Brown v. Wilson , 58 Okla. 392 ( 1916 )

I am unable to concur in the conclusion reached by the majority of the court, and, on account of the importance of the questions involved, I deem it advisable to set out the grounds of my dissent in a separate opinion.

This is a controversy between the lessors of a tract of undeveloped oil land and certain of their lessees and their sublessees on one side, and subsequent purchasers from the lessors and another group of lessees and their sublessees on the other. John S. Ruhl and Lena Ruhl, his wife, are the common lessors and grantors.

On the 17th day of June, 1912, they executed an oil and gas lease for the entire tract of land in dispute to the defendant in error M.S. Wilson. The lease, which did not contain a forfeiture clause, recited, in substance, that it was made for and in consideration of the sum of $1 in hand paid by the lessee, and "for the covenants and agreements hereinafter contained on the part of the party of the second part, to be paid, kept and performed." The habendum clause provided that:

"This lease shall remain in force for ten years from this date, and as long thereafter as oil and gas, or either of them, is produced therefrom by the party of the second part, his heirs, successors or assigns."

The lease also contained a clause which obligated the lessee "to complete a well on said premises within four months from the date hereof, or pay at the rate of eighty dollars in advance, for each additional three months such completion is delayed," and another clause which conferred upon the lessee the right "at any time after four months, on the payment of one dollar and all payable obligations then due to the parties of the first part, their heirs or assigns, to surrender the lease, if not tested, for cancellation." In April, 1914, the lessors attempted to declare a forfeiture of the Wilson lease, for failure on the part of the lessee or his assigns to complete a well or pay in accordance with the terms of the lease. On the 1st day of August, 1914, the lessors commenced a suit in equity to cancel the Wilson lease, upon various grounds, which later will be noticed more in detail; and on the 29th day of August, 1914, they made another lease of the same premises to other parties, who, with their sublessees, constitute the other group of lessees. Subsequently the lessors conveyed their entire interest in the land to still other parties. Although the numerous parties coming into the case from the initial sources above indicated filed voluminous pleadings, praying for such relief, legal or equitable, as their varying circumstances seemed to them to warrant, essentially the cause of action amounted to a suit in equity to declare a forfeiture of the Wilson lease: (1) for failure to drill or pay; and (2) because, on account of the surrender clause, the lease was unilateral and void.

Upon trial to the court the validity of the Wilson lease was upheld, and a decree entered in favor of the group of lessees and sublessees who claimed thereunder; whereupon the lessors, their grantees, and the other group of lessees and sublessees instituted this proceeding in error for the purpose of reviewing the action of the trial court.

In this court the lessors, the subsequent purchasers of their interest in the land, and all lessees and sublessees claiming under the second lease, are plaintiffs in error, whilst all parties claiming under the first or Wilson lease are defendants in error. This brief general outline of the record sufficiently states the facts to clearly indicate the line of cleavage between the contending parties, and that the case upon its merits turns upon the validity or invalidity of the Wilson lease.

As many of the most serious objections urged against the validity of the Wilson lease by counsel for plaintiffs in error turn upon the construction of the clauses thereof of hereinbefore set out, it will not be necessary to set out in full the remaining parts thereof in this opinion.

Before reviewing the important questions of law arising out of the various assignments of error presented for review, it will be helpful to notice briefly a few of the preliminary circumstances in which the Wilson lease was given, upon which the parties all agree. Whether the leased tract contained oil and gas was not known at the time the lease was executed. It was in "wild cat" territory wherein the drilling of test wells would be attended with great expense and the many hazards naturally incident to proving and developing a new oil field. The lease itself is free from ambiguity, and no fraud, deception, or overreaching was practiced in procuring it. All the parties were competent to contract with one another and, presumably, entered into the lease because its terms were satisfactory to them. Ordinarily, contracts arising out of such circumstances are not prolific of either suits in equity or actions at law; but counsel for plaintiffs in error and a few of the courts seem to have discovered some subtle distinction between oil and gas leases or contracts and other contracts which, they say, requires the former to be placed in a class by themselves and construed strictly in favor of the lessor and against the lessee, the practical effect of which upon the contract involved herein is stated by counsel for plaintiffs in error in their brief as follows:

"The lease at bar is merely a working agreement for four months with the further provision that the parties might by mutual consent, extend the same quarter by quarter upon payment of rentals upon the same terms without further formality or other written agreement. This renewal or continuation of the working agreement could have been accomplished by tender of the delay money on the one hand and acceptance on the other."

