#### Fowler *v.*Delaplain.

*Question to witness for opinion*— Incompetent—Oral *permission to occupy land*— Is *a license and revocable, when*— Although *valuable improvements are made by licensee*— Terminated *by*death— *Oil lease*— Does *not permit right of land cttltivation, when.*

1. A question to a witness which calls for his opinion on the precise issue of fact which the jury is sworn to determine from the evidence, is incompetent.

2. Where a landowner orally gives permission to another to occupy and use certain land, but does not grant or attempt to grant any interest in the land, and the landowner ass.umes no obligation on his part with regard to such occupation or use, the possession and use of the land are under a bare license, which is revocable at the pleasure of the licensor; and this will be so, although the licensor has silently acquiesced in the making of valuable improvements and the erection of structures on the land by the licensee.

3. Such a license is terminated by the death of either of the parties.

4. An oil lease which grants to the lessee the exclusive right to mine for and produce petroleum and natural gas from a certain tract of land' and the possession of so much of said land as may be necessary therefor, does not give to the lesgee the right to occupy and use any portion of the land for purposes of cultivation or for residences and conveniences for employes, but confines the occupancy and use of the surface to so much as is strictly necessary for mining and producing purposes.

(No. 10745

Decided January 26, 1909.)

*280Error to the Circuit Court of Monroe county.

The defendant in error commenced an action in the Court of Common Pleas of Monroe county to recover possession of certain real property situate .in that county and for damages for the unlawful detention of the same. The plaintiff in error defended first upon a general denial of the plaintiff's right of possession. Second, he alleged that he was placed in possession of the premises by William A. Delaplain, under whom the defendant in error claims title, and was in possession thereof at the time that the defendant in error became seized of the legal title; that he went into such possession under a contract with William A. Delaplain that the plaintiff in error should have and retain possession of said premises and quietly enjoy the same so long as he was engaged as an employe of the parties who owned the leasehold on the W. A. Delaplain farm, and was operating the same for oil and gas; and he alleged that under such contract he erected buildings upon the said premises and occupied them and that he is still an employe of the parties holding" said leasehold and who are operating the farm for oil and gas. His third defense sets up a lease for oil and gas purposes given by William A. Delaplain and wife to F. L. Mooney on the farm of which the premises claimed in this action constitute a part. The provisions of the lease relied on are as follows: “That the lessor does hereby grant unto the lessee for the term of five years (and so long thereafter as oil or gas is produced from the land leased and royalty or rentals paid b3>" the lessee therefor) *281the exclusive right to mine for and produce petroleum and natural gas from and the possession of so much of four hundred and thirty acres of land in Washington township, Monroe county, Ohio, as may be necessary therefor. Lessee is to have all the rights and privileges necessary for the proper use and enjoyment of this lease.” He further alleged in this third defense that he was placed in possession of the dwelling house on the premises claimed by the defendant in error by the parties holding the lease and operating the farm; that he is an employe of the lessee and that such occupancy and possession was reasonably necessary for the proper, economical and safe operation of the premises for oil and gas under said lease.

The defendant in error demurred to the second and third defenses of the answer and the court of common pleas overruled the demurrer. The defendant in error then filed a reply admitting' the possession of the plaintiff in error at the time of the death of William A. Delaplain; admitting that the plaintiff in error was and is an employe of the parties operating the lease; admitting that the plaintiff in error took possession of the premises during the lifetime of William A. Delaplain; admitting that the title of the defendant in error to said premises came to her by devise from William A. Delaplain; admitting the execution of the lease for oil and gas; and denying all the other allegations of the second and third defenses of the answer. On -the trial a verdict was returned in favor of the plaintiff in error and judgment was rendered on the verdict. A petition in error *282having been filed in the circuit court the said court reversed the judgment of the .court of common pleas for the reason that the court erred in admitting testimony on the part of defendant below over the objection' of the plaintiff below. This proceeding is prosecuted to reverse the judgment of the circuit court and to obtain an affirmance of the judgment of the court of common pleas.

*Messrs. Mallory, Jeffers & Sears,*for plaintiff in error.

Mining for, and the producing of oil and gas, is not an industry, trade or calling that is within the general knowledge of all persons. The jury being unacquainted with the business would not have the same knowledge of the necessity of having buildings on the lánds operated as would persons engaged in the business of operating and producing oil and gas.

The question asked the witness is not one of expert testimony, but is a case, where the primary facts upon which the necessity arises to use a part of the surface of lands operated for oil and gas for buildings, can not be placed before the jury in any other practicable manner and form, other than that pursued in the trial of this case.

