Davis v. Texas Co. ( 1921 )

I concur in the holding of the majority in reference to the Eilers release and the pleas of innocent purchaser, estoppel, and limitation. I cannot, however, assent to the construction given the instrument executed by Arnold and wife to Underwood. But for the extreme importance of the question I would content myself with a mere statement of dissent.

The majority construe the instrument as a present conveyance of nine-tenths of the minerals in fee, subject to a condition subsequent, the drilling of a well within two years, or, in lieu thereof, the payment of rentals, or that, at any rate, upon a compliance by the grantee with the condition subsequent, the legal title to nine-tenths of the minerals in place vested in the grantee; the estate so vesting not being subject to divestiture through abandonment.

In the construction of the instrument, the intention of the parties must be sought from the language used. All parts of the instrument must be considered. If an ambiguity appears, or a doubt arises, resort will be had to the situation of the parties and the circumstances surrounding them at the time of the execution of the instrument. As stated by the court in Howeth v. Anderson, 25 Tex. 557-573 (78 Am.Dec. 538):

"To arrive at the intention, regard is to be had to the situation of the parties, the subjectmatter of the agreement, the object which the parties had in view at the time, and intended to accomplish. A construction should be avoided if it can be done consistently with the tenor of the agreement which would be unreasonable or unequal, and that construction which is most obviously just is to be favored, as most in accordance with the presumed intention of the parties."

In determining the scope and legal effect of an instrument of this character, it is, if not immaterial, at least far from conclusive, by what name it is called, whether a "lease," "contract," "grant," or "deed of conveyance," and the court will look to the language used in the instrument, aside from the terms so used, to determine its legal effect. 1 Thornton, Oil and Gas (3d Ed.) § 50.

It must be conceded that apt words of conveyance are used in the instrument. They are the same, however, as used in the instrument before the Supreme Court in National Oil Pipe Line Co. v. Teel, 95 Tex. 586,68 S.W. 979, and Corsicana Petroleum Co. v. Owens, 110 Tex. 568,222 S.W. 154. So, likewise, the instruments in those cases are in all material respects quite similar to the one herein involved.

Of the instrument and its assignment, the court, in the Teel Case, says:

"Viewing the written agreements in the light most favorable to these parties, they do not pass an interest in the lands, but are mere contracts for an option by which they may acquire such interest."

In the Owens Case, in construing the instrument, the court says:

"The grantors, by the instrument, gave the grantee the right to prospect upon the land for a definite period; the right to seven-eighths of the oil," if oil is found; "the right, in lieu of its completing a well within the first year, to extend" the same for ten years "by making * * * quarterly payments; * * * the right * * * to surrender the lease."

In Texas Co. v. Daugherty, 107 Tex. 226, 176 S.W. 717, L.R.A. 1917F, 989, the court construed instruments quite similar to those in the above-cited cases and to the one before this court as conveying a present interest in lands upon condition subsequent and taxable as real property under our taxation statutes. In its review of the prior Texas cases it thus restates the holding in the Teel Case:

"In Oil Pipe Line Co. v. Teel the contract was supported by only a nominal consideration other than the mere promise of the lessee to perform certain acts, but for the performance of which he was not bound. The contract was construed properly as the creation of a mere option which permitted the acquisition of an interest on performance of conditions — a mere optional right to acquire an interest in land, a character of instrument plainly distinguishable from those here presented."

I shall hereafter advert to that which, in the court's judgment, differentiated the instruments in the two cases. It is sufficient at this point to state that in none of the cases before our Supreme Court was the fact of the use of apt words of conveyance made the determinative test of the scope and legal effect of the Instrument.

While apt words of conveyance are used, the parties in the instrument denominate the same a lease, the instrument containing the following provision:

"It is agreed that the completion of a well shall operate as a full liquidation of all rental under this provision during the remainder of the term of this lease."

As apt words of conveyance are not conclusive, so neither is the meaning of the instrument by the parties. Denominating the instrument a lease, in a large measure, offsets the effect of the granting clause and remits us to the inquiry as to what the parties had in view at the time and intended to accomplish, unaffected by the fact of the use of apt words of conveyance or the naming of the instrument by the parties.