The first assignment of error presented by counsel for plaintiffs in error in their brief is stated as follows:

"The Ruhl-Wilson contract is unilateral, and, having been unperformed when Ruhl declared a forfeiture, the same was optional as to Ruhl because optional as to the lessee. Contracts unperformed optional as to one of the parties are optional as to both."

A great many authorities are cited as supporting this doctrine, among them the following cases decided by this court, which counsel contend are controlling: Frank Oil Co. v.Belleview Gas Oil Co., 29 Okla. 719, 119 P. 260, 43 L. R. A. (N. S.) 487; Superior Oil Co. v. Mehlin, 25 Okla. 809,108 P. 545, 138 Am. St. Rep. 942; Kolachny v. Galbreath,26 Okla. 772, 110 P. 902, 38 L. R. A. (N. S.) 451; Hill Oil Gas Co.v. White, 53 Okla. 748, 157 P. 710.

The theory of counsel on this point is further disclosed by the following excerpt from their brief:

"The lease of June 17, 1912, by Ruhl to Wilson, covering the 320 acres involved, was executed for the nominal consideration of $1, the real consideration being the development which Ruhl expected as a result of the contract. The surrender clauses in the lease hereinafter quoted made the same entirely optional with the lessee. He was not required to do anything. The lessee might drill a well on the premises within four months, or he had the option to delay drilling for three months' periods by paying in advance for each quarter $80 for such delay, and he had the further option to surrender the lease if not tested, at any time, upon the payment of the nominal sum of $1 and thereby relieve himself from the payment of rentals. He had the further option, even after entering upon the premises, to abandon the same any time and to remove all machinery and fixtures placed by him on the premises including the right to draw and remove casing. These terms of the contract bring it clearly within the equitable rule so often announced by this court with particular reference to oil and gas mining leases, that contracts unperformed optional as to one of the parties are optional as to both.

"In the case of Kolachny v. Galbreath, 26 Okla. 772,119 P. 902, 38 L. R. A. (N. S.) 451, this court said, as if writing to cover this very case, and as if to declare this very lease voidable at the option of the lessor, citing the case ofSuperior Oil Gas Co. v. Mehlin, 25 Okla. 809, 108 P. 545, 138 Am. St. Rep. 42: 'The general rule in such cases is that contracts unperformed, optional as to one of the parties, are optional as to both. Venture Oil Co. v. Fretts, 152 Pa. 451, 25 A. 732; Huggins et al. v. Daley, 99 Fed. 606, 40 C. C. A. 12, 48 L. R. A. 320; Reese et al. v. Zinn et al. (C. C.) 103 Fed. 97; Federal Oil Co. v. Western Oil Co., 121 Fed. 674, 57 C. C. A. 428.' The foregoing quotation is a conclusion drawn by the learned justice in answer to a question which he himself had put, as follows: 'Does the surrender clause, as hereinbefore set out, render the lease such a contract as a court of equity will refuse to enforce?' Referring to a surrender clause in the following words: 'It is hereby further agreed that the party of the second part shall have the right at any time to surrender and terminate this grant and demise by serving written notice upon the parties of the first part of such intention, after which all payments or liabilities to accrue shall cease and determine.' This authority is conclusive on this case, for the court says that such a surrender clause giving the lessee the right to surrender also gives the lessor the right to surrender, and that therefore a court of equity will not enforce such a contract."

From an examination of a great many of the authorities cited by counsel for the respective parties as supporting their view of the various questions of law arising out of the foregoing general assignment of error, it is apparent that many of the courts, in citing authorities and discussing the proper construction to be given oil and gas leases, have assumed that such instruments have become standardized, and therefore have not attempted to distinguish with clearness between the varying terms of the contracts involved in the various cases. It is true that there is a general vein of similarity running through all contracts of this nature, and that at present a large majority of them may be embraced within two general classes which, for convenience, have sometimes been designated "unless" leases and "or" leases.

I am aware, of course, that the words "or" and "unless," of themselves, have no particular potency in determining the character of an oil and gas lease; but, in the leases I have examined, the following essential differences between "or" leases and "unless" leases are uniformly found to exist: The "unless" lease by its terms confers upon the lessee the option to continue or renew the lease by payment of rental for certain fractional periods at a time. The payment of the rental is a necessary condition precedent to the renewal of the lease for the fractional times specified in the lease contract. In fact, it is a lease from year to year, or quarter to quarter.

