Young v. McIllhenny

• Decision Date: 24 February 1909
• Citation: 116 S.W. 728
• Parties: YOUNG v. McILLHENNY.
• Court: Kentucky Court of Appeals

116 S.W. 728

YOUNG v. McILLHENNY.

Court of Appeals of Kentucky.

February 24, 1909

Appeal from Circuit Court, Cumberland County.

"Not to be officially reported."

Suit by J. S. Young against John A. McIllhenny for rent aided by attachment. From a judgment for defendant, plaintiff appeals. Appeal dismissed.

Sandidge & Sandidge, Porter & Sandidge, and Allen Sandidge, for appellant.

Allen &amp Ewing and Hazelrigg & Hazelrigg, for appellee.

LASSING J.

This litigation involves the construction of the following leases and contract:

Lease No. 1: "In consideration of the sum of one dollar and the covenants and agreements herein contained, J. S. Young and wife, Bertie Young, first parties, hereby granted unto S Taliaferro and B. Moore, second parties, their heirs or assigns, all the oil and gas in and under the following described premises, together with the exclusive right to enter thereon for the purpose of drilling or operating for oil, gas or salt water, to erect, maintain and remove all structures, pipe-line, and machinery for the production and storage of oil, gas or water, namely, a lot of land situated in the county of Cumberland and the state of Kentucky, on the waters of West fork of Crocus, bounded and described as follows: On the north by the lands of W. H. Cole, on the east by the lands of Dr. T. T. Baker, on the south by the lands of Lewis Fletcher, and on the west by the lands of Thomas O Cheatham, containing seventy-five acres, more or less. The above grant is made on the following terms: Should oil be found in paying quantities upon the premises, second party agrees to deliver to the first party in the pipe-line with which it may connect the well or wells, the onetenth part of all the oil produced and saved from said premises. If gas only is found, second party agrees to pay fifty dollars each year for the product of each well while same is being used off the premises. No well shall be drilled nearer than 200 feet to the house or barn on said premises. The second party shall have the right to use sufficient gas, oil or water to run all machinery used by him in carrying on his operations on said premises, and the right to remove any or all his property at any time. If no well is commenced, on the premises herein leased within one year from this date, then this grant shall become null and void unless second party shall pay to first party seventy-five dollars for each year thereafter such commencement is delayed, payable at the Bank of Cumberland, and that the parties of the first part hereby agree to accept such sum as full consideration and payment for such yearly delay until one well shall be commenced. Second party agrees to locate all wells so as to interfere as little as possible with cultivated portions of the farm. It is agreed that the second party is to have the privilege of using sufficient water from the premises to run all necessary machinery, and at any time to remove all machinery and fixtures placed on said premises, and further shall have the right at any time to surrender this lease to first parties for cancellation, after which all payments and liabilities to accrue under and by virtue of its terms shall cease and determine, and this lease become absolutely null and void. In witness whereof the parties hereunto set their hands, this the 26th day of November, A. D. 1901."

The second lease is in all things like the first, except that it only covers 50 acres of land, and the annual rental provided for is $50.

Contract "This contract, made and entered into this the 26th day of November, 1901, by and between R. Young and J. S. Young, parties of the first part, and S. Taliaferro and B. Moore, parties of the second part,. witnesseth: That, whereas, the parties of the first part have this day leased unto the parties of the second part the oil and gas rights in and to seven certain tracts or parcels of land, lying on Crocus creek, Cumberland river, Beech branch and West fork, in Cumberland county, Ky. and, whereas, parties of the second part have in said seven leases agreed to put down or commence a well on each of said seven tracts of land within twelve months from this date, agreeing to commence a well on one of said tracts within six months from this date: Now, the parties hereto agree that if oil should be found in the first well so put down by said second party in sufficient quantities, and all the parties hereto deem it best to do so, the second parties may continue their operations on the tract of land on which the first well is put down without avoiding their leases on the other six tracts leased as aforesaid, without the payment of any further bonus. It is further agreed between the parties hereto and is hereby made a part of the contract contained in each of the said leases aforesaid, and the second parties hereby agree, that when a well is commenced on any of the said seven tracts of land the same shall be pushed to completion without unavoidable delay, and they further agree that if they shall at any time abandon the said seven tracts of land and cease their operations upon all of the same for twelve months at any time the said leases shall become null and void, unless the bonus as specified in said leases shall be paid. November 26, 1901."

Plaintiff Young, brought suit against the defendant, McIllhenny, for $125, alleged to be due him as the rental under said leases for one year, and caused a general order of attachment to be issued...