The subject-matter of the instrument is oil, gas, and such other minerals as might underlie the land, discoverable alone through prospecting. It recites the payment of $1. This is the only recited money consideration. Concede that $1 is technically a valuable consideration, yet it is but nominal. In argument it was conceded by all the parties that the $1 paid was the consideration for the right or option given the grantee to go upon the land for purposes of exploration and drilling, at any time within two years, or longer upon the payment of the stipulated rent money. The grantee was not, however, bound either to drill a well or pay the rental. What, then, was the consideration for a present grant in fee to nine-tenths of the minerals? It cannot be answered that it was the amount, large or small, to be thereafter expended in drilling or operating for the discovery of oil. Some instruments of this character so provide. Not so this instrument. In the absence of such recital and of any obligation upon the grantee to drill, there is no warrant for importing into the instrument such expenditures as a consideration.

In the majority opinion, after the statement that this instrument was executed but a short time after the discovery of oil at Beaumont, more than 100 miles distant from the Arnold land, it is said:

"This little rural homestead of the Arnolds was of very little value for any known purpose, perhaps not so much as $10 per acre, and the procurement of a testing of it under said prevailing conditions for subsurface oil and gas may well have been the dominating thought with them in enlisting Underwood in the enterprise; in other words, it was then a strictly wildcat undertaking, and the real, the moving incentive to the grantors must have been the money and effort contemplated to be spent by the lessee in the attempt to prove it to be oil-bearing land, the small royalty reserved being a secondary as well as a purely contingent one. For that reason they were willing to and did presently in terms give up and convey ``all the oil, gas, coal, and other minerals in and under the land,' reserving only one-tenth to themselves, but upon carefully particularized express condition subsequent which would fully protect them by declaring a termination of the interest so granted him, in the event their grantee did not thereafter do what was of necessity contemplated, though not by binding obligation agreed upon — that is, comply with the drilling conditions specified."

In the view of the majority the Arnolds made a present grant of the fee to nine-tenths of the minerals under the land, being the only land, as far as is shown by the record, owned by them, in order that it might be determined whether or not the land contained minerals. They desired above all things to have their land tested, and in order to do this made such a grant to one not in any manner obligated to make any character of test. But, says the majority, the Arnolds were amply protected by a "carefully particularized express condition subsequent, which would fully protect them by a termination of the interest granted," if the grantee failed to do a thing promised, but which he was in no manner bound to do. The payment of $1 gave to the grantee the exclusive right upon the land for exploration purposes for a period of two years, and, notwithstanding the carefully particularized express condition, this period could be extended by the payment of $10 per year, as some authorities hold, for the full period of 25 years.

Had the grantee been obligated to drill and had the Arnolds owned other land in the immediate vicinity, there might be some ground for the assumption, and for reading into the contract a consideration not expressed. Upon such a state of fact the discovery of oil would enhance the value of the other lands of the Arnolds. But of what avail to the Arnolds that their land was valuable for oil unless the oil be produced therefrom and they receive their royalties? So far from royalties being a secondary consideration, to my mind it was absolutely the only consideration for the making of the contract by the Arnolds.

The view I entertain is thus stated by the Supreme Court in the case of Grubb v. McAfee, 109 Tex. 527, 212 S.W. 465:

"The consideration for this contract to the owner consisted alone in royalties on the minerals to be produced during the term of the contract, unless we can reasonably assume that it would benefit him to have his land proven as containing valuable oil deposits, though no oil was produced therefrom for a term like 20 years. No assumption of that sort can be reasonably indulged."

It is true, of course, that the Arnolds as owners of the land could dispose of it, or of any severable interest in it, in any manner and for any consideration satisfactory to themselves; yet quite a different construction should be given an instrument which, by the use of apt words of conveyance, grants the oil or other minerals in place for a present consideration, payable in cash, notes, or other property, independent of royalties, and one which, using the same words of conveyance, recites a purely nominal cash consideration, the real consideration being a royalty, possible alone through development, operation, and production. Eastern Kentucky Mineral Timber Co. v. Swann-Day Lumber Co.,148 Ky. 82, 146 S.W. 438, 46 L.R.A. (N. S.) 672.

The consideration and manner of its payment accounts for the difference in construction of the instruments in the Daugherty and Teel Cases. In reference to the instruments being construed in the Daugherty Case, the court said:

"They deal with the oil, gas, and other minerals ``in and under' the land as property, in the ground, capable of ownership and subject to be conveyed, for, as such, in unmistakable terms they are ``granted, sold, and conveyed' to the grantee for a stated consideration acknowledged to have been paid, valuable in itself and independent of the royalties stipulated as payable to the grantor in the event of the discovery of such minerals, or any obligation imposed upon the grantee to explore for them."

