Barnhart v. Lockwood , 152 Pa. 82 ( 1892 )

Opinion by

Mr. Justice Stebbett,

The so-called oil lease, which is the basis of the plaintiff’s claim in this action of ejectment, was executed and delivered to them, March 1, 1878, by Charles Young, who at that time was not the owner of the land. It then belonged to his father, Adam Young, who prior thereto had made his will, wherein he devised said land, inter alia, to his two sons, Edwin and Charles, as tenants in common. By his death two months after the lease was executed and delivered, said will became operative, and said Edwin and Charles then first became owners of the land.

By the terms of the lease, plaintiffs, as lessees of Charles Young, agreed to go upon the demised premises and operate the same for oil and deliver to the lessor one eighth of the oil obtained, .... and “ to drill a test well at or near Little Connoquenessing or Crab Run creek, commencing inside of forty days.” They never drilled any well on the leased premises, but within the forty days they commenced work at a well on the Barnhart farm, belonging to one of the lessees, at or near the above mentioned stream, by hauling upon the ground some timbers for a “rig.” This was all they did until 1881, when they put up the “rig ” on the Barnhart farm, and drilled a well which they finished in the fall of that year. The test well having proved to be a complete failure, they sold the casing and machinery, and permitted the timbers to decay on the ground. No other wells were drilled by them in the neighborhood, nor did they do anything further towards development of the land, embraced in the Charles Young lease, until December, 1889, nearly twelve years after it was obtained. In the early part of the month, a producing oil well was completed, by other parties not interested in this controversy, on the Cable farm. This gave market value to the Young farm as oil territory; and, on December 11, 1889, Edwin and Charles Young leased the land in controversy, for oil purposes, at a bonus of $1,500, to Lockwood, who afterwards assigned the lease to Patterson, one of the defendants with the Youngs in this suit. On December 18, 1889, plaintiffs attempted to take possession of the premises, but their right to do so was denied and they were not permitted to enter. They after-wards brought this suit; but, before that was done, the demised premises had been developed by the last mentioned lessee by drilling thereon several wells.

The facts above outlined were substantially proved and were not contradicted. Their substance is embodied in defendants’ second point for charge, in which the court was requested to say as matter of law, that they constituted a surrender of the lease on which plaintiffs base their claim to possession of the premises in controversy. The learned judge rightly held that the facts recited in the point were uncontroverted; and there being no dispute as to their correctness, he instructed the jury to find in favor of the defendants. That point and the answer thereto constituted the fifth specification. An examination of the record has failed to convince us that there is any error in the ruling complained of, and the specification is not sustained.

Nor was there any error in either of the learned judge’s answers to plaintiffs’ 3d, 4th and 5th points respectively. In refusing to affirm their third point, he rightly held that there could be an abandonment of any claim the plaintiffs had to possession of the land in controversy, short of eighteen years. He was clearly right in refusing to say, as requested in their fourth point, that “ the plaintiffs were entitled to recover the undivided one half of the premises described in the writ, to the extent granted by the lease and for the purposes written therein.” This point is predicated of the fact that nothing was ever done by Edwin Young to give plaintiffs any claim on his undivided interest in the land. Whatever right they acquired under the lease from Charles Young was abandoned. In fact they never went into possession under the lease, and their non-action, etc., during a period of nearly twelve years, amounted, in law, to an abandonment of' any right they otherwise might have had.

In refusing plaintiff’s fifth point, the court rightly held that the lease is not a grant of property in the oil, but merely a grant of possession for the purpose of searching for and procuring oil; no possession, as contemplated by the lease, was ever taken, and by their conduct plaintiffs abandoned any right that they had under the lease. As was rightly said by the learned judge, in his answer to defendants’ first point: “ The plaintiffs’ delay in operating their lease for a period of more than eleven years, unaccounted for, accompanied by an increase in value of the territory, for oil purposes, caused by developments of others in the neighborhood, is such laches and failure of consideration as disentitles them to the relief they now seek in this action, and they are not entitled to the verdict.”

Neither of the specifications of error is sustained.

Judgment affirmed.