On the other hand, under the "or" lease, containing a surrender clause, the payment of the rentals from time to time is not necessary to renew the lease by fractional periods from time to time; the failure to pay under the "or" lease not operating automatically to terminate the lease. It is true that under the "or" lease, containing a surrender clause, the lessee may accelerate the termination of the lease and his liability thereunder, by payment of the amount which the parties have stipulated in the surrender clause he shall pay for the privilege of being released from the contract; but such leases rarely, if ever, by their terms become null and void by failure to pay the rentals in advance. In this respect, the two leases are diametrically opposed. The "unless" lease by its terms automatically terminates by failure to pay rentals; whereas, the "or" lease remains in force in the event the lessee does not elect to accelerate the ending of the lease by paying the stipulated consideration for the privilege of surrendering, and by surrendering it. Under the "or" lease (with the surrender clause), even though it contains an express forfeiture clause, the lessor may waive the default and sue the lessee and recover the rentals; the lessee being bound as the lessor's debtor for the rentals until the lessee surrenders. Cohn v. Clark,48 Okla. 500, 150 P. 467, L. R. A. 1916B, 686; Burress v. Diem,23 Okla. 776, 101 P. 1116.

But in addition to these general classifications, in considering cases upon rental clauses, care should be taken to distinguish between leases containing: (a) An "or" clause and a forfeiture clause; (b) containing an "or" clause and a provision to the effect that a failure to complete a well or pay will render the lease null and void, in effect, a forfeiture clause; or (c) containing an "unless" clause — from leases which provide, as in the case at bar, for a definite term of years, and the lessee agrees either to drill or pay, and which contain no forfeiture clause.

The majority of the court, it seems to me, have fallen into error by not distinguishing the "or" lease, herein involved, from the "unless" leases, construed in the former Oklahoma cases, and failing to observe that, when the "unless" lessee fails to drill or pay, the lease, by its terms, becomes null and void; whereas, failure to either drill or pay under the "or" lease, even though it contains a surrender clause, does not terminate or end the rights and powers of both lessor and lessee, because the lessor still has the right to elect to keep the lease alive and hold the lessee for the rentals. Before the lessor's right to keep the "or" lease alive by claiming the rental ends, the lessee must do something more than fail to drill or pay; he must affirmatively surrender the lease and pay the lessor the $1 and all unpaid rentals, pursuant to the terms of the surrender clause. Mere failure on the part of the lessee under the "or" lease to drill or pay does not constitute an abandonment or surrender of his rights under the lease. If it did, this court could not have sustained an action by the lessor against the lessee for the unpaid rentals, as was done in Cohn v. Clark,supra., and Burress v. Diem, supra.

That this court in at least one opinion recognized these distinctions between the "or" lease and the "unless" lease is apparent from the following excerpt from Frank Oil Co. v.Belleview Cras Oil Co., 29 Okla. 719, 119 P. 260, 43 L. R. A. (N. S.) 487:

"We have been unable to find a single case where a court of chancery ordered the specific performance of a lease at the instance of the lessee, where there had been no development and the lease provided only that it should be forfeited unless the lessee paid a certain sum of money for delay, such contract being merely optional; but, where the contract provided that there should be certain development or the lessee should pay a certain specific sum of money, then, in the event of delay or failure of development, an obligation was incurred on the part of the lessee to pay a certain sum of money."

Observing these fundamental differences in the terms of the two classes of contracts, it is not necessary to notice in detail the distinctions which might be drawn between the form of the actions and the nature of the relief prayed for in the former Oklahoma cases cited, and the form of the action and relief prayed for in the case at bar, or the distinguishing features of each case, for the reason that the contract now under consideration is so different in the essential features just pointed out, from the contracts formerly construed, as to render the former class of cases wholly inapplicable to the case at bar.

When these differences between the "unless" leases construed in Kolachny v. Galbreath, supra, and the other cases of that class, and the "or" lease, herein involved, are considered, it is apparent to me that this court has never held, in a suit of this nature, that the surrender clause in an "or" oil and gas lease, supported by an independent consideration, renders such lease void, or unilateral, nor that it creates a tenancy at the will of either party, nor that such a lease is optional as to the lessor. On the contrary, it seems to me that to so hold would overrule in principle Frank Oil Co. v. Belleview Gas Oil Co., Deming Investment Co. v. Lanham, Mitchell v. Probst, and other cases of that class.