In the majority opinion this distinction is declared to be artificial rather than real. Whether so or not, it is evident from the above-quoted language, and from the opinion in its entirety, that the court deemed it real and substantial.

The distinction is recognized in other cases and is shown to be quite a determinative factor. Eastern Kentucky Mining Co. v. SwannDay Co., supra; Chandler v. Hart, 161 Cal. 405, 119 P. 516, Ann.Cas. 1913B, 1094. In Plummer v. Hillside Coal Iron Co., 104 F. 208, 43 Cow. C. A. 490, and case between the same parties, 160 Pa. 483, 28 A. 853, the instrument conveyed the coal under the land for a present cash consideration, to be increased to a given amount if the quantity of coal reached the proportions described in it. The right of removal was given, the same to be exercised within 100 years, the grantee to pay a yearly rental of $1. No royalties were reserved and no obligation to operate imposed. The instrument, though in the form of a lease, contained words of present demise, and was held to be a grant of the minerals in place, for a present consideration. In Wilmore Coal Co. v. Brown (C. C.) 147 F. 931, affirmed in 153 F. 143, 82 Cow. C. A. 295, construing an instrument with apt words of conveyance upon a nominal consideration and with royalties reserved, the court distinguished between the Hillside Case and the case before it, saying:

"But the distinction between that case and this is manifest. There there was a sale and conveyance of the coal outright for the price of $200, which in that early day and place was evidently accepted as its full value. * * * Beyond this there was no obligation on the part of the lessee, except the nominal rent of $1 a year, inserted probably to carry out the idea of a lease which was the form of conveyance adopted. The consideration to the lessor was not thus the development of the mineral value of the land as here. The lessee bought the coal as it stood in place at a definite price in cash; the only restriction being that he should get it out within the term of the lease, 100 years."

In argument herein much stress was laid upon the following clause in the instrument:

"This grant is not intended as a mere franchise, but is intended as a conveyance of the property above described for the purposes herein mentioned."

The word "franchise" in its technical sense is quite meaningless when used in this connection. A "franchise" is the grant of a right or privilege to an individual or corporation by the government, the sovereign, or by public authority. It involves the idea of a privilege, and as used in this clause it was doubtless intended as synonymous with "license." A "license" is a personal and revocable privilege to do some act, or a series of acts, upon the lands of another without possessing an estate therein. The instrument evidently intends to grant not a mere license, but an interest in the land. A lease for more than one year conveys an interest in the land, and is a conveyance of the property. Dority v. Dority, 96 Tex. 215, 71 S.W. 950, 60 L.R.A. 941. Hence an oil or gas lease upon property constituting a homestead, being the conveyance of an interest in land, requires the joinder of the wife. Southern Oil Co. v. Colquitt, 28 Tex. Civ. App. 292, 69 S.W. 169. This is the extent of the holding in the case, and is the effect given it by the Supreme Court in the Daugherty Case.

The instrument involved herein, as shown by the record, was one much in use in the state of Pennsylvania. In Barnsdall v. Bradford Gas Co.,225 Pa. 338, 74 A. 207, 26 L.R.A. (N. S.) 614, the Supreme Court of Pennsylvania said:

"Whether an agreement, commonly known as an oil and gas lease creates an estate or interest in land or is a mere license to enter and operate for those minerals has frequently been before this court, as the numerous reported decisions attest."

Construing an instrument which "granted, demised, leased, and let" for the sole and only purpose of mining and operating for oil, gas and other minerals, the court, after quoting from several cases, thus concludes:

"Many other cases to the same effect might be cited, but these are sufficient to show that the agreement between the plaintiff and his lessor was a lease, conveying an interest in the land, and was not a license to enter upon the land and operate for mining purposes."

It is evident that the Intention of the parties was to declare the instrument, not a license, but a lease; the conveyance of an interest in the land. In the body of the instrument it is denominated a lease, and the record discloses that the parties so regarded it.

