#### Stauffacher v. Cook.

June 16, 1942.

Charles E. Whittle for appellant.

V. R. Logan for appellee.

Opinion op the Court by

Judge Cammack

— Reversing.

Alex Cook instituted this proceeding against Clint Whittle and the owners of an oil and gas lease on a small tract of land to which he asserted ownership. He asked that he be made a party to a proceeding instituted by Whittle against the owners of the lease in order that he might assert his ownership therein and he asked also that the lease be cancelled. Cook alleged, among other things, that the lease had been forfeited, presumably by failure to develop it properly. Early in May, 1937, the *362appellant, I. M. Stauffacfier, filed a pleading entitled “Motion to be made party, General Demurrer and Cross Petition and Answer of I. M. Stauffacfier.” After asserting tfiat fie was a joint owner, Stauffacfier set forth tfiat the owners of tfie lease had entered upon tfie premises in question and drilled a producing well; tfiat by virtue of an agreement between tfie leaseholders and property owners, royalties were paid in money in lieu of in oil as provided in tfie lease; and .that on tfieday of-, 1937, Cook entered upon tfie lease without tfie knowledge and consent of its owners and cut loose tfie pump from tfie well and placed a lock thereon and locked tfie gates leading to it so as to prevent tfie owners from operating tfie well. Cook filed no response to Stauffacfier’s pleading.

Only tfie depositions of Mr. and Mrs. Cook were taken. They were not cross-examined. They said tfiat, after tfie execution of tfie lease in 1932, and their purchase of tfie property covered by it in 1933, tfie royalties were paid to them in money. Their depositions indicated tfiat there had been some differences between them and tfie owners of tfie lease as to tfie payment of tfie royalties and tfie manner in which tfie lease was to be operated, but it is apparent from their statements tfiat there had been no abandonment of tfie lease. Cook said tfiat fie did not think tfie well had been pumped as it should have been to get tfie greatest amount of production from it. He said, however, tfiat 'Clint Whittle had been pumping it for tfie operators “lately,” and ever since fie and Mrs. Cook had owned tfie property.

In asking tfiat tfie judgment be reversed Stauffacfier insists tfiat there is nothing in tfie pleadings or proof upon which tfie judgment cancelling tfie lease can be sustained. We are of tfie same opinion. There was no responsive plea to IStauffacfier’s answer, and, as we have indicated, tfie depositions of tfie Cooks showed tfiat tfie well was being operated. There is no denial of tfie assertion tfiat tfie pumping stopped because Cook locked tfie well and tfie gates leading thereto. As said in Martin v. Graf, 289 Ky. 272, 158 S. W. (2d) 637, tfie discretion of tfie operator in tfie managing and operating of a lease is entitled to considerable weight, though it is not conclusive. In tfie case before us the lease was being operated by Whittle’s pumping of tfie well for tfie owners and some royalties were being turned over to and *363accepted by the Cooks. Cook’s mere statement that the well was not being pnmped regularly, or as it should have been to get the greatest amount of production, does not, in our opinion, constitute a basis for the cancellation of the lease.

Judgment reversed with directions that it be set aside and for the entry of a judgment in conformity with this opinion.