Lamp S. v. Locke S.

• Decision Date: 04 October 1921
• Docket Number: No. 4271.,4271.
• Citation: 89 W.Va. 138
• Parties: Julia Israel Lamp et als. v. John T. Locke et als.
• Court: West Virginia Supreme Court

89 W.Va. 138

Julia Israel Lamp et als.

v.John T. Locke et als.

No. 4271.

Supreme Court of Appeals of West Virginia.

Submitted September 20, 1921.

Decided October 4, 1921.

1. Injunction Mandatory Injunction Given Only Where Bight

is Clear and Necessity Urgent.

Relief by mandatory injunction will be given only where the right of the applicant is clear and the necessity urgent, (p. 145).

2. Same Will Lie to Compel Drilling of Offset Well Where

Parties Conspire to Defeat Plaintiff's Right to Royalties.

Such remedy will be awarded where there is a collusive agreement between a lessor and lessees of a tract of gas producing land whereby the gas therein is being extracted and exhausted by a well five feet distant from the boundary line, and on an adjoining tract under lease and control of the parties to such collusive agreement, with the intended result that the plaintiff, who is a joint owner of one half of the gas royalty in the first named tract, is prevented from receiving any royalty therefrom, to his irreparable loss; especially where his right to such royalty has a time limit which will expire within one year. In such case a mandatory injunction will lie to compel the drilling of an offset well. (p. 145).

3. Equity Rill Need Not Folloto Statutory Form, and is Not

Demurrable for Indefiniteness as to Parties if Naming Them With Their Interests in Subject Matter and Relief Sought.

It is not essential that a bill in chancery shall follow the form given in sec. 37, chap. 125 of the Code; a substantial compliance therewith is sufficient, and, if the bill in any of

its parts names the parties therto, their interest in the subject matter, and relief sought, it is not demurrable for indefiniteness as to parties. (p. 148).

4. Same It is Not Error to Require Defendant to Answer With-

in a Reasonable Time After Overruling Demurrer to Bill.

A defendant may appear and demur to a bill before it has matured for hearing, and if he does so and the demurrer be overruled, it is not error to then require him to answer within a reasonable time. (p. 149).

5. Appeal and Error Ruling on Demurrer Received Without

Motion to Correct Judgment, But Not Errors in Decree After Demurrer Overruled.

"If a defendant in a bill files no plea or answer but files a demurrer, simply on the ground that the plaintiff on the facts stated in the bill is entitled to no relief against him, and the court below overrules such demurrer and awards a rule against him to answer the bill at a specified time and he fails to do so, and a decree is rendered against him, and he makes no such motion to have it reversed or corrected in the court below, and he appeals from such 'decree, solely on the. ground that the court rendered any sort of a decree against him, this Court will, though he did not make such motion, entertain his appeal, because such appeal though in form an appeal from the last decree is in substance and in reality an appeal from the decree overruling his demurrer and deciding, that the plaintiff was entitled to relief on the statements in the bill against him, and is therefore not to be regarded as a decree on a bill taken for confessed. But if the appellant in such case does not confine his appeal to the error committed by the court in overruling his demurrer simply carrie'd out in the last decree but insists, that there are in^ addition thereto other and independent errors in the last decree against him, which should be reversed, even though the Appellate Court held, that the demurrer was properly overruled, this Court will not entertain such appeal, because, so far as these additional and independent errors are concerne'd, this last decree is to be regarded as a decree on a bill taken for confessed and can not be reversed by this Court, till a motion to correct it has been made in the court below." (Watson v. Wigginton, 28 W. Va. 533.) (p. 150).

Appeal from Circuit Court, Pleasants County. Action by Julia Israel Lamp and others against John T. Locke and others. From a decree awarding plaintiff a mandatory injunction and another decree refusing to reverse the first decree for alleged errors, certain defendants appeal.

Affirmed.

William Beard, for appellants.

Frank J. Barron and Q. T). Smith, for appellees.

Lively, Judge:

From two decrees of the circuit court, one entered on the 14th of September, 1920, awarding to the plaintiff a mandatory injunction, and the other entered on the 2nd day of December, 1920, refusing to reverse the first named decree for alleged errors therein, some of the defendants prosecute this appeal.

