Henderson v. Ferrell , 183 Pa. 547 ( 1898 )

Opinion by

Me. Justice McCollum,

On February 4, 1896, Albert Behling, being’ then the owner of the land in suit, leased the same to Alexander Adams “ for the purpose and with the exclusive right of drilling and operating for petroleum and gas.” By the terms of the lease the lessee was required to commence operations on the premises within thirty days from the date thereof, and on his failure to do so the lease was to be considered by the parties as “null and void.” On February 24, 1896, Adams assigned a half interest in the lease to Henderson. Nothing was done on the premises by the lessees or by their direction, until the 5th of March, that being tlie last day of tlie period allowed by the lease within which to commence operations. On that day Henderson drove a stake near the center of the lot to indicate the location of the proposed well and the point at which the lumber required in the performance of the work called for by the lease should be deposited. In the afternoon of the same day, and while an employee of the lessees was unloading some lumber upon the lot in accordance with their instructions, he was met by the lessor who denied that they had any right to put it there. The ground of the denial was that the time allowed for the commencement of operations expired in the forenoon of that day. The lessor was accompanied by a number of persons who appeared to be in accord with his manifest purpose to prevent the unloading of the lumber upon the lot, or tlie occupancy of it by the lessees or their workmen. The lessor’s insistence that the lumber should not be deposited on the lot resulted in the unloading of the balance of it by the roadside, and in his removal from the lot of the lumber unloaded there. It may be stated in this connection that the stake driven by Henderson as above described had been taken up and carried away by the lessor or some member of his family before any lumber was unloaded upon the lot, and that the lessees were not present when the stake or lumber was removed, or when tlioir employee was forbidden to deposit the lumber where they had directed him to.

The lessees had a clear right to enter and commence operations upon the lot on March 5, and if thejr did so in good faith, and with a purpose to continue the work in accordance with the provisions of the lease, the resistance of the lessor to their occupancy of the lot furnished no warrant for a forfeiture of the lease. This was the view that was taken of the lessor’s action by the learned court below, and which the lessor contests on this appeal.

As the entry of the lessees upon the lot was before the time allowed for the commencement of operations under the lease had expired, it was prima facie at least a lawful entry, and the lessor’s action was apparently an unlawful interference with it. It would seem therefore, that the burden was on him to show conduct on their part which justified his action. But the lessees did not rest their suit for the possession of the lot on a bare presumption. They alleged, and introduced evidence to prove, that their entry was made in good faith, and with a determination-on their part to prosecute with due diligence the work they were authorized by the lease to do. The evidence submitted by them showed the obstructions in the way of an earlier commencement of operations, and the efforts they made to secure the materials, machinery and labor necessary to the proper performance of the work. It also showed that when they commenced operations on the lot they intended and were prepared to continue them, and that their failure to do so was caused by the refusal of the lessor to allow them to proceed. It is true that the defendants introduced evidence inconsistent with and tending to discredit the evidence to which we have referred. But this would not have justified a peremptory instruction from the court to the jury to find for the defendants. Certainly the court could not say that the lessees had forfeited their right under the lease to enter and commence operations upon the lot when they did, or that their entry was a mere bluff, and that they did not intend to comply with the provisions of the lease. Whether they commenced operations in good faith, and whether they intended to proceed with due diligence, were questions for the jury, and so was the question whether their failure to continue them was caused by the action of the lessor. These questions were submitted to the jury in a clear and impartial charge, and the result was a verdict based on a finding of facts in accord with the lessee’s contention. In other words, it is established by a v.erdict authorized by the evidence, that the lessees entered and commenced operations upon the' lot in good faith, and that they were prevented from continuing them by the unlawful interference of their lessor.

The defendants claim under a lease from Behling to Adam A. Welsh, dated March 26, 1896. Welsh saw and examined the Adams’ lease before he closed his contract with Behling and, according to the testimony of the latter was told by him about the occurrences on March 5, and that he would have to be responsible for the lease Adams had. On April 24, Welsh sold and assigned his interest in the lease of March 26 to' Gillmor, who on the same day assigned a half interest in it to the Forest Oil Co. The defendants therefore have as against the plaintiffs the rights'which Welsh acquired by his lease and nothing more.

We discover no error in tbe rulings complained of in the first and second assignments, or in the excerpts from the chai’ge on which the third, fourth and fifth assignments were based, nor do we think that the defendants have any cause to complain of the answers to their second and fourth points.

We are clearly of the opinion that upon the facts established by the verdict the action of ejectment is maintainable.

The assignments are overruled and the judgment is affirmed.