Belmont chronicle. [volume] (St. Clairsville, Ohio) 1855-1973, 1890-12-25
INTERESTING OIL SUIT
AGAINST JOHN M'KEowN, THE MILLION
ARE OIL KING, WHO WINS AN IN


AGAINST JOHN M'KEowN, THE MILLION
ARE OIL KING, WHO WINS AN IN
MING IN THE CIRCUIT COURT.
The Circuit Court reversed the judg
ment of Common Pleas in the case OF
JOS. H. Denham VS.. John McKeown.-
About May, 1889, Denham leased hi:
farm near Glencoe, to John McKeown, tC
bore for oil or gas, and gave to lessee:
one-eighth of the oil, and so much fol
each gas well per annum if oil and gas
were found. A well was to be started
within seventy days of the date of the
lease. or the lease was to become null and
void as to both parties. At the end ol
seventy days no well was started. and
Denham, for S25000 paid by Mckeown
renewed the lease for seventy days. Al
the end of the 20 days no well was started
and Denham signed an agreement to ex
tend time for commencing operation till
an oil or gas well was started, Mckeown
to pay ten dollars day for the privilege
McKeown was then putting down an OF
well on the Sutton farm within one hun
dred and fifty yards of the Denham farm
This well was completed in October
1889, and turned out dry well. Nc
Keown then left the field, and having
paid Denham fonr days rental and grad
ed the ground for starting a we'll, re-
fused to start a we'll or pay the ten dol
lars day. In April, 1890, Denham sued
McKeown, for 1880 rental, due on the
agreement. McKeown answered that
there was neither oil nor gas under the
premises, and that he had commenced
operations, for oil and gas.
The case was closely contested in the
Court of Common Pleas by Messrs. n
X. Kennon and Hon. L. Danford, cOun-
sci for plaintiffs, and Messrs. - Irwin
Washington, Pa, J. G. Tallman, Bellaire
and George Duncan, Bridgeport, counsel
for defendant Judge briggs refused to
charge the jury as requested by Nc
Keown's attorneys, that if there was nei-
ther oil nor gas under the premises, in
paying quantities, plaintiff could not re-
cover and in effect that the privilege was
sufficient consideration for the payment
of the ten dollars day. The trial re-
suited in a verdict and judgment for
Denham for S212p McKeown took eX-
ceptions to refusal to charge, and we give
below synopsis of opinion of the Cir
cult Court, rendered by Judge Laubie, in
reversing the Court of Common Pleas:
That the extension of the lease was a
mere proposition on the part of the Den
hams that the lease might be kept alive
by McKeOwn paying $40 per day un-
til he started well on the premises
that McKeowu did not, in that extension,
expressly promise or agree to start well
or pay the SO per day, and while he
could, by paying the $40, keep alive the
privilege originally granted in the lease
for so long time as he paid, yet when
he ceased to pay, that put an end to and
determined the lease, and according to
its terms, when it cased to be of force or
effect, neither party was to have any
right of action against the other; and
hence plaintiffs could not recover. But
whether that proposition is correct or
not, it is plain that the Court below err
ed in not giving to the jury the instruct
ion asked by Mckeown's counsel to the
effect that if the jury should find from
the evidence that there was neither oil
nor gas on the land, the plaintiffs could
not recover. This instruction should
have been given, as the $40 per day
to be paid, was simply in consideration
of retaining the privilege of testing the
land for oil or gas, and if it were shown
that neither oil nor gas was on or in the
land, it would be oCorthIess privilege
for which the party could not be com
PEELED to pay In such event it would be
of no benefit to either party to make the
test, and not making it therefore ought
to produce no legal injury to either. In
this respect the case cannot be disguish-
ed from Cook VS.. Andrews, SO Ohio State
Reports ia, and Fire Brick Co. VS.. Pond,
3S o. S. 65. And on the authority of these
cases the judgment of the Court below
is reversed and cause relnanded for re-
trial.