Luman v. Davis

• Decision Date: 09 April 1921
• Docket Number: 23,110
• Citation: 196 P. 1078,108 Kan. 801
• Parties: W. B. LUMAN, Appellee, v. D. C. DAVIS et al., (GREGG E. SAWYER et al., Appellants)
• Court: Kansas Supreme Court

196 P. 1078

108 Kan. 801

W. B. LUMAN, Appellee, v. D. C. DAVIS et al.,

(GREGG E. SAWYER et al., Appellants)

No. 23,110

Supreme Court of Kansas

April 9, 1921

Decided January, 1921.

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--Relating to "Oil, Gas and Other Minerals Found" Under Certain Lands--Minerals Not Severed and Conveyed as Real Estate. An instrument granting "all oil, gas and other minerals found" in and under described land, together with right to enter, drill, operate and do the things necessary to produce, interpreted, and held not to sever and convey as real estate minerals deposited in the soil.

2. SAME--Action to Cancel Oil and Gas Lease--Abandonment of Lease Not Shown. An allegation in a petition to cancel a mineral lease, that the lessee removed machinery, casing and property from the premises without productive development, does not, standing alone, show abandonment.

J. B. Tomlinson, of Independence, for the appellants.

Elmer W. Columbia, of Oswego, for the appellee.

OPINION

BURCH, J.:

The action was one to cancel an instrument bearing the heading "Oil and Gas Lease," on the ground it had not been recorded or listed for taxation, as required by statute, and on the ground of abandonment. A demurrer to the petition was overruled, and assignees of the lessees appeal.

The instrument reads as follows:

"In consideration of the sum of One Dollar, the receipt of which is hereby acknowledged, S.W. Gutherie, a widower, of . . . of the first part, hereby grant unto D. C. Davis and F. F. Cox second party, all the oil, gas and other minerals found in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and operating, and to erect and maintain all buildings and structures, and the exclusive right to lay all pipe and sluices necessary for the production and transportation of oil, gas or other minerals taken from said premises. Excepting and reserving, however, to the first part 1/8 part of all oil or other minerals produced and saved from said premises, to be delivered in pipe line by the second party, namely: [Description.]

"If gas only is found in quantities large enough to transport, then party of the first part is to receive $ 150.00 for the product of each and every well so transported, and also free gas for dwelling on the above described land, for heating and lighting purposes.

"If no well is commenced within one year on the above land then this grant shall become null and void, unless second party shall pay annually thereafter in cash the sum of $ 720 payable quarterly Dollar . . ., on said land leased; the same to be deposited to the credit of the first party in the Peoples State Bank at Md. Valley, Kans.

"The second party shall have the right to use sufficient gas, oil and water to run all machinery for operating the wells on the above premises and on adjoining farms operated by second party. Fences not to be cut. Gates and fences to be kept closed to prevent stock from running at large.

"And It Is Further Agreed, That the lessor, in consideration of the agreements of the lessee, herein contained, agrees that the lessee, his heirs or assigns, may at any time surrender up this lease and remove all his property, by delivering the same back to the lessor, his heirs or assigns, indorsed with a surrender thereof signed by him, or his assigns, and be thereby forever discharged and released from all moneys due or to become due, and from all obligations accrued or to accrue under this lease.

"It is understood between the parties to this agreement that all conditions between the parties hereunto shall extend to their heirs, successors, and assigns."

The statute under which cancellation is claimed reads as follows:

"That where the fee to the surface of any tract, parcel or lot of land is in any person or persons, natural or artificial, and the right or title to any minerals therein is in another or in others, the right to such minerals shall be valued and listed separately from the fee of said land, in separate entries and descriptions, and such land itself and said right to the minerals therein shall be separately taxed to the owners thereof respectively. The register of deeds shall furnish to the county clerk, who shall furnish on the first day of March each year to each assessor where such mineral reserves exist and are a matter of record, a certified description of all such reserves: Provided, That when such reserves or leases are not recorded within ninety days after execution, they shall become void if not...