Argued
November 10, 1893
Appeal, No. 303, Oct. T., 1893, by defendant, James T
Gormley, from judgment of C.P. No. 2, Allegheny Co., Jan. T
1893, No. 346, on case stated in favor of Annie B. Wettengel.
Affirmed.
Case
stated to determine ownership of royalties under oil lease.
The
case stated was as follows:
"1.
James Gormley, of Chartiers township, Allegheny county
Pennsylvania, at and immediately before the time of his
decease, was the owner in fee simple of that certain tract of
land in North Fayette township, Allegheny county,
Pennsylvania. [Here follows description.]
"2.
On July 14, 1888, said James Gormley made a lease of said
premises to J. A. Tomlinson, of Beaver county, Pennsylvania,
for the purpose and with the exclusive right of drilling or
operating for petroleum oil or gas thereon. And the rights of
said J. A. Tomlinson, under said lease, by various
assignments and transfers, have become vested in J. M. Guffy
and others, doing business as the Oakdale Oil Co.
"3.
Said James Gormley died on Oct. 1, 1890, having first made
his last will and testament duly probated and registered in
the register's office of Allegheny county, whereby he
devised two hundred acres more or less of said six hundred
acres to his son, James T. Gormley, in fee simple, and of the
residue he devised two hundred acres more or less to his
daughter, Annie B. Wettengel in fee, and the residue he
devised to his daughter Mrs. Marie J. Lockhart in fee. [The
will and lease were made part of the case stated.]
"4.
The holders of said lease have drilled wells under and in
pursuance of said lease, all of which are located within the
boundaries of that portion of said six hundred acres which by
the last will and testament aforesaid was devised to the said
James T. Gormley, and all of which said wells are producing
oil. In addition thereto one well was drilled on that portion
of said land devised to Mrs. Lockhart, which latter well was
a dry hole, producing nothing.
"5.
Up to the date of this agreement said wells have produced in
the aggregate 14,918 barrels of oil, and under the terms of
the lease aforesaid one eighth thereof is payable as royalty,
out of which royalty one third is payable to Mary Gormley,
widow, as dower, and it was further provided in said lease
that the lessee should pay the sum of one hundred dollars per
month in advance, beginning with the date of said lease, so
long as he kept said lease, until oil or gas should be found
in paying quantities, after which payment was to be made by
the royalty as aforesaid. The first oil under said lease was
produced on the day of , 1891, being since the death of James
Gormley, at which time the payment of one hundred dollars per
month ceased. By the terms of said lease the right was given
to the lessee to use sufficient water from the premises
necessary to operations thereon, the right of way over and
across said premises to place of operating, together with the
right of laying pipes to convey oil and gas from the said
farm.
"6.
It is claimed by the plaintiff that she is entitled to a sum
of money equal to the proportion which the area of the land
devised to her as aforesaid bears to the whole amount of land
included in the said oil lease, out of the oil produced as
aforesaid, which for the purposes of this case is agreed to
be in money value the sum of fifty-seven cents per barrel.
"7.
On the other hand it is claimed by the defendant that the
plaintiff is not entitled to any part whatever of the
production of oil from the premises devised to him as
aforesaid.
"If
the court should be of the opinion that, under the law and
the facts hereinbefore stated, the plaintiff is entitled to
recover, then judgment is to be entered in favor of the
plaintiff and against the defendant for the aforesaid sum of
two hundred and seven dollars; otherwise judgment to be
entered in favor of the defendant."
The
lease referred to in the case stated was as follows:
"Memorandum
of agreement made and entered into this 14th day of July
1888, by and between James Gormley, of Chartiers township,
Allegheny county, Pennsylvania, of the first part, and J. A.
Tomlinson, of Beaver county, Pennsylvania, of the second
part, Witnesseth: That the said party of the first part for
the consideration, covenants, and agreements hereinafter
mentioned, has granted, demised and let unto the party of the
second part, his heirs and assigns, for the purpose and with
the exclusive right of drilling and operating for petroleum
oil or gas, with the right to sublet and subdivide:
"All
that certain tract of land in North Fayette township
Allegheny county, Pennsylvania, bounded and described as
follows, to wit: By lands of Abraham Bell, Fife, Donaldson,
Putnam, Morrow, Lutz, and others, containing six hundred
acres more or less, being all the lands of said James Gormley
in North Fayette township aforesaid, upon which said land
said lessee agrees to drill not less than six wells. If oil
or gas be found in paying quantities the second of said wells
to be commenced within six months after completing the first,
and one additional well to be commenced every six months
until the six wells are drilled, provided gas or oil be found
in paying quantities. The party of the second part, his heirs
or assigns, to have and to hold the said premises for the
said purpose only for and during the term of fifteen years
from the date hereof. The said second party, in consideration
of said grant and demise, agrees to give the party of the
first part, the full equal one eighth part of all the
petroleum oil obtained or produced on the premises herein
leased, to deliver the same in tanks or pipe lines to the
credit of the party of the first part. They further agree
that if gas is obtained in sufficient quantities to utilize,
the consideration in full to the party of the first part
shall be five hundred dollars ($500) per annum for each and
every gas well drilled on the premises herein described, if
of sufficient pressure to guarantee the laying of pipe lines
to convey it to market, payable in thirty days after the line
is laid. The party of the first part grants the further
privilege to the party of the second part of using sufficient
water from the premises herein leased necessary to the
operations thereon, the right of way over and across said
premises to the place of operating, together with the right
to lay pipes to convey all oil or gas from this farm, the
right to remove any machinery or fixtures placed on the said
premises by the said lessee, his heirs or assigns, provided
that such removal shall not take place until all rents or
royalties due under this lease have been fully paid. The said
second party hereby agrees for himself, his heirs and
assigns, to pay any damage done to growing crops by the
laying of pipes by him, his heirs or assigns. It is also
agreed between the parties hereto that should any well
drilled by said party of the second part fail to produce gas
or oil in paying quantities then and in that event said
second party shall at his option be released from liability
to drill additional wells, and in case he should so elect, he
shall at once give said party of the first part notice of
this fact, and thereupon all rights granted under this lease
shall cease and determine so far as the same affects the land
described except as to paying wells drilled and one hundred
acres of land immediately adjacent and surrounding each of
said wells. Three hundred feet each way surrounding the
buildings on said premises are hereby reserved from being
operated by said second party unless said first party decides
to have it drilled. Operations to be conducted so as to
interfere the least with farming privileges. Said lessee
further agrees to pay the sum of one hundred dollars per
month in advance, beginning with the date hereof, so long as
he occupies said premises, until gas or oil is found in
paying quantities, after which payment is to be made as above
provided. All gates and fences opened by said lessee, his
heirs or assigns are to be kept in good order, and so used as
not to injure or damage the land or crops thereon. Any
increase of taxes occasioned by this lease to be paid by the
lessee. All springs in use by tenants are to be protected
from injury occasioned by operating under this lease. It is...
