Mathes v. The Shaw Oil Company

• Citation: 116 P. 244,85 Kan. 162
• Decision Date: 10 June 1911
• Docket Number: 17,160
• Parties: MARY E. MATHES et al., Appellees, v. THE SHAW OIL COMPANY et al., Appellants
• Court: Kansas Supreme Court

116 P. 244

85 Kan. 162

MARY E. MATHES et al., Appellees, v. THE SHAW OIL COMPANY et al., Appellants

No. 17,160

Supreme Court of Kansas

June 10, 1911

Decided January, 1911.

Appeal from Neosho district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Demurrer--Misjoinder of Causes of Action. Under section 93 of the code misjoinder of causes of action is not a ground for demurrer to a petition.

2. PLEADINGS--Petition--Demurrer. A petition which alleges in substance that each of three corporations successively became the assignee of an oil-and-gas lease and that the three by some arrangement unknown to the plaintiffs claimed the right to operate and had operated the lease and had used and were using gas for which the terms of the lease required payment to the lessor, without paying for it, states a cause of action.

3. RENTS AND ROYALTIES--Oil and Gas Produced by Same Well --Liability. In such an action to recover rental for gas used it is no defense that the wells produced both oil and gas, or that the latter had to be removed to save injury to the former and to the machinery, when under the terms of the lease and the pleadings the material question relates to the length of time the gas has been actually used by the defendants for their benefit, aside from the mere matter of its removal from the wells.

Ossian Cameron, C. S. Denison, J. M. Nation, and E. W. Grant, for the appellants.

W. R Cline, and J. Q. Stratton, for the appellees.

OPINION

WEST, J.:

Mary E. Mathes and husband sued the Shaw Oil Company and two other corporations to recover rent for use of gas taken from wells drilled under a lease of the plaintiffs' land. The lease provided that its rights and obligations and benefits should continue so long as gas or other mineral, if found, could be produced in paying quantities; that if gas should be found sufficient to justify saving and casing the wells the lessors were to have gas for domestic use on the premises; if the lessees should use, market or sell gas from any well for other than domestic or drilling purposes they were to pay therefor fifty dollars a year, but gas used for these purposes was to be free. The petition alleged the use of certain gas for other than domestic or drilling purposes, and prayed judgment. The second defense was to the effect that the gas wells were in fact oil-producing wells, from which it was necessary to remove the gas, and therefore no rental was due for the gas used. As to this defense a demurrer was overruled, and this was held error. (Mathes v. Shaw, 80 Kan. 181, 101 P. 998.) After this decision the plaintiffs filed an amended and supplemental petition, to which the defendants demurred, and, the demurrer being overruled, answers were filed, and after trial a judgment was rendered for the plaintiffs. Error is assigned in overruling the demurrer, in overruling objections to evidence, in overruling a demurrer to plaintiffs' evidence, in the admission and rejection of certain testimony and in overruling a motion for a new trial. The demurrer was on the ground that no cause of action was stated and also that several causes were improperly joined. The latter ground can not under section 93 of the code be raised by demurrer. It is suggested that no error is assigned on the refusal to grant a new trial, but on page 38 of defendants' brief this assignment may be found, which counsel say was intended to be contained in the grouping of errors at pages 2 and 3 but was overlooked by the printer.

The chief complaint of the defendants is that the amended and supplemental petition failed to state a cause of action by reason of contradictory and self-destructive allegations. The original petition alleged in substance that plaintiffs made a lease to corporation A, which assigned to one Thorne, who assigned to corporation B, which corporations and person thereafter by some arrangement or understanding with corporation C caused the latter to claim a controlling interest and ownership in the lease and a controlling authority over the leasehold premises and...