Patterson v. Hausbeck ( 1898 )

Opinion by

Smith, J.,

The plaintiff became entitled to leasehold rights in certain lands of the defendant, for the purpose ot' drilling and operating for oil, gas and water. In accordance with the terms of the lease under which he held, the plaintiff proceeded- to test the land for oil and gas, and paid the stipulated price for this privilege for three months, commencing January 8, 1894. The tests made proving unsatisfactory, the plaintiff abandoned the work, closed the well, and ceased operations. Under the provisions of the lease he had “ the right to remove all of his property at any time.” In pursuance of this reserved right, within the term of the lease, he attempted to remove from the premises certain property owned by him, which had been used in his operations. This property consisted wholly of trade fixtures, which the plaintiff had brought to the premises, and which might conveniently be taken away. The defendant would not permit the removal of the property, whereupon this suit was brought by the plaintiff for its value. On the trial the facts thus briefly summarized were shown. The jury were instructed that the plaintiff had a right to take the property and that it was for them to determine whether he was prevented from doing so by the defendant; that a recovery should be allowed only for the value of such property as the plaintiff was actually prevented from removing by the defendant and not for anything which he might have taken without interference. These questions were clearly and fairly submitted to the jury and the verdict was for the plaintiff. The defense set up is based on an alleged failure of the plaintiff to perform the contract set out in the lease. It involves a confusion of the right of the plaintiff to hold or retake possession of the leasehold, with the right to remove his property from the premises. It is not contended that the property was distrained or that any right to distrain existed; nor was any set-off presented or relied upon. The defense is that the plaintiff failed to keep his contract with reference to completing the work of development and of operating the well already completed, and by reason thereof lost all rights under the agreement, including that o£ taking away his property. But granting that the plaintiff failed to make the required tests or to operate the well, and thus forfeited his rights under the lease, this would not preclude him from removing his property under the terms of that instrument expressly conferring the authority to do so. This provision is a wholly independent covenant, and may be enforced without reference to the other parts of the agreement. There is nothing in the lease or in the evidence which qualifies it in any way. It is not conditioned on performance of other stipulations or involved in their operation. It is distinctive in its object and in its per for manee. For any default under the contract, the plaintiff must be pursued through appropriate legal action. His property cannot be taken or thus arbitrarily held.

If it be true, as the defendant contends, that one well which was sunk by the plaintiff “ produced gas in paying quantities,” then, under the terms of the lease, all ground of forfeiture was removed. There is no provision requiring the plaintiff to deliver at the defendants’ dwelling house gas for domestic purposes, or to furnish a conduit for that purpose, and it is not alleged that the defendant was prevented from taking the necessary gas for domestic use. By the affidavit of defense the execution of the lease, “a copy of which is attached to the plaintiff’s statement,” is expressly admitted. Under the rules of the common pleas of Allegheny county this is conclusive as 'to the correctness of the copy filed, and the admission of this specific copy in evidence was entirely proper. The case seems to have been fairly tried and no error appears in the record. All the specifications are overruled.

Judgment affirmed.