Ad. 437; 126 Pa. 117, 121; 14 Me. 216; 11 East. 220, 225; 93 U. S. 326; 69 Mich. 259; 81 Mich. 332; 33 N. H 18, 21; 138 Pa. 606; Co. Litt. 54 b; 4 De G. & J. 414; L. R. 1 Ch. 552; L. R. 4 App. Cas. 454, 465; 33 N. J. Eq. 603, 611; Moseley 219; L. R. 2 Ch. 211; 150 111. 560; 73 111. 405; 103 Pa. 300; 7 Harris, 323; 12 Harris, 162; 32 P. F. Smith 144; 4 Norris 344; 24 Beavan, 114; 106 Pa. 301, 392; L. R. 8 App. Cas. 641; L. R. 2 II. L. Sc. 273.

John A. Hutchinson, A. B. Fleming, IT. N. Arnett, Jr., and Charles Powell for appellees:

John A. Hutchinson cited 1 Washburn Real Prop. Bk. 1, ch. 5, p. 120 (5th Ed.) ss. 1 and 2; 1 Washburn Real Prop. Bk. 1, chap. 5, p. 134, pi. 1-2; 1 Washburn Real Prop. Bk. 1, ch. 5, § 4; 19 S. E. Rep. 441; 39 W. Va. 231; 1 Washburn Real Prop. Bk. 1, ch. 5, § 2; Co. Litt. 53b; 5 Coke, 12; Comyns Dig. "Waste," d. 4; 1 Rand. 258; 31 W. Va. 622; 1 Wash. Real Prop. Bk. 1, ch. 5, § 4, pi. 6, pi. 16, 17, 18, 19; 1 Ch. Rep. 57; Cooper R. 156; 19 Vesey, 299; Taylor L. and T. § 697; 3. Thomas' Coke 188, note; Coke Litt, 54; 1 Wash. Real Prop. Bk. 1, ch. 5, §§ 3-4; 5 Q. B. 683; 5 B. & Ad. 715; 2 Or. & J. 223; 2 Pick. 362; 7 Term Rep. 383; 8 Wall. 276; 103 U. S. 575; 12 S. & R. 271; 39 W. Va. 231; 88 Pa. St. 198-201; 3 P. F. Smith, 229 and cases cited; 100 Am. Dec. 595; 3 Johns. 216-222; 1 Wash. Real Prop. Bk. 1, ch. 5, § 3, pi. 12-13; 39 W. Va. 231; 9 Johns. 108, 112; 33 N. II. 18.; 14 Me. 216; 34 W. Va. 384, 385; 25 Atl. 237; 7 N. H. 171, 175; 48 Md. 583; 31 Iowa, 138, 145; 3 Wend. 104; 11 Coke, Rep. 82; 7 Com. 232; 43 N. II. 320; Wash. Real Prop. Bk. 1, ch. 5, s. 3, pi. 49; 14 Atl. Rep. 364; 103 Pa. St. 300-307; 1 Drewry & Smale, 284, 299; 68 Am. Dec. 615; 41 Am. St. Rep. 397; 31 Pa. St. 475; 27 Pa. St. 339; 43 Am. Dec. 321; 52 Am. Dec. 479; Rawle on Covenants for Title, 115; 1 Wash. Real Prop. 134, 150, 151, also p. 548; 2 Allen (Mass.) 42-44; 3 Met, 79; 39 111. 372; 13 111. 625; 61 Am. Dec. 364; 3 B. Monroe, 58; 33 Pac. Rep. 987; 24 Am. St. Rep. 570; 55 Am. Dec, 234; 5 Call, 405; 7 Peters, 596; 99 Mass. 15; 123 Mass. 288; 10 Ad. & EL X. S. 178 and 204; 5 Barn. & Ad. 693; 8 Am. St. 128; 38 Am. Dec. 178; 58 Am. Dec. 234; 7 Peters, 596; 25 Wend. 458; 6 Munf. 134; 4 Kent. Com. 131; Cruise Dig. R. Prop. Pt. 7 Tit.; Shep. Touchst. 131; 1 Cen. Rep. 385.

IT. N. Arnett, Jr., and Charles Powell cited, 8 Am. St. Rep. 128; 52 Me. 263; 38 Am. Dec. 178; Rawle, Cov. (4th Ed) 116, 117; Code, c. 71, s. 8; 66 Am. Dec, 705-7, 711, note; 64 Am. Dec. 362-7, note; 14 Me. 216; 53 Am. Dec. 621, 624; 93 U. S. 326; 7 Comyn. Dig. 670; 2. Swanton's Rep. (ch.) 113; Cruise Dig. R. Prop. Tit. 3, ch. 2; 2 Sto. Eq. Jur. §§ 913, 919; 3 Bingh. 207; 2 Adkins, 383; 53 Pa. St. 229; 63 Pa. St. 397; 32 Pa. St. 41; 55 Pa. St. 164; 101 Pa. St. 235; 129 Pa. St. 94; 77 Pa. St. 103; 11 Atl. Rep 453; 2 Cleveland Rep. 133; 92 Pa. St. 123; 39 W. Va. 231.

Holt, President:

F. W. Bartlett and H. P. Brand, appellants on appeal from a final decree entered by the Circuit Court of Marion county on the 26th day of May, 1894, giving Koen the oil in question, as against Bartlett and Brand, the adverse claimants.

On the 19th day of September, 1892, defendant Elijah Kerns was the owner in fee simple and occupant of a tract of land of seventy five acres situate in Marion county, on Whetstone run, within the productive part of the Mannington oil field, as shown by the event. On that day he executed to C. S. Nay a lease for that part north of the county road, to mine and operate for oil and gas for the term of five years, and as much longer as the premises might be operated for oil and gas, at a royalty of oneeighth of the oil delivered in the pipe line. On the 4th day of March, 1893, Nay sold, transferred, and assigned his lease to plaintiff 0. N. Koen. By deed dated 28th of September, 1892, Elijah Kerns had sold and conveyed to 0. N. Koen the undivided moiety of the one-sixteenth part of all the oil and gas produced and saved from said land so leased. By deed dated 30th September, 1892, O. K. Koen sold and conveyed one undivided two-thirds of his interests conveyed to him. by Kerns to Thornton F. Koen and J. T. Koen. Oliver NO Koen, by deed dated October 5, 1893, sold and assigned the Nay oil lease to the South Penn Oil Company, who opened the mine, found oil, and are producing it in large quantities. Elijah Kerns, by six separate deeds, dated December 3, 1892, for natural love and affection, sold and conveyed in severalty, by metes and bounds, to his six several children, in fee simple, in expectancy on the grantor's life estate thereby retained and reserved to himself, the said tract of land leased as aforesaid. Whatever interests these expectant owners of the inheritance had came by various conveyances to the plaintiffs, 0. N. Koen, et al.

These deeds to the children are all alike, and any one will answer our present purpose:

"Elijah Kerns to Emeline Hays. Deed.

"This deed, made this 3d day of December, in the year 1892, between Elijah Kerns, of Marion county, West Yir ginia, grantor, of the first part, and Emeline Hays, of the same county and state, grantee, of the second part, witnesseth: That for and in consideration of the love and affection of the said Elijah Kerns for his said daughter, Emeline Hays, formerly Emeline Kerns, and other valuable considerations, the party of the first part does grant and convey unto the party of the second part the following described real estate, to-wit: A tract or parcel of land lying on Whetstone run, in Mannington district of Marion county, adjoining lands of Rachel A. Jones, M. E. Holbert, C. C. Fox, and Nimrod Hays, and bounded as follows: 'Beginning at a stone by the road, and,...