New Domain Oil & Gas Co. v. Gaffney Oil Co.

• Decision Date: 14 October 1909
• Citation: 134 Ky. 792,121 S.W. 699
• Parties: NEW DOMAIN OIL & GAS CO. v. GAFFNEY OIL CO.
• Court: Kentucky Court of Appeals

121 S.W. 699

134 Ky. 792

NEW DOMAIN OIL & GAS CO. v. GAFFNEY OIL CO.

Court of Appeals of Kentucky.

October 14, 1909

Appeal from Circuit Court, Wayne County.

"To be officially reported."

Action by the Gaffney Oil Company against the New Domain Oil & Gas Company and others. From a judgment for plaintiff, the New Domain Oil & Gas Company appeals. Affirmed.

O. H Waddle & Son and Harrison & Harrison, for appellant.

Stone &amp Wallace, for appellee.

O'REAR J.

Wm Dobbs was the patentee of a tract of 63 acres of land in Wayne county in 1859. Some 50 years ago he sold 25 acres of this land to one Tom Smith, setting it apart by marked boundary. Smith sold the same tract to Davenport, and Davenport sold it back to Dobbs. Dobbs subsequently resold to Davenport, putting him in possession of it, and Davenport sold it to Henderson Foust some 30-odd years ago, putting Foust in possession. All these sales were by parol. Davenport was also the owner by parol purchase of an adjoining tract of 50 acres, which he had bought from Irwin Miller. This latter tract was included in the sale to Henderson Foust, who was placed in possession of the whole boundary, which was marked. He took up his residence on the 50-acre tract, claiming to the extent of the exterior lines of the whole 75 acres. In 1901 Henderson Foust executed an oil lease on his lands to one W. R. Cress. The written lease describes the property embraced as follows: "Being the property whereon the said Henderson Foust now resides, and was conveyed to him by Irwin Miller and bounded substantially as follows: On the north by the lands of Hence Foster; on the east by the lands of William Dobbs; on the south by the lands of Thomas Foster and James Burnett; on the west by the lands of William Bell and Noah Ball--containing 75 acres more or less." The parties regarded that the "deed lay in William Dobbs," as they expressed it, yet for more than 25 years Henderson Foust claimed the land as his own, exclusive of Dobbs and all others, and lived within the common boundary embracing the 25 acres now in question.

In 1905 Henderson Foust caused William Dobbs to execute a deed to the 25-acre parcel to Bryant Foust and J. W. Foust, sons of Henderson. This was done by Dobbs not upon any idea or claim that he owned the land, but to comply with his previous parol contract of sale; he admitting all the while that Henderson Foust owned the land, had paid for it, and was in the actual possession of it. In April, 1907, Bryant Foust and J. W. Foust executed a mineral lease upon this 25 acres to the appellant. The Cress lease (which had in the meantime been assigned to appellee) contained the stipulation that the lessee and his assigns should within one year from its date, July 30, 1901, begin the drilling of an oil well on the leased premises (the 75 acres), or in default thereof pay the lessor $7.50 a year, and, if oil was found in paying quantities, set over to the lessor one-tenth thereof. It was further stipulated in the lease that the payment of the annual rentals might be by deposit to the credit of the lessor in the Bank of Monticello. The lessees from Henderson did not begin drilling within a year from July 30, 1901. But they paid the rental of $7.50 each year as it became due until 1907. On July 30, 1907, appellee's manager, who was charged with the duty of paying the rental, was ill. He was on the opposite side of the river from the lessor and from Monticello. The river was swollen with sudden floods, so that he could not get across. But he did get across on the following day, when he deposited the $7.50 rent in the Bank of Monticello to the credit of the lessor, Henderson Foust. Learning on the following day that appellant was asserting claim to the property, he sent for Henderson Foust, who demanded $2.50 additional because of delay of one day in paying the rent, which appellees paid to him. Appellees did not then know that Henderson Foust had caused the deed to be made by Dobbs to Bryant and J. W. Foust, although the latter knew that their father had in 1901 leased the land to appellees' assignor, and that appellees had been paying him rent therefor regularly. Afterwards, but over the protest of appellees, appellant began drilling on the 25-acre tract for oil, and later brought in a paying well.

This suit was brought by appellees against appellant and J. W. and Bryant Foust to restrain them from taking the oil from the well, and to restrain them from asserting claim or title to the oil and mineral in the 25 acres. The judgment was for the plaintiffs. While a parol sale of land is void, under the statutes of frauds and perjuries, yet if the purchaser is put in possession of the land, and continues in the actual adverse possession of it for 15 years, he will have title to it, not by virtue of his purchase, but by operation of the statutes of limitations. Pope v. Brassfield, 110 Ky. 134, 61 S.W. 5, 22 Ky. Law Rep. 1613; Ogden v. Walker's Heirs, 36 Ky. 420; Chambers v. Pleak, 36 Ky. 426 32 Am. Dec. 78; Morton v. Lawson, 40 Ky. 45; Turner v. Davis, 40 Ky. 151; Farrow v. Edmundson, 43 Ky. 605, 41 Am. Dec. 250. This much is admitted by appellant; but it is insisted that Henderson Foust had not either the actual or adverse possession of the 25-acre tract.

Where one enters upon land in the exercise of ownership, his intention is an essential element, as is his conduct, in determining the legal effect of his act. Early in the history of this state, and from the nature of the situation, those who entered upon their pre-emptions were not able to reduce at once the whole to an inclosed possession. There arose from that fact, and the necessities created by the situation in the country, the principle that an entry within the boundary was a reduction of the whole boundary to possession, if such were the entrant's intention. The...