Having reached this conclusion, which I have shown is not in conflict with any former decision of this court, it does not seem necessary to distinguish the case at bar from the cases from other jurisdictions cited by the majority of the court and counsel, as supporting the rhythmic doctrine that "contracts unperformed, optional as to one of the parties, are optional as to both." It is sufficient to say of such cases that in none of them do I find any support for the contention that the effect of a surrender clause in a lease expressly agreed upon between the parties, which, by its terms, grants the lessee the right to surrender, and for which privilege the lessee obligates himself to pay an adequate independent consideration, is to confer a corresponding right upon the lessor to forfeit the lease at his option, without any agreement to that effect, or the payment or promise of payment of any consideration whatever. The authorities, it seems to me, are to the contrary. Legg v. Benion, Willes (Eng.) 43, 125 Com. Pleas Rep. 1047; Brewster v. Lanyon Zinc Co., supra; Brown v. Fowler,supra; note to Warehouse Co. v. Paper Co., Ann. Cas. 1916B, 308.

And it also may be added that the value as authorities of the cases from Louisiana, principally relied upon by counsel for plaintiffs in error upon this point, will be greatly minimized when it is considered that in that jurisdicton, which derives its jurisprudence from the civil law, $1 is not considered an adequate consideration to support a contract. That the rule as herein stated in cases wherein the consideration is deemed to be inadequate is clearly established by the recent case ofMcClendon v. Busch-Everett Co., 138 La. 722, 70 So. 781.

Being unhindered by the decisions of our own court, it seems to me that, in construing these contracts, it would be more consonant with right and justice and sound business principles to follow the familiar trend of authority from the other great oil producing states of the Union, and particularly the doctrine approved by the Supreme Court of the United States and the Circuit Court of Appeals for the Eighth Circuit, the federal circuit in which this state is situated. Many of the operators within this state have come from states where the surrender clause has been sanctioned by law for the past half century, and, finding the same to be the rule in the Circuit Court of Appeals for the Eighth Circuit, the court of last resort, in many instances, for this jurisdiction prior to statehood, they and the vast number of citizens of this state who joined them in the development of the oil industry were justified in assuming that the surrender clause would not be stricken down by the courts of the state.

The following cases hold that the presence of a surrender clause in an oil and gas mining lease does not render it void and subject to cancellation in a suit in equity: Brown v.Fowler, 65 Ohio St. 507, 63 N.E. 76; Central Oil, etc., Co. v.Eckert, 70 Ohio St. 127, 71 N.E. 281; Poe v. Ulrey, 233 Ill. 56, 84 N.E. 46; Pittsburgh Vit. Pav. B. B. Co. v. Bailey,76 Kan. 42, 90 P. 803, 12 L. R. A. (N. S.) 745; New American Oil Min. Co. v. Troyer, 166 Ind. 402, 76 N.E. 253, 77 N.E. 739;Pyle v. Henderson, 65 W. Va. 39, 63 S.E. 762; Lovett v.Eastern Oil Co., 68 W. Va. 667, 70 S.E. 707, Ann Cas. 1912B, 360; Houssiere-Latreille Oil Co. v. J. H. Oil Co., 115 La. 107, 38 So. 932; Brewster v. Lanyon Zinc Co., 140 Fed. 801, 72 C. C. A. 213; Allegheny Oil Co. v. Snyder, 106 Fed. 764, 45 C. C. A. 604; Guffey v. Smith, 237 U.S. 101, 35 Sup. Ct. 526, 59 L.Ed. 856; Cohn v. Clark, 48 Okla. 500, 150 P. 467, L. R. A. 1916B, 686.

