CHARLESTON.

#### Snodgrass *v.*South Penn Oil Co.

Submitted January 27, 1900

Decided March 24, 1900.

Oil *Leases*— Construction.

Where a party leases a tract of land for the purpose of mining and operating for oil and gas, the. lessee contracting to deliver to the credit, of the lessor one-eighth of the oil produced, and saved from the premises, and to *-pay*two hundred dollars per year for the gas from each well drilled, and the lease also contains the following provision: “Provided, however, that this lease shall become null and void, and all rights thereunder shall cease and determine, unless a well shall he completed on the premises within one year from the date hereof, or unless the lessee shall pay at the rate of three hundred and fifty dollars quarterly in advance for each additional three months snoh completion is delayed from the time above mentioned ' for the completion of such well until a well is completed. *Held,*that this provision did not bind the lessee to pay any rent for the land, or for delay in commencing to operate for oil and gas, and, in the absence of some other oíanse binding the lessee to pay for such rent or delay, an action of *assumpsit*could not be maintained on such lease for failing to pay such rent, or for such delay, (p. 572.)

Error to Circuit Court, Braxton County.

Action by C. N. Snodgrass against the South Penn Oil Company. Judgment for defendant, and plaintiff brings error.

*Affirmed.*

John B. Morrison, for plaintiff in error.

A. B. Fleming and U. N. Arnett, Jr., for defendant in error.

English, Judge:

C. N. Snodgrass and wife entered into an agreement with the South Penn Oil Companj? whereby they leased to said companji, for the purpose of operating for gas and oil, *510mining, laying pipe linen, building- tanks, etc., a certain tract of land situated partly in Gilmer and partly in Brax-ton Counties, of three thousand five hundred acres, more or -less, with certain' reservations. This tract was described in said agreement, which contained the following clause: “Provided, however, that this lease shall become null and void, and all rig-hts thereunder shall cease and determine, unless a well shall be completed on the premises within one year from the date, hereof (July 18, 1896), or unless the lessee shall pay at the rate of three hundred and fifty dollars quarterly in advance for each additional three months such completion is delayed from the time above mentioned for the completion of such well, until a well is completed.” No well having been commenced or completed on said tract of land on the 1st of September, 1898, said Snodgrass brought an action of trespass on the case in *asssnnvpsii*upon said agreement or lease, setting forth the terms or conditions of the lease, and, among other things, that by the writing aforesaid the defendant agreed and promised the plaintiff *to complete*a well *on*said *premises*within one year from the date thereof, and, in case of failure to so complete such well within one year, to pa}? to plaintiff a rental of three hundred and fifty dollars quarterly in advance, to wit, three hundred and fifty dollars for each three months, and to continue to do so until such well should be completed, etc., and that by the terms of said contract there was due from said defendant to the plaintiff on account of said sums to be so paid quarterly in advance the sum of one thousand four hundred dollars, and claiming damage to the amount of one thousand nine hundred and fifty dollars. On November 28,1898, the defendant craved oyer of the writing obligatory in the declaration mentioned, and filed a general demurrer to the plaintiff’s declaration, in which demurrer the plaintiff joined. Subsequently, the plaintiff was permitted *to*amend his declaration by writing the following words therein: “And did not surrender or offer to surrender the said lease to the plaintiff for cancellation, but still holds and retains the same.” The court, having fully considered the demurrer of the defendant to the declaration of the plaintiff, sustained the same, and dismissed the plaintiff’s action with *511costs, and from this judgment the plaintiff obtained this writ of error-.

It is claimed that the court erred in sustaining- said demurrer and dismissing said action, ity craving oj'er of the obligation sued on, the same was made a part of the declaration ,and the question raised and presented for consideration by the demurrer is whether the agreement upon which this action is predicated contains any contract ox-promise, either express or implied, for the payment of money by the defendant to the plaintiff. Although the agreement contains the provision above quoted, yet that clause merely provides a means bv which a forfeiture of the lease may be avoided. The agreement contains no contract or promise to pay anything whatever for the delay in the completion of a well, and yet the declaration claims that, by the terms of the contract, there is due from the defendant to the plaintiff on account of the sums to be paid quarterly in advance the sum of one thousand four hundred dollars. The question in this case is not whether the defendant has forfeited the lease, but whether it is pe-cuniarilj- liable to the plaintiff for failing to make certain payments to the plaintiff wherebjr such forfeiture could have been avoided. Counsel for the plaintiff relies on the case of *Roberts*v. Bettman, 45 W. Va. 143, (30 S. E. 95), but that case was materially different from this. There the leases sued on contained the following clause: “It is agreed that the party of the second part shall pay to the party of the first part one hundred dollars per month, in advance, until a well is completed, from the date of this lease, and a failure to complete such well or to pav said rental when due or within ten da3>-s thereafter shall render this lease null and void,” etc. There was an express promise to pa}1- one hundred' dollars per month in advance until a well was completed, but in the agreement sued on in the case under consideration there was no such promise or contract. Counsel for plaintiff in error claims that the lease continued unless it had been surrendered by the defendant, but, even if that be true, it would work no benefit to the plaintiff in error, for the reason that there was no contract on the defendant’s part to pav anj^thing as rent or compensation for delay in commencing operations. In *512the case of *Glasgow*v. *Gas Co.,*152 Pa. St. 48, 25 Atl. 232 ■ — an action of *assumfsil*to recover rent or royalties on an oil lease, — the lease sued on contained this proviso: “Provided, however, that this lease shall become null and void, and all rights hereunder shall cease and determine, unless a well shall be completed on the premises within one month from the date hereof, or unless the lessee shall pay at the rate of one hundred dollars monthly in advance for each additional month.” It was held that the lease contained no covenant on the part of the lessee to pay rent or develop the land. The only penalty imposed on him for failure to operate the land or pay one hundred dollars per month for delay was a forfeiture of his rights under the agreement. The agreement in that case appears tó ’ have been almost identical with that in the case we are considering. The construction placed upon said clause in the agreement, and the conclusion reached by the Pennsylvania court as to the consequences resulting from a failure to pay the one hundred dollars monthly in advance, seem to be reasonable and right, and they accord with my views on the proper construction of the agreement declared on in the case at bar. In the absence of any contract or promise on the part of the defendant to pay rent for failure to commence operations, I conclude that, under this agreement, the only consequence that would result from such, failure would be a forfeiture of the lease, and that the court committed no error in sustaining the demurrer to the plaintiff’s declara-ion.

*A firmed.*