United Fuel Gas Co. v. Caldwell

• Decision Date: 22 April 1930
• Docket Number: (No. 6703)
• Citation: 109 W.Va. 85
• Parties: United Fuel Gas Co. v. Caldwell, et al.
• Court: West Virginia Supreme Court

109 W.Va. 85

United Fuel Gas Co.

v.Caldwell, et al.

(No. 6703)

Supreme Court of Appeals of West Virginia.

Submitted April 15, 1930.

Decided April 22, 1930.

1. A bill of interpleader must include proper averment that the claimants demand the same thing, and that the plaintiff is reasonably uncertain which claim is rightful.

Appeal from Circuit Court, Roane County.

Bill of interpleader by the United Fuel Gas Company against. P. W. Caldwell and others. Decree of dismissal, and plaintiff appeals. Affirmed.

Harold A. Ritz and B. J. Pettigrew, for appellant. Thos. P. Ryan, for appellee Stone.

Hatcher, Judge:

This appeal involves the sufficiency of a bill of interpleader. The circuit court sustained the demurrer thereto of defendant Fred Stone. The plaintiff declining to amend, the bill was dismissed.

The bill alleges that in 1906, C. S. Vandal executed an oil and gas lease on a tract of 405 acres in Eoane county to the plaintiff's predecessor in title, which provided, among other things, that the lessor should have gas "free for domestic purposes on the premises out of any surplus over and above what is necessary to operate the farm"; that later a gas well was drilled on the property which has since then produced gas continuously; that prior to the 10th day of May, 1920, Vandal conveyed the tract to M. P. and W. W. Ogden (subject to the oil and gas lease); that on May 10, 1920, the Ogdens conveyed to P. W. Caldwell the surface of 154 acres within the 405-acre tract, which conveyance contained the following provision: '' Party of the first part is to have free gas for domestic purposes from the gas well now on said land provided the free gas clause in the lease now covering said land provides free gas for more than one dwelling, otherwise the free gas right to remain with the residue of said tract of land and this clause to be null and void." Shortly after the execution of this deed, Caldwell demanded free gas of the plaintiff, and it extended to him that privilege for a dwelling located upon the 154-acre tract "in accordance with the terms, conditions and provisions of said lease" (as the bill recites); that in 1925, Caldwell and wife conveyed the surface of the 154 acres and all their rights therein to W. H. Engle and H. C. Geary, and on May 20, 1927, Engle and wife conveyed their interest therein to Geary; that the grantees of Caldwell have continued to use free gas in the dwelling on the 154-acre tract to the present time; that in August, 1927, the Ogdens conveyed to Fred Stone the surface of 120 acres, a part of the 405-acre tract, which conveyance Stone has withheld from record; that the plaintiff is advised that his deed contains "some provision with respect to the free gas privilege; and that he has made demand npon the plaintiff to furnish him free gas under the provision of his deed. The bill recites another conveyance of a part of the 405-acre tract, but as no reference is made therein or claim thereunder to the free gas privilege, details thereof are unnecessary. The bill also alleges that one of the defendants is entitled to free gas under the agreement with Vandal, but "that by reason of the apparent conflicting and ambiguous clauses so contained in the said several deeds to the surface of said tract of land aforesaid, involving the right to the use of the free gas privilege, and the various transfers to the several defendants of parts and parcels of the surface of said boundary, this plaintiff does not know to which of the said several surface owners it should, under the terms and provisions of said lease, furnish free gas"; that it has not colluded with any of the claimants of the privilege; and that its only interest in bringing this proceeding is to ascertain which one is entitled to the privilege, and extend the same to him. The bill prays that a decree may be entered construing the several deeds, determining which of the claimants is entitled to the use of free gas and enjoining the use thereof by the other defendants.

The plaintiff contends that the bill has all the elements listed as essential to a bill of interpleader, in the opinion of Pardee & Curtin Lumber Co. v. Odell, 78 W. Va. 159, 164, 88 S. E. 419. That list is taken from a Virginia case which quotes from Pomeroy's Eq. Juris. (4th Ed.) § 1322. The first element in the list is: "The same thing * * * must be claimed by both or all parties against whom the relief is demanded." See also Oil Bun Petroleum Co. v. Gale, 6 W. Va. 525; Koppinger v. O'Bonnell, 16 R. I. 417, 16 A. 714; Bispham Pr. of Eq. (7th Ed.) § 422; 15 R. C. L. pp. 223, 224, § 5. It is true that both claimants here (Geary and Stone) are requiring free gas; but it does not appear that they contend for it under the same right, or that their claims are conflicting. Geary's demand is based on the theory that the Vandal covenant provided free gas for more than one...