And the following authorities hold that $1 is a sufficient cash bonus consideration to bind the lessor in a surrender clause lease: Guffey v. Smith, 237 U.S. 101, 116, 35 Sup. Ct. 526, 59 L.Ed. 856; Brewster v. Lanyon Zinc Co., 140 Fed. 801, 72 C. C. A. 213; Allegheny Oil Co. v. Snyder, 106 Fed. 764, 45 C. C. A. 604; Pittsburgh, etc., Brick Co. v. Bailey,76 Kan. 42, 90 P. 803, 12 L. R. A. (N. S.) 745; Poe v. Ulrey,233 Ill. 56, 64 N.E. 46; Watford Oil Gas Co. v. Shipman, 233 Ill. 9, 84 N.E. 53, 122 Am. St. Rep. 144; Central Ohio Nat. Gas Fuel Co. v. Eckert, 70 Ohio St. 127, 71 N.E. 281; Brown v.Fowler, 65 Ohio St. 507, 63 N.E. 76; Lowther Oil Co. v. Guffey,52 W. Va. 88, 43 S.E. 101; Lovett v. Eastern Oil Co., 68 W. Va. 667, 70 S.E. 707, Ann. Cas. 1912B, 360; South Penn Oil Co. v. Snodgrass, 71 W. Va., 438, 76 S.E. 961, 43 L. R. A. (N. S.) 848; Pyle v. Henderson, 65 W. Va. 39, 63 S.E. 762; Gillespie v.Fulton Oil Co., 236 Ill. 188, 86 N.E. 219.

The next assignment of error which would follow in logical order, as well as importance, is stated by counsel in effect as follows: There was default in payment of rentals due April 17, 1914, whereupon the lessor, as he had a right to do, declared a forfeiture because of default in payment. This assignment of error is based upon the assumption by the plaintiffs in error that, nothwithstanding the absence of a forfeiture clause, a slight default in the payments of the rentals, as provided for in such a lease contract, authorizes the lessor to declare the lease forfeited. Frank Oil Co. v. Belleview Gas Oil Co.,29 Okla. 719, 119 P. 260, 43 L. R. A. (N. S.) 487, and several other Oklahoma cases, are cited in support of this doctrine. I have heretofore pointed out some of the distinctions between "unless" and "or" leases, and that it was an "unless" lease which, by its terms, became null and void if delay money was not paid in advance, that was under discussion in the Frank Oil Co. Case, whilst the contract in the case at bar is an "or" lease, which contains no forfeiture clause, nor provision which expressly or impliedly provides that time is of the essence of the contract. By express statute (section 968, Rev. Laws 1910), in this jurisdiction, "time is never considered as of the essence of a contract unless by its terms expressly so provided." Snyder v. Stribling, 18 Okla. 168, 89 P. 222;Standard Lbr. Co. v. Miller, 21 Okla. 617, 96 P. 761; Edwardsv. Iola Gas Co., 65 Kan. 362, 69 P. 350.

It is true that mining and oil leases often contain provisions for a forfeiture in case of cessation of the work in the development of the lands, and such provisions in proper cases the courts have unhesitatingly enforced. 18 Am. and Eng. Enc. Law, 372. But in the absence of a forfeiture clause, the common-law rule is well settled that a breach by the lessee of his covenants or agreements in the lease does not work a forfeiture of the term. 18 Am. and Eng. Enc. Law, 369.

The following cases support the doctrine that, in the absence of an express forfeiture clause in an "or" lease, there can be no forfeiture for nonpayment of rentals: Reserve Gas Co. v.Carbon Mfg. Co., 72 W. Va. 757, 79 S.E. 1002; Thompson v.Christie, 138 Pa. 230, 20 A. 934, 11 L. R. A. 236; Marshallv. Forest Oil Co., 198 Pa. 83, 47 A. 927; Rose v. Lanyon ZincCo., 68 Kan. 126, 74 P. 625; Davis v. Chautauqua O. G. Co.,78 Kan. 97, 96 P. 47; Castle Brook Carbon Co. v. Ferrell (W. Va.) 85 S.E. 544; Bennett v. Glaspell, 15 N.D. 239, 107 N.W. 45; 27 Cyc. 716; Gale v. Oil Run Petroleum Co., 6. W. Va. 200.

Counsel seek to avoid the force of these decisions and the general rule governing forfeitures by the application of the rule of construction hereinbefore adverted to, which they state as follows:

"Forfeiture of such a lease is favored. The lease must be construed strictly in favor of the lessor and against the lessee and his assigns."

The application of this doctrine to oil and gas leases is based upon the theory that, because of the peculiar character of oil and gas as property, and the violent fluctuations in the value of lands and leaseholds incident to the discovery of these substances, the courts have placed contracts of this kind in a class by themselves, and, in the light of the known character of the business of oil mining, construe them most strictly against the lessee, and favorably to the lessor.