As before stated, the instrument was executed within a few weeks after the discovery of oil at Spindle Top. It was in the day dawn of the oil industry in Texas, and during the period of wildest excitement attendant upon the bringing in of the Lucas gusher. At that time little or nothing was known by lawyers or laymen of the oil industry, its usages, or the technical terms employed in instruments pertaining thereto. There was a wild scramble for leases in any section where there were indications of oil or rumors of its existence. The Arnolds owned a home stead of some 80 acres near West Columbia, upon which they had resided for many years. It was generally known that there were manifestations of escaping gas that had been noticeable from time to time on the Arnold place. It is in evidence that C. L. Nash, who had lived at Columbia, discussed the matter with Mr. Lucas, and it was decided to secure oil leases in Brazoria county. Nash, Bullock, and Underwood, the latter the grantee in this instrument, determined to act together in procuring oil leases in and about West Columbia. The industry being new in Texas the forms of oil leases in use by leading oil companies in those states wherein the oil industry had developed were used. The instrument in question was written on one of the forms procured from the Guffey Company; Guffey having been a Pennsylvania operator. The various leases procured by these three parties were subsequently transferred to the Equitable Mining Company, the transfer containing the following description:

"Said grantors have granted, sold, etc., to the Equitable Mining Company all the interest of every character vested in us, or either of us, as grantees or lessees in and to those certain lease contracts entered into by and between various parties as grantors or lessors and us, or either of us, as grantees or lessees, which lease contracts are commonly termed oil lease contracts, including 81 1/2 acres out of J. H. Bell League to John C. Underwood by W. F. and Kate Arnold."

That the grantors as well as the grantee regarded the instrument as an oil and gas lease is evidenced by the fact that, upon the cessation of operations by the assignees of the Underwood interest, the Arnolds leased a part of the tract to another company and subsequently sold the entire tract, less some small tracts which they had theretofore conveyed to A. McGary. In addition to the general description of the land, the deed contained the following:

"Together with all the rights, both surface and any mineral rights to the same in any wise appertaining."

Considering the instrument in its entirety in connection with the situation of the par ties and the circumstances surrounding then at the date of its execution, and in view of the fact that both the grantors and the grantee regarded the same as what is commonly called an oil and gas lease, I am of opinion that it should be so construed and the rights of the parties determined as under such oil and gas leases.

But, in the view of the majority, this case is ruled entirely by the Daugherty Case. The question, and the only question, before the court in that case was whether the instrument involved conveyed a present interest in the lands subject to taxation as "real property" under article 7504, R.S. 1911.

The concluding paragraph of the opinion concisely states the holding of the court:

"It is our conclusion that these instruments had the effect to confer upon the plaintiff in error an interest in the several tracts of land described, the value of which was assessable against it for taxation."

Conceding that the instrument herein conveyed an interest or estate in the land, the inquiry remains: What character of estate so vested? If we go further and hold that, under the Daugherty Case, the grant was of a fee, subject to the condition subsequent that a well be drilled within the stipulated time, or in lieu thereof the money rental be paid, we have not yet answered the determinative question in this case whether the estate so vesting could be relinquished or divested through abandonment; in other words, if a fee, was it an absolute or a qualified and determinable fee?

If the instrument conveyed more than a leasehold, if it was the grant of a fee, it is clear that it passed with a conditional limitation, vesting for a specific purpose. The same clause which extends the grant beyond a mere license limits it to a specific purpose; the property being conveyed "for the purposes herein mentioned."

The purposes are clearly manifest from the terms of the instrument. They were the drilling, mining, and operating for oil and other minerals, there production and transportation. To this end and in order to accomplish these purposes, the right of ingress and egress over and upon the land, and other necessary rights in the surface, were granted.

If the estate conveyed was a leasehold, it could, of course, be abandoned. Grubb v. McAfee, supra.

If the estate was a freehold interest, as held in Watford Oil Gas Co. v. Shipman, 233 Ill. 9, 84 N.E. 53, 122 Am. St. Rep. 144, cited and quoted from in the Daugherty Case, in the language of the Supreme Court of Illinois:

"Such interest [a freehold], being vested for a specific purpose, becomes extinct when the purpose is accomplished or the work is abandoned."

If, as held in Paine v. Griffiths, 86 F. 454, 30 Cow. C. A. 182, and the Wilmore Coal Co. Cases, supra, the interest transferred was a grant of the minerals, not absolute, but qualified, an abandonment divested the estate and remitted the grantors to their former condition. In a word, the rights and obligations of the parties under this instrument are the same as those of a lessor and lessee, whether the estate conveyed be termed a leasehold, a freehold, or a qualified and determinable fee.

To construe the instrument as an absolute and unqualified fee, upon condition subsequent, finds no warrant in the Daugherty Case, nor in any of the reported cases in this state, or in any well-considered case in other jurisdictions to which we have been cited. An instrument of this character, dealing with oil and other minerals, expressly stipulating that the interest or estate, whatever its character, vests for a specific purpose and the fulfillment of that purpose, in this case the discovery and production of oil being the only consideration upon which the grant rests, cannot reasonably or justly be construed as vesting an absolute and unqualified fee. To so construe it would be to allow the grantee "to retain the minerals, while disregarding and abandoning the obligations on which the right to them depends." Paine v. Griffiths, supra.

