Lewis v. United Natural Gas Co. , 75 Pa. Super. 44 ( 1920 )

Opinion by

Linn, J.,

This is an appeal by defendant from the judgment entered on a verdict for plaintiff in an action of assumpsit, brought to recover the amount due on a so-called oil’and gas lease. Plaintiff and his brother (whose rights have passed to plaintiff) owned some sixty acres of land and in March, 1899, leased a part to defendant’s assignor, who appears to have been in possession under a prior lease from the same lessors.

In the lease, the land was described as “All that certain lot......bounded and described as follows, to wit: North by lands of Robert Hays heirs and Adam Burns; East by lands of Robert Hays heirs and William M. Cully; South by lands of first parties; West by lands of Uhl heirs, containing 30 acres more or less......” It was also agreed: “If gas only is found second party agrees to pay $100 each year in advance for the product of each well while the same is being used off the premises and the first party to have gas free of cost to heat three stoves in dwelling house during the same time.”...... “In case no well is completed within four months from this date, then this grant shall become null and void unless second party shall pay to said first parties $30 in advance for each year thereafter such completion is delayed.” “......This lease shall take effect immediately after lease now op same land expires, which is July 6, 1899.”

The question in this case is whether a certain gas well drilled by defendant’s assignor is on the land leased, plaintiff claiming that it is and defendant claiming that it is not within the boundaries described in the lease, but' that it is north of the northern boundary, and therefore on land of Adam Burns.

In 1896 defendant’s assignor became lessee under Adam Burns of the tract of land adjoining the Lewis tract, the Burns tract being described in the lease as bounded on the “South by lands of Lewis Brothers.” In 1897 the gas well was drilled near this dividing line. Parts of the Lewis and Burns tracts were used for farming, but the land in the neighborhood of the gas well was uncultivated, wild and thickly wooded. There was evidence that the foreman of defendant’s assignor while drilling the well told plaintiff that the well was on the Burns tract, and plaintiff knew that Burns was collecting royalty on that assumption. The dividing line between the Lewis and Burns tracts while held by predecessors in title was marked on the ground by a surveyor in 1875, since which time the marks became very much obliterated.

In 1908 defendant became assignee of the leases of both tracts and continued to operate the gas well. Under the impression that the well was on the Bums tract, plaintiff had been accepting from defendant the sum of $30 per year under the provision requiring payment at that rate, until in 1915 when he discovered that the gas well was on his land and not on the Burns tract, when he demanded royalty at the rate of $100 per year under the other provision quoted, for the period of defendant’s occupation. Payment being refused, he brought this suit to recover at' that rate, allowing credit for the amount-paid, and also claiming for the value of the so-called gas privileges for three stoves, of which he alleged he had been deprived.

At the trial both sides offered evidence to identify on the ground the dividing line marked by the surveyor in 1875. The line is described by witnesses as so “difficult to follow” “because the whole thing is timber and brush” across “two ravines and two hills” that “no ordinary man can go out in the woods and be able to tell where that line is.” According to the evidence offered on behalf of plaintiff, the well was on his land twenty-two feet from the boundary; according to the evidence of the defendant, it was just across the line on the Burns tract. The verdict of the jury establishes plaintiff’s allegation.

Defendant contends: (1) That assumpsit will not lie, or as stated, by the learned counsel for appellant “the main question at issue in this case is a question of title to real estate; the wrong form of action has been instituted and the action would lie only in ejectment against the owner of the property of Adam Burns and his successor in title”; (2) that “plaintiff is estopped from claiming title to the land upon which the well is located”; (3) that having made no demand for gas “to heat three stoves” he can recover nothing under that provision.

1. None of the authorities cited support the first contention. Reilly v. Crown Petroleum Company, 213 Pa. 595, does not support appellant; there it appeared that after title was established by ejectment, trespass for mesne profits and not assumpsit for the value of oil wrongfully taken from the land was held to be the proper remedy; what the court said on page 597 about the absence of contractual relation supports appellee. Ejectment is essentially a possessory action; here plaintiff seeks neither possession nor mesne profits; the claim is for the amount due under a contract. Defendant is not a trespasser but is in possession under the lease; it has never surrendered, and it does not claim possession adversely to Lewis. Holding something under the Lewis lease, defendant as against Lewis cannot deny the Lewis title to any part of the property the possession of which it secured under that lease: MacDonald v. O’Neil, 21 Pa. Superior Ct. 364; Hamilton v. Pittock, 158 Pa. 457 (somewhat more fully reported in 27 Atl. Rep. 1079), a position demonstrating as inapplicable the line of cases cited by defendant beginning with Mather v. Trinity Church, 3 S. & R. 509, none of which deal, as this case does, with admitted possession under a title which cannot be questioned, but with rival claimants for the same land under different titles. It is true defendant avers that the gas well is on the Bums tract and not on the Lewis tract, but that merely asserts a fact to be ascertained; i. e., the location of the well with regard to the boundary, and that becomes obvious upon examination of the dividing line marked on the ground. Such examination disclosed the well to be on the Lewis tract twenty-two feet from the boundary. A relevant dividing line like any other relevant fact, may be established in an action of assumpsit: Hamilton v. Pittock, supra. We cannot sustain any of the assignments of error on this branch of the case.

2. We must also overrule the assignments to the refusal to charge on estoppel as requested and to the affirmance of plaintiff’s point on that subject. In the record it appears that the parties apparently acted in ignorance of the location of the line on the ground; they had the same access to the sources of information; either might have made certain earlier; neither did; the defense of estoppel was not made out: Enterprise Transit Co. v. Oil Co., 20 Pa. Superior Ct. 127; Tonge v. Item Publishing Co., 244 Pa. 417, and cases there cited.

3. We must sustain the six assignments objecting to the recovery of the value of “gas free of cost to heat three stoves in dwelling house during the same time.” Under the contract, it was the duty of plaintiff to demand the gas and to put himself in position to receive it at or about the well. Not having done that, defendant is not in default. As the jury itemized its verdict, and on this branch of the case found as an item “heating at $50 per year for 9 years, $491.40,” we can deduct that sum and correct the error here without returning the record for a retrial.

The judgment appealed from is now set aside, and judgment is directed to be entered for plaintiff for $807.30 with interest from March 7,1919, the date of the verdict.