Double v. Union Heat & Light Co. , 37 W.N.C. 389 ( 1896 )

Opinion by

Mr. Justice Green,

The definite term of the lease in question ended by its own limitation on May 4,1893, being two years from its date, May 4, 1891. After that the lease was to continue, “ as much longer as oil and gas is found in paying quantities therein.” No oil was found but gas was found in paying quantities, and then the rental clause became operative, to wit, “ and should any well produce gas in sufficient quantities to justify marketing, the lessor shall be paid at the rate of two hundred dollars per year for such well so long as the gas therefrom is sold.” The defendant having purchased the original lease 'and taken possession of the premises and well on December 19, 1892, operated the well after that time and marketed and sold the gas produced until June 1, 1893, when they disconnected the line, ceased to produce gas and so notified the plaintiff. The defendant offered to pay $88.89 to the plaintiff, being all that they admitted to be due up to the time they ceased to operate the well. This was declined by the plaintiff who claimed that as the defendant had entered upon the third year of the lease, and had not terminated the lease by any notice to that effect, and had not surrendered or offered to surrender the lease or the possession of the premises, they were liable to pay for another j'ear or at least until the lease was terminated by the act of the defendant, and a surrender of the lease and the premises had taken place. The learned court below instructed the jury in accordance with this view of the case, and as we think correctly. In our judgment the case is controlled by our decision in Nesbit v. Godfrey, 155 Pa. 251. There the lease was for oil and gas purposes and was for a definite term of twenty-one years, “and so long thereafter as oil or gas shall continue to be found therein in paying quantities.” By another clause of the lease the lessee was empowered to terminate the lease in the following words: “It is hereby agreed that at any time the said Godfrey and Clark find it will not pay them to continue this lease they are hereby empowered to declare the same null and void and to be immediately released from any and all responsibilities herein.” The lease was dated on June 12, 1890, and was fixed at a rental of $75.00 per year payable in advance. On June 12,1891, the lessees notified the lessor that they elected to terminate the lease. The plaintiff claimed that the first year had expired when the notice was given and that the defendants had entered upon the second year and therefore she was entitled to another full year’s rent. The court below gave judgment in her favor and we sustained the judgment on the opinion of the court below. The court below said in their opinion, “ The question is whether or not on June 12,1891, the defendants had entered upon their second year under the lease. We think the case is ruled by the cases of Lysle v. Williams, 15 S. & R. 136, and Marys v. Anderson, 24 Pa. 272. There is no substantial difference between the expressions used here and in those cases. The words are used not merely by way of computation, but a present interest is to commence from the date.” There is no such narrow question of time in this case and the decision is cited for the proposition that if a tenant wishes to avail himself of a privilege which he possesses of terminating the lease by his own act, he must do it before he has entered upon another year of his term. In this case the tenant having the right to terminate the lease by a notice to that effect gave no such notice until several mouths had elapsed after the production of gas was stopped, and nearly a year had elapsed after they took possession and began to operate the well. The appellant’s contention that the mere cessation of the use of the gas from the well terminated the lease of its own force and relieved the defendant from any further duty to the plaintiff, is entirely untenable. If the defendant desired to be relieved from the obligation of the lease, and the contingency had arrived when they could claim the benefit of such release, it was their plain duty to notify the plaintiff that the well had ceased producing gas in paying quantities, and that therefore they terminated the lease and surrendered it. Not having done so the lessor would have no knowledge of their intention, he could not re-enter upon the premises to determine the truth of their assertion as to the cessation of the gas, or to relet it to another tenant. He was certainly entitled to notice of the termination of the contract relation so that he might resume his rights and protect his interests. Instead of that the lessee continued in possession, never surrendered the lease or offered to do so, and remained in full possession up to the time of the trial. The assignments of error are not sustained.

Judgment affirmed.