Appellants assert that, if the instrument be held a lease and not a present grant of the fee to the minerals, then, eliminating what counsel terms the "intermediate language of the condition," reading, "It is agreed that the completion of a well shall operate as a full liquidation of all rentals under this provision during the remainder of the term of this lease," all the conditions of the contract were complied with in the completion of the well, and thereupon the lessee became vested with an absolute title to the minerals without further obligation; that, if this is not true with the intermediate language eliminated, it is certainly true in virtue of this language, which is preclusive of any implication for additional development or operation.

Considering the lease with the intermediate language omitted, the only express condition is as follows:

"In case oil operations for either the drilling of a well for oil, gas, or other minerals is not commenced and prosecuted with due diligence within two years from this date, then this grant shall immediately become null and void as to both parties; provided that said second party may prevent such forfeiture from year to year by paying to the first party the sum of $10.00 per year until such well is commenced, or until shipments from such mine have begun."

The Instrument thus calls for the drilling of but one well, and makes no express provision for operation or further development, so that, eliminating the intermediate language and regarding the instrument as a lease, it is in effect the same as the one considered by the court in Grubb v. McAfee, supra. There being no express provision for operation or further development upon the completion of the one well, wherein oil was found in paying quantities, the obligation to operate with reasonable diligence and to reasonably develop the land would be implied in order to effectuate the evident intent of the parties — that is, the production of oil. The lease thus standing, the lessee's rights under the contract, though not subject to forfeiture for breach of the implied obligation, could be lost by abandonment. Grubb v. McAfee, supra.

It becomes necessary then to determine what, if any, effect, the intermediate language has upon the rights of the lessee.

It is the contention of appellants that the intermediate language provides in terms express, unambiguous, and certain that rentals may be paid for the full definite term of 25 years, and that a completed well shall be the equivalent of the payment of the rentals for such entire term; that is, the completion of the well had the same effect as though, in lieu of the drilling a well, rents were being regularly paid at the stated intervals, thereby keeping the lease in full force and effect without other or further obligations.

The authorities are not harmonious as to whether a lessee, agreeing to drill within a given time, under penalty of forfeiture, but allowed to save a forfeiture by payment of a money rental, may refrain from all operations and keep alive the lease for the full term by the payment of the rentals, nor is this question involved herein.

It cannot be doubted, in view of the insignificant rental, that the provision is for the benefit of the lessee. The authorities are in agreement that the payment of the rental constitutes a consideration for the delay, and during the period after the acceptance of the rental the lessor may not declare a forfeiture of the lease for the nondrilling of a well. It is in the nature of a consideration from the lessee for the right or option to delay performance of the contract during the particular period over which the payment, by the terms of the lease, extended. Hitson v. Gilman, 220 S.W. 140, and authorities therein cited.

I concur in the view of appellants that rentals cease upon the completion of a well, whether it be producer or nonproducer. The lessee was to drill a well or pay rental. The well was completed, and thereby the lessee released from further payment. This is the clear and unambiguous meaning of the clause, and is its full effect. Parish Fork Oil Co. v. Bridgewater Gas Co., 51 W. Va. 583, 42 S.E. 655, 59 L.R.A. 571.

But this was not the only effect of the completion of a well. Such completion satisfied the condition subsequent. Thereupon, without the discovery of oil and without reference to the intermediate language, an estate or right vested in the lessee; a right to continued possession for the purpose of further exploration for as long a time, within the term of the lease, as the lessee in good faith was engaged in drilling or in any manner tesing the oil-producing capacity of the land.

The lessee was not obligated to drill any well, or to pay any rentals. Having entered upon the work and completed a well, he acquired a vested right to a continuation of possession for the purpose for which possession was originally taken. As there was no obligation to explore or drill in the first instance, so there was no express obligation to further explore or drill upon the completion of the well. If, however, he retains possession, the law implies the obligation to further explore and drill; the intermediate language not being in any wise inconsistent with or negativing such implication. When satisfied that oil could not be obtained in paying quantities, or when, for any other reason, exploration, drilling, and operations are abandoned, all rights are relinquished and estate divested. Grubb v. McAfee, supra. Eaton v. Allegany Gas Co., 122 N.Y. 416, 25 N.E. 981.

