Marietta daily leader. (Marietta, Ohio) 1895-1906, 1900-01-10

was written by Justice Mitchell, and in
it he says:
This is bill in equity by lessor
against lessee for specific covenants.
or in the alternative for forfeiture OF
lease and also for an account AS the
covenants are merely implied and their
extent depends altogether on oral evil
dence OF opinions, the case for relief
is wholly wanting in that precision
and certainty Of contractural duty
which is necessary to sustain the ordi-
nary chancery decree for specific per-
formance
There is no relation of special trust
or confidence between the lessor and
lessee in gas or oil leases any more
than in any other. Like all other con-
tracing parties, they deal at arms
length, each for his own interest. So
long as the question is one of business
Judgment and mana cement, The lessee
Is not bound 10 work unproita'bly to
himself for the profit of the lessor, and
the parties must be left, as in other
cases, to their own ways. 1t is only
when a manfestly fraudulent use of
opportunities and control is shown,
chat the courts are authorized to in
terfere.
"As already said. defendants con-
tract obligation was to sink one we'll.
It has sunk FIVE One of these, known
as Colgan No. 5, it was desirable in
defendants judgment to locate near
the line Of another lessor, Caldwell.
Defendant accordingly consulted both
plaintiff and Caldwell, who both agreed
to the location chosen. with notice
from defendant to plaintiff that If It
proved paying well, plaintiff would
in justice to Caldwell, put down an
other on CaldwelPs side of the line as
an Offset. This was done. The well
on plaintiffs side of the line proved
fair producer, though 1t declined after
few weeks, and the other well was
then sunk on Caldwell's side and prov
ed about an equal producer. This sec
ond well, known as Caldwell No. 4, Is
the chief object of plaintiffs complaint
and request for an account.
at is quite apparent, as the learned
Judge reports, that each Of these wells
draws its supply partly from the 9TH
er's territory. but this was forseen and
an express agreement made as to the
location OF the first one, and the neces-
5ity Of the second as an Offset The
plaintiffs bill, therefore, on this
branch, is concluslvely met by his own
agreement beforehand to the conduct
he now complains of. In cases of this
kind, arising from conflicting claims
as to the territory from which the sup
ply of any particular we'll is drawn, it
is only when the wells on adjoining
territory are being fraudulently used
TO drain the complainant's land that
courts have any occasion to interfere
The practical test is to be found in the
question Of the outside wells, as for eX-
ample the Caldwell draining the Col
gan to such an extent that if the form
er were operated by a third party the
defendant as lessee of the latter would
find it good management to put down
another well to save its own leased
territory from exhaustion.
IF so. then good faith to its lessor
would require it to put down the addl-
tional well, that the lessor might get
his proper royalty But if not. the
latter has no cause for complaint.
ION the other branch of the case the
Court below found that the western
half CT the farm would furnish at least
one paying well and decreed chat a
well should be put down by the ap-
pellanS. There is fortunately no evil
dence whatever to support this finding.
Not a single witness says so. All that
the plaintiff showed was that there
are several wells on farms adjoining
the west half which are producing OIL
How much was not shown, nor wheth-
nor any Of them had paid for its cost.
Nor is the lessee bound in case of
difference of judgment to surrender his
lease, even pro tanto, and allow the
lessor to experiment. Lessees who
have bound themselves by covenant
to develop tract, and have entered
and produced oil. have a vested estate
in the land which cannot be taken
away by mere difference Of judgment
1t is not within the jurisdiction of any
court to oust the owner and forfeit the
title to estates in that way, and the
jurisdiction of equity to decree any
specific act or declare forfeiture de-
pends on fraud ayerred and fully PROV
ed
. One Hundred Years Apo.