Fisher v. Teter

Miller, Judge: Plaintiff is the sister of the defendants Philander K. Teter and Jesse IT. Teter, and all are devisees and heirs of David - Teter, who died testate in 1912. By his will the testator devised his farm of 528.97 acres in Lewis County, as follows: “To my daughter Margaret Lancaster Fisher the tract of fifty acres known as the Jesse Moneypenny tract adjoining lands of E. C. Fisher. I also will to Margaret Lancaster Fisher another fifty acres to he cut off my-home farm beginning at a south east corner, near the present residence of John Horton, thence running along the old fence line a southerly course eight rods, thence to the top of the hill on Neds run so as to contain fifty acres. Making a total to her 100 acres in the two tracts. After deducting said fifty acres from the right hand side of road. I will and bequeath to my son Jesse Hamilton all of the — 695 — lands on the right hand side of the Murphys creek as you go up the creek. And all of the lands on the left hand side as you go up Murphys Creek to my son Philander K-Teter upon a survey it is found th.at that part of the home farm willed to Jesse H. contains a greater number of acres than the part willed to Philander K. then Jesse H. is to pay to Philander K. twenty dollars per acre within six, twelve and eighteen months in three equal payments.” The will was dated July 13, 1901. Prior to that date, namely, on August 18, 1899, the said David Teter and A. L. Teter, his wife, executed and delivered to Andrew Edmiston a lease on said larger tract for oil and gas, hounding it by the lands of' adjoining owners, and further describing it as containing 512 acres, more or less, and containing the covenants and agreements usually contained in such leases, for the term of five years and so long thereafter as oil and gas might be produced in paying quantities, which lease came by assignment to The Philadelphia Company of West Virginia, the Hope Natural Gas Company, and the South Penn Oil Company, the present owners thereof. The bill alleges that shortly after the death of said testator Philander K. and Jesse H. Teter procured a surveyor to make a survey and a plat of the entire tract so devised, and designated thereon the several lots allotted to each of the said devisees by said testator, which' plat was placed on record by them, a copy of which is exhibited with the bill; that subsequently to the making of said survey and plat, and in accordance therewith, division fences were built and continuously since then have been maintained along the boundary lines between the several parcels so designated and held by the devisees under the terms of the will, and so definitely fixed by said survey and plat; and that the devisees aforesaid thereupon assumed and took exclusive possession and control of their respective parcels; and have since so occupied the same as their own. The bill alleges further that said will was executed before any development of said land for oil and gas, and that to construe said will so as to permit two of the devisees there — 696 — under to consume and enjoy the fruits of said leasing would be contrary to the manifest purpose of the testator, and repugnant to the intention on his part- to dispose of said tract of land among his devisees and according to the nature of an indulgent and considerate father. The prayer of the bill is for an accounting to plaintiff by said Philander K. and Jesse H. Teter, and that they pay over to her her proper share of all gas well rentals or royalties collected or secured by them, or either of them, by reason of or from any and all gas wells drilled or operated on any part of said land, and that her right to share in the future in the rents and royalties and in all the oil and gas produced from said lands, under said lease, be adjudicated and determined. It is conceded that the decree below sustaining defendants’ demurrer to and dismissing her bill must be affirmed, unless we should determine to overrule prior decisions, or should consider other allegations thereof, to be now referred to, take this case out of the rule of those decisions, and constitute sufficient ground for distinguishing it from the cases relied on by demurrants, and upon which the court below based its decree. In Pittsburg and West Virginia Gas Company v. Ankrom, 83 W. Va. 81, and Musgrave v. Musgrave, 86 W. Va. 119, we distinctly decided, that where land subject to a prior lease for oil and gas has been partitioned, or devised in severalty by a testator, as in the case at bar, the owner of each of the subdivisions from which oil or gas is produced is entitled to recover the rents and royalties arising from the subdivision owned by him. Those cases received thorough consideration by the court, after elaborate arguments by counsel; and nothing that we could now say in support of the principles there established, would add to or detract from the arguments advanced and maintained therein; and our opinion is to reaffirm the points adjudicated therein. Those cases are conclusive of this case unless, as already suggested, something has been alleged by plaintiff to take the case from under the principles of those cases. The allegations relied on, we do not think show any fraud — 697 — or collusion on the part of the defendants affecting the rights of plaintiff. They are as follows: “Plaintiff further says that no drilling whatever has been done by any of the said operating companies on the parcel of said Teter tract allotted to her, although plaintiff’s said parcel is covered by said lease and is held thereunder to the exclusion of plaintiff and all persons with whom she might contract for the drilling and exploration of her said parcel for oil and gas; and plaintiff here alleges that, although she, and those acting for her, have requested said Hope Natural Gas Company and said Pittsburg & West Virginia Company, and its predecessors, The