Ward v. Tripple State Natural Gas & Oil Co.

• Decision Date: 29 January 1909
• Parties: WARD et ux. v. TRIPPLE STATE NATURAL GAS & OIL CO. et al.
• Court: Kentucky Court of Appeals

115 S.W. 819

131 Ky. 711

WARD et ux. v. TRIPPLE STATE NATURAL GAS & OIL CO. et al.

Court of Appeals of Kentucky.

January 29, 1909

Appeal from Circuit Court, Martin County.

"To be officially reported."

Action by S. A. D. Ward and wife against the Tripple State Natural Gas & Oil Company and others. From the judgment, plaintiffs appeal. Reversed, with directions.

A Copley, for appellants.

M. C Kirk, for appellees.

CARROLL J.

On the 6th of June, 1900, the appellant Ward and his wife, as lessors, entered into an agreement with the appellee company the Tripple State Natural Gas & Oil Company, as lessee, the material parts of which are as follows, viz "Witnesseth: That the said lessors for and in consideration of the sum of one dollar to them in hand paid by the lessee, the receipt of which is hereby acknowledged and the covenants and agreements hereinafter contained on the part of the said lessee to be by it paid, kept and performed, has granted, demised, leased and let, and by these presents does grant, demise, lease and let unto the said lessee, its successors and assigns, for the sole and only purpose of mining and operating for gas, of laying, maintaining, operating and removing pipe lines *** from all that certain tract of land situated in the county of Martin and state of Kentucky, bounded as follows *** containing eight acres, more or less. *** It is agreed that this lease shall remain in force for a term of thirty years from this date, and as long thereafter as gas is produced by the lessee, and as long thereafter as rentals hereinafter provided for shall be paid. In consideration of the premises, the said lessee covenants and agrees to pay $225.00 per year for the gas from each and every gas well drilled on said premises, when gas is found in paying quantities; said payment to be made on each well within sixty days from completion, and to be paid yearly thereafter while gas from said well continues in paying quantities. The failure to comply with the terms of this lease upon the part of the lessee shall work a forfeiture of this lease, except as to the right of way for laying, maintaining and operating pipe lines: *** Provided, however, that this lease shall become null and void and all rights hereunder shall cease and terminate unless a well shall be commenced on said premises within five years from date hereof, or unless the lessee shall pay an annual rent of $225.00 per year, said rental to commence on date hereof and to be paid within sixty days from date, and yearly thereafter. It is further agreed that the lessee shall have the right at any time after the expiration of five years to surrender this lease and be released from all moneys and obligations unfulfilled, provided second party pays all rentals up to date of said surrender. Then and from that time this lease and agreement shall be null and void, and no longer binding on either party; and the payments which shall have been made shall be held by the lessor as the full stipulated damages for the nonfulfillment of the foregoing contract." Under this lease the lessee did not sink any gas wells, but did pay the annual rent of $225 for the five years ending June 6, 1905. The lease was assigned by the lessee to the United States Natural Gas Company. In January, 1907, the lessor brought this suit to recover from the gas companies the sum of $356, the amount alleged to be due as rent from June 6, 1905, up to the institution of the suit, this amount being made up of $225 stated to be due for the year ending June 6, 1906, and $131, the amount stated to be due from June 6 until January 6, 1907; it being alleged in the petition that, although the companies had failed to pay the rent due, they had not surrendered the lease. In an answer the companies denied any indebtedness and averred that the lease was surrendered according to its terms on June 6, 1905. In a reply that was not denied the lessor averred that the companies had run a pipe line through the leased land that was yet on the land, although it did not in any way interfere with the use and enjoyment of the land by the lessor. The law and facts being submitted to the court, it was adjudged that the lease had been surrendered, but that...