We recognize the general rule, that where the jury are as capable as the witnesses, of forming an opinion upon the facts stated, the opinions of witnesses are - not competent; but we claim we are within a well recognized exception to the general rule, and that the evidence was admissible. *Railroad Co.*v. *Schultz,*43 Ohio St., 270.

The lease, as shown by the record in this case, is more than a mere license; it is a lease of the *283land, oil and gas for-a limited time and purpose, with the right of possession to the extent reasonably required for such purpose. *Oil Co.*v. *Crawford,*55 Ohio St., 176.

The instrument grants the oil and gas, and also the land for the purpose of operating thereon for said oil and gas, and it is therefore a lease and not merely a license.

*Messrs. Mats & Kremer; Messrs. Kennon & Kennon*and *Messrs. Winn & Bassett,*for defendant in error.

The third defense of plaintiff in error’s answer is interposed on the theory that the clause “lessee is to have all the rights and privileges necessary for the proper use and enjoyment of this lease,” gives the lessee the right to use the surface of the land for any and all purposes connected' with the operation of the lease for oil and gas and, in particular, that the lessee may use the surface for the purposes of constructing thereon houses for employes.

The real subject of the grant was the-gas and oil, contained in or attainable from the land, or rather the right to take possession of the gas and oil by mining and boring for the same and not the lands or the surface. *Brown*v. *Spilman,*155 U. S., 665, 15 Sup. Ct. Rep., 245.

The expression “lessee is to have all the rights and privileges necessary for the proper use and enjoyment of this lease” certainly meant the privi-lege of building such structures and erecting such fixtures as were necessary to properly develop the *284lease, which would include rights of way to and from the place of operation, erection of derricks, tanks, shackle works, boiler houses, in short, any and all rights necessary in the operation.

Now upon what theory is it necessary in the successful operation of that leasehold for oil and gas, that this employe, known as “pumper” should reside upon the lease? We think it evident that the house for the pumper is erected by the lessee, not as a necessity or even a convenience or benefit to the operation, but rather as a convenience for the pumper.

The plaintiff in error claimed that he had a right, by virtue of the terms of the lease, set out in the third defense, to hold possession of the premises in question because it was necessary in the operation of the lease.

The direct question, therefore, for the jury to answer was whether or not it was necessary in the operation of that lease for oil and gas for the lessee to maintain houses for pumpers upon the lease. This question, the jury should answer from the evidence, and the evidence alone. If the court was right in overruling the demurrer and admitting any evidence under the third defense the court should have admitted such evidence as would put the jury in the light of all the facts. The witness might then have been permitted to testify as to the peculiar methods and manner of operating and the peculiar duties of a pumper and distance away from habitation and the like, and thereby enabled the jury to determine the question at issue. The court had no right to permit the witness to put into the mouths of the jurors, the *285very question that they were to decide. *Railroad Co.*v. *Schultz,*43 Ohio St., 270.

Davis, J.

The trial court, over the objection of the plaintiff, allowed the defendant to propound to several witnesses this question, “What buildings or structures were necessary to be placed upon this lease in order that the same might be properly operated for oil and gas?” The circuit court held that this was prejudicial error; and for that reason reversed the judgment of the court of common pleas and remanded the cause to that court for a new trial. Thus far the proceedings by the circuit court were strictly, correct. The question called upon the witnesses to answer in regard to one of the ultimate facts which it was the province of the jury only to answer; but the jury can not be aided by the opinions of those who are not triers of the facts as to the very issues which the jury is itself sworn to determine from, evidence. Witnesses, if properly qualified, may testify as to facts of such evidential value as would assist the jury in arriving at its cqnclusions upon the determinative questions of the case; but if the vital issues involved in a cause can be decided upon the mere opinions of witnesses, however expert, as has often been remarked, juries might be dispensed with altogether. *Ohio & Indiana Torpedo Co.*v. *Fishburn et al.,*61 Ohio St., 608; *Railroad Co.*v. *Schultz,*43 Ohio St., 270, 282, 283.

However, we think that the circuit court might safely have gone much farther. One of the assignments of error in that court was that the *286court of common pleas erred in overruling the demurrer 'to the second and third defenses*of the defendant’s answer. ■ The defendant’s second defense met the assertion of the plaintiff’s claim of title and right to possession by alleging that the plaintiff acquired title by devise and subject to all the burdens which existed on the property at the death of the testator; and that the defendant was placed in possession of the premises in controversy by the testator, who was also the lessor in the oil lease, under an oral contract that defendant should have and hold possession of the premises so long as he was engaged as an employe of the parties who owned the leasehold and was operating the same for oil and gas; and that the defendant was in possession thereof at the time the plaintiff became seized; and that under this oral agreement and with knowledge on part of the plaintiff’s testator the defendant erected .and has occupied until now, as an employe of the owners of the lease hold, the buildings on the premises in controversy in this action.

