Wagner v. Mallory

• Decision Date: 28 January 1902
• Parties: WAGNER et al. v. MALLORY et al.
• Court: New York Court of Appeals Court of Appeals

169 N.Y. 501

62 N.E. 584

WAGNER et al.

v.MALLORY et al.

Court of Appeals of New York.

Jan. 28, 1902.

Appeal from supreme court, appellate division, Fourth department.

Action by Martin W. Wagner and others against Dewis E. Mallory and others. From a judgment of the appellate division (58 N. Y. Supp. 526) affirming a judgment for defendants, plaintiffs appeal. Affirmed.

A.

Wentworth, for appellants.

F. B. Church, for respondents.

HAIGHT, J.

This action was brought to enjoin the defendants from appropriating THE OIL PRODUCED UPON THE PREMISES DESCRibed in the complaint, and for an accounting, etc. There is no controversy with reference to the facts. The history of the title to the lands in question is of considerable length, and is fully set forth in the findings of the referee. We shall here state only so much of it as presents the question to be determined: In the year 1887 one Job Moses died, leaving a last will and testament, which was duly admitted to probate in Cattaraugus county. At the time of his death he was the owner of an oil lease, executed on the 2d day of October, 1877, upon the lands described in the complaint, for a term of 40 years. At this time one John S. Robinson was the owner of the lands,-subject, however, to the rights reserved by this lease. The defendants Mallory, Rathbone, and Tait have succeeded to the title of Robinson, and the plaintiffs claim to be the owners of the lease under a deed executed by the executors and devisees under the will of Job Moses. That deed bears date the 2d day of October, 1888, and is in the usual form, specifically describing 20 parcels of land in the town of Carrolton, Cattaraugus county, and 5 parcels in the town of Red House, in that county, none of which includes the lands owned by Robinson or these defendants. It, however, concludes with the following: ‘It is the intent hereof to convey to the parties of the second part all the lands and premises owned by the parties of the first part, or in which they had an interest, lying or being in the said town of Carrolton and the said town of Red House, whether the same are hereinbefore particularly described or not.’ The lands of Robinson, upon which the lease was outstanding, were located in the town of Carrolton, and therefore it is contended on behalf of the plaintiffs that the leasehold interest owned by the testator at the time of his death passed to them under this provision of the deed. Subsequently the defendants Mallory, Rathbone, and Tait caused an oil well to be drilled upon the premises, which resulted in the discovery of oil, which they ever since have been producing therefrom and appropriating to their own use.

In order to determine the true intent and meaning of the provision in the deed to the plaintiffs alluded to, it becomes important to examine more fully the provisions of the lease. By its terms the party of the first part grants, demises, and lets to the parties of the second part, their executors, administrators, and assigns, for the sole and only purpose of mining and excavating for oil, giving to them the exclusive right and privilege of so mining and excavating oil for a period of 40 years; the parties of the second part covenanting to deliver to the party of the first part one-eighth part of the oil pumped and raised from the premises. It will be observed that there is, by the terms of the lease, no grant of the oil as it exists in the earth, so that there is no passing of the title to the oil as it exists in its natural state, but that the right is limited to the mining and excavating, or the pumping and raising, of the oil from the premises. It is a right to produce or extract the oil from the earth, yielding one-eighth thereof to the landlord. What was this right? Was it real estate or personal property? It is said that leases of this character are incorporeal hereditaments, and that petroleum oil is a mineral, and is a part of the realty like coal, iron, and copper. It is true, it is a mineral substance; but it widely differs...