The Big Sandy news. [volume] (Louisa, Ky.) 1885-1929, 1921-12-16

year TO which II related. The first rem
tai. IL payable in advance. became due
January 26. 1917. II was not tender
ed until January IL 1918, when II vas
accepted. The second upon such con-
Struction became due January 2e, 1918.
II was not rendered until January 10,
1919. when II was accepted. In further
recognition Of the fact that such was
the true construction OF the clause
plaintiffs gave defendant a written no.
tice November 90 1919. 10 commence
actual drilling by January 26, 1879.
This was not an offer Of . new lease
II actual drilling YES commenced by
that date, but a recognition OF the fact
that the rental was not payable in adj
vance and hence that the lease was
still in force. Notwithstanding the rem
tai had not been paid In advance Jan.
uary rs, 1919. for the following year
and a claim Of right to hasten de-
velOpment sooner than the terms OF
the lease required In view of this
conduct IL was not open TO plaintiffs 10
claim that the rental for the year COM
mencing January 26. 1920, was payable
in advance and all that was sufficient
fer defendant to keep the lease alive
% that year was for II 10 tender or
pay the rental for the year ending that
date before It's termination just as II
hEd done tho two preceding years.
This II did. Just before II rendered 10
plaintiffs the rental for that year jan
uaEy 10, 1920. which was then refused.
Such was 70 be taken as true inter-
probation of the contract. at least un-
III plaintiffs notified Defendants of
change in position. This they never
did. Notice TO develop did not amount
70 such notification. Nor did the re-
fusai of the tender OF January Is, 1890,
Therefore the refusal was tho notice
10 develop Thereby plaintiffs were
standing by their position that they
sad a Fight TO development.
Second: The failure TO comply with
plaintiffs requirements 10 begin de-
velopment by January IS, 1890 The
answer 10 this is that plaintiffs had no
right 10 make such requirement. This
have already held IN the Lyon case
Furthermore, the defendant complied
with the requirement as soon as II
rasonably could. The plaintiff Roscoe
Miller testified that defendant through
: president told him in November,
., !. e. after November 20. isfs,when
the notice was given and before De-
cember /. that II was going 10 come
right In and drill we'll II got some
of Its material on the premises before
January rs. 1920, began drilling Feb
ruary 2, 1920. and completed the well
March 10. 1920. There 10 no room TO
claim that defendant could reasonably
have begun drilling sooner than Il as-
tually did.
II what ! have said Is not sufficient
to dispose OF the two grounds relied
on by plaintiffs. which have thus FAR
considered they are disposed OF by n
single other consideration. That is
plaintiffs behavior In relation to the
drilling OF the two wells. they made no
objection whatever thereto but by their
action showed that they thought that
the requirement OF their notice had
been substantially complied with and
that they were satisfied with such
compliance. There would seem to be
no doubt that II II had not been for
what happened after the drilling OF the
4ecnnd we'll and before the bringing OF
he suit, which constitutes another
3und for the relief sought. yet to be
considered, no suit would have ever
been brought
Thlrd:-After the drilling Of the sec
ond well, defendant removed it's drill
ing machine to the Holbrook lease
owned by defendant. This Il did 10
Iset a well drilled by the Pilgrim
oil Co., represented by the plaintiff
Atkins on the Cynthia Rice lease into
itch defendant was informed and be-
eyed that that company had allowed
sresh water to get in which would be
IA FTrfui TO the Holbrook lease IL is
sireauously denied on behalf OF plain
2; that fresh water had been allowed
TO get into this Rice well. Whether
such was actually the case Is unim-
portant There can be no question
that defendant sincerely believed that
such was the case. II brought suit TO
recover $4,000 damages because there
= and possibly that suit was brought
aefore this one and was the occasion
Is bringing. The defendants pres
dent and superintendent testified that
he superintendent OF the Pilgrim OIL
Co. told them that he had left the well
wet. That superintendent testified
that they did not remember what he
did say, but that II he said anything
on the subject that IL was that he fear
ed they would get little water and
stopped before they got In IL. This re-
lloval of the machine was not an
2. "a pdnpmanf NJ the laa M in una1finn