Wagner v. Sunray Mid-Continent Oil Co. , 182 Kan. 81 ( 1957 )

Fatzer, J.

(concurring): I fully concur in the majority opinion, but wish to add that in my judgment the defendants may not here contend the plaintiffs, as owners of the reversionary interest, are not entitled to terminate the term mineral interests because Darby failed to notify them of its intention to abandon the well, or that Darby wrongfully abandoned the well when it was capable of producing oil in commercial quantities. Under the record, the contention presents no justiciable issue for appellate review since the defendants did not plead or prove the asserted wrongful acts of the third party operator lessee.

Generally speaking, the rule announced in Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899, requires the grantees of minerals in place for a fixed primary term and as long thereafter as oil is produced in paying quantities, or words of similar import, following the cessation of production after the expiration of the primary term, to move promptly and by their efforts establish that the cessation, regardless of its cause, is temporary, not permanent. However, such a conveyance does not contemplate that the failure of a lessee to produce oil in paying quantities works a defeasance ipso facto of the term mineral interest, because the cessation of production may result from the wrongful or fraudulent acts of the operator lessee in operating or abandoning the property over which the grantees had no control, in which event a defeasance of their rights might not necessarily occur.

Following the cessation of production, which all concede occurred September 30, 1953, the defendants did not protect their rights in the property’ although they were charged with knowledge of what was going on. When they ceased to receive royalty payments they were required to ascertain the reason, and to assert their rights promptly and act within a reasonable time (Wilson v. Holm, supra), but they did nothing. They here attempt to excuse their failure to act promptly by pointing their finger toward the asserted wrongful acts of the operator lessee in failing to notify them of its intention to abandon the well, and of abandoning it when capable of producing oil in paying quantities. That is an afiirmative defense which must be specifically pleaded and proved. Since that was not specifically pleaded and proved, nothing is presented for appellate review.