Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1890-06-25
VERY IMPORTANT.
lcontlm.ed from Fourth Page. |

The case of Bowyer V. Seymour, 10 W.
Va, T., is urged upon us a decision in
favor of Hukill. The lease in that case
was made for coal mining and provided
that failure 10 pay money, which it stipu-
lated was TO be paid for coal, could be con-
sidered as an Abandonment of the lease, and
il was held that Notwithstanding non-pay-
ment of such money, the lessor must make
a demand for the rent and re entry to make
the forfeiture complete. But there
is marked line of dis
tinction between that case and this in the
fact that, as Judge Raymond says,
that was "A lease in fee, or at least for life,
and under the original common law rule
above given a freehold estate could not be
forfeited for breach of Il condition without
demand and re-entry; whereas, the lease
in this case is a lease for years, which, UNI
der said rule. does not require re-entry.
Anything said in that case as TO lease for
years would be Obucr.
Il think that case was decided correctly.
The reasons given above are sufficient,
/ think, to show that the Hays lease is for
feited, and renders Il unnecessary forus TO
pass on the question discussed in argument
as 10 the effect of lease for years for the
purpose Of producing Oh or gas, containing
provisions for its forfeiture or breach OF
condition and Il clause for re-entry, or to
say whether we would approve the decision
Of the Supreme Court of Pennsylvania IN
Brown V. Vandergrift, so Pa, l42, so con
fidcntly relied on by appellee. e
Il that case was correctly stated, it follows
fortiori, that our decisior'upon this lease,
having no clause of re-entry, IS
correct In Monroe V. Armstrong,
10 Pa. st. 307, the opinion says: What is
there in the circumstances calling for tic-
tiOn 10 defeat the covenant against delay IN
searching for or producing oil. The SUB
ject of the lease was fluid likely TO How
for considerable distance through GREY
ices and loose sand where 1t Is found. a
small tract of land could be nearly or en-
tirely drained by wells on adjoining lands,
and il is common that leases contain cove
nantS for diligent operation and forfeiture
in case of suspension. An oil lease yields
nothing 10 the landowner when not
worked, and is an encumbrance on his
land. tving his hands against selling or
leasing TO others: but when idle il costs the
lessee nothing and is valuable, or may
prove so. if he can hold il awaiting devel-
opments in the vicinity These cases draw
q distinction between oil leases and leases
of other kinds.
The payment of the rent or cOmmuta-
tion-money TO Wise and his consent tc
Hukill's taking possession under the Hays
lease could have no effect 10 waive the for
fixture, because said payment and taking
possession occurred after the execution by
Wise TO Calvert of the second lease, which
operated as declaration of forfeiture, and
10 divest all estate under the Hays lease
and invest il in Calvert; and the aftcr-act
of payment did not destroy Calvert's rights
Ii is said that the lease of the plaintiff is
itself forfeited because Of non-payment
and failure to bore for oil within the time
specified in il; but that lease is dated July
ii. lSSS. and provides for boring well
within six months, and on failure, the
payment of 20 cents per acre payable with
in six months from the time of completing
such well. \ tender of $50
was made July TO- again on
July II. 1889. and refused by him, and Il
tender of Sl5 was made January 10, 1890,
and refused. The only acts of disaffirma-
ton by Wise were OF such refusal and as
sent to the entry under the Hayes lease,
though IL might show that the plaintiffs
had no title on which TO maintain their ac-
ton: but there was no forfeiture, as the
tender saved 10.
The contention that chapter % of the
Code provides the only means of enforcing
a forfeiture for nOn-payment of rent or
breach Of condition is not tenable, in my
opinion | think the action of electment
therein provided for is remedial, and a
cumulative remedy 10 dispense with de
mand and re-eutery, and that il does not de
stroy the common law mode of demand and
re-entrv. But. however that may be, 1t APP
niles only when is necessity 10 make de
mand and re-entry; and in this case Tor
reasons given. there was no duty on the
lessor TO re-enter
Il think the action of unlawful entry lies.
10 is true il is designed TO protect the ac-
I tual possession. IL applies when tenant
holds over after his right has expired. Al
ter a declaration of forfeiture by Wise, ne
could have maintained an action against
/ Hukill. because he would have held after
his right had expired and he having let 10
l Calvert. the right TO possession for OIL pur-
poses. / do not see why the order does not
| lie for the plaintiff. IL seems hardly ne
cessarv to saw that the contention that
plaintiffs are cstOpped by standing by and
sect. Hukill spend money in developing
oil without setting up claim. is not good
/ Hukiu began operations early in May
| lSSq. and il is admitted that on July ., Me
| Gufey and Murphy sent him formal no
tice in writing that they had the sole right
10 drill for oil under their lease, telling hin
the very page and book where he could hn(
il on record aud warning him not TO drill
Z
The evidence offered by defendant Of
the amount of money expended by him il
developing oil. was properly rejected, a
the question was one of right between thu
parties under their respective claims, ant
the proposed evidence was irrelevant.
AS TO the complaint that plaintiffs were
allowed to give evidence that when they
acquired their right, they had no notice o
defendants claim, | think it immaterial
If the HAYS lease had become forfeited
there was no right under it of which the!
could have notice.
LAS TO the exclusion as evidence of th'
deed of Nav Il. 1889. from Wise TO Hukill
conveying absolutely all the oil and ga
under said tract. it could not affect thu
right of plaintiffs under the Reger-Calver
lease. made and recorded long before it,
date. and was irrelevant to the case. l an
of the opinion that the evidence sustained
the plaintiffs case. and that the Court be
low properly refused to exclude this evl
dence and rendered Judgment for them.
| "Judgment affirmed