Philadelphia Company of West Virginia, to test plaintiff’s said parcel for oil and gas by drilling and completing wells thereon, they, and each of them, have declined and refused so to do on the ground that said Teter tract had been adequately and sufficiently drilled and developed by the existing wells on said parcels of said Philander K. Teter and Jesse H. Teter. “Plaintiff further says that, although she is in nowise responsible therefor, the operations of the said Companies engaged in developing said land for oil and gas have been restricted and confined to a limited portion of same and have not been such as to adequately and properly test and explore for gas or oil the entire Teter tract bound by said lease without regard to the surface lines and boundaries defining and separating the parts severally held by said Philander K. -Teter, Jesse H. Te-ter and plaintiff, but that in drilling said Teter tract of land, said operating companies have persistently and unalterably pursued a policy of confining the drilling to the parts of said tract of land held by said Philander K. Teter and Jesse H. Teter. “Plaintiff further says that said policy of limiting the drilling to the portions of said land so devised to said Philander K. Teter and Jesse H. Teter, as aforesaid, has been adopted and consistently adhered to by said operating Companies, as plaintiff is informed and believes, as a' result of various arrangements and understandings from time to time entered into and had between said Philander K. Teter and Jesse H. Teter, cooperating with each other in the matter, or acting independently, and said operating Companies, or their officers and agents, whereby said Philander K. Teter and — 698 — Jesse H. Teter have contrived to have said drilling confined and restricted, as aforesaid, and that pursuant to further arrangements and understandings entered into and had between the'said Philander K. Teter and Jesse PI. Teter and the said operating Companies, or their officers and agents, said Philander K. Teter and Jesse H. Teter have until a comparatively recent date, contrived and managed to have paid to them; and have been taking, appropriating and enjoying all of the gas well rentals and royalties paid for the gas wells on said Teter tract to the exclusion of plaintiff and in total disregard of her rights therein. ’ ’ What the rights of plaintiff may be against the operating companies, if the facts be as they are alleged in the first and second paragraphs of the bill quoted, we need not say, for the question is not presented. But it may be said without hesitancy that the failure or refusal of the lessees to perform any of the covenants, express or implied, in the lease can constitute no ground upon which plaintiff can lawfully demand an accounting by the other devisees for the rents and royalties received, or produced from the land allotted to them by the testator. Nor will the fact alleged in the third paragraph, if true, that the policy of the operating companies in confining their operations to the land devised to Philander K. or Jesse H. Teter, respectively, which plaintiff on information and belief alleges to be the result of various arrangements and understandings from time to time entered into and had between them, coporating -with each other, or acting independently, and said operating companies, their officers and agents, whereby they contrived to have the drilling confined and restricted to their land, to the exclusion of plaintiff’s land, entitle plaintiff to the relief she is seeking by her bill. It is not alleged that plaintiff’s land has sustained any drainage of oil or gas from the operations on the parcels devised to her brothers. The bill contains no allegation as to the location of the wells drilled on their land with reference to her land. It is not unlawful for one adjoining owner to persuade a lessee to first drill and develop his land subject to such common lease, provided no injury is done to the land of the other; and certainly he could not be compelled to account — 699 — to tbe unsuccessful contestant for tbe right of priority in development for oil or gas produced on bis land by sueb prior development, unless, as said, there resulted unlawful drainage and fraud therein injuriously affecting tbe land of sueb adjoining owner. Tbe case here presented is unlike that presented in Steel v. American Oil Development Company, 80 W. Va. 206; Grass v. Big Creek Development Company, 75 W. Va. 219; and Jennings v. Southern Carbon Company, 73 W. Va. 215. Tbe first two of these cases were actions at law against tbe lessee for damages for failure to develop resulting in damage. Tbe last case was a suit in equity for failure to develop, and for a cancelation for breach of tbe implied covenant to properly develop tbe leased land, in which case we reversed tbe decree below sustaining tbe demurrer to tbe bill, and remanded tbe cause for further proceedings. In tbe case of Hall v. South Penn Oil Company, 71 W. Va. 82, tbe bill which sought can-celation of a lease and did contain charges of drainage and fraud, was held bad because too general and as alleging mere conclusions of law and not facts sufficient to sustain tbe bill. In Steel v. American Oil Development Company, supra, we held that a lessor in an oil and gas lease may maintain a suit in trespass on tbe case to recover damages for injury sustained by him because of tbe failure of tbe lessee to drill wells necessary to save the oil on bis land and prevent it from being drained by wells on adjoining land. May not tbe relief suggested by these authorities be invoked where tbe lessee of an entire tract fails to develop the whole to tbe extent necessary to protect the rights of all owners, dr parts thereof, subject to tbe provisions of tbe lease ? This is a question mooted, but not decided. For these reasons we affirm tbe decree sustaining tbe demurrer and dismissing the bill. Affirmed.