United Fuel Gas Co. S. v. Oil

• Decision Date: 23 February 1926
• Docket Number: (No. 5508)
• Citation: 101 W.Va. 73
• Parties: United Fuel Gas Co. et als. v. Morley Oil and Gas Co. et al.
• Court: West Virginia Supreme Court

101 W.Va. 73

United Fuel Gas Co. et als.

v.Morley Oil and Gas Co. et al.

(No. 5508)

Supreme Court of Appeals of West Virginia.

Submitted February 16, 1926.

Decided February 23, 1926.

1. Injunction Temporary Injunction Should Not be Dissolved for Laek of Necessary Party, Until Plaintiff Has Been Given Opportunity to Amend Bill, or Has Refused to do so.

A temporary injunction should not be dissolved for lack of a necessary party to the litigation, until the plaintiff has been given an opportunity to amend his bill, or has refused to do so. (p. 77.)

(Injunction, 32 C. J. 673.)

2. Parties Merits of Cause Should Never be Adjudicated in Absence of Necessary Party; on Bringing Absence of Necessary Parties to Attention of Trial Court, Proceedings Affecting Right of Any Party Should be Suspended Until They Are Made Parties, or Plaintiff Declines to Bring Them in.

The merits of a cause should never be adjudicated in the absence of necessary parties. When their absence is brought to the attention of the court, proceedings affecting the right of any party should be suspended until they are made parties, or plaintiff declines to bring them in. (p. 77.)

(Parties, 30 Cyc. p. 141: Pleading-, 31 Cyc. p. 471.)

3. Injunction On Showing That Plaintiff Has Strong Prob-ability of Asserting His Equity, Dissolving Temporary Injunction Granted to Preserve Status Quo Before Decision on Merits is Error.

Where it appears from the bill, exhibits, answer and affidavits and circumstances of the case that there is a strong probability of the ultimate assertion of plaintiff's equity, it is error to dissolve a temporary injunction granted to preserve the status quo of the subject matter of the litigation, before a decision is made upon the merits. (Meyer v. Meyer, 60 W. Va. 473.) (p. 78.)

(Injunction, 32 C. J. § 669.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Roane County.

Suit by the United Fuel Gas Company and others against the Morley Oil & Gas Company and another for an injunction and other relief. From a decree dissolving an injunction, plaintiffs appeal.

Reversed; injunction reinstated; remanded.

Raymond Dodson and Harold A. Ritz, for appellants.

Thos. P. Ryan, S. P. Bell, and Harper & Baker, for appellees.

Lively, Judge:

This appeal is from a vacation decree entered July 6, 1925, dissolving an injunction which enjoined defendant, Morley Oil & Gas Company, from drilling for oil and gas on an acre of land used by the board of education for school purposes under a deed made to its predecessor in title, Geary Township, by T. B. Swan, Jas. H. Brown, Wm. F. and J. H. Goshorn, dated December 8, 1869. The controversy is based on the different interpretations of that deed.

The grantors in the above deed, when it was made, owned a large tract of land containing more than 5, 000 acres, in Geary Township of Roane County, and deeded one acre, by metes and bounds, lying within this large tract to the Township of Geary, "to be exclusively appropriated and used as a site for a school house and school for and in said township." On June 16, 1923, the board of education of Geary District of Roane County, presumably the successor in title to the lot deeded to the Township of Geary, executed an oil and gas lease to M. E. Morley who assigned the lease to the Morley Oil and Gas Company. The latter company entered upon the land and began preparation to exploit it for oil and gas. Plaintiffs, who are successors in title to the original grantors (Swan, Brown and Goshorn), and now own the land surrounding the acre-lot leased, instituted this suit and applied for an injunction, claiming that the deed of 1869 by the use of the words "to be exclusively appropriated and used as a site for a school house and school for and in said township," created a restrictive covenant, and limited the use which could be made of the land; that plaintiffs are entitled to the benefit of that covenant, and that the covenant runs with the land; that the board of education had no power to convey the minerals in said lot, and their attempt to do so violated the covenant. The Morley Oil & Gas Company and M. E. Morley were made defendants to the bill. Having been notified that a temporary injunction would be applied for, these defendants appeared, and when the bill and exhibits were tendered and motion for injunction made, tendered and filed their joint demurrer and answer, and resisted the granting of the temporary injunction. The court refused to grant the injunction, and it was subsequently granted by a judge of this court in vacation, June 26, 1925. Defendants immediately served notice that they would move to dissolve on July 6, 1925. To support the bill plaintiff filed an affidavit of H. W. Wallace to the effect that he was acquainted with the 5, 000-acre tract surrounding the lot in controversy, and was an expert in the production of natural gas, having had more than 20 years experience in the development of gas in that county and other parts of West Virginia, and had been in charge of extensive operations for its production; that by proper and economic production of the gas under this acre the gas therefrom at present prices would not pay the cost of drilling the well; and that the gas drained from the adjoining lands would exceed in volume the gas which lay under the acre tract.

The bill, claiming irreparable damage, prays that the lease made to defendants by the board of education be cancelled and removed as a cloud on plaintiff's title to the minerals in said lot, and prays for an injunction restraining defendants from drilling upon and removing therefrom any oil or gas.

The answer says that the provisions in said deed quoted above did not create a restrictive covenant, but had only the effect of showing that the grant came within that class of conveyances which the township or board was by law authorized to take, and did not qualify the fee nor otherwise limit the grant; that by virtue of that deed and the valuable consideration exchanged for the property granted, defendants have the full title to the oil and...