Without questioning the soundness or justice of this doctrine, it is still but a rule of construction to be invoked only for the purpose of aiding the court in determining the intention of the parties when the contract under consideration is not free from ambiguity. Section 949, Rev. Laws 1910, provides:

"When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible, subject, however, to the other provisions of this article."

Here the contract upon its face is clear and unambiguous. The parties to it have not seen fit to incorporate a forfeiture clause, or words equivalent to a forfeiture clause, into its terms, and I find no justification for writing one into it, in any proper application of the canon of construction invoked. Moreover, the instant case has developed into a controversy between two distinct groups of claimants, each deriving its interest from a common lessor, who has parted with his own interest, and therefore the reason for the rule that the lease must be construed strictly in favor of the lessor and against the lessee hag wholly failed.

Having reached the conclusion that there was and could have been no forfeiture of the lease at the option of the lessors for default in the payment of rentals in strict conformity with its terms, the next question which presents itself is whether there was an abandonment of the lease by any of the first group of lessees. Generally, whether a contract is abandoned is a question of fact to be determined by the court or jury from all the facts and circumstances of the particular case. Martin v.Spaulding et al., 40 Okla. 191, 137 P. 882.

In Garrett v. South Penn Oil Co., 66 W. Va. 596, 66 S.E. 745, the Supreme Court of Appeals of West Virginia pointed out the distinction between "abandonment" and "forfeiture" as follows:

" 'Abandonment' * * * rests upon the intention of the lessee to relinquish the premises, and is therefore a question of fact for the jury; while a 'forfeiture' does not rest upon an intent to release the premises, but is an enforced release. * * * Whether or not a lease has been abandoned is a matter of defense, and need not be negatived by the plaintiff in an action for rent."

Again, in Smith v. Root, 66 W. Va. 638, 66 S.E. 1007, 30 L. R. A. (N. S.) 176, the. Supreme Court of Appeals of West Virginia said:

"A lessee may abandon the premises notwithstanding there is no forfeiture clause. His failure to pay the cash rentals stipulated in the contract may not alone be sufficient to prove abandonment; but his failure to pay, taken in connection with other facts and circumstances evincing a clear intention to abandon the enterprise, coupled with the fact that no operations were ever begun upon the land, is sufficient to prove relinquishment of lessee's right."

In that case the lessees had drilled no well and had defaulted in the payment of five quarterly rentals; also, they had drilled on the adjoining tract, become insolvent, and gone out of business. All these facts were held to constitute abandonment.

In Phillips v. Hamilton, 17 Wyo. 41, 95 P. 846, the court held that:

"In determining whether one has abandoned his property rights, the intention is a paramount subject of inquiry, as there can be no abandonment without an intention to do so, and where plaintiff leased certain land to defendant for the purpose of boring for oil and gas, operations to be commenced within a year, and operations were begun within that time and the well drilled, and some seven months after drilling the first well the lessee returned to erect another rig and drill another well when plaintiff revoked the lease, there was no intention by the lessee to abandon the lease."

Archer on Oil and Gas, p. 501, says:

"To constitute abandonment by the lessee of a lease for oil and gas purposes there must be both an intention to abandon and an actual relinquishment of the leased premises."

In Fisher v. Crescent Oil Co., 178 S.W. 908, the Court of Civil Appeals of Texas said:

" 'Abandonment' is the relinquishment of a right. If the owner sees proper, he may so abandon and evidence his intention by any act legally sufficient to vest or divest the ownership.Phillips v. Watkins, etc., 90 Tex. 195, 38 S.W. 270-274 (3), 470. The existence of the intent to waive or abandon the right on the land was a question of fact for the court trying the same, and, if the facts would authorize the conclusion that there was no such intention, we would not be warranted in setting aside the judgment. Railway v. Hendricks,49 Tex. Civ. App. 314, 108 S.W. 748, 749; Buffalo Zinc, etc., Co. v. Crump,70 Ark. 525, 69 S.W. 572, 91 Am. St. Rep. 87."

In McMillin v. Titus, 222 Pa. 511, 72 A. 244, the Pennsylvania Supreme Court said:

"Abandonment ordinarily is a question of fact to be determined by the jury under all the circumstances of the case."

