Sammons v. Warfield Natural Gas Co.

• Decision Date: 22 April 1947
• Parties: SAMMONS et ux. v. WARFIELD NATURAL GAS CO.
• Court: Kentucky Court of Appeals

201 S.W.2d 719

304 Ky. 548

SAMMONS et ux. v. WARFIELD NATURAL GAS CO.

Court of Appeals of Kentucky

April 22, 1947

Appeal from Circuit Court, Martin County; James W. Turner, Judge.

Action between John E. Sammons and wife and Warfield Natural Gas Company to construe a deed. From an adverse judgment, the former appeal.

Affirmed.

W. R McCoy, of Inez, for appellants.

Wells &amp Wells, of Paintsville, and B. J. Pettigrew, of Charleston, W Va., for appellee.

DAWSON, Justice.

This appeal involves the interpretation of a clause in a deed dated October 1, 1923, from W. T. Alley and his wife to appellants. The pertinent portions of that deed are as follows:

'There is expressly excepted and reserved from this conveyance all of the minerals in, on and under said land except two acres to be laid off so as to include the house and garden where second party now lives and second party is given the right power and authority to lay off said reservation. The first party, his heirs, executors and assigns, are to have all the necessary right of way to mine and market the minerals or either of them from the land hereby conveyed.

'It is further provided that should first party fail to sell the minerals, rights and privileges hereby reserved, during his natural life and if he should die seized of the same, then it is expressly understood between the parties hereto that this reservation is to be void and that said minerals, rights and privileges are to immediately vest in and belong to the parties of the second part, or their heirs.'

On March 3, 1936, Alley and his wife executed an oil and gas lease to appellee which covers the same land conveyed to appellants on October 1, 1923.

The question presented is whether, under the reservation of the minerals in the deed of October 1, 1923, Alley had the right to execute the oil and gas lease under which appellee claims the minerals.

Appellants argue that 'sale' and 'lease' are not synonymous and that the word 'sale' does not embrace the word 'lease.' In support of this argument they cite various definitions of both words. Ordinarily these definitions of the words would apply, but under the decisions of this court a lease of oil and gas is actually a 'sale' of a portion of the real estate and differs from a lease for the use of the surface. In the case of Mills v. Mills, 275 Ky. 431, 121 S.W.2d 962, 965, we said: 'Under our decisions a lease of minerals underlying the land surface, is treated as a sale of a portion of the real estate, and differs from a lease for use of the surface.'

We have adopted the view that the purchaser of minerals...