Appellants assert that the assignee of the lessee under whom they claim did more than complete a well; it discovered oil which, for a time, was produced in paying quantities, and under the express terms of the instrument this vested in such assignee an absolute title in fee to nine-tenths of the minerals, a legal title unconditional, and which cannot be lost or relinquished through abandonment. The provision in the instrument referred to is as follows:

"In case the party of the second part should bore and discover either oil or other minerals, then in that event this grant, incumbrance, or conveyance shall be in full force and effect for twenty-five years from the time of the discovery of said product and as much longer as oil, water, gas, or other minerals can be produced in paying quantities."

This clause must not be segregated from its context. It must be read in connection with other parts of the instrument, having in view the intention of the parties. The "grant, incumbrance, or conveyance" is a lease. This clause but fixes its duration with a contingent right to an extension. Upon the discovery of oil an estate vests in the lessee, but a qualified and limited estate, the right to make further exploration and to develop produce, and remove the minerals, the theretofore existing right of possession, merely for the purpose of exploration, being converted into such estate for the fixed term, and, if minerals be actually produced in paying quantities within the term, as long thereafter as they continue to be so produced Cassell v. Crothers, 193 Pa. 359, 44 A. 446; Murdock-West Co. v. Logan,69 Ohio St. 514, 69 N.E. 984; Lowther Oil Co v. Miller-Sibley Co.,53 W. Va. 501, 44 S.E. 433, 97 Am. St. Rep. 1027; Venture Oil Co. v. Fretts,152 Pa. 451, 25 A. 732; Smith v. Root, 66 W. Va. 633, 66 S. B. 1005, 30 L.R.A. (N. S.) 176; Steelsmith v. Gartlan 45 W. Va. 27, 29 S.E. 978, 44 L.R.A. 107 Toothman v. Courtney, 62 W. Va. 167, 58 S.E. 916; Parish Fork Oil Co. v. Bridgewater Gas Co., supra.

In the last-cited case the court said:

"What the lessee acquires by discovery is the right to produce and take the oil, paying out of it the stipulated royalty, and not title to the oil as it remains in the land without production."

Such right or estate may be lost through abandonment.

I have found no well-considered case going the length of holding that a lessee under an oil and gas lease, upon the mere discovery of oil, is absolved from all further obligations and becomes vested with an absolute and unconditional title to the minerals in place, which cannot be lost or relinquished through abandonment. Parties can doubtless so contract, but these parties did not. In the light of the manifest intention of the parties in the execution of the instrument, and having regard to the real consideration therefor, nothing short of a clearly expressed provision to that effect will warrant a court in so holding.

The majority hold that, if there existed an implied obligation upon the lessee to further develop, this, under Grubb v. McAfee, amounted only to a covenant, the violation of which gave no ground for forfeiture, but in a proper action, after due notice and demand, the right to the recovery of damages or a decree of rescission and cancellation. This confounds abandonment and forfeiture. Abandonment is a voluntary relinquishment, while forfeiture is an enforced release. 1 Thornton, Oil and Gas, § 155. In the Grubb Case it was held that, while a forfeiture could not be declared, nevertheless the rights of the lessee were lost through abandonment. This action is in trespass to try title. Appellants, as plaintiffs, must establish their title. Appellees but availed themselves of the defense of the divestiture of appellants' title through abandonment.

Abandonment is the relinquishment of a right — the giving up of something to which one is entitled. Dikes v. Miller, 24 Tex. 417. Ordinarily it rests upon intention and is a question of fact for the jury. 1 Thornton, Oil and Gas, § 155. However, as said by the court in Atchison v. McCulloch, 5 Watts (Pa.) 13:

"Abandonment is not always a question of intention, exclusively for the jury, without a controlling instruction from the court. Under a certain uncontradicted state of facts, the law will pronounce the conduct of a party to be an abandonment, whatever may have been his intention."

In consultation I was inclined to the view that the question of abandonment should have been submitted to the jury. Upon mature reflection, however, I have reached the conclusion that the record presents an uncontradicted state of facts, warranting a holding of abandonment as a matter of law. Paine v. Griffiths, supra; Chandler v. Hart, supra; Wilmore Coal Co. v. Brown, supra.

I do not deem it necessary in this opinion, a mere dissent, to detail the facts disclosed by the record upon which I base my conclusion.

I am of opinion that the judgment of the district court should be affirmed.