It is true that the nonpayment of the rentals under an "unless" lease may well be found to constitute an abandonment, in the absence of circumstances tending to show a contrary intention. If the failure to pay is voluntary, and not caused by some accident, mishap, or mistake, then, under the "unless" lease, the presumption is that the lessee chose that method of surrendering the lease. But, in this case, the evidence shows almost without dispute, and the trial court found, that the original lessees neither intended to abandon the lease on the 80 acres, nor the Cameron and Wilson 240 acres.

At this point, it may be well to observe that every issue of fact, where an issue of fact was joined by the evidence, necessary to sustain the judgment rendered below, has been settled in favor of the defendants in error by the findings of fact of the trial court.

In such circumstances, not finding the findings of fact made by the trial court to be clearly against the weight of the evidence, the court is not at liberty to disturb them.

The only remaining assignment of error which I deem it necessary to notice is stated by counsel in their brief as follows:

"Development which Ruhl expected to be made under the terms of his lease was the real consideration for the contract. Wilson and Cameron held the contract in a speculative venture, without development, and there was therefore no consideration for the contract."

Whether the lease was unfair and inequitable must be determined, in view of the circumstances in which it was given, which will be found quite fully set out elsewhere in this opinion. In my judgment, the consideration for the lease, viz., $1, paid to the lessors and the covenants and agreements of the lessee cannot, in view of the evidence, be said to be unreasonable. An examination of many of the cases and authorities hereinbefore cited will show that similar leases, resting upon like consideration, have been uniformly sustained by courts of the highest respectability.

The lease upon its face discloses a sufficient consideration to support such a contract, and in clear and unambiguous terms declares that it "shall remain in full force for the term of ten years from this date, and as long thereafter as oil or gas, or either of them, is produced therefrom by the party of the second part, his heirs, successors or assigns." The intention of the parties being clear, no good reason appears why their contract should not be given effect in accordance with its terms. The authorities seem to be quite uniform to the effect that a lease for a specified term, "and as long thereafter as oil or gas, or either of them, is produced," is not only a lease for the specified period, but beyond it, provided the lessee finds and produces oil during the period named. McGraw Oil Gas Co. v. Kennedy, 65 W. Va. 595, 64 S.E. 1027, 28 L. R. A. (N. S.) 959; South Penn Oil Co.v. Snodgrass, 71 W. Va. 438, 76 S.E. 961, 43 L. R. A. (N. S.) 848; Brown v. Fowler, 65 Ohio St. 507, 63 N.E. 76; Young v.Forest Oil Co., 194 Pa. 243, 45 A. 121; Chaney v. Ohio I.Oil Co., 32 Ind. App. 193, 69 N.E. 477; Eaton v. Allegany GasCo., 122 N.Y. 416, 25 N.E. 981; Dickey v. Coffeyville Vit. B. T. Co., 69 Kan. 106, 76 P. 398; Lowther Oil Co. v.Guffey, 52 W. Va. 88, 43 S.E. 101; Tucker v. Watts, 25 Ohio Cir. Ct. R. 320; Thornton on Oil Gas, sections 134, 135;Graves v. Gas Co., 83 Iowa, 714, 50 N.W. 283; Whiteman v. GasCo., 139 Pa. 492, 20 A. 1062; Xenia Real Estate Co. v. Macy,147 Ind. 568, 47 N.E. 147.

If there is one thing more than another which would tend to add stability to the oil and gas business, and a sense of security to those entering into oil and gas leases and contracts, it would be strict adherence to the salutary rule that men of full age and competent understanding shall be allowed the utmost liberty of contracting with each other, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice in strict accordance with their plain terms. The statute (section 986, Rev. Laws 1910), as well as the rules of construction, enjoins that:

"A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful."

There are many elements of hazard and uncertainty for the operator, which naturally inhere in the business of exploring for oil and gas in undeveloped territory; but, if the foregoing fundamental rules are strictly observed by the parties to oil and gas contracts and the courts, it seems to me this element of uncertainty would not be carried into the contracts or leases necessary to carry on this important branch of the great oil industry.

From an examination of the entire record, I am convinced that the trial court correctly found the facts, where issues of fact were joined by the evidence, deduced therefrom proper conclusions of law, and, on the whole, decided the case in accordance with right and justice.

I am authorized to state that Mr. Justice THACKER joins me in this dissenting opinion.