State v. Travis

• Decision Date: 02 March 1954
• Docket Number: No. 10602,10602
• Court: West Virginia Supreme Court
• Parties: STATE, v. TRAVIS.

Page 678

81 S.E.2d 678

139 W.Va. 363

STATE, v. TRAVIS.

No. 10602.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 13, 1954.

Decided March 2, 1954.

Syllabus by the Court.

1. 'One can not be convicted for a trespass where the act complained of was done under a bona fide claim of right; but the question whether the act was so done is ordinarily one for the jury.' Point 2, syllabus, State v. Andrews, 75 W.Va. 233 .

2. It is incumbent upon a defendant charged with trespass, under Code, 61-3-30, who contends that he entered upon the land under a bona fide claim of right, to show such affirmative defense by a preponderance of the evidence, proving facts and circumstances which show reasonable grounds for such claim.

3. In a prosecution for trespass, under Code, 61-3-30, it is error to give an instruction at the request of the State, defining the civil rights and liabilities of the defendant.

4. It is reversible error to give an instruction which is misleading and mistates the law applicable to the facts.

Clay D. Hammond, West Union, for plaintiff in error.

John G. Fox, Atty. Gen., Virginia Mae Brown, Asst. Atty. Gen., for defendant in error.

LOVINS, Judge.

Claude O. Travis, hereinafter designated as defendant, was convicted of a violation of the first paragraph of Code, 61-3-30. He was sentenced to pay a fine of $25. From the judgment so sentencing him, he prosecutes this writ of error.

The factual background of this prosecution involves the ownership of a gas well and the right of access thereto. The defendant admits entry on the land in question, but asserted that he did so under a bona fide claim of right to make such entry.

W. K. Shinn and Mary C. Shinn, his wife, by an agreement bearing date the 5th day of January, 1909, leased a tract of land containing 124 acres to the Hope Natural Gas Company, a corporation. It was provided in such agreement that the same should remain in force for a term of five years from April 28, 1909, and so long thereafter as oil or gas, or either of them, was produced from said land by the lessor, its successor and assigns. It was further provided that if the lessee failed to complete a well on the land on or before the 28th day of April, 1909, that the lessee should pay $31 quarterly, in advance, for each additional three months. The well was completed on or about April 28, 1909. The lease agreement mentions a former lease dated January 4, 1904, but that lease is not in the record. The lease agreement made in 1909 authorizes the use of free gas to heat and light two dwelling houses. The lease provided that the lessee should have the right to use water and gas necessary for drilling and operating the lease; that at any time the lessee had a right to remove all machinery and fixtures placed on the premises; that the lease could be surrendered for cancellation upon the payment of $1.24 at any time; and that when the surrender was consummated, all liabilities accruing under the terms of the lease agreement should cease and the lease should become null and void.

The record is fairly clear, by inference at least, that a well was drilled on the 124 acre tract, but whether it produced any oil or gas, it is not clearly shown.

By a writing bearing date July 3, 1945, the Hope Natural Gas Company notified Leo C. Shinn, an assignee of the royalty and rights formerly held by the lessors, that the well drilled on the 124 acre tract of land described in the above mentioned lease, had been disconnected from the lessor's lines on June 29, 1945, in preparation for 'plugging' and abandoning such well, and that no further royalty would be paid on the well. On the same date, a letter was written to Leo C. Shinn, reiterating that the well had been disconnected and would be abandoned; that the abandonment of the well constituted an abandonment of the lease; that yearly cash payments in lieu of the use of free gas would be discontinued as of June 9, 1946.

The Hope Natural Gas Company, instead of executing a formal surrender, executed an agreement bearing date the 23rd day of July, 1945, by which that Company 'granted, bargained, sold, assigned and conveyed and by these presents does grant, bargain, sell, assign and convey unto the said J. J. Graham and W. D. Gribble, * * * all its right, title and interest in and to the following described oil and gas leases, estates, wells and property, and agreements relating thereto, subject to the exceptions and reservations hereinafter set forth and also subject to the terms, conditions and provisions contained therein and as hereinafter provided, as follows:'

