Miller v. Unsicker

• Decision Date: 12 April 1928
• Docket Number: (No. 2142.)
• Citation: 5 S.W.2d 624
• Parties: MILLER et al. v. UNSICKER et al.
• Court: Texas Court of Appeals

Page 624

5 S.W.2d 624

MILLER et al. v. UNSICKER et al.

(No. 2142.)

Court of Civil Appeals of Texas. El Paso.

April 12, 1928.

Appeal from District Court, Pecos County; C. R. Sutton, Judge.

Action by D. K. Unsicker and others against G. Guy Miller and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Wright & Gibbs, of San Angelo, and W. B. Silliman, of Ft. Stockton, for appellants.

Williams & Jackson, of Ft. Stockton, and Burney Braly, of Fort Worth, for appellees.

HIGGINS, J.

On June 18, 1925, the Jasper County Realty Company, a corporation, leased to G. Guy Miller, for the purpose of mining and operating for oil and gas, laying pipe lines, etc., sections 11, 13, 27, and 29 in block 10, H. & G. N. R. R. Co., survey in Pecos county. Among other conditions the lease provided that the cessation of drilling operation for 60 days should be construed as an abandonment of such operations and should terminate the contract.

April 4, 1927, the lessor conveyed said land to various individuals, appellees herein, who later filed this suit against Miller and others claiming under him, to recover the oil and gas claimed under said lease and to remove cloud from title cast thereby.

A peremptory charge was given, in response to which verdict was returned and judgment rendered in plaintiff's favor, from which Miller appeals. The basis of the suit was cessation of drilling operations for more than 60 days and breach of other express conditions of the lease.

In addition to a general denial, Miller set up that on December 7, 1926, the lessor by its authorized agent, E. B. Macy, gave him an extension of 30 days in which to commence drilling again upon the land; in pursuance of such extension he contracted with one Embry to drill upon the land according to the contract, but Embry was prevented from so doing by the unauthorized cancellation of the lease by the lessor after the extension was granted.

The evidence relating to the alleged extension agreement is undisputed and as follows:

In response to request for extension Macy, on December 7th, 1926, wired, and wrote Miller a letter, as follows. The telegram reads:

"Our Company will renew four section lease, providing drilling is begun within thirty days to complete well on 29. Would like to reserve one-quarter out of each of two sections. See letter."

The letter reads:

"I wired you today that our Company would reinstate lease 4 Sec. 30 days to resume completion of well on Sec. 29. Our boys would like very much to reserve a quarter out of each section, but would be satisfied to reserve a quarter out of each section except 29, as we presume you would not care to let us reef out a quarter of that section. However, what we desire is action and a completion of the well on 29.

"Our attorney thinks it would clear matters up better to date for you to release the old lease on the 4 sections and we execute a new one covering whatever we agree.

"Nothing would please me better than for you to get financed so you can go ahead. Therefore, if you have any chance to do some quick work let us hear from you. If we should get together on a renewal of the deal, I impress upon you the importance of keeping me fully advised every time you can how you are getting along. As to coming down to see you, will say I might when it looks like something was going to be accomplished."

On December 27, 1926, Miller wrote Macy as follows:

"Now about the well on Section 29; I think you are right about making a new lease on the four sections, 11, 13, 27 and 29, but to hold out 160 acres from the three sections, 11, 13, and 27, would work a hardship and I would not like to see anything done that would stand in the way of testing either one of the four sections to 2000 feet test, actual work to begin in thirty days and make it the regular straight five year commercial lease with one dollar rental. Said rental to be paid after first year in case commercial oil is not found. I will at once proceed with the matter of completing the well in Section 29. There is no longer any danger of the operator holding land on one well if he gets oil, for the case is, that the operator usually lets other companies in on the acreage and if he gets oil then all drill.

"There has been two drawbacks with the four section lease. First, the drilling clause to forfeit in case no well was started in ninety days after the completion, and second, the title, which has been clouded by the Grant lease, you of course know I have taken on lots of...