The substance and effect of this defense is that the defendant claims to be in lawful possession of the disputed premises under a parol license from the owner to himself and not under the oil lease which was granted to his employers. That which he alleges as a contract is merely a permission, without consideration, to occupy and use the premises for an indefinite time and without the grant of a permanent interest in the land of any kind whatever. It was neither a lease nor an easement; but was merely an oral license to occupy for a temporary purpose. Being a license *287not coupled with an interest in the land it is revocable at any time. As such it was probably revoked by the licensor when he devised the property to the plaintiff below, the defendant having no interest in the land; and certainly it was terminated by the death of the licensor, because, not being an interest running with the land, the permissive right expired with him who gave it (see 2.5 Cyc., 651, n. 61); and it was again revoked by the plaintiff below, the admitted owner of the legal title to the premises.

In some of the states, and heretofore to some extent in this state, equity will not allow an executed license to be revoked. This is upon the ground that a revocation wotild operate as a surprise and fraud upon the licensee. Probably this rule has never been applied unless the license was' connected with an attempted grant of an interest in real estate. But even in jurisdictions where it prevails to its fullest extent, it has been held that a mere naked acquiescence, such as is alleged in this case, in the construction of valuable improvements or the expenditure of money, on the faith of the license, will not render it irrevocable. *Ewing*v. Rhea, *37*Ore., 583; *Kipp & Kendall*v. *Coenen & Bechtell,*55 Iowa, 63. And see *Wilkins*v. *Irvine,*33 Ohio St., 138. In the license which we are now considering the licensor did not undertake to do anything nor to grant any interest in the land, permanent or otherwise. The licensee took the premises by mere sufferance and took possession with the possibility that the license might be revoked at any time; and any expenditures or improvements which he may have made *288under such conditions, he made for his own convenience and at his own risk.

It scarcely needs to be mentioned that if this were an unquestionable case of an executed license, it would come within the recent ruling of this court in *Yeager et al.*v. *Tuning et al., ante.,*121.

In his third defense the defendant claims that he is in possession and entitled thereto as the tenant of the leaseholders, who have “the exclusive right to mine for and produce petroleum and natural gas from and the possession of so much of 430 acres * * * as may be necessary therefor” etc., of which the disputed premises are a part; that it is provided in the lease that the “lessee is to have all the rights and privileges necessary for the proper use and enjoyment of this lease;” and ■that the possession and occupation of the premises held by the defendant as employe and tenant of the lessees under the oil lease are necessary to the proper, economical and safe operation under the oil lease and is one of the rights granted under that lease. The demurrer challenges the sufficiency of this defense and involves a construction of the lease.

The grant in the lease is “the exclusive right to mine for and produce petroleum and natural gas from and *the possession of so much*of 430 acres of land * * * as may be necessary therefor.” The further stipulation that the “lessee is to have all the rights and privileges necessary for the proper use and enjoyment of this lease,” does not seem to enlarge the grant. The separation of the surface rights from the mineral rights is very plain in this instrument. The grant to the lessee *289is exclusive as to the right to mine for and produce from the entire 430 acres, while as to the surface the grant is of only so much as may be necessary “therefor,” that is, so much as may be necessary for “mining and producing” oil and gas. The lease contains no stipulation authorizing the lessee .to sub-let to his employes any of the surface for barns, residences, yards, gardens, pasture lots, etc., as accessory to and convenient for the operation of the lessee’s mining privileges; but the right to the surface is expressly and clearly restricted to so much as may be “necessary” for mining and producing, that is for stationing and operating machinery, tanks, pipes, and the like, with the right of passage to and from the same. The lessee could therefore assume no broader rights than those named; and when he undertook to determine for himself, if he did so undertake, that he and his employes could occupy the land to an indefinite extent for his own convenience, he did so at his own risk and both he and they became trespassers as to the land so taken.

The judgment of the circuit court reversing the judgment of the court of common pleas is affirmed.

The cause will be remanded to the court of common pleas with instructions to sustain the demurrer to the second and third defenses of the answer and for such other proceedings in accord with this opinion as are authorized by law.

*Judgment accordingly.*

Crew, C. J., Summers, Spear, Shauck and Price, J'J., concur.