The bill prays for a mandatory injunction against defendants compelling them to drill an off-set well on what is known as the W. P. Jones 68 acre farm to protect the gas thereunder from depletion through another well within five feet of the dividing line between the W. P. Jones farm and located on another tract of 64 acres known as the C. A. Jones lease. The bill was filed August rules, 1920, and afterwards notice was served on defendants notifying them that on the 23rd day of August, 1920, plaintiffs "would move for a mandatory injunction, compelling them to drill an off-set well on the W. P. Jones farm of 68 acres to protect drainage from a well they had drilled within a few feet of the boundary line, on the C. A. Jones lease. A. S. McCullough, J. T. Locke, Dan H. Reynolds and Addie L. Reynolds appeared specially by William Beard, solicitor, to the notice and objected to the granting of the injunction because the bill wTas not sufficient in law to entitle the plaintiffs to the relief prayed for. The court overruled the demurrer and gave defendants ten days to answer, who, by counsel in open court then declined to make further answer. The motion was docketed and the hearing contiued until the 3rd day of September, following, on which day the defendants making no appearance and failing to answer, the court continued the hearing of the motion until its next term, to-wit, the 14th day of that month, because the bill was not then matured at rules for hearing.

On the 14th of September, 1920, the bill having regularly matured for hearing, and no further appearance being made by defendants, the cause was heard upon the bill, exhibits, decree nisi, ami the motion for the mandatory injunction, the affidavits filed in support thereof, and upon the proceedings theretofore had, the bill was taken for confessed as to the defendants and the court entered the decree complained of against the defendants, the owners, lessees and those who were in possession of the W. P. Jones 68 acre leasehold and in possession and ownership of the C. A. Jones 62 acre leasehold, commanding them to sink an off-set well on the W. P. Jones lease to and through the oil and gas bearing sand found in that vicinity to sufficient depth to counteract and off-set a gas well upon the 0. A. Jones 62 acre leasehold, then producing gas, with privilege of inspection, and measurement of the well, at its completion, to plaintiff; and required them, the plaintiffs, to execute an injunction bond. Afterwards the defendants who had appeared and demurred to the bill on August 23rd, and other defendants, namely, Frank H. Cox, S. V. Riggs, C. P. Simonton, Alva McCullough, R, E. Hays, Albert Neely, The Pleasants County Bank, and Benwood Oil Company, gave notice to plaintiffs that they would move the court on a certain day for reversal of the decree of September 14, and dissolution of the injunction awarded thereby, stating the grounds on which the motion would be made. This motion was heard and overruled, on December 2, 1920.

Plaintiffs are heirs-at-law of J. L. Israel, who died intestate in 1913, and they aver that J. L. Israel, on October 24, 1907, conveyed to A. N. Riggs a tract of 68 acres of land, known and designated as the W. P. Jones lease, for the sum of $1400.00, and in the granting clause thereof made the following provision; "reserving therefrom 1-16 royalty in all minerals produced from said farm for a period of 15 years from this date;'' that on the same day said Riggs conveyed the same tract of land to W. P. Jones, in the granting clause of which he used these words, "reserving therefrom 1-16 royalty in all minerals produced from said farm for a period of 15 years from this date, second party to use due diligence to have said land tested for oil, the aforesaid reservation of mineral rights is to cover reservation made by J. L. Israel and wife in deed made by them to A. N. Riggs of October 24, 1907'*; that in 1915 Defendant W. P. Jones leased said tract of land for oil and gas purposes to the defendant J. T. Locke, who associated with himself other named defendants in a mining company known as the Jones Farm Oil Co., and he and his associates, in the year 1917, drilled on the W. P. Jones farm a small oil producing well and paid to plaintiffs about $100.00 as their 1-16 part of the royalty. The royalty provided for in the lease was Vg part of the oil and. % of all gas produced and sold from the farm for each year so long as the gas is sold therefrom and payable quarterly when marketed. The bill avers that no further development has been made on the W. P. Jones lease; and further avers that defendant C. A. Jones, who is known as Cordelia Jones, the mother of defendant W. P. Jones, owns a tract of 62 acres adjoining the 68 acre W. P. Jones lease, and in the year 1915 also made and executed an oil and gas lease to defendant Locke on her 62 acre tract, who associated with himself certain other defendants, naming them, and also a number of the defendants associated with him in the Jones Farm Oil Co., as a Mining Company known as the Locke Gas Co., and proceeded to sink a well on the C. A. Jones 62 acre tract, within five feet of the dividing line between the W. P. Jones farm, and the C. A. Jones farm; which well is a good gas producer, averaging a daily production of about 1, 000, 000 feet, and through which, by means of its close proximity to the dividing line, the gas which...