A conveyance of the land was made to Eugene Chipps and Mary Ellen Chipps, by deed bearing date the 20th day of November, 1946, executed by Ada Shinn, the widow of Austin B. Shinn, who acquired the land by deed from a special commissioner, and her daughter, a single woman. Three tracts of land were conveyed by such deed. The first tract contained 34 acres, more or less, the second tract containing 6-2 acres and the third tract containing 79.8 acres, which seems to be the tracts of land covered by the lease to the Hope Natural Gas Company. The well herein mentioned was located on the 79.8 acre tract. The conveyance of such land was made subject to the life estate of Mary C. Shinn, covering the 34 acres. The deed to Chipps and wife likewise conveyed one-half of all oil and gas in and under the 34 acre tract, subject to the life estate mentioned, and conveyed all the gas in and under tracts numbered 2 and 3, being 6-2 acres and 79.8 acres. The conveyance aforesaid was made 'subject to all existing leases for oil and gas purposes given by predecessors in title as well as all rights-of-way for pipe lines for the transportation of oil and/or gas, telephone and telegraph lines, and any other grants that may have been given predecessors in title and reference is here had to the public records of Doddridge County for such grants, easements and privileges, the same as if recited herein in full.'

Leo C. Shinn and wife executed an assignment of royalty interest arising under the oil and gas lease of Hope Natural Gas Company to W. D. Gribble. The agreement of assignment recites that W. D. Gribble had purchased the lease made to the Hope Natural Gas Company.

J. J. Graham sold his interest in the W. K. Shinn well, located on the 124 acre tract to G. W. Hill and Ed Tate, and delivered to the purchasers a writing in the form of a receipt, reciting the sale of one-fourth interest in the well to Hill on or about the 2nd day of August, 1945, and to Tate, on or about the 19th of August, 1948. Messrs. Hill and Tate sold their interest in the well to W. D. Gribble.

Gribble died, and on the 17th day of June, 1952, by writing of that date, his administrator, P. Douglas Farr sold and assigned to C. O. Travis, the defendant, '* * * all the following described oil and gas wells, leases and wells thereon and all material and equipment therein and thereon owned by the said administrator.' The writing contained a description of the leasehold estate on the 124 acres.

At the inception of this prosecution, the royalty and other rights which had been separated from the land, as well as the machinery and equipment in the well on the W. K. Shinn tract, had been sold and assigned to the defendant. The prosecuting witness, Chipps, owned the land and one-half of the oil and gas under the 34 acre tract, by his deed of conveyance. Just exactly what gas or oil interests the defendant owned is not clear.

No royalty, delay rentals or money in lieu of using free gas had been paid from the 9th day of June, 1946, until the commencement of this criminal prosecution.

The latter part of August, 1952, the defendant called at the home of Chipps and informed him that he had bought the Shinn well and another well, and that he intended to 'pull them'. Chipps advised him that he had nothing to do with one of the wells, but objected to the defendant 'pulling the Shinn well'. He also told the defendant that there was some question in connection with that well. On that occasion, the defendant did not enter upon the land of Chipps, but, about the 20th day of September, 1952, the defendant came to the home of Chipps with some machinery. Chipps advised the defendant that he was trespassing if he entered upon the land. Notwithstanding this information, Travis entered on the land with the machinery and regraded an old road, cut some shrubbery, briars and some small trees. In the meanwhile, Chipps had a written notice prepared forbidding the entry upon his land, requiring the defendant to cease his operation thereon and to remove his equipment from Chipps' land. The defendant however, continued to work on the road and finally reached the site of the well. Exactly what action Chipps took to stop the defendant is not shown. He says he took 'other proceedings' and the defendant and his crew of men stopped their operations upon the property.

The Grand Jury of Doddridge County, on the 5th day of November, 1952, returned an indictment charging the defendant with violation of Code, 61-3-30. A tract of land containing 79.8 acres was described in the indictment which was one of the three tracts of land covered by the lease to Hope Natural Gas Company. The defendant pleaded not guilty and defended his conduct on the ground that he believed that he had a right to enter the land in good faith for the purpose of removing the casing and other personal property which he had purchased.

At the close of the evidence, the court gave three instructions, tendered by the defendant, and refused one of the defendant's instructions. No question is raised relative to the instruction tendered by the defendant and refused.

The court gave twelve instructions, tendered by the state. One of those instructions not given, was withdrawn and another instruction tendered by the state was refused.

Instructions numbered 11 and 13, tendered by the state and given are made...